Chapter 17.122
VARIANCES
Sections:
17.122.010 Power to grant variances.
17.122.020 Criteria for granting a variance.
17.122.030 Limiting variances.
17.122.040 Filing of application.
17.122.045 Required signatures.
17.122.050 Director review.
17.122.052 Application review.
17.122.054 Information from affected agencies.
17.122.056 Notification of decision.
17.122.058 Appeal.
17.122.060 Public hearing and notice of an appeal.
17.122.065 Decision of the planning commission or hearings officer.
17.122.070 Call up to the board.
17.122.080 Effective date of variance.
17.122.090 Variance right must be exercised to be effective.
17.122.100 Cessation of variance.
17.122.110 Transfer of variance.
17.122.120 Appeal to the board.
17.122.130 Resubmission of variance application.
17.122.010 Power to grant variances.
Subject to the restrictions and provisions contained in this title, the director, planning commission, hearings officer or board shall have the power to vary or modify the strict application of any of the standards of this title in any case where such strict application would result in practical difficulties or unnecessary hardships with reference to requirements governing: lot area, lot width, percentage of lot coverage and number of dwelling units or structures permitted on a lot, height of structures, location, yards, signs, parking and loading space, vision clearance and other standards when limits for an adjustment in MCC 17.116.030 are exceeded. Variances to allow uses or new uses not otherwise allowed are prohibited. Variances to criteria and definitions are also prohibited. [Ord. 1313 § 4 (Exh. A), 2011; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.010.]
17.122.020 Criteria for granting a variance.
A. The director, planning commission, hearings officer, or board may permit and authorize a variance when it appears from the application and the facts presented that:
1. There are unnecessary, unreasonable hardships or practical difficulties which can be relieved only by modifying the literal requirements of this title; and
2. There are unusual circumstances or conditions applying to the land, buildings, or use referred to in the application, which circumstances or conditions do not apply generally to land, buildings, or uses in the same zone; however, nonconforming land uses or structures in the vicinity or violations of land use regulations or standards on the subject property shall not in themselves constitute such circumstances or conditions; and
3. The degree of variance from the standard is the minimum necessary to permit development of the property for the proposed use; and
4. The variance will not have a significant adverse effect on property or improvements in the neighborhood of the subject property; and
5. The variance will not have a significant adverse effect upon the health or safety of persons working or residing in the vicinity; and
6. The variance will maintain the intent and purpose of the provision being varied.
B. Variance to Standards in Chapter 17.191 MCC, Signs. The director, planning commission, hearings officer or board may permit and authorize a variance to the standards in Chapter 17.191 MCC when it appears from the application and the facts presented that the criteria in MCC 17.191.120 are satisfied. The criteria in subsection (A) of this section do not apply to variances granted under this subsection. [Ord. 1313 § 4 (Exh. A), 2011; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.020.]
17.122.030 Limiting variances.
The director, planning commission or hearings officer may impose such limitations, conditions and safeguards as it may deem appropriate so that the spirit of this title will be observed, public safety and welfare secured, and substantial justice be done. The director, planning commission or hearings officer may limit the time or duration of a variance. If the variance is granted the applicant will exercise the rights granted in accordance with the terms and subject to all the conditions and limitations of the approval. A violation of any such condition or limitation shall constitute a violation of this title. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.030.]
17.122.040 Filing of application.
An application for a variance may be filed by one or more of the following:
A. The owner of the property that is the subject of the application;
B. The purchaser of the property that is subject to the application when a duly executed written contract or earnest-money agreement, or copy thereof, is submitted with the application;
C. A lessee in possession of the property subject to the application who submits written consent of the owner to make such application;
D. The appropriate local government or state agency when the application is for a public works project;
E. A governmental body that has initiated condemnation procedures on the property that is subject to the application, but has not yet gained title; or
F. A co-tenant if the property that is the subject of the application is owned by tenants in common.
G. A public agency or utility, or an entity authorized by a public agency or utility, if the public agency or utility holds an easement or other right that entitles the applicant to conduct the proposed use on the subject property without the approval of the property owner.
The application shall be filed with the director in writing on an application form provided by the planning division. The application shall set forth the variance or modification sought, the description or location of the building or premises, and the name or names of the owners of the property. The application shall contain such other information as deemed necessary by the director, planning commission or hearings officer. [Ord. 1454 § 4 (Exh. B), 2023; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.040.]
17.122.045 Required signatures.
A. Applications shall include the following signatures:
1. Signatures of all owners of the subject property;
2. The signatures of the purchasers of the property under a duly executed, recorded, written contract of sale or earnest-money agreement;
3. The signatures of lessee in possession of the property with the written consent of all the owners;
4. The signatures of the agents of those identified in MCC 17.122.040(A), (B), or (C) when authorized in writing by those with the interests described in MCC 17.122.040(B) or (C), and all the owners of the property;
5. For an application filed by an entity authorized by a public agency or utility pursuant to MCC 17.122.040(G), the signature of an authorized agent of a public agency or utility holding an easement or other right that entitles the applicant to conduct the proposed use on the subject property without the approval of the property owners; or
6. The signature of co-tenants owning at least a one-half undivided interest in the property, when the property is owned by tenants in common; provided, that the signing co-tenant provides current addresses for all co-tenants who have not signed the application so the planning division can give them notice of the decision.
B. Prima Facie Proof of Ownership. When any person signs as the owner of property or as an officer of a public or private corporation owning the property, or as an attorney in fact or agent of any such owner, or when any person states that he or she is buying the property under contract, the director, planning commission, hearings officer and the board may accept these statements to be true, unless the contrary be proved, and except where otherwise in this title more definite and complete proof is required. Nothing herein prevents the director, planning commission, hearings officer or board from demanding proof that the signer is the owner, officer, attorney in fact, or agent. [Ord. 1454 § 4 (Exh. B), 2023; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002. RZ Ord. § 122.045.]
17.122.050 Director review.
The provisions of this chapter and other provisions of this title notwithstanding, the director shall have the power to decide applications for all variances and impose conditions consistent with this title. The director shall also have the power to forward an application to the hearings officer or planning commission for the initial decision. In such case, the review body shall conduct a public hearing on the application pursuant to MCC 17.122.060.
The director may, any time prior to the decision being final, reconsider the decision and issue a new or modified decision. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.050.]
17.122.052 Application review.
The director shall decide whether the variance is approved or denied based on the Marion County Comprehensive Plan and applicable criteria in this title. This administrative decision shall be final unless an appeal is taken as provided in MCC 17.122.120. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.052.]
17.122.054 Information from affected agencies.
Upon receipt of an application under MCC 17.122.040, a summary of the application shall be distributed to the public works department, assessor’s office, building inspector, other affected agencies and the recognized area advisory committee, with a request for comments or suggestions regarding those features that come within the scope of their activities. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.054.]
17.122.056 Notification of decision.
Notice of the decision and information on the appeal process shall be sent to the applicant, the owner(s) of the subject property, the co-tenants of the subject property if the property is owned by tenants in common, affected agencies and members of the recognized area advisory committee requesting notification, others requesting notification, and all landowners within the required notification area. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.056.]
17.122.058 Appeal.
After the director’s final action on the application, interested persons may appeal the decision no later than 15 days after the decision is mailed. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.058.]
17.122.060 Public hearing and notice of an appeal.
If the director’s decision is appealed, the hearings officer or planning commission shall conduct a public hearing in accordance with Chapter 17.111 MCC. Notice of an appeal of the director’s decision shall be mailed to the applicant, those requesting notice of a hearing and all landowners within the required notification area at least 20 days prior to the hearing date. The notice shall be consistent with the requirements in ORS 197.763(3). Failure to receive such notice by mail shall not affect the validity of the proceedings. The public hearing before the hearings officer or planning commission shall be de novo. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.060.]
17.122.065 Decision of the planning commission or hearings officer.
The planning commission or hearings officer shall render its decision on an application for a variance after the conclusion of a hearing and the director or hearings officer shall mail a notice of the decision to the applicant and shall file a copy of the notice with the board. The director or hearings officer shall also mail notice of any decisions to any person or agency who, in writing, requested such notification before the decision was rendered. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.065.]
17.122.070 Call up to the board.
The board may call up any action of the director, planning commission or hearings officer in granting or denying a variance. Such action of the board shall be taken at the meeting where notice of the decision is presented. When the board takes such action the director’s, planning commission’s or hearings officer’s records pertaining to the variance in question shall be submitted to the board by the director or hearings officer and such call up shall stay all proceedings in the same manner as the filing of a notice of appeal. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.070.]
17.122.080 Effective date of variance.
Variances granted by the director, planning commission or hearings officer under the provisions of this title shall not be effective until 15 days after the mailing of the notice of decision; provided, however, in case call up of the proceedings has been requested by the board or an appeal has been taken as herein provided, the variance shall not be effective until the planning commission, hearings officer or board has acted on the call up or appeal. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.080.]
17.122.090 Variance right must be exercised to be effective.
Variances granted under this title shall be effective only when the exercise of the right granted thereunder shall be commenced within 12 months from the effective date of that variance, unless a longer period be specified or thereafter allowed by the director, planning commission, hearings officer, or board. In case the right has not been exercised, or extension obtained, the variance shall be void. A written request for an extension of time filed with the director prior to the expiration of the variance shall extend the running of the variance period until the director, planning commission, hearings officer or board has acted on the request. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.090.]
17.122.100 Cessation of variance.
Discontinuance of the exercise of any right heretofore or hereafter authorized by any variance for a continuous period of six months shall be deemed an abandonment of such variance, and the property affected thereby shall be subject to all the provisions and regulations of this title applicable to the district or zone in which such property is located at the time of such abandonment. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.100.]
17.122.110 Transfer of variance.
Unless otherwise provided in the decision granting the variance, variances shall run with the land. [Ord. 1397 § 4 (Exh. B), 2019; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.110.]
17.122.120 Appeal to the board.
A. An appeal may be taken to the board by any person, firm, or corporation, or by an officer, department, board or commission of any public corporation or political subdivision of the state of Oregon, aggrieved or affected by the decision of the planning commission or hearings officer on an application for a variance. An appeal must be filed with the county clerk within 15 days from the date of mailing of notice of the decision of the planning commission or hearings officer.
The appeal shall be filed in duplicate and one copy thereof shall be forwarded immediately by the clerk to the board. The appeal shall state wherein the planning commission or hearings officer failed to conform to the provisions of this title.
B. When an appeal is filed it shall stay all proceedings by all parties in connection with the matter upon which the appeal is taken until the determination of such appeal by the board.
C. The board shall review the action of the planning commission or hearings officer and may refer the matter back to the planning commission or hearings officer for further consideration, in which case the planning commission or hearings officer shall conduct such further investigation if it is deemed advisable and report its findings to the board. The board may summarily, after considering the application and appeal and finding that the facts therein stated do not warrant any further hearings, affirm the action of the planning commission or hearings officer and deny the appeal. If the board is of the opinion that the facts in the case warrant further action, the board shall give notice of the time and place of such hearing in the same manner as set forth in MCC 17.111.030. After the hearing, the board may reverse or affirm or may impose such conditions as the facts warrant and may grant a variance, and its decision or determination shall be final. Any hearing may be continued to a time and day certain or as otherwise provided for by re-noticing the hearing.
D. If the board exercises its authority, pursuant to MCC 17.110.765, to make the initial determination on a land use application, the decision of the board is final and appealable only to the Oregon Land Use Board of Appeals. [Ord. 1397 § 4 (Exh. B), 2019; Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.120.]
17.122.130 Resubmission of variance application.
No application which has been denied wholly or in part by the director, planning commission, hearings officer or by the board shall be resubmitted for a period of one year from such denial, unless consent for resubmission be given by the director, two-thirds of the members of the planning commission, the hearings officer or the board. [Ord. 1271 § 5, 2008; Ord. 1180 § 4, 2003; Ord. 1168 § 5, 2002; Ord. 1125 § 6, 2000. RZ Ord. § 122.130.]