§ 656.109. Administration and enforcement; interpretation of Zoning Code; administrative deviations.

(a)

It shall be the responsibility of the Department to administer, enforce and interpret the Zoning Code, including ordinances related to Planned Unit Development districts. The Director shall have the duty and authority to interpret and enforce the provisions of the Zoning Code, issue, suspend or revoke certificates of use, and to promulgate the rules, regulations and procedures found necessary for the implementation and enforcement of the Zoning Code. A Written Interpretation may be requested by any resident, landowner or any person having a contractual interest in land in the City, and who is, or stands to be, an adversely affected person as a result of the implementation of any provision of the Zoning Code. Before a Written Interpretation is made by the Director, a Request for Written Interpretation shall be submitted to the Director on the form established by the Director, together with the required fee, as specified in Section 656.147. Within five working days after a Request for Written Interpretation has been received, the Director shall determine whether the request is complete. If the Director determines that the request is not complete, a written notice shall be sent to the applicant specifying the deficiencies. The Director shall take no further action on the Request for Written Interpretation until the deficiencies are remedied. Within 30 days after a Request for Written Interpretation has been determined to be complete, the Director shall review and evaluate the request in light of the Comprehensive Plan, the Zoning Code, the Zoning Atlas, and other statutes, codes, ordinances and regulations, to the extent applicable, consult with the Office of General Counsel, or other affected City staff, and then render an interpretation. The interpretation shall be in writing, approved as to form by the Office of General Counsel and mailed to the applicant by certified mail, return receipt requested.

(b)

Where it is alleged there is an error in any Written Interpretation of the Zoning Code, made by the Director, an appeal may be made to the Commission pursuant to the provisions of Section 656.135.

(c)

Applications for rezonings and administrative deviations shall be made to the Department as provided herein. Applications for zoning exceptions, variances and waivers shall be made as provided in subpart D. Requests for administrative deviations for properties located within the Downtown Overlay Zone, as defined in Section 656.361.2 shall be processed as a deviation from standards pursuant to Section 656.361.22.

(d)

The Zoning Administrator, or if absent, as designated by the Director, is authorized to grant administrative deviations to do the following:

(1)

Reduce minimum lot area and required yards,

(2)

Reduce the minimum number of required off-street parking spaces,

(3)

Reduce the minimum landscaping requirements,

(4)

Increase the maximum lot coverage,

(5)

Adjust areas of situational compatibility buffer requirements, set forth in Section 656.399.19,

(6)

Adjust required driveway aisle widths,

(7)

Increase the allowable maximum height of structures, including fences,

(8)

Increase the maximum number of off-street parking spaces so long as the landscaping is not also reduced and a professional study indicating that more spaces are warranted is performed and approved by the Department, and

(9)

Decrease lot width so long as at least 80 percent of the existing context development pattern is similar.

(e)

Applications for an administrative deviation shall be in writing on the forms prescribed by the Department, and filed with the Department together with the required number of copies and all required attachments. Upon receipt of the application, the Zoning Administrator shall determine whether the application is complete within five working days. If it is determined that the application is not complete, written notice shall be provided to the applicant specifying the deficiencies. The Zoning Administrator shall take no further action on the application until the deficiencies are remedied. When the application is determined to be complete, all fees must be paid.

(f)

The Zoning Administrator shall schedule the application for a hearing within 30 days after the completed application has been filed. Upon establishment of a hearing date, notice of hearing shall be given pursuant to the written notice and posting of sign requirements of Section 656.137(a) and (c). No published advertisement shall be required.

(g)

To the maximum extent practicable, the hearings shall be informal. All hearings shall be recorded on tape by the Department. All hearings shall be conducted by the Zoning Administrator. Written reports containing findings and a recommendation shall be prepared by the Department staff and transmitted to the Zoning Administrator at least five days in advance of the hearing.

(h)

In order to authorize an administrative deviation, the Zoning Administrator shall first determine whether the need for the proposed deviation arises out of the physical surroundings, shape, topographic condition or other physical or environmental conditions that are limited to the specific property involved. If so, the Zoning Administrator shall make the required findings based on the granting of the administrative deviation for that property alone. If, however, the condition is common to numerous sites, so that requests for similar deviations are likely to be received, the Zoning Administrator shall make the required findings based on the cumulative effect of granting the deviation to all who may apply. The Zoning Administrator shall not grant an administrative deviation unless he makes a positive finding, based on substantial competent evidence, on each of the following criteria:

(1)

There are practical or economic difficulties in carrying out the strict letter of the regulation;

(2)

The request is not based exclusively upon a desire to reduce the cost of developing the site, but would accomplish some result that is in the public interest, such as, for example, furthering the preservation of natural resources by saving a tree or trees.

(3)

The proposed deviation will not substantially diminish property values in, nor alter the essential character of, the area surrounding the site and will not substantially interfere with or injure the rights of others whose property would be affected by the deviation;

(4)

The proposed deviation will not be detrimental to the public health, safety or welfare, result in additional public expense, the creation of nuisances, or conflict with any other applicable law;

(5)

The proposed deviation has been recommended by a City landscape architect, if the deviation is to reduce required landscaping; and

(6)

The effect of the proposed deviation is in harmony with the spirit and intent of the Zoning Code.

If the deviation is proposed to correct an existing violation, the Zoning Administrator shall also consider the following factors:

(i)

Whether the violation was created by the applicant with intent to violate the provisions of this Zoning Code;

(ii)

The length of time the violation has existed without receiving a citation; and

(iii)

Whether the violation occurred as a result of construction which occurred prior to the acquisition of the property by the applicant.

If the proposed deviation is for a parcel located in the Riverside/Avondale Zoning Overlay district, the Zoning Administrator must also make a positive finding that the request has 1) received a certificate of appropriateness, if required by Chapter 307 (Historic Preservation and Protection), 2) is necessary due to a requirement of Chapter 307 (Historic Preservation and Protection), if applicable, 3) required by federal or state law, if applicable, or 4) necessary to preserve and protect an exceptional specimen tree, protected tree or wetlands, if applicable. However, the Zoning Administrator may authorize an Administrative Deviation prior to issuance of a Certificate of Appropriateness, even if a Certificate of Appropriateness is required, if, for good cause described in writing and filed in the Administrative Deviation application file and the Certificate of Appropriateness application file, it is determined by the Director that the Administrative Deviation application may be heard prior to the issuance of a Certificate of Appropriateness.

(i)

After the hearing, the Zoning Administrator shall prepare a written order approving or denying the application for an administrative deviation, which order shall include: a summary of the evidence presented, findings of fact, conclusions of law, a finding of compliance or a finding on all points of noncompliance with the Comprehensive Plan and the reasons for the decision, including conditions, if any. The written order shall be executed by the Zoning Administrator and the Director within 21 days of the hearing. A copy shall be transmitted to all persons who appeared before the Zoning Administrator or filed a written response to the application. The written order granting or denying the administrative deviation, executed by both the Zoning Administrator and the Director, shall be effective 15 days after the execution thereof, unless appealed pursuant to the provisions of Section 656.109(j) below.

(j)

Any adversely affected person may appeal a written order granting or denying an administrative deviation to the Commission by filing a Notice of Appeal together with the required fee as specified in Section 656.147, with the Department within 14 days of the execution of the written order. The Director shall set the matter for hearing within 21 days of the Notice of Appeal and shall notify the appellant and all persons who appeared before the Zoning Administrator or filed a written response to the application.

(k)

The Commission's review of the appeal shall be limited to a consideration of whether the administrative deviation criteria were properly considered and applied by the Zoning Administrator to the facts presented.

(l)

If the Commission determines the criteria were properly applied by the Zoning Administrator, the Department shall issue a letter within five days from the date of the Commission's determination confirming the decision. A copy of the letter shall be transmitted to all persons who were notified of the appeal, and shall be deemed to be the final decision of the City concerning the administrative deviation.

(m)

If the Commission determines the criteria were not properly applied, the Commission shall remand the matter back to the Zoning Administrator for further review. The Commission may suggest additional findings or give directions to the Zoning Administrator in order to assist the Zoning Administrator in effectively reconsidering the matter. Within ten days of the Commission's remand, the Zoning Administrator shall issue a written decision. A copy of the written decision subsequent to the remand shall be transmitted to all persons who were notified of the appeal. The written decision subsequent to the remand shall be deemed to be the final decision of the City.

(n)

Final decisions by the Commission or the Zoning Administrator pursuant to the provisions of this Section may be challenged by any person with standing under state law in whatever way authorized by state law.

(o)

The provisions of Section 656.136(b), (c), (d) and (e) and (f) with respect to matters contained in the order, transferability, time limits and cessation of use shall also apply to administrative deviations.

(p)

The violation of the terms of an order granting an administrative deviation, including conditions and safeguards which may be made a part thereof, shall be deemed a violation of the Zoning Code and punishable as provided in the Zoning Code.

(Ord. 91-59-148, § 1; Ord. 91-761-410, § 1; Ord. 92-994-701, § 1; Ord. 92-1699-1124, § 1; Ord. 92-2017-1458, § 1; Ord. 96-691-432, § 1; Ord. 98-678-E, § 3; Ord. 2001-715-E, § 11.6; Ord. 2005-1355-E, § 2; Ord. 2007-398-E, § 3; Ord. 2007-564-E, § 2; Ord. 2008-192-E, § 1; Ord. 2009-907-E, § 1; Ord. 2012-371-E, § 1; Ord. 2014-724-E, § 1; Ord. 2017-318-E , § 3)