Division 5 — Exceptions to Code Standards
Chapter 14.51
– Variances
Sections:
14.51.200 Variances - Applicability
14.51.600 Variance Application and Appeals
14.51.100 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, requires flexibility. Chapter 14.51 provides that flexibility, while maintaining the purposes and intent of the Code. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.100)
14.51.200 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 Chapter 14.51 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 Section 14.51.300 through Section 14.51.500, 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. Because some variances are granted using “clear and objective standards,” they can be granted by means of a Type I procedure. Other variances, as identified below, require a Type II or III procedure because they involve discretionary decision-making. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.200)
14.51.300 Class A Variances
A. Applicability. The following variances are reviewed using a Type I or Type II procedure, as governed by Chapter 14.41, using the approval criteria in Subsection B, below:
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 land use district.
4. Landscape area. Up to 10 percent reduction in landscape area (overall area or interior parking lot landscape area).
B. Approval criteria. A Class A Variance 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 variances 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.
6. A variance shall not be granted for a self-imposed hardship.
C. Approval Process. A Class A Variance shall be processed using a Type I procedure, as governed by Chapter 14.41.200. If the Community Development Director determines that discretionary decision-making is necessary to apply the approval criteria, a Type II procedure shall be used. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.300)
14.51.400 Class B Variances
A. Applicability. Class B variance requests apply to the types of requests meeting the approval criteria in Sections 14.51.400.B through 14.51.400.J, and that conform to subsections 1-4, below,
Class B variances shall be reviewed using a Type II procedure, in accordance with Section 14.41:
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 district (Article 2).
4. A variance shall not be granted for a self-imposed hardship.
B. Variance to minimum housing density standard (Chapter 14.22). The City may approve a variance to a minimum housing density standard in Chapter 14.22 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 (Chapter 14.37), 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 (Chapter 14.31). Where vehicular access and circulation cannot be reasonably designed to conform to Code 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 of Chapter 14.31 will be met; and
7. Variances for street access deviations shall be subject to review and approval by the roadway authority.
8. Variances for access deviations on a Lane County road right-of-way shall be subject to review and approval by Lane County.
D. Variance to Street Tree Requirements (Chapter 14.32). The City may approve, approve with conditions, or deny a request for a variance to the street tree requirements in Chapter 14.32, after finding the following:
1. Installation of the tree would interfere with existing utility lines, and no substitute tree with a lower canopy is appropriate for the site;
2. The tree would violate vision clearance standards; or
3. There is not adequate space in which to plant a street tree; and
4. The City may require the installation of additional or replacement landscaping elsewhere on the site (e.g., parking lot area trees) to compensate for the street tree variance.
5. Street tree approval or modification of standards within an ODOT or Lane County right-of-way may require approval, respectively, by ODOT or Lane County.
E. Variance to Parking and Loading Standards (Chapter 14.33).
1. The City may approve, approve with conditions, or deny variances to the minimum or maximum standards for off-street parking (quantities and dimensions of parking spaces) in Chapter 14.33.1 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 if such a reduction is deemed appropriate after analysis of the size and location of the development, limited services available and other pertinent factors;
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 Article 2 (Land Use Districts) and Article 3 (Design Standards).
2. The City may approve, approve with conditions, or deny a variance to reduce the number of required bicycle parking spaces per Chapter 14.33.200, if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking and such a reduction is deemed appropriate after analysis of the size and location of the development, adjacent uses, access to bicycle lanes and other pertinent factors;
3. The City may approve, approve with conditions, or deny a variance to allow a reduction in the amount of vehicle stacking area required in 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 approve, approve with conditions, or deny a variance to 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 non-business hours provided that traffic is not impeded.
F. Variance to Maximum or Minimum Yard Setbacks to Avoid or Reduce Impacts to Floodplains, Significant Trees, Wetlands, or Other Natural Features (Chapters 14.22-14.26 – Land Use Districts). 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.
G. Variances to Transportation Improvement Requirements (Chapter 14.34.100). The City may approve, approve with conditions, or deny a variance to a transportation improvement standard in Table 14.34.100F when the variance does not exceed 10 percent of the standard. When a variance request to the standards in Table 14.34.100F exceeds 10 percent, then the request shall be reviewed as a Class C variance.
H. Variance to Fence or Wall Height (Chapter 14.32.500). City may approve, approve with conditions, or deny a variance to the maximum fence height established in Chapter 14.32.500 when the variance does not exceed 2 feet (for a total fence/wall height of 8 feet) and an increase in fence height is deemed necessary to mitigate special characteristics of the proposed use and/or extraordinary site conditions.
I. Variance to Fence Material (Barbed Wire) (Chapter 14.32.500(D)). City may approve, approve with conditions, or deny a variance to prohibit fence materials established in Chapter 14.32.500 to allow barbed wire on top of fences when the approved fence material does not negatively impact adjoining properties and the prohibited material is deemed necessary to mitigate special characteristics of the proposed use and/or extraordinary site conditions. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.400)
14.51.500 Class C Variances
A. Applicability. Class C variance requests are those that do not conform to the provisions of Sections 14.51.200-14.51.300 (Class A and Class B), and that meet the criteria in 1-4, below, Class C variances shall be reviewed using a Type III procedure, in accordance with Chapter 14.41:
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 3 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 the “permitted uses” or “prohibited uses” or “maximum density” of a land use district (Article 2).
B. Approval Process. Class C variances shall be processed using a Type III procedure, as governed by Chapter 14.41.400, using the approval criteria in subsection C, below. In addition to the application requirements contained in Chapter 14.41.400, 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.
C. Approval Criteria. The City shall approve, approve with conditions, or deny an application for a variance based on all of the following:
a. Strict or literal interpretation and enforcement of the specified regulation would result in practical difficulty or necessary physical hardship inconsistent with the objectives of this Code;
b. Strict or literal interpretation and enforcement of the specified regulation would deprive the applicant of privileges enjoyed by owners or other properties classified in the same land use district;
c. There are exceptional or extraordinary circumstances or conditions applicable to the property involved which do not apply generally to other properties classified in the same land use district;
d. The granting of the variance will not constitute a grant of special privilege inconsistent with the limitations on other properties classified in the same lands use district;
e. The granting of the variance will not be detrimental to the public health, safety or welfare or materially injurious to properties or improvements in the vicinity;
d. 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;
e. The hardship is not self-imposed; and
f. The variance requested is the minimum variance that would alleviate the hardship. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.500)
14.51.600 Variance Application and Appeals
A. Application. The variance application shall conform to the requirements for Type I, II, or III applications (Chapter 14.41.200, 14.41.300, 14.41.400), 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 Chapter 14.41. (Ord. 2959 §5(Exh. A (part)), 2007. Formerly 5.1.600)