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Commission looks to clarify code on waivers and variances

Monday, May 10, 2010 by Kimberly Reeves

The Zoning and Platting Commission intends to send a message for the Planning Commission and City Council to consider: Let’s take another look at what’s considered a waiver and what’s considered a variance in our city code.


ZAP has gotten plenty of feedback in recent months on land use cases from perturbed neighbors who wanted input and notification on decisions. In some cases, nothing in the city code required notification. In other cases, the cases didn’t even make their way to ZAP, as they fell under the category of administrative approval.


Changes in zoning in neighborhood plans, which automatically go to the Planning Commission, do give more predictability for notification than ZAP. ZAP, on the other hand, has been given cases where zoning changes can be unanticipated, including cases outside the city limits where annexation is anticipated.


In addition, code language has gotten a bit muddied in recent years with ordinance changes, admitted long-time Senior Planner David Walgrehn during a discussion of the topic at ZAP’s Saturday morning retreat.


At one time, the clear delineation in city code was that waivers were to be done by department approval while variances rose to the level of land use commission consideration, Wahlgren said, and, of course, the specifics of waivers are outlined, step-by-step, in city code. Wahlgren described approval of waivers as being, basically, an “all or nothing” decision.


As to waivers, if conditions are met – in an “A-B-C-D-E” manner — then a planner has no choice but to recommend approval for the waiver, Wahlgren said. That, of course, locks out an action under an “interested party” process.


“Our job is to take the code that we have and go through the criteria,” Wahlgren said. “If it meets that criteria, then it’s our job to approve the waiver.”


And, in the converse, if planners begin to give too many exceptions to ordinance requirements through waivers, then the question becomes “Why do we have a requirement for a variance in the first place?” Wahlgren said.


Commissioners, given their particular histories with ZAP cases, were somewhat skeptical of the city’s viewpoint. Commissioner Donna Tiemann noted, for instance, that commissions might be more flexible and creative with outcomes, given how often employees are told to “simply consider what was in front of them.”


The only land use variance that can be appealed to Council is an environmental variance to a preliminary plan, Wahlgren said. And, even then, the appeal only comes from the landowner or applicant.


If a property owner meets the conditions of the code, the waiver is fait accompli. However, as Commissioner Gregory Bourgeois noted, and Chair Betty Baker agreed, the code uses the more ambiguous “may” rather than “shall” to describe the department’s approval. Wahlgren agreed the “may” is intended to give the director more wiggle room on rejections that might be based on common-sense objections to particular waivers.

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