Chapter 18.190
VARIANCES
Sections:
18.190.020 Variances – Purpose.
18.190.030 Variances – Applicability.
18.190.070 Variance application and appeals.
18.190.010 Background.
This chapter and Chapter 18.195 GMC are primarily derived from the Oregon State Model Code. The model code is designed to be more flexible than conventional zoning; and frequently allows outright, or subject to discretionary review, design options that would require a variance under conventional codes. For example, the model code provides flexibility in lot sizes and setbacks, as well as minimum parking ratios that are below the minimums of some codes. It also allows reductions to required off-street parking if an applicant can demonstrate through a parking study that less parking would be sufficient.
Typical variance procedures require the property owner to demonstrate that a hardship exists which is not self-imposed; there are unusual or extraordinary circumstances related to the site; and rights that others in the vicinity enjoy would be denied without a variance. In contrast, the three variance options in this chapter provide a range of standards and approval criteria based on the specific type of variance requested. For example, it should be fairly easy to modify a yard setback in order to protect significant trees or to provide other amenities if all applicable building and fire codes are met. [Ord. 290 § 3(7.010), 2006.]
18.190.020 Variances – Purpose.
This chapter provides standards and procedures for variances, which are modifications to land use or development standards that are not otherwise permitted elsewhere in this code as exceptions to code standards. This code cannot provide standards to fit every potential development situation. The city’s varied geography, and complexities of land development, require flexibility. This chapter provides that flexibility, while maintaining the purposes and intent of the code. The variance procedures provide relief from specific code provisions when they have the unintended effect of preventing reasonable development in conformance with all other codes. The variance procedures are intended to provide flexibility while ensuring that the purpose of each development standard is met. [Ord. 290 § 3(7.011), 2006.]
18.190.030 Variances – Applicability.
A. Exceptions and Modifications Versus Variances. A code standard or approval criterion (“code section”) may be modified without approval of a variance if the applicable code section expressly allows exceptions or modifications. If the code section does not expressly provide for exceptions or modifications, then a variance is required to modify that code section and the provisions of this chapter apply.
B. Combining Variances with Other Approvals; Permit Approvals by Other Agencies. Variance requests may be combined with and reviewed concurrently by the city approval body with other land use and development applications (e.g., development review, site design review, subdivision, conditional use, etc.), however, some variances may be subject to approval by other permitting agencies, such as ODOT in the case of state highway access.
C. Types of Variances. As provided in this chapter, there are three types of variances (Class A, B, or C); the type of variance required depends on the extent of the variance request and the discretion involved in the decision-making process. [Ord. 290 § 3(7.012), 2006.]
18.190.040 Class A variances.
A. Applicability. The following variances are reviewed using an administrative procedure outlined in this code using the approval criteria in subsection B of this section:
1. Front Yard Setbacks. Up to a 10 percent change to the front yard setback standard in the land use district.
2. Interior Setbacks. Up to a 10 percent reduction of the dimensional standards for the side and rear yard setbacks required in the base land use district.
3. Lot Coverage. Up to 10 percent increase of the maximum lot coverage required in the base zone.
4. Landscape Area. Up to 10 percent reduction in landscape area (overall area or interior parking lot landscape area).
B. Approval Criteria. Class A variance requests shall be granted if the applicant demonstrates compliance with all of the following criteria:
1. The variance requested is required due to the lot configuration, or other conditions of the site;
2. The variance does not result in the removal of trees, or it is proposed in order to preserve trees, if trees are present in the development area;
3. The variance will not result in violation(s) of any other adopted ordinance or code standard; each code standard to be modified shall require a separate variance request;
4. An application for a Class A variance is limited to one lot per application;
5. No more than three Class A variances may be approved for one lot or parcel in 12 months. [Ord. 304 Art. IV(5), 2008; Ord. 290 § 3(7.013), 2006.]
18.190.050 Class B variances.
A. Applicability. Class B variance requests apply to the types of requests meeting the approval criteria in this section, and that conform to subsections (A)(1) through (3) of this section. Class B variances shall be reviewed using the criteria outlined in this section:
1. The Class B variance standards apply to individual platted and recorded lots only.
2. The Class B variance procedure shall not be used to modify a standard for lots yet to be created through a partition or subdivision process; such requests shall utilize the Class C variance procedure.
3. A variance shall not be approved that would vary the “permitted uses” or “prohibited uses” of a land use zone.
B. Variance to Minimum Housing Density Standard. The city may approve a variance to a minimum housing density standard pursuant to Chapter 18.15 GMC after finding that the minimum housing density cannot be achieved due to physical constraints that limit the division of land or site development. “Physical constraint” means steep topography, sensitive lands, unusual parcel configuration, or a similar constraint. The variance approved shall be the minimum variance necessary to address the specific physical constraint on the development.
C. Variance to Vehicular Access and Circulation Standards. Where vehicular access and circulation cannot be reasonably designed to conform to the transportation system plans policies, criteria or standards within a particular parcel, shared access with an adjoining property shall be considered. If shared access in conjunction with another parcel is not feasible, the city may grant a variance to the access requirements after finding all of the following:
1. There is not adequate physical space for shared access, or the owners of abutting properties do not agree to execute a joint access easement;
2. There are no other alternative access points on the street in question or from another street;
3. The access separation requirements cannot be met;
4. The request is the minimum variance required to provide adequate access;
5. The approved access or access approved with conditions will result in a safe access;
6. The visual clearance requirements pursuant to Chapter 18.95 GMC will be met;
7. Variances for street access deviations shall be subject to review and approval by the roadway authority;
8. Variances for access deviations on a Tillamook County road right-of-way shall be subject to review and approval by Tillamook County.
D. Variance to Parking and Loading Standards.
1. The city may approve variances to the minimum or maximum standards for off-street parking (quantities and dimensions of parking spaces) pursuant to Chapter 18.125 GMC upon finding all of the following:
a. The individual characteristics of the use at that location require more or less parking than is generally required for a use of this type and intensity, or modified parking dimensions, as demonstrated by a parking analysis or other facts provided by the applicant;
b. The need for additional parking cannot reasonably be met through provision of on-street parking or shared parking with adjacent or nearby uses; and
c. All other code standards are met in conformance with specific land use zone and design standard requirements.
2. The city may reduce the number of required bicycle parking spaces pursuant to Chapter 18.125 GMC, if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking.
3. The city may allow a reduction in the amount of vehicle stacking area required for drive-through facilities if such a reduction is deemed appropriate after analysis of the size and location of the development, limited services available and other pertinent factors.
4. The city may modify the loading area standards if such a reduction is deemed appropriate after analysis of the use, anticipated shipping or delivery traffic generated by the use and alternatives for loading/unloading, such as use of on- or off-street parking areas during nonbusiness hours; provided, that traffic is not impeded.
E. Variance to Maximum or Minimum Yard Setbacks to Avoid or Reduce Impacts to Floodplains, Significant Trees, Wetlands, or Other Natural Features. The city may grant a variance to the applicable setback requirements of this code for the purpose of avoiding or reducing impact to floodplains, significant trees, wetlands, or other natural features. Modification of the standard shall not be more than is necessary for the preservation of the nature feature to be protected.
F. Variances to Transportation Improvement Requirements. The city may approve, approve with conditions, or deny a variance to a transportation improvement standard pursuant to the transportation system plan when the variance does not exceed 10 percent of the standard. When a variance request to the standards exceeds 10 percent, then the request shall be reviewed as a Class C variance. [Ord. 290 § 3(7.014), 2006.]
18.190.060 Class C variances.
A. Applicability. Class C variance requests are those that do not conform to the previous two sections and that meet the criteria in subsections (A)(1) through (4) of this section. Class C variances shall be reviewed using the planning commission public hearings procedure.
1. The Class B variance standards apply to individual platted and recorded lots only.
2. The Class C variance procedure may be used to modify a standard for three or fewer lots, including lots yet to be created through a partition process.
3. An applicant who proposes to vary a standard for lots yet to be created through a subdivision process may not utilize the Class C variance procedure. Approval of a master planned development shall be required to vary a standard for lots yet to be created through a subdivision process, where a specific code section does not otherwise permit exceptions.
4. A variance shall not be approved that would vary “permitted uses” or “prohibited uses” outlined in the criteria of the individual land use zones.
B. Approval Process. Class C variances shall be processed using the planning commission public hearings procedure and using the approval criteria in subsection (C) of this section. In addition to the application requirements, the applicant shall provide a written narrative or letter describing his/her reasoning for the variance, why it is required, alternatives considered, and compliance with the criteria in subsection (C) of this section.
C. Approval Criteria. The city shall approve, approve with conditions, or deny an application for a variance based on all of the following criteria:
1. The proposed variance will not be materially detrimental to the purposes of this code, to any other applicable policies and standards, and to other properties in the same land use district or vicinity;
2. A hardship to development exists which is peculiar to the lot size or shape, topography, sensitive lands or other similar circumstances related to the property over which the applicant has no control, and which are not applicable to other properties in the vicinity (e.g., the same land use zone);
3. The use proposed will be the same as permitted under this title and city standards will be maintained to the greatest extent that is reasonably possible while permitting reasonable economic use of the land;
4. Existing physical and natural systems, such as but not limited to traffic, drainage, natural resources, and parks, will not be adversely affected any more than would occur if the development occurred as specified by the subject code standard;
5. The hardship is not self-imposed; and
6. The variance requested is the minimum variance that would alleviate the hardship. [Ord. 290 § 3(7.015), 2006.]
18.190.070 Variance application and appeals.
A. Application. The variance application shall conform to the requirements of this code, as applicable. In addition, the applicant shall provide a narrative or letter explaining the reason for his/her request, alternatives considered, how the stated variance criteria are satisfied, and why the subject standard cannot be met without the variance.
B. Appeals to variance decisions shall be processed in accordance with the provisions of this code. [Ord. 290 § 3(7.016), 2006.]