18E.20.060 Variances.
A. General. An applicant, who seeks to reduce a wetland buffer below the provisions of PCC 18E.30.060 or the Wetland Standards of PCC 18E.30.040, or a critical fish and wildlife habitat buffer below the provisions of PCC 18E.40.060, or the Fish and Wildlife Habitat Conservation Area Standards of PCC 18E.40.040, or the Flood Hazard Area Standards of PCC 18E.70.040, may pursue a variance.
B. Application Requirements.
1. Preliminary Review. The provisions for conducting a preliminary review of a proposed variance are set forth in Chapter 18.40 PCC, Development Regulations – General Provisions.
2. Application Filing. Variance applications shall be reviewed for completeness in accordance with Department submittal standards checklists and pursuant to Chapter 18.40 PCC, Development Regulations – General Provisions.
C. Public Notice. Public notice provisions for notice of application, public hearing, and final decision pursuant to this Title are outlined in Chapter 18.80 PCC, Development Regulations – General Provisions.
D. Review.
1. Initial Review. The Department shall conduct an initial review of any variance application in accordance with the provisions outlined in Chapter 18.60 PCC, Development Regulations – General Provisions.
2. Public Hearing Required. When a public hearing is required, the Department shall set a date for a public hearing before the Pierce County Hearing Examiner after all requests for additional information or plan correction, as set forth in PCC 18.60.020 C., have been satisfied. The public hearing shall follow the procedures set forth in Chapter 18.80 PCC, Development Regulations – General Provisions, and Chapter 1.22 PCC.
3. Decision Criteria for Wetland Buffers and Fish and Wildlife Habitat Buffers.
a. The Hearing Examiner shall have the authority to grant a variance from the requirements of PCC 18E.30.060 and 18E.40.060 when, in the opinion of the Examiner, all of the following criteria have been met:
(1) There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location, or surroundings that do not apply generally to surrounding properties or that make it impossible to redesign the project to preclude the need for a variance;
(2) The applicant has avoided impacts and provided mitigation to the maximum practical extent;
(3) The buffer reduction proposed through the variance is limited to that necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property, but which because of special circumstances is denied to the property in question; and
(4) Granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvement.
b. In lieu of criteria PCC 18E.20.060 D.3.a.(1)-(4), above, an applicant may pursue a wetland buffer variance through demonstration of all of the following criteria:
(1) The variance results in an overall increase in the function of the wetland.
(2) The variance results in the preservation or enhancement within the project area of other Habitats of Local Importance discussed in PCC 18E.40.020 D.
(3) The applicant has avoided impacts and provided mitigation, pursuant to PCC 18E.30.050, to the maximum practical extent.
c. In lieu of criteria PCC 18E.20.060 D.3.a.(1)-(4), above, an applicant may pursue a fish and wildlife habitat buffer variance through demonstration of all of the following criteria:
(1) The variance will not adversely impact receiving water quality or quantity.
(2) The variance will not adversely impact any functional attribute of the habitat area.
(3) The variance will not jeopardize the continued existence of species listed by the Federal government or the State as endangered, threatened, sensitive, or documented priority species or priority habitats.
(4) The applicant has avoided impacts and provided mitigation, pursuant to PCC 18E.40.050 to the maximum practical extent.
4. Variances to Flood Hazard Area Standards.
a. General. Variances to the flood hazard area standards set forth within PCC 18E.70.040 may be authorized by the Director as provided by WAC 173-158-120 and 44 CFR Part 60.6, as amended, upon a showing of good and sufficient cause. Variances are limited to situations where exceptional hardship would result from the failure to grant the variance.
b. Exceptional Hardship.
(1) Approval of variances shall be strictly limited to situations where exceptional hardship would result from failure to grant the variance, such as the inability to utilize property in a manner permitted through zoning.
(2) The applicant shall bear the burden of proving the existence of an exceptional hardship.
(3) The claimed hardship must be exceptional, unusual and peculiar to the property involved. Inconvenience, aesthetic considerations, personal preferences or the disapproval of neighbors do not qualify as exceptional hardships under 44 CFR Part 60.6, as amended.
(4) Improvements that violate zoning or building codes, including failure to obtain required permits, are created hardships and shall not be used to demonstrate exceptional hardship.
c. Lot of Record Limitation. Applications for variances under this Section shall be limited to lots in existence prior to March 1, 2005, and shall not be used to enable further land division.
d. Variances to Elevation Standards. Variances to elevation requirements are discouraged due to the potential increase in risk to life and property. Generally, the only condition under which a variance to elevation standards may be issued is for new construction and substantial improvements to be erected on small or irregularly shaped lots contiguous to and surrounded by lots with existing structures constructed below the base flood elevation. As lot size increases the technical justification for issuing a variance to elevation standards increases.
e. Criteria for Variance Approval. The Director shall have the authority to grant a variance from the requirements of PCC 18E.70.040 when, in the opinion of the Director, all of the following criteria have been met:
(1) Granting the variance will not result in an increase in flood levels during the base flood discharge of not greater than 0.01 feet or 0.00 feet in a FEMA mapped floodway;
(2) The applicant has avoided impacts and provided mitigation to the maximum practical extent;
(3) The variance is the minimum necessary, considering the flood hazard, to afford relief;
(4) Failure to grant the variance would result in an exceptional hardship to the applicant as set forth within PCC 18E.20.060 D.4.b.;
(5) The structure or other development is protected by methods that minimize flood damages during the base flood;
(6) Granting the variance will not foreseeably result in material being swept onto other lands in a manner that could cause injury to life or property;
(7) The granting of a variance will not foreseeably result in additional threats to public safety; extraordinary public expense; nuisances; fraud or victimization of the public; or conflict with other local, state, or federal regulations;
(8) For historic structures, that the repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure; and
(9) No other alternative development locations for the proposed structure or facility are available on the site that are not subject to flooding or erosion damage or reduced flooding and erosion.
f. Notification.
(1) The applicant shall be notified in writing that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 per $100 of insurance coverage and that such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions.
(2) Notice of the granting of the variance, in a form approved by the Department of Planning and Public Works, shall be recorded with the title of the property.
g. Director's Authority. When granting a variance, the Director may attach specific conditions to the variance which will serve to meet the goals, objectives, and policies of this Title. The Director has the authority, as part of the approval of the variance, to establish expiration dates or time periods within which the approval must be exercised. Upon expiration, the permit or approval shall be considered null and void. No extensions of the expiration date shall be permitted.
5. Examiner's Authority. When granting a variance, the Examiner may attach specific conditions to the variance, which will serve to meet the goals, objectives, and policies of this Title. The Examiner has the authority, as part of the approval of the variance, to establish expiration dates or time periods within which the approval must be exercised. Upon expiration the permit or approval shall be considered null and void. No extensions of the expiration date shall be permitted.