17.10.042 Variances.
A. Variances from the standards of this title may be authorized through the process of hearing examiner review in accordance with the procedures set forth in Chapter 21.26 LMC. The hearing examiner shall review the request and make a written finding that the request meets or fails to meet variance decision criteria of this section.
B. Specific Variance Criteria. A variance may be granted if the applicant demonstrates that the requested action conforms to all of the following specific criteria:
1. Such variance is necessary because of special circumstances relating to the size, shape, topography, location or surroundings of the subject property to provide it with use rights and privileges permitted to other properties in the vicinity and in the land use district of the subject property;
2. The special circumstances of the subject property make the strict enforcement of the provisions of this code an unnecessary hardship to the property owner;
3. The special circumstances of the subject property are not the result of the actions of the applicant or a predecessor in interest;
4. The variance requested is the minimum necessary to fulfill the purpose of a variance and the need of the applicant; provided, granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings under similar circumstances;
5. The granting of the variance is consistent with the general purpose and intent of this title, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property; and
6. The decision to grant the variance is based upon the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat.
C. Hearing Examiner Review. The city hearing examiner shall review variance applications and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny variance applications based on a proposal’s ability to comply with general and specific variance criteria provided in subsections (A) and (B) of this section.
D. Conditions May Be Required. The hearing examiner retains the right to prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this title for variances granted through hearing examiner review.
E. Time Limit. The hearing examiner shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance, unless the applicant files an application for an extension of time before the expiration.
F. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of a variance application and upon which any decision has to be made on the application. (Ord. 3193 § 2, 2016)