Philomath City Zoning Code
Division 5
EXCEPTIONS TO CODE STANDARDS
§ 18.150.010 Introduction.
This division provides standards and procedures for variances and nonconforming situations (i.e., existing uses or development that do not comply with the code). This title cannot provide standards to fit every potential development situation. The city's varied geography, and complexities of land development, require flexibility. Division 5 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 standards for nonconforming uses and development are intended to provide some relief from code requirements for older developments that do not comply.
(Ord. 720 § 7[5.0], 2003)
§ 18.155.010 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. Because some variances are granted using "clear and objective standards," they can be granted by means of a Type I procedure. Other variances, as identified below, require a Type II or III procedure because they involve discretionary decision-making.
(Ord. 720 § 7[5.1.1], 2003)
§ 18.155.020 Class A variances.
A.
Class A Variances. The following variances are reviewed using a Type II procedure, as governed by Chapter 18.105 PMC, except notice shall be provided abutting property owners, using the approval criteria in subsection (B) of this section:
1.
Front Yard Setbacks. Up to a 10 percent change to the front yard setback standard in the land use district.
2.
Interior Setbacks. Up to a 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 10 percent increase of the maximum lot coverage required in the base zone.
4.
Landscape Area. Up to 10 percent reduction in landscape area (overall area or interior parking lot landscape area).
B.
Class A Variance Approval Criteria. A Class A variance shall be granted if the applicant demonstrates compliance with all of the following criteria:
1.
There is no opposition from adjacent property owners.
2.
The variance requested is required due to the lot configuration, or other conditions of the site;
3.
The variance does not result in the removal of trees, or it is proposed in order to preserve trees, if trees are present in the development area;
4.
The variance will not result in violation(s) of Division 3, or other design standards.
(Ord. 720 § 7[5.1.2], 2003)
§ 18.155.030 Class B variances.
A.
Class B Variances. Due to their discretionary nature, the following types of variances shall be reviewed using a Type II procedure, in accordance with Chapter 18.105 PMC:
1.
Variance to Minimum Housing Density Standard (Division 2). The city may approve a variance after finding that the minimum housing density provided in Division 2 cannot be achieved due to physical constraints that limit the division of land or site development. "Physical constraint" means steep topography, sensitive lands (Chapter 18.55 PMC), unusual parcel configuration, or a similar constraint. The variances approved shall be the minimum variance necessary to address the specific physical constraint on the development.
2.
Variance to Vehicular Access and Circulation Standards (Chapter 18.65 PMC). 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 the following:
a.
There is not adequate physical space for shared access, or the owners of abutting properties do not agree to execute a joint access easement;
b.
There are no other alternative access points on the street in question or from another street;
c.
The access separation requirements cannot be met;
d.
The request is the minimum adjustment required to provide adequate access;
e.
The approved access or access approved with conditions will result in a safe access; and
f.
The visual clearance requirements of Chapter 18.65 PMC will be met.
3.
Variances to Street Tree Requirements (Chapter 18.70 PMC). The city may approve, approve with conditions, or deny a request for a variance to the street tree requirements in Chapter 18.70 PMC, after finding the following:
a.
Installation of the tree would interfere with existing utility lines;
b.
The tree would cause visual clearance problems; or
c.
There is not adequate space in which to plant a street tree; and
d.
Replacement landscaping is provided elsewhere on the site (e.g., parking lot area trees).
4.
Variance to Parking Standards (Chapter 18.75 PMC).
a.
The city may approve variances to the minimum or maximum standards for off-street parking in PMC § 18.75.010 upon finding the following:
i.
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;
ii.
The need for additional parking cannot reasonably be met through provision of on-street parking or shared parking with adjacent or nearby uses; and
iii.
All other parking design and building orientation standards are met, in conformance with the standards in Divisions 2 and 3.
b.
The city may approve a reduction of required bicycle parking per PMC § 18.75.020, if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking.
c.
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.
5.
Variance to Maximum or Minimum Yard Setbacks to Reduce Tree Removal or Impacts to Wetlands (Division 2 and Chapter 18.70 PMC). The city may grant a variance to the applicable setback requirements of this title 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 on the site.
6.
Variances to Transportation Improvement Requirements (PMC § 18.80.020). The city may approve, approve with conditions, or deny a variance to the transportation improvement standards of PMC § 18.80.020 after finding compliance with criteria in subsections (A)(6)(a) through (d) of this section. When the variance request cannot meet these criteria, then the request shall be reviewed as a Class C variance.
a.
There is a significant constraint presented by existing topography, physical and environmental conditions, right-of-way, development, and/or legal agreements;
b.
There are opportunities identified for implementing innovative transportation treatments;
c.
The variance meets the intent of the transportation improvement standards; and
d.
The requested variance will not compromise safety, nor adversely impact other properties.
7.
Extension of Nonconforming Structure. Where a nonconforming structure exists, such nonconformity may be extended, upon finding the following:
a.
The extension complies with all applicable fire and life safety codes;
b.
The extension will not adversely impact adjacent property; and
c.
The extension does not create any additional nonconformities.
8.
Variance to Material Standards (PMC § 18.45.080). Where a new building is within the heavy industrial zone (HI), the city may approve modifications to material standards used in construction after finding the following:
a.
The building will not be viewable from a public right-of-way;
b.
The primary use of the building is warehousing, storage, distribution, or a similar use that will have minimum access by the public;
c.
All other development standards for buildings in the industrial zone are met, in conformance with Chapter 18.45 PMC.
(Ord. 720 § 7[5.1.3], 2003; Ord. 832 § 26, 2018; Ord. 870 § 2, 2022)
§ 18.155.040 Class C variance.
A.
Purpose. The purpose of this section is to provide standards for variances that exceed the Class A and Class B variance criteria in PMC § 18.155.020 and 18.155.030. Class C variances may be granted if the applicant shows that, owing to special and unusual circumstances related to a specific property, the literal application of the standards of the applicable land use district would create a hardship to development which is peculiar to the lot size or shape, topography, sensitive lands (Chapter 18.55 PMC), or other similar circumstances related to the property 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); except that no variances to "permitted uses" shall be granted.
B.
Applicability.
1.
The variance standards are intended to apply to individual platted and recorded lots only.
2.
An applicant who proposes to vary a specification standard for lots yet to be created through a subdivision process may not utilize the Class C variance procedure.
3.
A variance shall not be approved which would vary the "permitted uses" of a land use district (Division 2).
C.
Approvals Process and Criteria.
1.
Class C variances shall be processed using a Type III procedure, as governed by PMC § 18.105.050, using the approval criteria in subsection (C)(2) of this section. In addition to the application requirements contained in PMC § 18.105.050, the applicant shall provide a written narrative or letter describing his/her reasoning for the variance, why it is required, alternatives considered, and compliance with the criteria in subsection (C)(2) of this section.
2.
The city shall approve, approve with conditions, or deny an application for a variance based on finding that all of the following criteria are satisfied:
a.
The proposed variance will not be materially detrimental to the purposes of this title, to any other applicable policies and standards, and to other properties in the same land use district or vicinity;
b.
A hardship to development exists which is peculiar to the lot size or shape, topography, sensitive lands (Chapter 18.55 PMC), or other similar circumstances related to the property 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);
c.
The use proposed will be the same as permitted under this title and city standards will be maintained to the greatest extent that is reasonably possible while permitting reasonable economic use of the land;
d.
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 as specified by the subject code standard;
e.
The hardship is not self-imposed; and
f.
The variance requested is the minimum variance that would alleviate the hardship.
(Ord. 720 § 7[5.1.4], 2003)
§ 18.155.050 Variance application and appeals.
The variance application shall conform to the requirements for Type I, II, or III applications (PMC § 18.105.030, 18.105.040 and 18.105.050), as applicable. In addition, the applicant shall provide a narrative or letter explaining the reason for his/her request, alternatives considered, and why the subject standard cannot be met without the variance. Appeals to variance decisions shall be processed in accordance with the provisions of Chapter 18.105 PMC.
(Ord. 720 § 7[5.1.5], 2003)
§ 18.160.010 Nonconforming uses.
It is the intent of this section to permit pre-existing structures and uses that do not conform to the standards of this title to continue and to expand under certain conditions. A nonconforming structure is a structure that complied with existing laws when it was built, but does not conform to current height, setback or other property development standards. A nonconforming use is a use that complied with existing laws at the time it was established, but no longer is a permitted use. A use that is currently listed as a conditional use, for which no conditional use permit has been granted is also deemed a nonconforming use. Where at the time of adoption of this title a use of land or structure exists which would not be permitted by the regulations imposed by this title and was lawful at the time it was established, the use may be continued as long as it remains otherwise lawful, provided:
A.
Expansion of Use 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 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 this title;
C.
Discontinuation or Abandonment. The nonconforming use of land is not discontinued for any reason for a period of more than six months. For purposes of calculating the six-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 six months, any subsequent use of land shall conform to the applicable standards and criteria specified by this title for the land use district in which such land is located;
E.
Restoration of Abandoned Nonconforming Use. The planning commission may permit the restoration of a use for which the structure was originally designed or similar thereto, through the conditional use Type III process.
1.
When reviewing any request to alter or restore a nonconforming use, in addition to the conditional use criteria, it shall be determined that all of the following are found to exist:
a.
The nature and character of the proposed use are substantially the same as that for which the structure was originally designed;
b.
There is no material difference in the quality, character, or degree of use; and
c.
The proposed use will not prove materially adverse to surrounding properties.
(Ord. 720 § 7[5.2.1], 2003)
§ 18.160.020 Nonconforming structure.
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 title 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.
No such nonconforming structure may be enlarged or altered in a way that increases its nonconformity, but any structure or portion thereof may be enlarged or altered in a way that satisfies the current requirements of the development code or will decrease its nonconformity;
B.
Should such nonconforming structure or nonconforming portion of structure be destroyed by any means to an extent more than 50 percent of its current value as assessed by the Benton County assessor, it shall be reconstructed only in conformity with the development code; and
C.
Should such structure be moved for any reason and by any distance, it shall thereafter conform to the regulations of the development code;
D.
A nonconforming structure due to setbacks may be extended along that line of the, upon written concurrence of the property owner adjacent to the nonconformity. In no instance may the degree of nonconformity be increased without a city approval via a Type II variance.
(Ord. 720 § 7[5.2.2], 2003)
§ 18.160.030 Residential exemptions.
It is recognized that residential uses of property or development, while nonconforming will not generally have a deleterious affect on surrounding properties. Furthermore, the strict adherence to eliminate nonconforming single-family residential structures would likely work a hardship on many individuals living in dwellings that are nonconforming. Therefore, the following exemptions are provided for single-family residential structures.
A.
In any industrial or commercial zone a nonconforming dwelling may be altered or expanded provided the construction and siting complies with the property development and building code standards of the underlying zone.
B.
Any nonconforming dwelling that is destroyed or damaged to any extent may be replaced provided the owner has applied for a building permit within six months of such destruction or damage.
C.
Any nonconforming dwelling that is not occupied for any length of time shall be allowed to be continued as residential use.
(Ord. 720 § 7[5.2.3], 2003)