Chapter 33- Variance
33.010 Required findings.
33.050 Notice of decision.
33.010 Required findings.
A variance from the provisions of the land use designations or land development regulations shall be granted only when all of the following findings can be made:
- Because of special circumstances (other than monetary hardship) applicable to the property, including its size, shape, topography, location or surroundings, the strict application of the provision of the land use designations or land development regulations deprives such property of privileges (not including the privilege of maintaining a nonconforming use or status) enjoyed by other property in the vicinity and in an identical land use designation; and,
- The grant of variance will not constitute a special privilege inconsistent with the limitations upon other properties in the vicinity and in the land use designation in which the property is situated; and,
- The grant of variance will not be detrimental to the public welfare or injurious to property or improvements in the area in which the property is situated; and,
- The grant of variance will not be in conflict with established map and text of the general and specific plans and policies of the County.
Application for a variance shall be made to the Planning Division and shall be accompanied by the general application form, environmental documents, plans and elevations necessary to show details of the proposed use and/or structure; and shall be accompanied by a fee, no part of which shall be returnable to the applicant. Fees shall not be required for public buildings and uses (see Definition 02.940).
A public hearing shall be held after filing of application and after determination by the Community Development director that the information submitted by the applicant is sufficient to consider the matter. After making such determination, the Director shall give notice of the time, place and subject matter of a public hearing at least 10 days prior to the date set therefor, as provided in Chapter 46, Noticing Requirements. Errors in the giving of notice or the failure of any person to receive notice shall not invalidate the proceeding.
Any hearing may be continued by a majority of the members of the Commission present or, in the absence of a quorum, shall be continued by the secretary to a time and place certain, which shall be publicly announced, and no further notice shall be required except as may be required by California Government Code Section 54955 and 54955.1.
The action by the Commission on any application for a variance shall be in the manner prescribed below.
Upon close of the public hearing, the failure of the Commission to grant the variance shall constitute a denial and disapproval for the variance, unless action on the matter is continued to a later date. Refer to Chapter 47, Appeals, for specific procedures for appealing a denial. The Commission shall take action within one year or the application shall be deemed approved as per Chapter 4.5, Article 5, commencing with Section 65956, of the Government Code.
The Commission may designate such conditions in connection with the granting of the variance as it deems necessary to secure compliance with the purpose of the land use designations and the land development regulations, including street dedication, street and drainage improvements and such guarantees as it deems appropriate. Whenever performance of any condition or accomplishment of any development is required by the granting of the variance and the performance or accomplishment is to occur at or after a specified time, the Commission may require the record owner of the land involved to execute a covenant running with the land, in a form approved by the County Counsel, which shall contain the requirements imposed, and it shall be recorded in the office of the County Recorder. The Director shall issue and record releases from such covenants when they are no longer applicable to a property.
33.050 Notice of decision.
The Director shall give notice of the decision of the Commission relating to variances. All such notices shall be mailed to the applicant and engineer and any other persons, so requesting in writing within 10 days after the decision is made. The notice shall set forth the procedure for filing appeals.
Variances shall not be issued until after 15 days have elapsed from the granting thereof, and if an appeal is filed as provided in Chapter 47, Appeals, such variance shall not be issued until the decision is made by the Board of Supervisors on such appeal.
A variance shall terminate and all rights granted therein shall lapse, and the property affected thereby shall be subject to all of the provisions and regulations applicable to the land use designation in which such property is classified at the time of such abandonment, when any of the following occur:
- There is a failure to commence the exercise of such rights as determined by the Director within two years from the date of approval thereof or as specified in the conditions. If applicable, time shall be tolled during litigation. Exercise of rights shall mean substantial construction or physical alteration of property in reliance with the terms of the variance; or
- There is discontinuance for a continuous period of two years, as determined by the Director, of the exercise of the rights granted; or
- No extension is granted as provided in Section 33.070.
If there is a failure to exercise the rights of the variance within two years (or as specified in the conditions) of the date of approval, the applicant may apply for an extension for an additional one year. Only one extension may be granted. Any request for extension shall be filed at least 60 days prior to the date of expiration and shall be accompanied by the appropriate fee. Upon receipt of the request for extension, the Planning Division shall review the application to determine the extent of review necessary and schedule it for public hearing. Conditions of approval for the variance may be modified or expanded, including revision of the proposal, if deemed necessary. The Planning Division may also recommend that the Commission deny the request for extension. Exception to this provision is permitted for those variances approved concurrently with a tentative parcel or tract map; in those cases the approval period(s) shall be the same as for the tentative map.
The Commission may revoke the rights granted by a variance and the property affected thereby shall be subject to all of the provisions and regulations of land use designations and development requirements applicable as of the effective date of revocation. Such revocation shall include the failure to comply with any condition contained in the variance or the violation by the owner or tenant of any provision of this General Plan pertaining to the premises for which such variance was granted. Before the Commission shall consider revocation of any variance, the Commission shall hold a public hearing thereon after giving written notice thereof to the permittee at least 10 days in advance of such hearing. The decision of the Commission may be appealed to the Board of Supervisors in accordance with Section 47, Appeals, and shall be accompanied by the appropriate filing fee.