Madras City Zoning Code
18.50 Exceptions
and Variances
Any unit of land that is smaller than the minimum area required in any zone may be occupied by an allowed use in that zone; provided, that:
(1) The unit of land is a lot of record.
18.50.010 Nonconforming uses.
(1) Subject to the provisions of this Development Code, a nonconforming use initiated prior to the effective date of the provision of the Development Code that made the use nonconforming may be continued, provided the use remains otherwise lawful and is conducted in a safe manner.
(2) If a nonconforming use is discontinued for a period of one year or more, further use of the property shall conform to this Development Code.
(3) If a nonconforming use is replaced by another use, the new use shall conform to this Development Code.
(4) Alteration of a Nonconforming Use. Nonconforming uses may only be altered as provided in this subsection (4). Unless otherwise provided for herein, a proposal for the alteration of a nonconforming use shall be determined by the Planning Commission.
(a) Alteration of a nonconforming use, unless otherwise excepted for herein, includes any material change in the nature of the nonconforming use including, but not limited to, an expansion of the use, an increase in the intensity of the use, a change in the operating hours of the use, or a change in the location of the use within the property.
(i) The expansion of a nonconforming use to a portion of a structure, which was arranged or designed for the nonconforming use at the time of passage of this Development Code, is not an enlargement or expansion of a nonconforming use.
(ii) A change of ownership or occupancy shall be permitted and is not considered an alteration of a nonconforming use.
(b) Any alteration of a nonconforming use shall have no greater adverse impact to the neighborhood.
(c) A public hearing before the Planning Commission shall be scheduled by the Community Development Director, after receiving the applicant’s application requesting the alteration of a nonconforming use.
(d) All parties affected by the requested alteration of a nonconforming use shall be notified of the hearing before the Planning Commission. For purposes of this subsection (4), the owners of property within 250 feet of the subject property shall be deemed affected as well as those parties that have specifically requested notice.
(e) The public hearing shall be conducted before the Planning Commission and the decision shall be final unless appealed to the City Council pursuant to MDC 18.80.240. [Ord. 933 § 10.1, 2019.]
18.50.020 Nonconforming structures.
(1) Subject to the provisions of this Development Code, a nonconforming structure constructed prior to the effective date of the provision of the Development Code that made the structure nonconforming may be maintained provided the structure remains otherwise lawful and is maintained in a safe manner. Nonconforming structures may only be altered or expanded as provided in this section.
(2) A nonconforming structure may be rebuilt if destroyed by fire or natural causes, as long as the structure is rebuilt within one year from the date of the destruction of the structure. If the one-year time frame is exceeded, any structure built must be in conformance with the Development Code.
(3) If the owner or occupant wishes to enlarge or alter an existing nonconforming structure in a manner which would increase the nonconformity, the owner shall apply for a conditional use permit.
(4) If an applicant proposes to reduce the nonconformity of the structure, the application shall be reviewed using the regular review process applicable to the development.
(5) Should such development be moved for any reason and by any distance, either within or outside the site on which it was established, it shall thereafter conform to all of the regulations of the Development Code.
(6) Nothing contained in this Development Code shall require any change in the plans, construction, alteration, or designated use of a structure for which a permit has been issued by the City and construction has commenced prior to the adoption of the provisions of this Development Code; provided the structure, if nonconforming or intended for a nonconforming use, is completed and in use within two years from the time the building permit is issued. [Ord. 933 § 10.2, 2019.]
18.50.030 Nonconforming units of land.
Any unit of land that is smaller than the minimum area required in any zone may be occupied by an allowed use in that zone; provided, that:
(1) The unit of land is a lot of record.
(2) The use or structure conforms to all other requirements of that zone.
(3) If there is an area deficiency, residential use shall be limited to no more than three dwelling units. [Ord. 968 § 2.5 (Exh. E), 2022; Ord. 933 § 10.3, 2019.]
18.50.040 Variances.
(1) Evidence. A variance may be granted where the applicant can show that they have met the criteria in MDC 18.50.050.
(2) Procedure. Upon receipt of a complete application and payment of the applicable fee, the Community Development Director shall either review the application administratively for a minor variance or schedule a public hearing before the Planning Commission for a major variance.
(3) Notice of Public Hearing. Where a public hearing is scheduled, the Community Development Director shall mail notice of the hearing to adjacent property owners within 250 feet of the boundaries of the subject property, the applicant, and interested persons, and cause the notice to be published in a newspaper of general circulation within the City, at least twenty (20) days or no more than forty (40) days from the date of the public hearing. The notice provided by the jurisdiction shall:
(a) Explain the nature of the application and the proposed use(s) or structure(s) which could be authorized;
(b) List the applicable criteria from the Development Code and the Comprehensive Plan that apply to the application at issue;
(c) Set forth the street address or other easily understood geographical reference to the subject property;
(d) State the date, time, and location of the public hearing; and
(e) State that failure of an issue to be raised in a hearing, in person or by letter, or failure to provide statements or evidence sufficient to afford the decision maker an opportunity to respond to the issue, precludes appeal to the City Council based on that issue.
(4) For major variance requests, a public hearing shall be scheduled before the Planning Commission following the procedures established in Chapter 18.80 MDC.
(5) The decision on a variance application shall be final unless appealed under MDC 18.80.240. [Ord. 933 § 10.4, 2019.]
18.50.050 Circumstances for granting a variance.
Except as otherwise provided for in this section, a variance may only be granted when all of the following circumstances exist:
(1) Exceptional or extraordinary circumstances apply to the property that do not apply generally to other properties in the same zone or vicinity, and result from lot size or shape, topography, or other circumstances over which the owners of property have had no control.
(2) The variance is necessary to afford the applicant comparable property rights to those of owners of other property in the same zone or vicinity.
(3) The variance would not be materially detrimental to the purposes of this Development Code, or to other property in the same zone or vicinity in which the property is located, or otherwise conflict with the objectives of any City plan or policy.
(4) The variance requested is the minimum variance which would alleviate the hardship.
(5) The variance is not the result of a self-created hardship.
(6) The variance will not create a condition unduly detrimental to the health or safety of adjoining properties, pedestrians, motorists, or the community at large. [Ord. 933 § 10.5, 2019.]
18.50.060 Variance to flood hazard area regulations.
If the applicant requests a variance from any regulation governing development within a flood hazard area, the applicant shall additionally satisfy the applicable criteria of this section.
(1) The City shall approve, approve with conditions, or deny an application for a variance to flood hazard area regulations based on all of the following criteria:
(a) The danger that materials may be swept onto other lands to the injury of others;
(b) The danger to life and property due to flooding or erosion damage;
(c) The susceptibility of the proposed development and its contents to flood damage and the effect of such damage on the individual owner;
(d) The importance of the services provided by the proposed development to the community;
(e) The necessity to the development of a waterfront location, where applicable;
(f) The availability of alternative locations for the proposal that are not subject to flooding or erosion damage;
(g) The compatibility of the proposal with existing and anticipated development;
(h) The safety of access to the property in times of flood for ordinary and emergency vehicles;
(i) 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
(j) 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.
(2) 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.
(3) A variance shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.
(4) A variance shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(5) Issuance.
(a) 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; and
(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, or conflict with existing local laws or ordinances.
(b) The following shall not be considered good and sufficient cause for a variance:
(i) The value of the property will be somewhat reduced without a variance;
(ii) The proposed development could be pursued elsewhere on the property albeit at additional cost;
(iii) The owner does not have enough money to comply;
(iv) The property will look different from others in the neighborhood; or
(v) The owner started building without a permit and there are additional costs to bring the building into compliance.
(c) 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, or 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.
(d) 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 and complies with all other variance criteria.
(e) 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. A decision to grant a variance allowing the construction of a building below the base flood elevation shall contain a notice to the applicant that the variance will result in increased flood insurance premium rates of up to twenty-five dollars ($25.00) per one hundred dollars ($100.00) of coverage. [Ord. 933 § 10.6, 2019.]
18.50.070 Exceptions to maximum building height standard.
(1) Chimneys, bell towers, steeples, roof equipment (including minimum screening necessary to conceal mechanical roof equipment), flagpoles, and similar features that are not intended for human occupancy may be considered exceptions to the maximum building height subject to an application for a height variance in accordance with this section.
(2) Variance to Maximum Height. The City may grant a variance to the maximum height limitations, when no other exception or exemption is provided by this Development Code, if the following criteria are met:
(a) The proposed height does not create a burden on the City’s Fire Department for firefighting requirements.
(b) The location, size, and design characteristics of the proposed structure shall have minimal adverse impact on the property values and livability of permitted development in the surrounding area.
(c) The structure will provide an aesthetically pleasing and functional environment as well as relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features to the greatest extent practical.
(d) The requested height is the minimum deviation necessary. [Ord. 933 § 10.7, 2019.]
18.50.080 Time limit on a permit for a variance.
Authorization of a variance shall be void after one year unless substantial construction has taken place. However, authorization for an extension may be granted by the Community Development Director for an additional period not to exceed one year, upon written request by the applicant. The written request by the applicant must be received by the Community Development Department prior to the expiration date of the variance approval. [Ord. 933 § 10.8, 2019.]
18.50.090 Limitation on reapplication.
No application of a property owner for a substantially similar variance shall be considered by the Planning Commission within a one-year period immediately following a previous denial of such request. [Ord. 933 § 10.9, 2019.]