August 19, 2018

Zone Modification / Zone Variance

The Zoning Ordinance lists development standards for each zone district. Relief from strict application of these requirements may be possible through either the ZONE MODIFICATION or ZONE VARIANCE process. Variances that would allow an activity or use not expressly authorized by a zone district are prohibited (Section 65906 of the California Government Code).

WHAT IS THE DIFFERENCE BETWEEN A MODIFICATION AND VARIANCE?

A modification may be processed to provide limited reduction of the following:

A. Lot sizes, not to exceed a reduction of fifteen percent (15%);

B. Setback standards, not to exceed a reduction of twenty-five percent (25%);

C. Structural height limits, excluding signs, not to exceed a reduction of twenty-five percent (25%);

D. Any deviation from height, location, or con-struction requirements for fences, walls, or hedges.

A variance must be processed to allow a reduction of more than the referenced percentages in A, B, or C, and in any request to exceed sign height or size limitations. Variances are also considered for deviations to any other development standards not listed as qualifying for a modification.

WHEN IS A VARIANCE OR MODIFICATION NECESSARY?

The most common requests relate to setbacks. For example, a property owner maywish to construct a residence, but because a parcel’s shape, size, or topography restricts the area that may be developed, a front, side, or rear yard encroachment may be necessary. Another common type of request is a lot size variance or modification, both of which are usually processed as a result of a land division application. When a parcel appears to have limited potential, the variance/modification process allows a property owner the same development privileges enjoyed by other property owners within the same zone district.

WHAT ARE THE SUBMITTAL REQUIREMENTS FOR A VARIANCE OR MODIFICATION?

Applications can be mailed or obtained directly from the Planning Department. Submittal re-quirements include the payment of filing fees, property owner’s approval, justification of the request, a complete legal description of the site, a scaled plot plan, and a completed “Hazardous Waste Site Verification Statement.”

WHAT IS THE PROCESS FOR A VARIANCE OR MODIFICATION?

Completed applications are set for a Director’s Hearing. Property owners within five hundred (500) feet of the site of the requested variance are notified of the hearing by mail. In instances where a majority of parcels abutting the project site are one acre or larger in size, the notification radius is expanded to 1,000 feet. Property owners abutting the site of a modification request are notified by mail. Each case is advertised in a locally circulated newspaper. Director’s hearings are conducted by the Hearing Officer and are held every Thursday (excluding holidays) at 10:00 a.m. in the first floor conference room of the Public Services Building, 2700 “M” Street, Bakersfield.

A staff report is then prepared that contains information regarding the request, the applicant’s justification, a recommendation, and usually, conditions of approval. The staff planner will contact the applicant to discuss the recommenda-tion and conditions. Applicants are encouraged to carefully read the staff report and question any-thing that is unclear or confusing. Copies of the staff report are normally available one (1) week prior to the scheduled hearing.

HOW LONG DOES IT TAKE TO PROCESS A VARIANCE OR MODIFICATION?

Applicants should allow approximately two (2) weeks for a preliminary review. If the application is incomplete, the applicant will be notified in writing of what additional information will be required. A typical request requires approximately six (6) weeks to process from the time the application is accepted.

WHAT HAPPENS IF THE VARIANCE OR MODIFICATION IS APPROVED?

Any decision rendered at the hearing is subject to appeal by any interested party. The appeal period is fourteen (14) calendar days, including the date of hearing. If no appeal is submitted, the variance or modification will become effective at the end of the appeal period. If an appeal is submitted, it will be scheduled for hearing before the Board of Supervisors, and further action is suspended until the appeal is resolved. Building permits cannot be issued until the end of the appeal period.

Variance and modification approvals usually are subject to conditions. For example, a variance to allow reduction of a side-yard setback may require that the affected structure be fireproofed to protect any surrounding buildings. Such conditions must often be complied with prior to the issuance of building permits or otherwise satisfied by the time of the final inspection. If no building permits are required, the conditions need to be satisfied prior to establishment of any use implemented as a result of the variance/modification. Applicants have a one (1) year time period to obtain permits or establish the use for which the variance or modification was issued. If an extension of time becomes necessary, it must be submitted prior to the project’s expiration date.

WHAT CONSIDERATIONS WILL AFFECT THE OUTCOME OF A VARIANCE OR MODIFICATION APPLICATION?

In order for staff to recommend approval of a modification or variance, certain findings are required. Because variances allow a larger devia-tion, the following findings are more specific and may be difficult to justify:

  • Special circumstances exist applicable to the subject property, including size, shape, topog-raphy, location, or surroundings, such that the strict application of the Zoning Ordinance deprives such property of privileges enjoyed by other property in the vicinity and in the same zone district or districts.
  • The granting of the variance does not consti-tute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zoning district in which such property is located.
  • The granting of the variance will not be mate-rially detrimental to the public health, safety, or welfare or to property or residents in the vicinity.

If these findings cannot be sustained by documen-tation, photographs, or other acceptable means of evidence, staff will have difficulty supporting the request, and that concern will be indicated to the applicant at the earliest opportunity. Staff mem-bers are available to answer any questions that you may have regarding the variance and/or modifica-tion process. If further assistance is necessary, feel free to telephone (661) 862-8600 and ask for “zoning information.”

FORM 720 (1/2013)

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