1.
Title.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
Lake Oswego Code Chapter 50 may be referred to as "the Community Development Code of the City of Lake Oswego" and is referred to herein as "the CDC" and "this Code."
2.
Purpose.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013; Ord.
No. 2841, Amended, 9-1-2020]
a.
Generally Applicable Purposes.
This Code has been drafted
in accordance with the policies set forth in the Comprehensive Plan
for the City of Lake Oswego. It is the general purpose of this Code,
therefore, to provide the principal means for the implementation of
the Comprehensive Plan. To fulfill this general purpose this Code
is intended to:
i.
Protect and promote the public health, safety, convenience and general
welfare;
ii.
Guide future land uses, growth and development in accordance with
the Comprehensive Plan;
iii.
Provide for review of those uses determined to carry the potential
for adverse impact on surrounding uses;
iv.
Assure prompt review of development applications for compliance with
this Code’s requirements, and the application of clear and specific
standards;
v.
Provide for public review and comment on development proposals which
may have a significant impact on the community;
vi.
Guide public and private policy and action to assure provision of
adequate water, sewerage, transportation, drainage, parks, open space
and other public facilities and services for each development and
to implement Comprehensive Plan policies concerning the distribution
of costs of public facilities and services required to serve development,
and coordinate the timing of development with the provision of adequate
public facilities and services;
vii.
Provide the opportunity for a mixture of housing types which meet
the needs of the City residents;
viii.
Establish procedures, standards, and review of uses assuring
that the design of site improvements and building improvements are
consistent with applicable standards and minimize adverse impacts
on surrounding land uses, and yet allow for and encourage flexibility
in the design and layout of site improvements and buildings, and innovation
in design and construction;
ix.
Provide for review and approval of the relationship between land
uses and traffic circulation in order to minimize congestion, with
particular emphasis on not exceeding the planned capacity of residential
streets to carry projected traffic; to provide for safe pedestrian
and bicycle circulation; to provide for the proper location of street
rights-of-way, easement and building lines; to assure provision of
adequate internal vehicle circulation; parking, loading and pedestrian
walkways;
x.
Minimize pollution and damage to waterways and Oswego Lake; to assure
the adequacy of drainage facilities and to protect the natural character
and functions of waterways;
xi.
Provide standards to regulate the impacts of development upon soils,
trees and vegetation, sensitive lands and other natural features;
xii.
Assure reasonable safety from fire, flood, landslide, erosion or
other natural hazards;
xiii.
Provide opportunities for economic development of the City;
xiv.
Protect the City’s aesthetic beauty and character; and
xv.
Promote the conservation of energy through site and building design
and orientation;
b.
Historic Preservation Purposes.
This Code incorporates
the City’s historic preservation regulations that are intended
to:
i.
Promote the historic, educational, architectural, cultural, economic,
and general welfare of the public through the identification, preservation,
restoration and protection of those structures, sites, objects, and
districts of historic and cultural interest within the City;
ii.
Foster community and neighborhood pride and sense of identity based
on recognition and use of historic and cultural resources;
iii.
Identify and designate as historic resources only those structures,
sites and objects which possess historic features and characteristics
viewed by this community as having true historical significance;
iv.
Strengthen the economy of the City by enhancing the historic and
cultural resources for tourists, visitors and residents;
v.
Encourage public knowledge, understanding and appreciation of the
City’s history and culture;
vi.
Promote the enjoyment and use of historic and cultural resources
appropriate for the education and recreation of the people of Lake
Oswego;
vii.
Preserve diverse architectural styles reflecting periods of the City’s
historical and architectural development; and encourage complementary
design and construction impacting historic resources;
viii.
Enhance property values and increase economic and financial
benefits to the City and its inhabitants;
ix.
Identify and resolve conflicts between the preservation of historic
or cultural resources and alternative conflicting uses;
x.
Integrate the management of historic and cultural resources into
public and private land management and development processes;
xi.
Provide the principal means to implement and carry out the provisions
of Statewide Planning Goal 5 and the Comprehensive Plan Policies relating
to historic resources and support the enforcement of all federal and
state laws relating to the protection of National Register resources,
archaeological sites and archaeological objects;
xii.
Recognize the importance of Oswego Lake to this community and the
attendant and long-standing use of the lake and appurtenant assets
for recreational, water quality and electrical power generation purposes;
xiii.
Provide clear procedures and standards to ensure that the ongoing
operation and maintenance of residential, commercial and industrial
uses are not affected in a manner that jeopardizes the economic viability
of such uses; and
xiv.
Protect private property owners against extraordinary cost occasioned
by the application of this chapter.
xv.
Ensure that land is divided so that structures can be oriented to
maximize solar access and to minimize shade on adjoining properties
from structures and trees.
|
[Editor’s Note: From time to time, new state
and federal laws, regulations, or court decisions are issued. The
reader is advised that federal or state law may be determined to supersede
portions of this Community Development Code, either generally or as
applied to a specific situation.]
|
1.
Applicability.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
Development of real property within the corporate limits of
the City of Lake Oswego shall be governed by this Code. All provisions
in other sections of the Lake Oswego Code which conflict with applicable
provisions of this Code are hereby superseded.
2.
Compliance.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
Except as otherwise specifically provided by this Code, no building
or other structure shall be constructed, reconstructed, improved,
altered, enlarged or moved, nor shall any use or occupancy of premises
within the City be commenced or changed, nor shall any condition of
or upon real property be caused or maintained after December 16, 1982,
except in conformity with the requirements prescribed for each of
the several zones and general regulations established hereunder. It
shall be unlawful for any person to erect, construct, reconstruct,
establish, occupy, alter, enlarge or use, or cause to be used, any
building, structure, improvement or use of premises located in any
zone described in this Code contrary to the provisions of this Code.
Where this Code imposes greater restrictions than those imposed or
required by other rules or regulations or Code provisions, the provisions
of this Code shall control.
3.
Maintenance
of Minimum Ordinance Requirements.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
No lot area, yard, or other open space, existing on or after
December 16, 1982, shall be reduced in area, dimension, or size below
the minimum required by this Code, nor shall any lot area, yard, or
other open space which is required by this Code for one use be used
as the lot area, yard, or other open space requirement for any other
use, except as provided in this Code.
4.
Relationship
to Other Laws and Private Agreements; Prior Approvals and Conditions
of Approval.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2732, Amended, 2-21-2017]
It is not an intent of this Code to interfere with, abrogate
or annul any easement, covenant or agreement between parties; provided,
however, that where this Code imposes a greater restriction upon the
use of buildings and premises, upon height of buildings, or requires
larger open spaces or similar restrictions than are imposed or required
by private agreements, easements and covenants, the provisions of
this Code shall govern.
a.
Approvals Granted Before December 16, 1982.
Planned
unit development approvals, conditional use permits, variances and
Development Review Commission approvals, and conditions attached to
those approvals, and conditions attached to zone change approvals,
granted prior to December 16, 1982, shall remain in effect until specifically
amended or deleted by action pursuant to this Code. A request to amend
approvals or delete or amend conditions of approvals is classified
as a request to amend the zoning map and shall be considered as such
unless the subject matter of the request is regulated by LOC § 50.07.003.11.a,
Modification of Approved Permit, in which case the request will be
processed pursuant to that section. Those conditions imposed or approvals
granted by ordinance under the prior zoning code may be amended or
deleted by order of the hearing body, or, on appeal, by order of the
City Council, without the necessity of adopting an amending ordinance.
1.
Official
Action.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
a.
All
officials, departments, employees, and commissions of the City vested
with authority to issue permits or grant approvals shall adhere to
and require conformance with this Code, and shall issue no permit
or grant approval for any development or use which violates or fails
to comply with conditions or standards imposed to carry out this Code.
b.
Any
permit or approval issued or granted in conflict with the provisions
of this Code, whether intentional or otherwise, is void. It is the
duty of the person receiving such permit to bring the structure or
use subject to the permit into compliance with the terms of this Code
immediately upon gaining knowledge that the permit is in conflict
with the provisions of this Code.
2.
Authority
of City Manager.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2841, Amended, 9-1-2020]
a.
Interpret, Implement, Enforce Code.
i.
The City Manager shall have the authority to interpret, implement,
and enforce the requirements of this Code, subject to review by the
hearing body and/or the City Council pursuant to this Code.
ii.
The City Manager may request an advisory opinion from the First Addition
Neighborhood Association or the Old Town Neighborhood Association
regarding interpretation or application of standards and requirements
of the R-6 and R-DD zones, respectively.
b.
Administrative Rules.
The City Manager may adopt administrative
rules to aid in implementing this Code.
c.
Delegation of Authority.
The City Manager may delegate
any authority or responsibility identified in this Code to any suitable
person.
d.
Interpretation of Approvals.
The City Manager shall
interpret the meaning and scope of approvals granted based on the
record of the proceeding.
|
[Cross-Reference: See LOC § 50.05.010.4.d,
Construction Standards – Grading, Clearing or Construction in
RP or RC zone.]
|
e.
Concurrent Hearings.
When more than one approval is
sought for a particular property the City Manager may allow the requests
to be processed concurrently. The City Manager may refuse to allow
concurrent consideration if it is determined that such a process would
be impractical or cumbersome, tend to create confusion before the
hearing body or require a potentially unnecessary use of City resources.
3.
Authority
of Hearing Body.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2841, Amended, 9-1-2020]
The hearing body shall be the Planning Commission, the Development
Review Commission (DRC) or the Historic Resources Advisory Board (HRAB).
a.
Planning Commission.
Except as provided by LOC § 50.01.003.3.d,
the Planning Commission shall hear:
b.
Historic Resources Advisory Board.
Except as provided
by subsection 3.d of this section, HRAB shall hear applications and
shall have the authority to make a decision to approve, approve with
conditions, or deny an application for the following:
c.
Development Review Commission.
i.
Except as provided by subsection 3.d of this section, the Development
Review Commission shall hear all other applications for development,
including:
d.
Consolidated Review.
If a person desires to apply for
a development which requires hearings before the Planning Commission,
DRC, and/or HRAB, the City Manager may either consolidate the proceedings
before one hearing body or schedule the hearings in such a manner
that a decision on the development can be made within the time period
for final action established by state law. The City Manager has the
sole discretion to determine which hearing body shall hear the application.
As a nonbinding guideline, the City Manager should refer the consolidated
proceeding to the Planning Commission if the City Manager believes
that the application raises significant policy issues. The City Manager
should refer the consolidated proceeding to the DRC if the City Manager
believes the primary issue involves siting or design.
4.
Development
Permits Restricted for Unlawful Uses.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
No development permit shall be issued for a development or use
of land in violation of this Code, unless the violation is rectified
as part of the development.
5.
Development
Restricted on Illegal Lot.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
a.
No
development permit shall be issued for the development or use of an
illegal lot unless the lot is made legal pursuant to the applicable
requirements for creation of a lot in effect at the time of application.
The applicant shall demonstrate conformance with applicable legal
requirements. This restriction applies regardless of whether the applicant
was responsible for creation of the illegal lot.
b.
If
an illegal lot cannot be made legal pursuant to subsection 5.a of
this section because it does not comply with lot area or dimensional
requirements in effect at the time of application, an application
for the creation of the lot shall be exempted from compliance from
such lot area or dimensional requirements if the applicant demonstrates
that the lot would have complied with lot area and dimensional requirements
applicable at the time of creation.
c.
If
an illegal lot cannot be made legal pursuant to subsection 5.a or
5.b of this section because it does not comply with applicable lot
area or dimensional requirements at the time of application and did
not comply with applicable lot area or dimensional requirements at
the time of creation, an application for the creation of the lot shall
be exempted from compliance with such lot area and dimensional requirements
if the applicant demonstrates that development that would be allowed
by legal creation of the lot will not have a significant negative
impact on the neighborhood in terms of scale, noise, traffic, parking,
loss of privacy, obstruction of views, or buffers from existing properties.
In determining the degree of impact, the City shall consider the consistency
of potential development on a lot with the existing development pattern
in the vicinity. The City may impose conditions on development of
the lot in order to ensure that legalization of the lot does not have
a significant negative impact on the neighborhood. Public notice of
an application to legalize a lot pursuant to this subsection shall
contain a map of the property illustrating the building envelope.
If the lot proposed to be made legal pursuant to this subsection has
a lot area or dimension which is less than 65% of the size or length
required by the zone at the time of application, the application to
create the legal parcel shall be referred to the Development Review
Commission for public hearing.
1.
Zoning
Districts.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2599, Amended, 12-18-2012; Ord.
No. 2668, Amended, 12-1-2015; Ord. No. 2687, Amended, 12-15-2015; Ord.
No. 2723, Amended, 10-18-2016; Ord. No. 2783, Amended, 6-19-2018]
The City is divided into the following zoning designations:
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Table 50.01.004-1: Zoning Designations
| |
|---|---|
|
Zone District Category
|
Map Designation
|
|
Residential
| |
|
Residential – Low Density
|
R-15
|
|
Residential – Low Density
|
R-10
|
|
Residential – Low Density
|
R-7.5
|
|
Residential – Medium Density (FAN)
|
R-6
|
|
Residential – Medium Density
|
R-5
|
|
Residential – Design District (Old Town)
|
R-DD
|
|
Residential – High Density
|
R-3
|
|
Residential – High Density
|
R-2
|
|
Residential – High Density
|
R-0
|
|
Residential – Waterfront Cabanas
|
R-W
|
|
Commercial
| |
|
Neighborhood Commercial
|
NC
|
|
General Commercial
|
GC
|
|
Highway Commercial
|
HC
|
|
Office Campus
|
OC
|
|
East End General Commercial
|
EC
|
|
Campus Research and Development
|
CR&D
|
|
Mixed Use
| |
|
Foothills Mixed Use
|
FMU
|
|
Mixed Commerce
|
MC
|
|
West Lake Grove Districts
|
|
|
WLG Townhome Residential
|
WLG R-2.5
|
|
WLG Residential Mixed Use
|
WLG RMU
|
|
WLG Office Commercial
|
WLG OC
|
|
Industrial
| |
|
Industrial
|
I
|
|
Industrial Park
|
IP
|
|
Special Purpose Districts
| |
|
Campus Institutional
|
CI
|
|
Public Functions
|
PF
|
|
Park and Natural Areas
|
PNA
|
|
Overlay Districts – Area Specific
| |
|
Glenmorrie R-15 Overlay District
|
GO
|
|
Evergreen R-7.5 Overlay District
|
EO
|
|
Lake Grove R-7.5/R-10 Overlay District
|
LGO
|
|
Downtown Redevelopment Design District
|
DRD
|
|
West Lake Grove Design District
|
WLG
|
|
Old Town Neighborhood Design
|
OTN
|
|
Lake Grove Village Center Overlay District
|
LGVCO
|
|
Southwest Overlay District
|
SWO
|
|
Overlay Districts – Resource Specific
| |
|
Greenway Management Overlay District
|
GM
|
|
Sensitive Lands Overlay
|
|
|
Resource Conservation (Tree Groves)
|
RC
|
|
Resource Protection (Streams and Wetlands)
|
RP
|
|
Habitat Benefit Area (Tree Groves)
|
HBA
|
|
Flood Management Area
|
FMA
|
2.
Zoning
Districts Map.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
a.
The
boundaries of the zoning districts established in this Code are indicated
on the City zoning map.
b.
Amendments
to the City zoning map may be made pursuant to LOC § 50.07.003.16,
Legislative Decisions. Copies of all map amendments shall be dated
with the effective date of the document adopting the map amendment
and shall be maintained without change, together with the adopting
document, on file in the office of the City Recorder.
c.
The
City Manager shall maintain an up-to-date copy of the City zoning
map to be revised from time to time so that it accurately portrays
changes of zone boundaries. A separate map shall also be maintained
and show the location of conditional use permits, planned developments
and variances. The City Manager shall index on the appropriate map
adjacent to such zone change, conditional use, planned developments,
or variance, the file number of the document authorizing the same.
3.
Interpretation
of Zone District Boundaries.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
a.
Guidelines for Interpretation.
Where due to the scale,
lack of detail or illegibility of the City zoning map or due to any
other reason, there is uncertainty, contradiction or conflict as to
the intended location of any zone district boundary, the exact location
of district boundary lines shall be determined by the City Manager
in accordance with the following guidelines:
i.
Street Lines.
Where district boundaries are indicated
as approximately following the centerline or right-of-way line of
streets, such lines shall be construed to be such district boundaries.
ii.
Street Vacations.
Whenever any street is lawfully vacated,
and the lands within the boundaries thereof attach to and become a
part of lands adjoining such street, the lands formerly within the
vacated street shall automatically be subject to the same zoning district
designation that is applicable to lands to which same attaches.
iii.
Lot Lines.
Where district boundaries are indicated as
approximately following lot lines, such lot lines shall be construed
to be said boundaries. If a district boundary divides a lot into two
or more districts, the entire lot shall be placed in the district
that accounts for the greater area of the lot by the adjustment of
the district boundary; provided, that the boundary adjustment is for
a distance of less than 20 ft. If an adjustment of more than 20 ft.
is required, the change in the district boundary shall be treated
as a change of zone.
iv.
Water Courses.
District boundary lines are intended
to follow the centerlines of water courses and the shore line of Oswego
Lake unless such boundary lines are otherwise fixed on the City zoning
map.
4.
Zoning
of Annexed Areas.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
a.
Zoning
designations on newly annexed territories shall be imposed as provided
in LOC § 50.01.004.5.
b.
The
City may consider the zoning for any area proposed for annexation
at the same time the question of annexation for the area is considered.
The notice and hearing procedures shall be the same as if the area
in question were located within the City limits. The zoning decision
shall not be a final decision for the purposes of judicial review
until the date that the approval of the annexation of the area has
become effective, or the date of the zoning order if that date is
later in time.
5.
Comprehensive
Plan Map Designations Automatically Applied Upon Annexations; Exceptions.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2687, Amended, 12-15-2015]
a.
The
Lake Oswego Comprehensive Plan Map provides for the future City zoning
of all property within the City’s Urban Service Boundary. In
cases where the Comprehensive Plan Map requires a specific zoning
map designation to be placed on territory annexed to the City of Lake
Oswego, such a zoning designation shall automatically be imposed on
territory as of the effective date of the ordinance annexing such
territory to the City. The City Manager shall modify the zoning map
accordingly. In cases where the Comprehensive Plan Map does not require
a specific zoning map designation to be placed on territory annexed
to the City, the City Manager shall prepare an application and recommend
a specific zoning map designation to the Planning Commission with
all due speed following the effective date of an ordinance annexing
such territory to the City of Lake Oswego. The Planning Commission
shall hear the application pursuant to LOC § 50.07.003.16,
Legislative Decisions.
b.
Where
the Comprehensive Plan Map indicates an RP, RC, or HBA District designation
on territory proposed for annexation, the City shall notify the owners
of the annexing territory that they have 20 days prior to the initial
public hearing on the annexation to contest the designation pursuant
to LOC § 50.07.004.8.b, Sensitive Lands Overlay Districts.
No fee shall be charged for such review. If, following review, the
decision-maker determines the property was improperly designated,
the RP, RC, or HBA designation shall be removed.
c.
When
evidence indicates that a resource that potentially qualifies for
an RP or RC District or HBA overlay designation pursuant to LOC § 50.07.004.8
exists on territory to be annexed, the City may conduct an Economic,
Social, Environmental, and Energy (ESEE) Analysis and determine whether
such a zone should be imposed pursuant to LOC § 50.07.004.8,
Sensitive Lands Overlay Districts. City staff may request a delay
in the effective date of annexation to complete review.
6.
Effect
of Conditions of Approval or Development or Design Regulations Imposed
Prior to Annexation.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]
a.
Purpose.
The purpose of this section is to require owners
of nonconforming uses, structures, or parcels annexed into the City
of Lake Oswego to continue to comply with the use, design or development
standards imposed by the prior jurisdiction until such time as the
use, structure, or parcel is modified or developed under City development
standards.
b.
Definition of Prior Jurisdiction.
For purposes of this
section, "prior jurisdiction" shall mean the county or city that had
zoning jurisdiction upon the parcel prior to its annexation to the
City of Lake Oswego.
c.
Compliance with Prior Jurisdiction Requirements.
Following
annexation of a parcel into the boundaries of the City of Lake Oswego,
the owner of a parcel shall comply with the use limitations, development
or design regulations, or conditions of approval applicable to the
use, structure or parcel imposed by the prior jurisdiction prior to
annexation of the parcel into the boundaries of the City.
d.
Interpretation of Prior Jurisdiction Requirements.
In the event it is necessary to interpret the design or development standards, or use limitations of a prior jurisdiction, or any condition of approval granted by a prior jurisdiction, the interpretation shall be made in the manner provided by LOC § 50.01.005, Authority to Interpret CDC, Zoning Map and Comprehensive Plan.
e.
Modification of Conditions of Approval.
The owner’s
obligation to comply with the conditions of approval of a development
permit issued by a prior jurisdiction may be modified following annexation
of the parcel into the City boundaries the same as if the conditions
were imposed by the City, in the same manner as provided in LOC § 50.07.003.11,
Modification of Development Permits. Except to the extent a condition
of approval is modified pursuant to this subsection, the prior jurisdiction’s
use limitations, and development or design regulations, shall continue
to apply to the use, structure or parcel.
f.
Modification of Use, Structure or Parcel to Comply with Applicable
City Use, Design, or Development Regulations.
A property
owner may seek modification of the requirements of a development permit,
including use, design or development regulations, issued or imposed
by the prior jurisdiction for the purpose of complying with comparable
City use, design or development regulations. Such modification shall
be in accordance with LOC § 50.07.003.11, Modification of
Development Permits. Except to the extent the use, structure or parcel
complies with City requirements following modification of development
permit as provided under this subsection, the owner shall comply with
the prior jurisdiction’s use limitations, and development or
design regulations.
g.
Effect of Compliance with Prior Jurisdiction Requirement or Modification
Upon Nonconforming Status.
This section shall not be
construed as remedying the nonconformance of any use, structure or
parcel with the use limitations, design and development requirements
of this Code. Notwithstanding the compliance of the owner with this
section, the structure or use shall nevertheless be deemed nonconforming
and shall be subject to the provisions of LOC §§ 50.01.006.1.b,
50.01.006.3.a.i, 50.01.006.3.a.iv and LOC § 50.01.006.4,
Nonconforming Uses, Structures, Lots and Site Features.
|
[Cross-Reference: LOC § 50.01.006.1 –
Nonconforming Defined; Rights Granted.]
|
1.
City
Manager Interpretations.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012]
A person may request an interpretation of the City Comprehensive
Plan or land use regulations from the City Manager. Such an interpretation
may be formal or informal, as follows:
a.
Formal Interpretation.
An applicant may request a formal
interpretation as it relates to the proposed development of a specific
property owned by the applicant or by a person for whom the applicant
is the agent. The application shall be in writing and shall set forth
the issues the applicant desires interpreted. A fee set by resolution
of the City Council may be charged for an application for a formal
interpretation. Notice of a request for a formal interpretation shall
be sent in the manner provided for a minor development pursuant to
LOC §§ 50.07.003.3.a and 50.07.003.14.c, and notice
of the interpretation shall be sent in the same manner as notice of
a decision on a minor development pursuant to LOC § 50.07.003.14.d.iii(3),
Notice of Final Decision. A formal interpretation may be appealed
in the same manner as a minor development. Once a formal interpretation
becomes final, it shall be binding on the City as it applies to a
future application for development of the subject property unless
the provision that is the subject of the interpretation is amended,
repealed or construed differently by LUBA or a court of competent
jurisdiction prior to the filing of the application for development.
Such an interpretation shall not be binding as it relates to development
of other properties.
b.
Informal Interpretation.
Any person may request the
planning staff or the City Attorney for an informal interpretation.
Such a request may either be oral or in writing, and is not subject
to notice, appeal or a fee. Such an interpretation is not a final
land use decision, however, and is not binding on City staff or City
appellate authorities as it applies to future land use applications
on the subject property or in general.
1.
Nonconforming
Defined; Rights Granted.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
a.
Nonconforming; Illegal.
i.
A use, structure, lot, or site feature (e.g., landscaping, parking, etc.; see Sign Code, LOC Chapter 47 for nonconforming signs) is nonconforming if the use, structure, lot, or site feature was initially lawfully established, but does not comply with or would not be permitted to exist under this Code due to a subsequent enactment or amendment to this Code, or due to annexation.
ii.
An illegal use, structure, lot or site feature is one that was not lawfully established because it does not comply with or would not be permitted under this Code or any prior versions of this Code. A use, structure, lot or site feature that was lawfully established under a prior jurisdiction but did not comply with this Code at the time of annexation is not illegal. An illegal use, structure, or site feature is a violation of this Code and may be subject to abatement or penalties pursuant to LOC Article 50.09. An illegal lot may obtain legal status only if it meets the requirements set forth in LOC § 50.01.003.5, Development Restricted on Illegal Lot.
b.
Approved Variance.
A use, structure, lot, or site feature
for which a variance was granted is not considered nonconforming solely
because the characteristic of the use, structure, lot, or site feature
for which the variance was granted fails to comply with the requirements
of this Code. However, the existence of an approved variance does
not prevent the use, structure, lot, or site feature from being classified
as nonconforming as to another characteristic that fails to comply
with the requirements of this Code.
c.
Applicability to Approvals and Incomplete Construction.
If a use, structure, or site feature that received final development
approval becomes nonconforming within a year after approval, but before
construction is completed, no change in plans, construction or use
for which a final development approval was received is required. All
rights granted by this section are extinguished if the development
permit or building permit is revoked or becomes void. The structure,
use, or site feature shall thereafter conform to all applicable provisions
of this Code.
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[Cross-Reference: LOC § 50.07.005.1 –
Uses Under Conditional Use Provisions Not Nonconforming Uses.]
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2.
Continuation
and Maintenance of Nonconformities.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord.
No. 2891, Amended, 2-21-2023]
a.
Continuation of Nonconformity.
Subject to the provisions
of this section, and except as otherwise provided by this Code, a
nonconforming use, structure, lot, or site feature may be continued
in use so long as it remains otherwise lawful.
b.
Demolition or Alteration of a Nonconforming Dwelling.
In a residential zone, an existing nonconforming residential dwelling
shall be removed or brought into conformance with this Code upon:
i.
Demolition of the dwelling under LOC § 45.12.100.1.d, except
where demolition results from the Building Official ordering the reconstruction
of a wall under subsection 2.c of this section because it is unsafe;
or
ii.
An increase in floor area of the dwelling by 50% or more where the
total floor area of the dwelling after the addition exceeds 90% of
maximum allowed floor area, except as provided in subsection 3 of
this section.
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EXCEPTION: In calculating whether the increase in floor area
of the dwelling is 50% or more, new floor area resulting from conversion
of existing unfinished and enclosed space within the structure is
excluded, provided the conversion does not expand the building or
increase roof height (including dormers).
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c.
Maintenance.
On any nonconforming structure or site
feature, maintenance may be performed in a manner not in conflict
with the other provisions of the City Code. Nothing in this Code shall
be deemed to prevent the strengthening or restoring to a safe condition
of any structure, or portion thereof, or site feature declared to
be unsafe by any official charged with protecting the public safety,
upon the order of that official.
3.
Expansion
or Change of Nonconformities.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord.
No. 2891, Amended, 2-21-2023]
a.
Nonconforming Structures.
A nonconforming structure
may only be expanded or changed in accordance with the provisions
of this subsection.
ii.
Portions of a nonconforming structure that are not being altered
as part of the expansion are not required to be brought into conformance
with this Code.
iii.
Extensions of nonconforming walls may be approved through the Minor
Variance process set forth in LOC § 50.08.002.2.k.
iv.
For residential structures, a change in roof pitch on a nonconforming
portion of the structure may be permitted if the roof height is not
increased by more than six ft. above the existing wall top plate and
does not exceed the base zone height.
v.
A nonconforming dwelling in a residential zone may maintain its nonconformity
notwithstanding the requirement in subsection 2.b of this section
to either demolish or conform to the Code, where:
(1)
The dwelling is located on publicly owned property; or
(2)
The development maintains a native tree 30 in. DBH or greater, or a native tree greater than 15 in. DBH if the lot contains no other native tree 30 in. or greater, within the building envelope of the lot. In both cases, the native tree must not be dead, invasive, or hazardous, as defined in LOC § 55.02.020. The owner shall record a notice of development restriction requiring preservation of the native tree prior to issuance of a building permit.
vi.
Use of Expansion Area.
(1)
If the building being expanded contains a permitted use, that
use may also occupy the building expansion area.
(2)
If the building being expanded contains a conditional use, that
use may only be enlarged to also occupy the building expansion area
with a modification of the conditional use permit.
(3)
If the building being expanded contains a nonconforming use,
that nonconforming use may be enlarged to also occupy the expanded
area with a conditional use permit, but the conditional use criterion
in LOC § 50.07.005.3.a.i, Authorization to Permit or Deny
Conditional Uses, as it relates to uses in the zone shall not apply.
b.
Nonconforming Uses.
i.
A nonconforming use may only be expanded with a conditional use permit,
but the conditional use criterion in LOC § 50.07.005.3.a.i,
Authorization to Permit or Deny Conditional Uses, as it relates to
uses in the zone shall not apply.
ii.
A nonconforming use with outdoor operations may only expand its outdoor
operations to new areas of the property with a conditional use permit.
c.
Nonconforming Site Features.
i.
If a property is nonconforming with respect to landscaping or open
space and the expansion of a structure on the property is proposed,
the applicant shall install new landscaping and/or open space in an
amount equal to the lesser of:
(1)
The footprint of the new building addition multiplied by the percentage
of landscaping and/or open space prescribed by this Code; or
(2)
The amount of landscaping and/or open space needed to bring the property
into compliance with the minimum amounts of landscaping and/or open
space required by this Code.
4.
Damage
and Reconstruction of Nonconforming Structures.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord.
No. 2832, Amended, 1-7-2020; Ord. No. 2892, Amended, 6-7-2022]
a.
Single-Family and Middle Housing Dwellings, Accessory Structures,
and Historic Landmarks.
This subsection is applicable
to nonconforming single-family dwellings, middle housing dwellings,
historic landmarks designated or listed upon the Landmark Designation
List, and accessory structures to a single-family dwelling, middle
housing dwelling, or historic landmark.
i.
Nonconforming Structures not Located in the Flood Management Area.
Subject to the time limitation in subsection 4.c of this section,
when all or any portion of a nonconforming structure listed above
is damaged by any cause other than an intentional act of the owner,
and no part of the structure is located in the flood management area,
the reconstruction of the nonconforming structure shall be exempt
from the provisions of this Code to the extent that the damaged portions
of the structure failed to conform.
ii.
Nonconforming Structures Located in the Flood Management Area.
Subject to the time limitation in subsection 4.c of this section,
when all or any portion of a nonconforming structure is damaged by
any cause other than an intentional act of the owner, and part of
the structure is located in the flood management area, the reconstruction
of the nonconforming structure shall be exempt from the provisions
of this Code to the extent that the damaged portions of the structure
failed to conform, except that no part of the structure shall be reconstructed
within the flood management area.
iii.
Nonconforming Single-Family or Duplex Dwelling or Landscaping Located
in an RP or RC District or Construction Setback.
(1)
Nonconforming Structures.
See LOC § 50.05.010.4.a,
Rebuilding Nonconforming Single-Family or Duplex Dwelling Located
in RP or RC District or Construction Setback, and LOC § 50.05.010.2.b
and c, General and Specific Exceptions.
(2)
Nonconforming Landscaping.
See LOC § 50.05.010.5.c.iii(8)(e),
Landscaping in an RC district, and LOC § 50.05.010.6.c.ii(1)(a)(v),
Landscaping in an RP district.
iv.
Damage to a Nonconforming Structure by an Intentional Act of an Owner.
When all or any portion of a nonconforming structure is damaged
by an intentional act of the owner, all reconstruction of the structure
shall conform to this Code.
b.
Structures Other Than Single-Family or Middle Housing Dwellings,
Accessory Structures, and Historic Landmarks.
i.
Applicability.
This subsection is applicable to structures
other than those listed in subsection 4.a of this section.
ii.
Ability to Construct or Reconstruct Nonconforming Structure.
(1)
Damage to Nonconforming Structures of Less than 50% of the
Structure Replacement Cost.
If a nonconforming structure
is damaged from any cause to the extent that the cost of rebuilding
the damaged portions is less than 50% of the current replacement cost
of the entire building, the rebuilding may be reconstructed to the
extent that it was nonconforming, except that no portion of the structure
shall be reconstructed in the flood management area.
(2)
Damage to Nonconforming Structures of More than 50% of the
Structure Replacement Cost.
If a nonconforming structure
is damaged from any cause to the extent that the cost of rebuilding
the damaged portions is 50% or more of the current replacement cost
of the entire building, the rebuilding shall conform to City codes
and standards.
c.
Time Limitation.
i.
In order to use any rights to reconstruct a damaged nonconforming
structure without full compliance with this Code, above, the building
permit for the new construction or reconstruction must be issued within
one year from the date of damage. If the building permit is not issued
within the one-year period, or if the building permit is issued but
later expires, the ability to reconstruct a nonconforming structure
not in compliance with this Code shall cease.
ii.
On demonstration that a good faith effort has been made by the owner
to be able to apply for the building permit to reconstruct the damaged
structure (including obtaining funding and completion of architectural
work) and a written request for extension is submitted prior to expiration,
the City Manager may extend the construction rights for an additional
year. Construction shall be completed within two years of the issuance
of the building permit or extension granted by the City Manager.
iii.
The time limitations in subsections 4.c.i and 4.c.ii of this section,
may be extended by the City Manager if the owner can demonstrate that
the reconstruction of a damaged nonconforming structure is pending
review under an insurance claim or litigation. Construction shall
be completed within two years of the settlement date or decision of
the insurance claim or litigation.
5.
Nonconforming
Lots.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2599, Amended, 12-18-2012; Ord.
No. 2644, Amended, 4-7-2015; Ord. No. 2892, Amended, 6-7-2022]
a.
Development Permitted.
A nonconforming lot that does not meet the minimum size or dimensional requirements of the zone in which it is located may be developed as permitted in that zone; provided, that (i) the structure complies with all applicable Code standards or (ii) the applicant obtains a variance pursuant to LOC Article 50.08, Variances.
Exception: No middle housing except a duplex and accessory structures
to a duplex shall be developed on a nonconforming lot that does not
meet the minimum size or dimensional requirements of the zone.
b.
Lot Line Adjustment.
Lot lines may be adjusted; provided,
that the degree of any existing nonconformity is not increased and
no new nonconformity is created on any of the lots involved as a result
of the adjustment.
6.
Discontinuation
of Nonconforming Use.
[Ord. No. 2579,
Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
a.
One-Year Time Limit.
If a nonconforming use is discontinued
for a period of at least one year, the nonconforming use may not be
restarted and future use shall comply with the requirements of this
Code. For the purpose of this standard, "discontinued" means the use
has vacated or ceased operation on the site.
b.
One-Year Extension.
Up to two one-year extensions may
be granted by the City Manager if the owner demonstrates that they
are actively marketing the property for continuation of the nonconforming
use but have been unable to find a buyer or tenant for that use. The
owner shall file each request for a one-year extension separately.
After three years, the nonconforming use may not be restarted, and
any future use of the structure shall comply with the requirements
of this Code.
