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  Item # 1.       
Meeting Date: 09/16/2020  
Requested by: Bayer Vella
Submitted By: Milini Simms, Community and Economic Development
Case Number: 2001623

SUBJECT:
DISCUSSION REGARDING A PROPOSED ZONING CODE TEXT AMENDMENT TO SECTION 22.13 AND ASSOCIATED SECTIONS UPDATING THE REQUIRED FINDINGS FOR A VARIANCE
RECOMMENDATION:
This item is for information and discussion only. It will be scheduled for Town Council consideration at a later date. 
EXECUTIVE SUMMARY:
The purpose of this item is to provide background and information about a proposed zoning code amendment to update the required findings for variance cases. This item is solely a legal effort to further align the findings with State law (Attachment 1). Applications for a variance, or modification from the zoning code requirements, are considered by the Board of Adjustment. To grant a variance, the Board of Adjustment must find the request meets all the findings established in State law and Section 22.13.C of the Zoning Code. 

Updates to reflect State law have not occurred in quite some time and the Town's findings are significantly different from those required by law. Most jurisdictions tailor the findings for consistency with their codes. However, several court rulings (as recent as 2017) have added clarity for how to apply the findings (Attachment 2) in conformance with the law. This makes our differences problematic as they can lead to conclusions that conflict with State law and recent case law. This has been the Town's experience with recent variance applications. 

Using legal case law in unison with comparing other jurisdictions' findings (Attachment 3), the proposed code amendment adds language that is mostly verbatim with State law to clarify the following:
  • Finding 1: Defines a special circumstance as only applicable to the property with regard to its shape, size and topography, location and surroundings. Building configuration may also be included as a special circumstance but only when the location was a result of other conditions related to the property. For example, when the home has to be built at the rear of the lot as that is the only level area of the property. 
  • Finding 2: Defines owners, as anyone past or present that created the special circumstance. As clarified by case law, future owners should not be in a "better" position to be granted a variance than the person who created the special circumstance.
  • Finding 3: Clarifies the preservation of privileges and rights as only those enjoyed by other properties of the same classification and within the same zoning district
  • Finding 4: Clarifies a variance may be subject to conditions to ensure the granting of it does not create a special privilege.
The proposed code amendment is supported by the General Plan as a legal effort to be in more alignment with State law. The code amendment was discussed with the Board of Adjustment (for minutes, see Attachment 4) and recommended for approval by the Planning and Zoning Commission (for staff report see Attachment 5 and minutes, see Attachment 6). This item is for information and discussion purposes only. It will be scheduled for Town Council consideration at a later date. 
BACKGROUND OR DETAILED INFORMATION:
Applications for a variance, or modification from the zoning code requirements, are considered by the Board of Adjustment. To grant a variance, the Board of Adjustment must find the request meets all the findings established in State law and Section 22.13.C of the Zoning Code. 

This section of code has not been updated to reflect State law in the past 15 years and the Town's findings are significantly different from those required by law. Several jurisdictions tailor the findings for consistency with their codes (Attachment 3). However, several court rulings have been issued (as recently as 2017) adding more clarity for how to apply the findings (Attachment 2) to meet the law.

As such, the proposed code amendment (Attachment 1) is a legal effort to revise the Town's findings to align with State law. More information on the existing findings and proposed changes is provided below. 

DISCUSSION AND ANALYSIS
The existing code language is provided below in italics, followed by the proposed code language (revisions are shown in bold CAPS) and staff commentary.


A variance from the provisions of this Code shall not be authorized unless the Board shall find upon sufficient evidence:


1. That there are special circumstances or conditions applying to the property referred to in the application including its size, shape, topography, location or surroundings which do not apply to other properties in the district.
  • Proposed: That there are special circumstances or conditions applying to the property STRICTLY RELATED TO its size, shape, topography, location or surroundings, which do not apply to other properties in the district. EXISTING BUILDING CONFIGURATION SHALL BE INCLUDED ONLY WHEN CONSTRAINED BY THE SPECIAL CIRCUMSTANCES OR CONDITIONS OF THE PROPERTY.
  • Rationale: 
    • State law defines special circumstances are only applicable to the property's size, shape, topography, location or surroundings.
    • Court rulings have included building configuration as a special circumstance but only when it is a result of the property's size, shape, topography, location or surroundings. For example, when washes or steep slopes constrain the buildable area of a lot.
    • The proposed language reflects this new information by adding building configuration to the list of special circumstances.

2. That special circumstances were not created by the owner or applicant.

  • Proposed: That THE special circumstances OR CONDITIONS AS DEFINED IN SUBSECTION C.1 OF THIS SECTION, were not created by A PREVIOUS OR CURRENT owner.
  • Rationale:
    • State law explicitly states the same special circumstances mentioned above (finding 1) apply to this finding as well.
    • Court rulings have clarified the "owner" includes both current and previous owners. Future owners should not be in a "better" position to be granted a variance than the person who created the situation.
    • To add clarity, the proposed language refers to the first finding and the owner as anyone, past or present.

3. That the authorizing of the variance is necessary for the preservation and enjoyment of substantial property rights.

  • Proposed:That the authorizing of the variance is necessary for the preservation of PRIVILEGES and rights ENJOYED BY OTHER PROPERTIES OF THE SAME CLASSIFICATION AND WITHIN THE SAME ZONING DISTRICT. 
  • Rationale:
    • Although implied, the existing code does not provide context for what constitutes a substantial property right. This is important to consider since property rights vary between areas and zoning districts.
    • State law specifies these rights are those enjoyed by other properties with the same classification and within the same zoning district.
    • The new language (in bold caps) is verbatim of State law.

4. That any variance granted imposes such conditions as will assure that the authorizing of the adjustment shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. 

  • Proposed: That any variance granted IS SUBJECT TO such conditions as will assure that the authorizing of the adjustment shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located. 
  • Rationale:
    • As established in State law, the intent of this finding is provide jurisdictions the ability to apply conditions to make sure the granting of a variance does not result in a special privilege given to one property. For instance, granting a variance to reduce a setback with landscaping conditions to screen the new building is appropriate.
    • To meet the intent of State law, the word "imposes" has been replaced with " is subject to," which is verbatim of the law. 

5. That the authorizing of the variance will not be materially detrimental to persons residing in the vicinity, to adjacent property, to the neighborhood or the public welfare in general.

  • Proposed: No changes
  • Rationale:
    • Although not established in State law for variance applications, this finding is legally defensible as a constitutional police power function to protect public health, safety and welfare. 
GENERAL PLAN CONFORMANCE
The proposed code amendment is supported by the General Plan as a legal effort to better align with State law. 

PLANNING AND ZONING COMMISSION
Prior to the Planning and Zoning Commission hearing, the proposed code amendment was discussed with the Board of Adjustment to gather their feedback.The Board had minimal comments and did not suggest any changes to the proposed code amendment (for minutes, see Attachment 4). Subsequently, a public hearing was held on August 11, 2020 with the Planning and Zoning Commission (for staff report, see Attachment 5). During which, the Commission discussed the code amendment's alignment with State Law and recommended approval (for minutes, see Attachment 6). 

SUMMARY 
In summary, the proposed code amendment (Attachment 1) is solely a legal effort to update the findings for variances for alignment with State law. This specific section of code has not been updated in quite some time and the Town's findings are too divergent from State and case law. These differences can lead to conclusions on variance applications, which conflict with State and recent case law. As such, the proposed code amendment includes the following:
  • Definition of a special circumstance to only apply to the property or building when its location has resulted from special property conditions 
  • The same special circumstances apply to the first two findings 
  • Defines owner as both past and present 
  • Clarifies a property right as one enjoyed by property owners within the same classification and zoning district
  • Clarifies the ability for jurisdictions to apply conditions of approval 

The proposed code amendment is supported by the General Plan as a legal effort to better align with State law.  As such, the Planning and Zoning Commission recommended approval. This item is being provided for information and discussion purposes only. It will be scheduled for consideration by the Town Council at a later date. 
FISCAL IMPACT:
N/A
 
SUGGESTED MOTION:
This item is being presented for information and discussion purposes only. It will be scheduled for consideration by the Town Council at a later date. 
Attachments
ATTACHMENT 1- PROPOSED CODE AMENDMENT
ATTACHMENT 2- STATE LAW AND CASE SUMMARIES
ATTACHMENT 3- COMPARISON OF OTHER JURISDICTIONS
ATTACHMENT 4- BOA MINUTES 8.10.2020
ATTACHMENT 5- PZC STAFF REPORT 8.11
ATTACHMENT 6- PZC DRAFT MINUTES 8.11.2020
Staff Presentation


    

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