Variances as a Rezoning Mechanism

November 11, 2006

To: Honorable Mayor Kirk A. Stapp and Members of the City Council

The following is a letter which we have sent to the Sheet. I ask that you consider our points for any future projects including the Lodestar matter.

Dear Editor:

Variances as a Rezoning Mechanism.

As one of many property owners and part-time residents of Mammoth Lakes, I have both a strong interest in, and less than perfect understanding of, the political catharsis that seems to be plaguing the General Plan review process. Apparently, we are still a long way from even the EIR for a General Plan Amendment, if one is to be forthcoming. So what is the current status of the directives and mandates of the existing General Plan?

The General Plan (GP) is the law and remains so until amended. All zoning and “discretionary” planning decisions must comply with the GP directives. Any zoning ordinances passed in compliance with the GP become the law as well. Projects that ask to vary from the GP must be denied as there are no “variances” allowed from the GP directives. Any variance that is to be granted from zoning requirements (like increased heights or coverage or decreased set-backs or the like) may only be granted if there are facts in the record before the City Council to allow the Council to make ALL of the following findings of fact (Gov. Code Section 65906, applicable to all cities):
1. The parcel must have special circumstances such as shape, topography or surroundings that are unlike properties in the area;
2. The parcel must be found to be one that will suffer a unique, non-economic hardship if the zoning rules are enforced that will deny the parcel benefits enjoyed by other parcels in the area;
3. It must be found that, by granting the variance, the parcel will not enjoy privileges inconsistent with the limitations on other properties in the area; and
4. The use of the property by way of the grant of variance must still be consistent with the directives of the General Plan.

If these requirements sound like a tall order to fill, they are and the cases in court that have interpreted this section have often determined that the variance requested does not have the facts to support all of these findings and, thus, must be denied.
The granting of variances may only occur in very unique instances and only when all four findings are supported by indisputable facts. That is a rare occasion. But sometimes cities get into a mode of ignoring the GP and zoning constrictions and grant variances without good foundation. That is the same as no planning and examples of the lack of planning abound in the unicorporated but urbanized areas of Southern California. Those unplanned areas from the 50s, 60s and 70s are now real headaches for the counties or the cities that incorporated around those areas.

What bothers those of us who are watching the evolution of projects in Mammoth that seek very significant variances is that the developers are not being deflected from seeking such variances at the outset of the process. While we cannot say for sure that they are “encouraged” to plan projects reliant on variances, we see that it is a common part of the request for variance that the developer claims it “has invested so much in the planning process” that denial of the variance will cause a severe hardship and might kill the project. What gave these very saavy people the initial idea that the variance would be granted at the end of the process such that they bet such those funds that the variance would be granted?

From where we sit, it looks like there is a serious lack of commitment to enforcement of the existing zoning. That can reveal itself in developer meetings with staff members, from one-on-one preapplication meetings with both Planning Commissioners and Council Members and in a general feeling that Mammoth will cave to the project presented. The City has in the pipeline several projects that will depend on very significant variances, including Lodestar on Minaret Road and the Cardinal “hotel/condo” project proposing an eight story monolith on Minaret Road at Mammoth Creek. Neither of these projects are supportable by application of current zoning without granting significant variances.

The residents and property owners of Mammoth Lakes have invested here based on zoning that comports to the GP. We are reasonable people that expect reasoned development. If there is to be change in the direction of this town, it may only be after the citizens and then Council take affirmative action to change the GP and then look to changes in the zoning ordinances. “Spot zoning”, which has been illegal in California for three decades, should not and legally cannot be accomplished by whole grants of variances. It is bad planning, bad government and a bad breach of the trust with the people. The Council should go on record that variances will be granted only in very rare instances and may not be used to “rezone” a property to suit a particular project. Then, such variances should be denied to developers who decided to roll the dice and gamble the future of our neighborhoods.

Respectfully submitted,



Bill Fischbeck