Bend City Zoning Code
Title 5
Exceptions to Code Standards
5.0.100 Introduction.
This title provides standards and procedures for variances and nonconforming situations (i.e., existing uses or development that do not comply with the code). This code cannot provide standards to fit every potential development situation. The City’s varied geography, and complexities of land development, requires flexibility. This title 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 code provisions. The standards for nonconforming uses and development are intended to provide some relief from code requirements for older developments that do not comply. [Ord. NS-2016, 2006]
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 (C) of this section, provided the request does not exceed 25 percent of the requirement.
1. Building setbacks as required in the base land use district.
2. Landscape area requirements.
B. Submittal Requirements. The applicant must provide a written narrative or letter describing:
1. Why the variance is required;
2. Alternatives considered; and
3. Compliance with the approval criteria in subsection (C) of this section, Class A Variance Criteria.
C. Class A Variance Criteria. A Class A variance will 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 regulated 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, Tree Preservation, Fences and Walls, 3.3, Vehicle Parking, Loading and Bicycle Parking, and 3.4, Public Improvement Standards. [Ord. NS-2541, 2025; Ord. NS-2016, 2006]
5.1.300 Class B Variances.
A. Purpose. The purpose of this section is to provide criteria for variances to on-site development standards not addressed in the Class A or C variance, and/or that exceed the minor allowances of a Class A variance.
B. Submittal Requirements. The applicant must provide a written narrative or letter describing:
1. Why the variance is required;
2. Alternatives considered; and
3. Compliance with the approval criteria in subsection (C) of this section, Class B Variance Criteria.
C. 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. 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 is not applicable to other properties in the vicinity (e.g., the same land use district);
2. 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;
3. 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;
4. The hardship is not self-imposed and such conditions and circumstances do not merely constitute pecuniary hardship or inconvenience; and
5. The variance requested is the minimum variance that would alleviate the hardship. [Ord. NS-2541, 2025; 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 parking standards.
2. Variance to maximum or minimum on-site development requirements to reduce tree removal and/or impacts to wetlands (Waterway Overlay Zone).
3. Variance to maximum height.
4. Variance to vehicular access and circulation standards.
5. Floodplain variances. See BDC 2.7.640(E), Floodplain Variance.
B. Submittal Requirements. The applicant must provide a written narrative or letter describing:
1. Why the variance is required;
2. Alternatives considered; and
3. Compliance with the approval criteria in subsection (C) of this section, Class C Variance Criteria.
C. 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 limitation of the corresponding zoning district when the following criteria are met. A height variance cannot be combined with other height adjustments, height bonuses and/or height incentives.
a. The structure is not located within the Water Overlay Zone.
b. All applicable fire code standards are or will be met and the additional height will not create a burden on the City’s Fire Department for fire-fighting purposes.
c. The location, size, and design characteristics of the additional height of the proposed structure will have minimal additional impact on development in the surrounding area.
d. The requested height is the minimum deviation necessary to alleviate the identified development constraints.
e. The requested height is not more than an increase of the greater of:
i. One story; or
ii. A 20 percent increase to the maximum height allowed in the corresponding zoning district. Where a fractional number results, the number is rounded down to the next whole number.
f. If the structure is located in the CB Zone, the Class B approval criteria will also apply.
4. Variance to Vehicular Access and/or On-Site Circulation Standards. The City may approve a variance to the vehicular access and/or on-site circulation standards when the following criteria are met:
a. Vehicular Access Criteria.
i. There is not adequate physical space for shared access, or the owners of abutting properties do not agree to execute a joint access easement.
ii. There are no alternative areas to access the site from the street in question or from another street or alley.
iii. The request is the minimum variance required to provide adequate access.
iv. The approved access or access approved with conditions will result in a safe access as determined by the City Engineer.
b. On-Site Circulation Standards Criteria.
i. The request is required due to the lot configuration, or other physical conditions or development constraints of the site.
ii. The request is the minimum variance required to provide adequate circulation.
iii. The request does not reduce the aisle width dimensions in Table 3.3.300.F.1, Parking Stall Dimensions, when there are abutting parking stalls.
c. Vehicular Access and/or On-Site Circulation Standards.
i. The clear vision requirements of BDC 3.1.500, Clear Vision Areas, will be met.
ii. The variance does not create a burden on the City’s Fire Department for firefighting requirements.
Variance for deviations regarding access to State Highways are subject to review and approval by the Oregon Department of Transportation. [Ord. NS-2541, 2025; Ord. NS-2510, 2024; Ord. NS-2463, 2023; Ord. NS-2177, 2012; Ord. NS-2016, 2006]
5.2.100 Nonconforming Uses.
Where, at the time of adoption of this code, a use of land exists that would not be permitted by the regulations imposed by this code and was lawful at the time it was established, the use may be continued as long as it remains otherwise lawful, provided:
A. Expansion Prohibited. No such nonconforming use can be enlarged, increased or extended to occupy a greater area of land or space than was occupied at the effective date of adoption or amendment of this code. No additional structure, building or sign can be constructed on the lot in connection with such nonconforming use of land.
B. Location. No such nonconforming use can be moved in whole or in part to any portion of its lot, or any other lot, other than that occupied by such use at the effective date of adoption or amendment of this code, unless such move would bring the use into conformance with this code.
C. Discontinuation or Abandonment. The nonconforming use of land must not be discontinued for any reason for a period of more than 12 months. For purposes of calculating the 12-month period, a use is discontinued or abandoned upon the occurrence of the first of any of the following events:
1. On the date when the use of land is physically vacated;
2. On the date the use ceases to be actively involved in the sale of merchandise or the provision of services;
3. On the date of termination of any lease or contract under which the nonconforming use has occupied the land; or
4. On the date a request for final reading of water and power meters is made to the applicable utility districts.
D. Application of Code Criteria and Standards. If the use is discontinued or abandoned for any reason for a period of more than 12 months, any subsequent use of the land must conform to the applicable standards and criteria specified by this code for the land use district in which such land is located.
E. Nonconforming street access connections that exist prior to the adoption of this code and that do not conform with standards in BDC Chapter 3.1 must be brought into compliance when one or more of the following conditions exist:
1. When a new access or driveway is requested for the subject property;
2. When a building permit or land use application is submitted that results in an increase of trip generation by 20 percent or 100 average daily trips (ADT);
3. When the existing, nonconforming street access or driveway, or the structure being served by the nonconforming street access or driveway is demolished or destroyed by any means to an extent more than 80 percent of its current assessed value or where at least 80 percent of the access or structure’s square footage is removed or destroyed, unless access to an existing permanent garage structure would be removed; or
4. When the property is subject to site plan review, a land division or a conditional use permit. [Ord. NS-2463, 2023; Ord. NS-2353, 2019; Ord. NS-2016, 2006]
5.2.200 Nonconforming Structures.
Where a structure exists at the effective date of adoption or amendment of this title that could not be built under the terms of this code by reason of restrictions on lot area, lot coverage, height, yard, equipment, its location on the lot or other requirements concerning the structure, and the structure was lawful when constructed, the structure may remain on the site so long as it remains otherwise lawful, subject to the following provisions:
A. Alteration.
1. If an applicant proposes to reduce the nonconformity of the structure or alters the structure in a way that does not increase the nonconformity of the structure, the application must be reviewed using the applicable review process in BDC Chapter 4.2, Minimum Development Standards Review (MDS), Site Plan Review and Design Review.
B. Reconstruction after Destruction. Should a nonconforming structure or the nonconforming portion of a structure be destroyed where at least 80 percent of the structure’s square footage is destroyed, it must be reconstructed only in conformity with all of the Development Code.
C. Location. Should such development be moved for any reason and by any distance, either within or outside the site on which it was established, it must thereafter conform to all of the regulations of the Bend Development Code. [Ord. NS-2463, 2023; Ord. NS-2389, 2020; Ord. NS-2353, 2019; Ord. NS-2016, 2006]
5.3.100 Purpose.
Senate Bill 1537 was adopted by the Oregon State Legislature in 2024 and signed into law on May 6, 2024. SB 1537 requires local governments to grant adjustments for specific development and design standards if the request for an adjustment in an application to develop housing meets certain conditions. The purpose of this chapter is to allow adjustments consistent with the requirements of SB 1537. The granting of adjustments in SB 1537 and this chapter sunsets on January 2, 2032. [Ord. NS-2515, 2024]
5.3.200 Definitions.
Definitions. The following words and phrases used in this chapter, which supplement the definitions found in BDC Chapter 1.2 and elsewhere in this code, have the following meanings:
Adjustment means a deviation from an existing land use regulation. “Adjustment” does not include:
1. A request to allow a use of property not otherwise permissible under applicable zoning requirements;
2. Deviations from land use regulations or requirements related to accessibility, affordability, fire ingress or egress, safety, tree preservation, hazardous or contaminated site clean-up, wildlife protection, or statewide land use planning goals relating to natural resources or natural hazards; or
3. A complete waiver of land use regulations or any changes beyond the explicitly requested and allowed adjustments; or
4. Deviations to requirements related to the implementation of fire or building codes, Federal or State air, water quality or surface, ground or stormwater requirements, or requirements of any Federal, State or local law other than a land use regulation.
Distinct adjustment means an adjustment to one of the development or design standards in BDC 5.3.700, Development and Design Standard Adjustment Options, where each discrete adjustment to a listed standard that includes multiple component standards must be counted as an individual adjustment.
Net residential acre means an acre of residentially designated buildable land, excluding rights-of-way for streets, roads or utilities or sensitive land.
Visitable means capable of being approached, entered and used by individuals with mobility impairments, including but not limited to individuals using wheelchairs. A dwelling unit subject to the Oregon Residential Specialty Code is visitable if it meets one or more of the provisions for Type C units in ICC A117.1 (2017). [Ord. NS-2541, 2025; Ord. NS-2515, 2024]
5.3.300 Applicability.
A. Applicability. An application to develop housing qualifies for an adjustment only if the following are met:
1. The development is located on lots or parcels in Residential, Commercial or Mixed-Use Zoning Districts.
2. For residentially designated lands, the development is for a minimum of 10 dwelling units per net residential acre.
3. The development is within the urban growth boundary and City limits.
4. The development is for net new dwelling units (i.e., the replacement of one or more existing dwelling units does not qualify as net new dwelling units), including:
a. Single-unit detached dwellings;
b. Manufactured dwelling parks;
c. Accessory dwelling units (ADUs);
d. Duplexes, triplexes, quadplexes, cottage developments, and townhomes;
e. Multi-unit residential; or
f. Mixed-use residential where at least 75 percent of the developed floor area will be used for residential uses. [Ord. NS-2541, 2025; Ord. NS-2515, 2024]
5.3.400 Review Process.
A. A decision on an application for an adjustment under this chapter is a limited land use decision and is processed as a Type I application. The adjustment application must be reviewed concurrently with the associated development application.
B. Only the applicant may appeal the decision of a Type I adjustment application. [Ord. NS-2515, 2024]
5.3.500 Submittal Requirements.
A. The applicant must submit the following:
1. For residentially designated lands, a narrative and site plan demonstrating that the development proposal, in total on site, meets the minimum of 10 dwelling units per net residential acre.
2. A narrative confirming that the total requested adjustments in BDC 5.3.700, Development and Design Standard Adjustment Options, do not exceed 10 distinct adjustments.
3. A narrative that states how one of the criteria in BDC 5.3.600, Approval Criteria, is met. [Ord. NS-2541, 2025; Ord. NS-2515, 2024]
5.3.600 Approval Criteria.
A. Approval Criteria. An applicant may request a maximum of 10 distinct adjustments to the development and design standards in BDC 5.3.700, Development and Design Standard Adjustment Options, provided the applicant states how at least one of the following criteria apply:
1. The adjustments will enable development of housing that is not otherwise feasible due to cost or delay resulting from the unadjusted land use regulations.
2. The adjustments will enable development of housing that reduces the sale or rental prices per residential unit.
3. The adjustments will increase the number of dwelling units within the application.
4. The adjustments will enable the provision of accessibility or visitability features in dwelling units that are not otherwise feasible due to cost or delay resulting from the unadjusted land use regulations.
5. All of the units in the application are subject to a zero equity, limited equity, or shared equity ownership model including resident-owned cooperatives and community land trusts making them affordable to moderate income households as described in ORS 456.270 to 456.295 for a period of 90 years.
6. All dwelling units are subject to an affordable housing covenant to be affordable to moderate income (80 to 120 percent area median income) households for at least 30 years.
7. At least 20 percent of units are subject to an affordable housing covenant to be affordable to low-income households (less than or equal to 80 percent area median income) for at least 60 years. [Ord. NS-2515, 2024]
5.3.700 Development and Design Standard Adjustment Options.
A. Development Standards Adjustment Options. The following development standards may be adjusted:
1. Side or rear setbacks not more than 10 percent.
2. Common area, open space area or landscape area on the same lot or parcel as the proposed dwelling units of not more than a 25 percent reduction.
3. Minimum lot or parcel sizes, not more than 10 percent, and including lot widths or depths not more than 10 percent.
4. Building lot coverage requirements not more than 10 percent.
5. For developments that require bicycle parking:
a. The minimum number of spaces for use by residents of the project, provided the application includes at least one-half space per unit; or
b. The location of the spaces as required in other sections of the chapter; provided, that lockable, covered bicycle parking spaces are located within the development site.
6. Except for single-unit detached dwellings and ADUs:
a. Unit density maximums not more than an amount as necessary to account for other adjustments under this section. The maximum densities cannot be fully waived.
b. Ground floor uses of a mixed-use building to allow:
i. Residential uses except for one face of the building that faces the street and is within 20 feet of the street; and
ii. Nonresidential active uses that support the residential uses of the building, including lobbies, day care, passenger loading, community rooms, exercise facilities, offices, activity spaces or live-work spaces.
7. Except for single-unit detached dwellings, ADUs and cottage developments, building height maximums that:
a. Are in addition to existing applicable height bonuses; and
b. Are not more than an increase of the greater of:
i. One story; or
ii. A 20 percent increase to the maximum height allowed in the corresponding zoning district. Where a fractional number results, the number is rounded down to the next whole number.
B. Design Standards Adjustment Options. The following design standards may be adjusted:
1. Facade materials, color or pattern.
2. Facade articulation.
3. Roof forms and materials.
4. Entry and garage door materials.
5. Window materials.
6. Total window area, not more than 30 percent, provided the application includes at least 12 percent of the total facade as window area.
7. Except for single-unit detached dwellings and ADUs:
a. Building orientation requirements, not including transit street orientation requirements.
b. Building height transition requirements, not more than 50 percent from the corresponding zone.
c. Balcony and porch requirements.
d. Recess and offset requirements. [Ord. NS-2541, 2025; Ord. NS-2515, 2024]