Chapter 5.1
VARIANCES

Sections:

5.1.100    Purpose.

5.1.200    Class A Variances.

5.1.300    Class B Variances.

5.1.400    Class C Variances.

5.1.100 Purpose.

The purpose of this chapter is to provide flexibility to development standards, in recognition of the complexity and wide variation of site development opportunities and constraints. The variance procedures are intended to provide flexibility while ensuring that the purpose of each development standard is met. Granting a variance involves discretionary decision-making requiring a Type II procedure. [Ord. NS-2016, 2006]

5.1.200 Class A Variances.

A.    Purpose. A Class A variance is a variance from the standards of this code relating to on-site development requirements. The Review Authority may grant variances to the following on-site requirements using the approval criteria in subsection (B) of this section, Class A Variance Criteria, provided the request does not exceed 25 percent of the requirement. The applicant shall provide a written narrative or letter describing the reason for the variance, why it is required, alternatives considered, and compliance with the approval criteria.

1.    Building setbacks as required in the base land use district.

2.    Landscape area requirements.

B.    Class A Variance Criteria. A Class A variance shall be granted if the applicant can demonstrate compliance with all of the following criteria:

1.    The variance requested is required due to the lot configuration, or other physical conditions of the site;

2.    The variance does not result in the removal of significant trees as defined by this code;

3.    The variance is consistent with the design standards provided in BDC Chapters 3.1, Lot, Parcel and Block Design, Access and Circulation, 3.2, Landscaping, Street Trees, Fences and Walls, 3.3, Vehicle Parking, Loading and Bicycle Parking, and 3.4, Public Improvement Standards. [Ord. NS-2016, 2006]

5.1.300 Class B Variances.

A.    Purpose. The purpose of this section is to provide standards for variances to on-site development standards that exceed the criteria in BDC 5.1.200, Class A Variances. The applicant shall provide a written narrative or letter describing the reason for the variance, why it is required, alternatives considered, and compliance with the approval criteria.

B.    Class B Variance Criteria. The City shall approve, approve with conditions, or deny an application for a Class B variance based upon the following criteria:

1.    The proposed variance will not be materially detrimental to the stated purposes of the applicable code requirements listed herein and to other properties in the same land use district or vicinity;

2.    A hardship exists that is peculiar to the nature of the requested use, lot size or shape, topography, sensitive lands, or other similar circumstances related to the property or use over which the applicant has no control, and which are not applicable to other properties in the vicinity (e.g., the same land use district);

3.    The use proposed is permitted within the underlying zoning district, 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 in compliance with the subject code standard;

5.    The hardship is not self-imposed and such conditions and circumstances do not merely constitute pecuniary hardship or inconvenience; and

6.    The variance requested is the minimum variance that would alleviate the hardship. [Ord. NS-2016, 2006]

5.1.400 Class C Variances.

A.    Purpose. A variance request can be specific to certain aspects of development. The purpose of this section is to provide specific criteria for reviewing certain variance requests. The specific situations identified as Class C Variances include:

1.    Variance to vehicular access and circulation standards.

2.    Variance to parking standards.

3.    Variance to maximum or minimum on-site development requirements to reduce tree removal and/or impacts to wetlands (Waterway Overlay Zone).

4.    Variance to maximum height.

5.    Variance to transportation improvement requirements.

6.    Variance for deviations regarding access to State highways.

7.    Floodplain Sub-Zone variances.

The applicant shall provide a written narrative or letter describing the reason for the variance, why it is required, alternatives considered, and compliance with the approval criteria.

B.    Class C Variance Criteria. Class C variance requests are reviewed using the specific criteria listed below.

1.    Variance to Parking Standards. The City may approve a variance to the minimum or maximum standards for off-street parking in BDC Chapter 3.3 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;

b.    The need for additional parking cannot be met through provision of on-street parking, structure parking or shared parking with adjacent or nearby uses; and

c.    All other parking design and building orientation standards are met, in conformance with the standards in BDC Titles 2, Land Use Districts, and 3, Design Standards.

The City may approve a reduction of required bicycle parking per BDC 3.3.600, Bicycle Parking Standards, if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking.

The City may allow a reduction in the amount of vehicle stacking area required for drive-through and drive-in facilities if such a reduction is deemed appropriate after analysis of the size and location of the development and other pertinent factors.

2.    Variance to Maximum or Minimum On-Site Development Requirements to Reduce Tree Removal and/or Impacts to Wetlands (Waterway Overlay Zone). The City may grant a variance to the applicable on-site requirements of this code, including building height, for the purpose of preserving a tree or trees on the site of proposed development or avoiding wetland impacts. Modification shall not be more than is necessary for the preservation of trees or wetlands on the site.

3.    Variance to Maximum Height. The City may grant a variance to the maximum height limitations not otherwise exempted by this code when the following criteria are met:

a.    The structure is not located within the Deschutes River Corridor or the Tumalo Creek Corridor.

b.    The proposed height does not create a burden on the City’s Fire Department for fire fighting requirements.

c.    The location, size, and design characteristics of the proposed structure shall have minimal adverse impact on the property values and livability of the permitted development in the surrounding area.

d.    The structure will provide an aesthetically pleasing and functional environment and relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features to the greatest extent practical.

e.    The requested height is the minimum deviation necessary.

f.    If the structure is located in the CB Zone, the Class B approval criteria shall also apply.

4.    Variance to Transportation Improvement Requirements. The City may approve, approve with conditions, or deny a variance to the transportation improvement standards of BDC Chapter 3.4, Public Improvement Standards, based on the criteria for granting variances provided in BDC 3.4.200(B) (transportation improvement standards).

5.    Variance for deviations regarding access to State Highways shall be subject to review and approval by the Oregon Department of Transportation.

6.    Variances to Floodplain Sub-Zone.

a.    Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size that is contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subsections (B)(6)(a)(i) through (xi) of this section have been fully considered. As the lot size increases, the technical justification required for issuing the variance increases. The City shall approve, approve with conditions, or deny an application for a variance based on all of the following criteria:

i.    The danger that materials may be swept onto other lands to the injury of others;

ii.    The danger to life and property due to flooding or erosion damage;

iii.    The susceptibility of the proposed development and its contents to flood damage and the effect of such damage on the individual owner;

iv.    The importance of the services provided by the proposed development to the community;

v.    The necessity to the development of a waterfront location, where applicable;

vi.    The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

vii.    The compatibility of the proposed use with existing and anticipated development;

viii.    The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area;

ix.    The safety of access to the property in times of flood for ordinary and emergency vehicles;

x.    The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

xi.    The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

b.    A variance may be issued for the reconstruction, rehabilitation, or restoration of a structure listed on the National Register of Historic Places or the State Inventory of Historic Places per this subsection (B)(6).

c.    A variance shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.

d.    A variance shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

e.    A variance shall only be issued upon:

i.    A showing of good and sufficient cause;

ii.    A determination that failure to grant the variance would result in exceptional hardship to the applicant;

iii.    A determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in this section, or conflict with existing local laws or ordinances.

f.    A variance as interpreted in the National Flood Insurance Program is based on the general zoning law principle that it pertains to a physical piece of property; it is not personal in nature and does not pertain to the structure, its inhabitants, economic or financial circumstances. It primarily addresses small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

g.    A variance may be issued for a nonresidential building in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry-floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except subsection (B)(2) of this section and otherwise complies with BDC 2.7.600, Waterway Overlay Zone (WOZ).

h.    Any applicant to whom a variance is granted shall be given notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of the flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. [Ord. NS-2177, 2012; Ord. NS-2016, 2006]