A. Purpose. The purpose of a petition for a Subdivision Waiver to a particular standard or requirement with these Subdivision Regulations and Development Standards, as such are applicable to Plats or Construction Plans, is to determine whether or not such particular standard or requirement should be applied to an Application.
B. Decision-Maker.
1. Decision Maker Authority. After review and recommendation from Director of Planning, City Engineer, and the Commission, the City Council shall decide a Subdivision Waiver.
C. Subdivision Waiver Applicability.
1. Waiver of Standard or Requirement.
a. An Applicant may request a Subdivision Waiver of a particular standard or requirement applicable to a Preliminary Plat, to Construction Plans, or where no Preliminary Plat Application has been submitted for approval, to a Final Plat or a Replat.
b. A Subdivision Waiver petition shall be specific in nature, and shall only involve relief consideration for one particular standard or requirement.
c. An Applicant may, if desired, submit more than one Subdivision Waiver petition if there are several standards or requirements at issue.
d. For processing a Subdivision Waiver in relationship with a Plat Application, an Applicant shall submit a Waiver of Right to 30-Day Action in accordance with 3.02.01.D. Waiver of Right to 30-Day Action.
2. Waiver Petition Acceptance.
a. A petition for a Subdivision Waiver shall not be accepted in lieu of:
i. A Subdivision Proportionality Appeal (3.06.02.) or
ii. A Subdivision Vested Rights Petition (3.06.03).
b. If there is a question as to whether a Subdivision Proportionality Appeal or Subdivision Vested Rights Petition is required instead of a Subdivision Waiver petition, such determination shall be made by the Director of Planning. Once the determination is made, the respective process shall be followed. The Director of Planning's decision may be appealed to the Board of Adjustment.
D. Subdivision Waiver Submission Procedures.
1. Written Waiver Request with Application.
a. A request for a Subdivision Waiver shall be submitted in writing by the Applicant with the filing of a Preliminary Plat, Construction Plans, Final Plat, or Replat, as applicable.
b. No Subdivision Waiver may be considered or granted unless the Applicant has made such written request.
2. Grounds for Waiver.
a. The Applicant's request shall state the grounds for the Subdivision Waiver request and all of the facts relied upon by the Applicant.
b. Failure to do so, will result in denial of the Application unless the Applicant submits a Waiver of Right to 30-Day Action in accordance with
§ UDC-3.02.01D Waiver of Right to 30-Day Action.
E. Subdivision Waiver Criteria.
1. Undue Hardship Present. A Subdivision Waiver to regulations within this UDC may be approved only when, in the Decision-Maker's opinion, undue hardship will result from strict compliance to the regulations.
2. Consideration Factors. The Decision-Maker shall take into account the following factors:
a. The nature of the proposed land use involved and existing uses of the land in the vicinity;
b. The number of persons who will reside or work in the proposed development; and
c. The effect such Subdivision Waiver might have upon traffic conditions and upon the public health, safety, convenience, and welfare in the vicinity.
3. Findings. No Subdivision Waiver shall be granted unless the Decision-Maker finds:
a. That there are special circumstances or conditions affecting the land involved or other constraints such that the strict application of the provisions of this UDC would deprive the Applicant of the reasonable use of his or her land; and
b. That the Subdivision Waiver is necessary for the preservation and enjoyment of a substantial property right of the Applicant, and that the granting of the Subdivision Waiver will not be detrimental to the public health, safety or welfare or injurious to other property in the area; and
c. That the granting of the Subdivision Waiver will not have the effect of preventing the orderly subdivision of other lands in the area in accordance with the provisions of this UDC.
4. Intent of Subdivision Regulations and Development Standards.
a. A Subdivision Waiver may be granted only when in harmony with the general purpose and intent of the Subdivision Regulations and Development Standards so that the public health, safety and welfare may be secured and substantial justice done.
b. Financial hardship to the Applicant shall not be deemed to constitute undue hardship.
5. Minimum Degree of Variation. No Subdivision Waiver shall be granted unless it represents the minimum degree of variation of requirements necessary to meet the needs of the Applicant.
6. Violations and Conflicts. The Decision-Maker shall not authorize a Subdivision Waiver that would constitute a violation of, or conflict with, any other valid ordinance, code, regulation, master plan or Comprehensive Plan of the City.
7. Falsification of Information.
a. Any falsification of information by the Applicant shall be cause for the Subdivision Waiver request to be denied.
b. If the Subdivision Waiver request is approved based upon false information, whether intentional or not, discovery of such false information shall nullify prior approval of the Subdivision Waiver, and shall be grounds for reconsideration of the Subdivision Waiver request.
F. Burden of Proof. The Applicant bears the burden of proof to demonstrate that the requirement for which a Subdivision Waiver is requested, if uniformly applied, imposes an undue hardship or disproportionate burden on the Applicant. The Applicant shall submit the burden of proof with the original submittal.
G. Subdivision Waiver Decision.
1. The Decision-Maker shall consider the Subdivision Waiver petition and, based upon the criteria set forth in 3.06.01.E. Subdivision Waiver Criteria, shall take one of the following actions:
a. Deny the petition, and impose the standard or requirement as it is stated in these Subdivision Regulations and Development Standards; or
b. Grant the petition, and waive in whole or in part the standard or requirement as it is stated in this UDC.
2. Decision Process for a Subdivision Waiver.
a. Recommendation of the Planning and Zoning Commission.
i. The Commission shall consider the Subdivision Waiver request at a public meeting no later than thirty (30) calendar days after the date on which the notice of Subdivision Waiver is submitted to the Director of Planning.
ii. The Commission shall recommend to the City Council to approve or deny a request for a Subdivision Waiver by majority vote.
b. Decision by City Council.
i. After the recommendation from the Commission has been made, the City Council shall consider the Subdivision Waiver request at a public meeting no later than thirty (30) calendar days after the date on which the Commission's recommendation was made.
ii. The City Council approve or deny a request for a Subdivision Waiver by a majority vote of all members.
iii. The decision of the City Council is final.
H. Notification of Decision on Petition - 14 Days. The Applicant shall be notified of the decision on the Subdivision Waiver within fourteen (14) calendar days following the decision.
I. Effect of Approval.
1. Submission and Processing. Following the granting of a Subdivision Waiver, the Applicant may submit or continue the processing of a Plat or Construction Plans, as applicable.
2. Expirations. The Subdivision Waiver granted shall remain in effect for the period the Plat or Construction Plans are in effect, and shall expire upon expiration of either or both of those Applications.
3. Extensions. Extension of those Applications shall also result in extension of the Subdivision Waiver.
