I received this document from a citizen and thought that it had some bearing on the 2/12/26 P & Z Agenda Item #VI-4.
This is good info. I still agree and maintain a variance and special exception are the same thing, they both set aside some portion of an ordinance to grant relief in some manner, so the end result is the same regardless of what you call the method of relief. That relief can come in different ways, allowing a house to be built higher, a fence to be made solid instead of being built with spacing between pickets, whatever the circumstance relief is being asked for. Any of those circumstances could potentially have a significant adverse impact on a view, or architectural context of the neighborhood. I understand the code treats them differently, and the process is the problem.
The operative word in the code for special exception is the word "may". If BOA "may" grant an exception or a variance, then of the course the opposite is true the board "may not".
11.60 Special exception to height standards
My issue with special exceptions, specifically, is the vague nature of the ordinance.
"the BOA may approve"
#1 "if it finds there is no significant adverse impact on the view as defined in section 2.10 of another property owner or"
#2 "the architectural context of the surrounding neighborhood created proposed by the additional building height."
Section 2.10 defines view as "scenic view of what can be seen from a property at ground level or from a first or second story beyond and above any existing tree line or the allowed maximum building height on an intervening property where a view is being evaluated. Examples of a view include but are not limited to parks, hillsides, open green spaces, golf courses, and a lake.
How do you measure a significant adverse impact on a view? The only two options seem to be totally obscured or partially obscured. If only partially obscured, how much partial obscurement creates a significant adverse impact?
Now for variances 11.20.
"approval of the variance is not contrary to the public interest. (see section 2.10 above)"
The variance ordinance does give a little bit more help, "due to special conditions, a literal enforcement of the ordinance would result in an unnecessary 'hardship' A hardship shall:", then 3 things are listed that must be considered to evaluate a claimed hardship, a bit more objective guidelines than just a significant adverse impact on a view.
While 11.20 does not contain the word "may", it is implied by the first sentence of the ordinance, "No variance shall be granted 'unless' the BOA finds..." Unless becomes 'may'. Unless it finds, or unless it does not find would be the opposite.
Mr. Phillips made a comment something to the effect that putting variances and special exceptions together in some way would make a confusing and unworkable process for city staff and boards. I submit to you the city is already there with the current special exception code.
I wish I had a magic bullet suggestion to make the code better, but do not. The code diagnostic is a good start on further code review.
Hopefully this makes sense, whether the reader agrees or not is a different matter, and disagreement is ok, this is a discussion board after all.
