Chapter 17.13
EXCEPTIONS TO CODE STANDARDS
Sections:
17.13.200 Variances--Applicability.
17.13.600 Variance application and appeals.
17.13.100 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 title as exceptions to code standards. This chapter 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. 1874 §5(part), 2006).
17.13.200 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 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 Sections 17.13.300, 17.13.400 and 17.13.500, 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. (Ord. 1874 §5(part), 2006).
17.13.300 Class A variances.
A. Applicability. The following variances are reviewed using a Type II procedure, as governed by Chapter 17.05, using the approval criteria in subsection B of this section:
1. Front Yard Setbacks. Up to a ten percent change to the front yard setback standard in the land use district.
2. Interior Setbacks. Up to a ten 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 five percent increase of the maximum lot coverage required in the base zone.
4. Landscape Area. Up to five 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 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 twelve months. (Ord. 1874 §5(part), 2006).
17.13.400 Class B variances.
A. Applicability. Class B variance requests apply to the types of requests meeting the approval criteria in subsections (B) through (G) of this section, and that conform to subsections (A)(1) through (3) of this section. Class B variances shall be reviewed using a Type III procedure, in accordance with Chapter 17.05:
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 any zoning district.
B. Variance to Minimum Housing Density Standard. The city may approve a variance to a minimum housing density standard 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, 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 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 this code 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 an ODOT or Jackson County right-of-way may require approval, respectively, by ODOT or Jackson County.
D. Variance to Street Tree Requirements (Chapter 12.36). The city may approve, approve with conditions, or deny a request for a variance to the street tree requirements of this code 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 cause visual clearance problems; or
3. There is not adequate space in which to plant a street tree;
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 Jackson County right-of-way may require approval, respectively, by ODOT or Jackson County.
E. 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) in this code 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 this code.
2. The city may reduce the number of required bicycle parking spaces as required by this code, 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.
F. 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 natural feature to be protected.
G. Variances to Transportation Improvement Requirements. The City may approve, approve with conditions, or deny a variance to a transportation improvement standard when the variance does not exceed ten percent of the standard. When a variance request to the standards exceeds ten percent, then the request shall be reviewed as a Class C variance. (Ord. 1874 §5(part), 2006).
17.13.500 Class C variances.
A. Applicability. Class C variance requests are those that do not conform to the provisions of Sections 17.13.300 and 17.13.400 (Class A and Class B), and that meet the criteria in subsections (A)(1) through (4) of this section. Class C variances shall be reviewed using a Type III procedure, in accordance with Chapter 17.05:
1. The Class C 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 planned unit 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” of a zoning district.
B. Approval Process. Class C variances shall be processed using a Type III procedure, as governed by Section 17.05.400, using the approval criteria in subsection C of this section. In addition to the application requirements contained in Section 17.05.400, 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 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 zoning district or vicinity;
2. A hardship to development exists which is peculiar to the lot size or shape, topography, 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 zoning district);
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. 1874 §5(part), 2006).
17.13.600 Variance application and appeals.
A. Application. The variance application shall conform to the requirements for Type I, II, or III applications (Sections 17.05.200, 17.05.300, 17.05.400), 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 17.05. (Ord. 1874 §5(part), 2006).