§ 1.5. WARRANTS AND VARIANCES
1.5.1 There shall be two levels of approval for deviation from the requirements of this Code: Warrants and Variances. For deviations not designated in this Code as being permitted by Warrant, permitted by Variance, or forbidden, whether such a deviation requires a Warrant or a Variance, or is forbidden, shall be determined by the Planning Commission. The Planning Commission may from time to time issue guidance to the CRC concerning which deviations may be Warranted and which require Variance, with approval of the City Attorney for such guidance.
1.5.2 A Warrant is a ruling that would permit a practice that is not consistent with a specific provision of this Code but is justified by its Intent (Section 1.2). The CRC shall have the authority to administratively approve or disapprove a request for a Warrant.
1.5.3 A Variance is any ruling that permits a deviation which is not Warrantable, but is in harmony with the overall intent of the Code in light of unique conditions of a site. Variances from the requirements of this Code shall be granted only in accordance with the following procedure:
a.
An application for a SmartCode Variance shall be submitted to the Planning Official.
b.
The Planning Official shall refer the application for SmartCode Variance to the City Attorney, to the Board of Zoning Appeals, and to the Planning Commission.
c.
The Planning Official shall determine in conjunction with the Office of the City Attorney whether the requested SmartCode Variance is barred by this Code, and shall notify the Zoning Board and the Planning Commission of their finding. Either the Planning Official or the City Attorney shall certify that the Variance is prohibited if they so find, and shall notify the applicant that the request for Variance is denied. If the Variance request is so denied because it is certified to be barred or prohibited by this Code, the denial may be appealed directly to the Circuit Court as provided by state law.
d.
If the Variance is not certified as barred or prohibited by this Code within fourteen (14) days after it is submitted to the Planning Official, the Planning Office shall schedule a hearing before the Zoning Board of the application for Variance. The Zoning Board shall determine whether the applicant has demonstrated that a variance is justified by showing that
1.
Special conditions exist, peculiar to the land or structure involved but not to others in the same zoning classification, which preclude the property's meeting the requirements of this Code;
2.
Such special conditions are not the result of actions of the applicant;
3.
An unnecessary hardship is created by the peculiar and unusual physical character of the property;
4.
A literal interpretation of the provisions of this Code would deprive the applicant of rights enjoyed by other property owners in the same district; and
5.
Granting the Variance will not bestow any special privilege on the applicant that is denied to other property owners in the identical zoning classification.
e.
If the Zoning Board determines as above that the SmartCode Variance is justified, the Planning Official shall schedule a hearing of the application for Variance before the Planning Commission, which shall then determine whether the granting of the Variance as proposed would be injurious to the public welfare or detrimental to the welfare of the Community or contrary to the requirements of the Comprehensive Plan, and shall determine whether some lesser variance, rezoning, or other solution could mitigate the hardship while preserving the public and Community welfare and fulfilling the intent of this Code.
f.
If the SmartCode Variance is not certified by the Planning Official or City Attorney to be barred or prohibited (see provision c above), and if the Zoning Board finds that the requested Variance is justified (see provision d above), and if the Planning Commission approves the Variance according to the conditions of provision e above, or approves only a lesser or modified Variance from that requested, then the requested Variance or the approved lesser or modified Variance, as the case may be, shall be granted. Failure of the Variance application to win approval in any of the above required processes shall constitute denial of the Variance.
g.
Denial of a requested SmartCode Variance by the Zoning Board or by the Planning Commission is appealable to the Mayor and City Council, and if denied by the Mayor and City Council, is appealable to the Circuit Court as provided by state law.
1.5.4 A request for a Variance shall not subject the entire application to public hearing, but only that portion necessary to rule on the issue under consideration. A request from the CRC to the Planning Commission for a ruling about the Warrantability of a deviation shall only subject that portion of the application necessary for such a ruling to examination by the Planning Commission.
1.5.5 The following standards and requirements shall not be available for Warrants or Variances:
a.
The allocation ratios of each Transect Zone.
b.
The maximum dimensions of traffic lanes.
c.
The required provision of Rear Alleys and Rear Lanes.
d.
The minimum Residential Densities.
e.
The permission to build Ancillary Dwelling Units.
f.
The requirements on the specific location of any required parking spaces.
g.
The prohibition of cul-de-sacs and unconnected Thoroughfares in Community Plans where no physical site feature requires such.