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(1) Variance Authority. The Hearing Examiner shall have the authority to grant a variance from the terms of this title. The Hearing Examiner may impose conditions or restrictions on an existing or proposed use or structure in order to ensure that a requested variance will conform to the required findings below.

(2) Required Findings. The Hearing Examiner shall not grant a variance from the development standards of this title unless the Hearing Examiner finds that the variance request meets all of the following criteria and the Hearing Examiner makes written findings to that effect:

(a) The strict enforcement of the provisions of this title creates an unnecessary hardship to the property owner;

(b) The variance is necessary because of the unique size, shape, topography, or location of the subject property;

(c) The subject property is deprived, by provisions of this title, of rights and privileges enjoyed by other properties in the vicinity and under an identical zone;

(d) The variance does not create health and safety hazards, is not materially detrimental to the public welfare or is not unduly injurious to property or improvements in the vicinity;

(e) The variance does not relieve an applicant from any of the procedural provisions of this title;

(f) The variance does not relieve an applicant from any standard or provision that specifically states that no variance from such standard or provision is permitted;

(g) The variance does not relieve an applicant from conditions established during prior permit review;

(h) The variance does not allow establishment of a use that is not otherwise permitted in the zone in which the proposal is located;

(i) The variance does not allow the creation of lots or densities that exceed the base residential density for the zone by more than 10 percent;

(j) The variance is the minimum necessary to grant relief to the applicant;

(k) The variance from setback or height requirements does not infringe upon or interfere with easement or covenant rights or responsibilities;

(l) The variance does not relieve an applicant from any provisions of Chapter 18.65 CMC, Critical Areas, except for the required critical area buffer widths and building setbacks set forth in Chapter 18.65 CMC; and

(m) The variance is not eligible for wireless communication facilities that are governed under Chapter 18.70 CMC, Wireless Communication Facilities.

(3) Granting of a Use Variance Is Not Authorized. The Hearing Examiner shall not grant a variance which establishes a use otherwise prohibited within a zoning district.

(4) Applications for variances under this section shall require payment of an application fee to cover the costs of review. Such fees shall be set forth in the current fee resolution. (Ord. 06-17 § 5 (Exh. C); Ord. 09-12 § 2 (Exh. B); Ord. 10-10 § 3 (Exh. C); Ord. 20-07 § 142; Ord. 42-02 § 2 (21A.44.030))