Discuss Restricting Non-Owner Applicants on Residential Variance Requests

Councilmembers Howell and Musgrove have requested this discussion.  Their desire is to amend the City Code to eliminate the optional "applicant" section as it relates to variance requests on residential properties.  Furthermore, their intent is not to limit assistance in completing the application form due to practical difficulties, or to have power of attorney representation.

For background, State Statutes as they relate to land use applications regulate notice requirements among other items.  However, they are silent about what information is collected as part of the application process.  Our local City Code addresses the required information as identified in Chapter 106, Article II - Land Development Applications and Procedures.  Section 106-210 identifies the types of land use requests requiring an application, with Section 106-211 outlining the required information to be provided on the application form.  This section applies to requests that may be submitted for both residential and commercial properties, and the City uses one form for all requests.  Specific to residential land use requests, it is not common for the applicant to differ from the property owner, but it is experienced from time to time.  Some reasons for this could be the property owner is not familiar with the technicalities of the request, so an architect, site surveyor or engineer may present the majority of the information.  The applicant could be elderly, and thus a child or someone close to them helps them to navigate the process.  The residential property is being sold with a condition in the purchase agreement being to obtain a variance or the sale does not occur.  In all land use application scenarios, the property owner is required to sign the application consenting to the request and the obligation to pay all fees associated with the City review process.

City Attorney Knaak further weighed in on the request and equated that restricting various outside representation could be considered, and thus may put the city at risk for, limiting property owner rights by restricting fair representation on behalf of the property owner.  Similar to staff's experience, Mr. Knaak has also found it to be standard practice by cities to allow such relationships to occur in the case of land use applications where there may be outside assistance to the property owner or even a complete third party applicant, as long as the property owner is signing off on the land use application.  Lastly, should the city restrict the "applicant" on a variance request for residential property, it should restrict it for all land use applications for consistency and equal treatment.

If the consensus of the City Council is to amend the City Code, this code section falls under the Zoning Code and would require a public hearing at the Planning Commission prior to City Council consideration.

Staff does not recommend changing code to restrict an "applicant" for variance requests on residential property.

Provide Council consensus to draft an ordinance amendment to restrict applicants who are not the property owner, or their power of attorney, for variance requests on residential property.