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, 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. 1471 § 2 (part), 2008)

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 Section 17.116.030, there are two types of variances (Class A and Class B); the type of variance required depends on the extent of the variance request and the discretion involved in the decision making process. Class A variances can be granted administratively by means of a Type II procedure (Section 17.80.030) because they involve limited discretion. Class B variances require a public hearing under a Type III procedure (Section 17.80.040) because they involve more discretion. Note: some flexibility is built-in to the code, for example, through provisions for lot size averaging, building height bonuses, and flexible setbacks. Other standards such as permissible uses may be adjusted or modified only if approved as part of a master planned development under Chapter 17.96.

(Ord. 1471 § 2 (part), 2008)

A.

Applicability. The following variances are reviewed using a Type II procedure, as governed by Chapter 17.80, using the approval criteria in subsection B of this section:

1.

Front Yard Setbacks. Up to a ten (10) percent change to the front yard setback standard in the land use district.

2.

Interior Setbacks. Up to a ten (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 ten (10) percent increase of the maximum lot coverage required in the base zone.

4.

Landscape Area. Up to ten (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 to provide for greater compatibility between proposed structures and the built or natural environment, or is needed to make more efficient use of the site.

2.

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.

3.

An application for a Class A variances is limited to one lot per application.

4.

No more than three Class A variances may be approved for one lot or parcel in twelve (12) months.

(Ord. 1471 § 2 (part), 2008)

A.

Applicability. Class B variance requests apply to the types of requests meeting the approval criteria in subsections B through F of this section. Class B variances shall be reviewed using a Type III procedure under Section 17.80.040, and are subject to the following limitations:

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 (Division II).

B.

Variance to Vehicular Access and Circulation Standards (Chapter 17.60). 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 17.60 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 a road right-of-way shall be subject to review and approval by applicable road authority.

C.

Variance to Street Tree Requirements (Chapter 17.64). The city may approve, approve with conditions, or deny a request for a variance to the street tree requirements in Chapter 17.64, 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; 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 a right-of-way requires approval by the road authority.

D.

Variance to Parking and Loading Standards (Chapter 17.68).

1.

The city may approve variances to the minimum or maximum standards for off-street parking (quantities and dimensions of parking spaces) in Chapter 17.68 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 Division II (Land Use Districts) and Division III (Community Design Standards).

2.

The city may reduce the number of required bicycle parking spaces per Section 17.68.040, 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 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 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.

E.

Variance to Maximum or Minimum Yard Setbacks to Avoid or Reduce Impacts in Areas Subject to Geological Hazards, Floodplains, Significant Trees, Wetlands, or Other Natural Features (Chapters 17.20 through 17.54, 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.

F.

Variances to Transportation Improvement Requirements (Section 17.72.020). The city may approve, approve with conditions, or deny a variance to a transportation improvement standard (city right-of-way only) in Table 17.72.020(F) when the variance does not exceed ten (10) percent of the standard, and as recommended by the city engineer. When a variance request to the standards in Table 17.72.020(F) exceeds ten (10) percent, then the request shall be reviewed as a Class C variance.

(Ord. 1471 § 2 (part), 2008)

A.

Application. The variance application shall conform to the requirements for Type II or III applications (Section 17.80.030 or 17.80.040), as applicable. In addition, the applicant shall provide a narrative or letter explaining the reason for his or 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 appeal provisions of Chapter 17.80.

C.

Expiration. A variance approval shall expire if not acted upon by the property owner within one year of the city approving the variance. Where the owner has applied for a building permit or final plat, or has made site improvements consistent with an approved development plan (e.g., site design review or preliminary subdivision plan), the planning official may extend the variance approval accordingly.

(Ord. 1471 § 2 (part), 2008)

This chapter provides standards and procedures for nonconforming situations (i.e., existing uses or development that do not comply with the code). The standards for nonconforming uses and development are intended to provide some relief from code requirements for uses and developments that were established prior to the effective date of the ordinance codified in this title and do not comply with current standards.

(Ord. 1471 § 2 (part), 2008)

Where at the time of adoption of this code a use of land exists which 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 is 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 the ordinance codified in this title. No additional structure, building or sign shall be constructed on the lot in connection with such nonconforming use of land.

B.

Location. No such nonconforming use shall be moved in whole or in part to any portion of the lot other than that occupied by such use at the effective date of adoption or amendment of the ordinance codified in this title.

C.

Discontinuation or Abandonment. The nonconforming use of land is not discontinued for any reason for a period of more than twelve (12) months. For purposes of calculating the twelve (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 twelve (12) months, any subsequent use of land shall conform to the applicable standards and criteria specified by this code for the land use district in which such land is located.

(Ord. 1471 § 2 (part), 2008)

Where a development exists at the effective date of adoption or amendment of the ordinance codified in 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, access, parking, landscaping, its location on the lot or other requirements concerning the development; and the development was lawful when constructed, the development may remain on the site so long as it remains otherwise lawful, subject to the following provisions:

A.

Alterations. No such nonconforming development may be enlarged or altered in a way that increases its nonconformity, but any development or portion thereof may be enlarged or altered in a way that satisfies the current requirements of this code or will decrease its nonconformity.

B.

Destruction. Should such nonconforming development or nonconforming portion of development be destroyed by any means to an extent more than fifty (50) percent of its current value as assessed by the Coos County assessor, it shall be reconstructed only in conformity with this code.

C.

Roadway Access. The owner of a nonconforming access connection (i.e., street or highway access) may be required to bring the nonconforming access into conformance with this code and other applicable standards as a condition of the city or other roadway authority approving a new access connection permit, or a change in land use.

D.

Relocation or Removal. Should such development be moved for any reason and by any distance, it shall thereafter conform to the regulations of this code.

(Ord. 1471 § 2 (part), 2008)

The purpose of this chapter is to establish criteria and a process for determining when a lot of record exists.

(Ord. 1471 § 2 (part), 2008)

A lot of record is a plot of land that was not created through an approved subdivision or partition, was created and recorded before the effective date of city's first subdivision ordinance, and for which the deed, or other instrument dividing the land, is recorded with Coos County. A lot of record shall be entitled to development of no less than one single-family dwelling. Additional land use or development may be approved subject to applicable code requirements.

(Ord. 1471 § 2 (part), 2008)

A.

Purpose. A lot of record determination shall be made by the planning official through a Type I or Type II procedure (Section 17.80.020 or Section 17.80.030), as determined by the planning official. It shall be the property owner's responsibility to demonstrate that his or her plot of land meets the lot of record criteria in Section 17.124.020.

B.

Applicability. An application for legal lot determination shall be required when any of the following thresholds apply:

1.

The owner of a lot or parcel, or the owner's authorized representative or contract purchaser, has requested the legal lot determination for one or more contiguous lots or parcels under the same ownership.

2.

The purchaser of a lot or parcel may requests a legal lot determination to validate a unit of land alleged to be improperly created by sale. Under this threshold, fewer than all the owners of a unit of land may apply for a legal lot determination, provided the applicant is the purchaser of an interest in the subject lot or parcel and the purchase occurred prior to January 1, 2007.

3.

The director requires a legal lot determination be made as a prerequisite to, or concurrently with, the filing of a land use application.

C.

Approval Criteria. In determining whether the subject lot or parcel is a legal lot, the decision making authority shall make findings based on evidence provided by the applicant demonstrating that all the following criteria are satisfied:

1.

The unit of land conforms to the lot area and dimensional standards of the applicable land use district; except where a unit of land was created by sale prior to January 1, 2007 and was not lawfully established, the approval body may deem the unit of land a legal lot upon finding:

a.

The unit of land could have complied with the applicable criteria for creation of a lawful parcel or lot in effect when the unit of land was sold; or

b.

If the city, or county prior to annexation, approved a permit as defined in ORS 215.402 or 227.402 for the construction or placement of a dwelling or other structure on the unit of land after the sale, and such dwelling has all of the features listed in ORS 215.755(1)(a)—(e).

D.

Evidence. An application for a legal lot determination shall be made by the owner of the subject property, the owner's authorized agent, or contract purchaser on a form provided by the director and shall be filed with the director; provided, however, fewer than all the owners of a unit of land created by sale prior to January 1, 2007, may apply for a legal lot determination. The legal lot determination application shall be accompanied by all of the following information:

1.

The information required by the application form and by Section 50.25 (Application Completeness) of the development code;

2.

An application for legal lot determination where the unit of land was created by sale prior to January 1, 2007 and was not lawfully established, shall include a sworn statement that the applicant is the purchaser of an interest in the subject lot or parcel and that their interest was represented at the time of their purchase to be that of a discrete lot or parcel but that it appears the discrete lot or parcel may have been improperly created;

3.

Any other information identified through a pre-application conference.

E.

Conditions of Approval. The approval body may impose conditions on the legal lot determination to ensure compliance with applicable code requirements. For a unit of land created by sale for which the city has made a legal lot determination pursuant to this chapter, such unit of land shall not become a lawfully established parcel until the owner of the unit of land records a final plat with Coos County, subject to review by the county surveyor, and within ninety (90) days after the city makes the legal lot determination. The final plat shall conform to the city's legal lot determination and conditions thereof.

F.

Appeal of a Decision. Any appeal of a legal lot determination shall follow the applicable appeal procedures under Chapter 17.80.

(Ord. 1471 § 2 (part), 2008)

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