The purpose of this section is to provide flexibility to numerical development standards in recognition of the wide variation in property size, configuration, and topography within the City of Newport and to allow reasonable and economically practical development of a property. Adjustment and variance options outlined in this chapter are separate from statutory adjustments listed in ORS Chapter 197A, and codified in Chapter 14.51.

(Ordinance No. 2222, September 16, 2024)

A.

Application for an Adjustment or Variance from a numerical standard including, but not limited to, size, height, or setback distance may be processed and authorized under a Type I or Type III decision-making procedure as provided by Chapter 14.52, Procedural Requirements, in addition to the provisions of this section.

B.

No Adjustment or Variance from a numerical standard shall be allowed that would result in a use that is not allowed in the zoning district in which the property is located.

C.

In granting an Adjustment or Variance, the approval authority may attach conditions to the decision to mitigate adverse impacts which might result from the approval.

(Ordinance No. 2222, September 16, 2024)

Upon receipt of an application, the Community Development Director or designate shall determine if the request is to be processed as an Adjustment or as a Variance based on the standards established in this subsection. There shall be no appeal of the Director's determination as to the type of application and decision-making process, but the issue may be raised in any appeal from the final decision on the application.

A.

A deviation less than or equal to ten percent of a numerical standard shall be granted if the Community Development Director determines that it will allow one or more dwelling units than would otherwise be achievable through strict adherence to the numerical standard. The granting of such deviation shall be a ministerial action. This subsection does not apply to building height limitations, where the maximum height allowance is set at or above 40 feet.

B.

Other deviations less than or equal to ten percent of a numerical standard shall satisfy criteria for an Adjustment as determined by the Community Development Director using a Type I decision-making procedure.

C.

A deviation of greater than ten percent, but less than or equal to 40 percent, of a numerical standard shall satisfy criteria for an Adjustment as determined by the Planning Commission using a Type III decision-making procedure.

D.

Deviations of greater than 40 percent from a numerical standard shall satisfy criteria for a Variance as determined by the Planning Commission using a Type III decision-making procedure.

(Ordinance No. 1511, Janurary 18, 1988; Ordinance No. 1828, October 3, 2000; Ordinance No. 1992, January 1, 2010; Ordinance No. 2222, September 16, 2024)

In addition to a land use application form with the information required in Section 14.52.080, the petition shall include a site plan prepared by a registered surveyor that is drawn to scale and illustrates proposed development on the subject property.

A.

For requests to deviate from required setbacks, the site plan shall also show survey monuments along the property line subject to the Adjustment or Variance.

B.

For requests to deviate from building height limitations, the application shall include exterior architectural elevations, drawn to scale, illustrating the proposed structure and adjoining finished ground elevations.

The approval authority may grant an Adjustment using a Type I or Type III decision-making process when it finds that the application complies with the following criteria:

A.

Granting the Adjustment will equally or better meet the purpose of the regulation to be modified; and

B.

Any impacts resulting from the Adjustment are mitigated to the extent practical. That mitigation may include, but is not limited to, such considerations as provision for adequate light and privacy to adjoining properties, adequate access, and a design that addresses the site topography, significant vegetation, and drainage; and

C.

The Adjustment will not interfere with the provision of or access to appropriate utilities, including sewer, water, storm drainage, streets, electricity, natural gas, telephone, or cable services, nor will it hinder fire access; and

D.

If more than one Adjustment is being requested, the cumulative effect of the Adjustments results in a project which is still consistent with the overall purpose of the zoning district.

The approval authority may grant a Variance using a Type III decision-making process when it finds that the application complies with the following criteria:

A.

A circumstance or condition applies to the property or to the intended use that does not apply generally to other property in the same vicinity or zoning district. The circumstance or condition may relate to:

1.

The size, shape, natural features, and topography of the property, or

2.

The location or size of existing physical improvements on the site, or

3.

The nature of the use compared to surrounding uses, or

4.

The zoning requirement would substantially restrict the use of the subject property to a greater degree than it restricts other properties in the vicinity or zoning district, or

5.

A circumstance or condition that was not anticipated at the time the Code requirement was adopted.

6.

The list of examples in (1) through (5) above shall not limit the consideration of other circumstances or conditions in the application of these approval criteria.

B.

The circumstance or condition in "A" above is not of the applicant's or present property owner's making and does not result solely from personal circumstances of the applicant or property owner. Personal circumstances include, but are not limited to, financial circumstances.

C.

There is practical difficulty or unnecessary hardship to the property owner in the application of the dimensional standard.

D.

Authorization of the Variance will not result in substantial adverse physical impacts to property in the vicinity or zoning district in which the property is located, or adversely affect the appropriate development of adjoining properties. Adverse physical impacts may include, but are not limited to, traffic beyond the carrying capacity of the street, unreasonable noise, dust, or loss of air quality. Geology is not a consideration because the Code contains a separate section addressing geologic limitations.

E.

The Variance will not interfere with the provision of or access to appropriate utilities, including sewer, water, storm drainage, streets, electricity, natural gas, telephone, or cable services, nor will it hinder fire access.

F.

Any impacts resulting from the Variance are mitigated to the extent practical. That mitigation may include, but is not limited to, such considerations as provision for adequate light and privacy to adjoining properties, adequate access, and a design that addresses the site topography, significant vegetation, and drainage.

A.

Purpose. The purpose of this procedure is to allow modifications to transportation standards where meeting the roadway cross-section requirements of Subsections 14.44.060(A) or (B) is not possible due to existing site constraints.

B.

When Standards Apply. The standards of this section apply to new development or redevelopment for which a building permit is required and that place demands on public or private transportation facilities or city utilities. This procedure may be used in cases where full street improvements, half street improvements, and frontage improvements are required.

C.

Approval Process.

1.

Pre-application Conference. The applicant shall participate in a pre-application conference pursuant to Section 14.52.045 prior to submitting an application requesting a Transportation Mitigation Procedure. The Community Development Director, City Engineer, and other appropriate city officials will participate in the pre-application conference. The meeting will be coordinated with ODOT when an approach road to US-101 or US-20 serves the property so that the application addresses both city and ODOT requirements.

2.

The applicable review process will be the same as that accorded to the underlying land use proposal. If not requested as part of a land use proposal, this procedure shall be subject to a Type I process as defined in Section 14.52.020 (A).

D.

Approval Criteria.

1.

A cross-section other than that identified in the adopted Transportation System Plan (TSP) for the functional classification of the roadway may be approved if one or more of the following conditions apply to the subject property and result in site conditions that prohibit the minimum roadway cross-section from being constructed.

a.

Slopes over 25 percent.

b.

Mapped landslide areas.

c.

Mapped wetlands (National Wetland Inventory, City Wetlands Areas, or site specific survey).

d.

Existing structures.

e.

Historical resources.

f.

Insufficient right-of-way.

2.

The steps to determine an acceptable alternate roadway design must be documented and follow the Process for Determining Street Cross-Sections in Constrained Conditions, as detailed in Table 14.33.070-A.

3.

The proposal shall identify which conditions in Subsection 1 above apply to the subject property and show how conditions prevent the minimum cross-section from being constructed.

4.

The proposal shall include documentation in the form of a written agreement from the Community Development Director, or designee, in consultation with the City Engineer and other city officials, as appropriate, that the proposed cross-section is consistent with the Process for Determining Street Cross-Sections in Constrained Conditions outlined in Table 14.33.070-A.

Table 14.33.070-A. Process for Determining Street Cross-Sections in Constrained Conditions

E.

Conditions of Approval. The city may deny, approve, or approve a development proposal with conditions needed to meet operations, structural, and safety standards and provide the necessary right-of-way and improvements to ensure consistency with the city's Transportation System Plan. Improvements required as a condition of development approval, when not voluntarily accepted by the applicant, shall be roughly proportional to the impact of the development on public facilities. Findings in the development approval shall indicate how the required improvements are directly related and roughly proportional to the impact.

F.

Fee in Lieu. The city may require the applicant to pay a fee in lieu of constructing required frontage improvements, consistent with Section 14.44.70 - Fee in Lieu Option.

(Ordinance No. 2199, August 15, 2022)