City of Lake Oswego, OR Review and Approval Procedures

Moving or demolition of a contributing resource;

Alteration or addition of 30% or more of floor area to a noncontributing resource;

Lot line adjustments and minor partitions that occur on a landmark or within a Historic District; and

Minor development on or to a landmark within a Historic District;

Ministerial development;

Ministerial development for all other historic resources for which the City Manager has decision-making authority.

Planning Commission.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

The Planning Commission shall be responsible for review and decision-making for the following types of applications:

Major Development – ODPS.

Applications for a quasi-judicial zone change or quasi-judicial Comprehensive Plan amendment or code amendment (recommendation to City Council only).

City Council.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

The City Council shall be responsible for review and decision-making of applications for the following:

Appeal of decisions by any hearing body; and

Legislative amendments to the Development Code, including amendments to the Zoning Map and Comprehensive Plan maps.

Development Review Commission.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2841, Amended, 9-1-2020]

The Development Review Commission shall be responsible for review and decision-making for the following applications:

Major development;

The following development regarding historic resources:

Major development on or to a historic resource,

Major development within a Historic District;

Requests for design variances within the Downtown Redevelopment District, LGVC Overlay, and the FMU District;

Minor development in the R-DD zone; and

Major variances.

Historic Resources Advisory Board.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2841, Amended, 9-1-2020]

The Historic Resources Advisory Board shall be responsible for review and decision-making for the following applications:

Designating or removing designation of a historic resource;

Establish, modify, or abolish a Historic District;

Demolition or moving of a landmark; and

Demolition (as defined in LOC § 50.06.009.8.b) or relocation of a National Register property.

§ 50.07.003 Review Procedures.

Application.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2725, Amended, 12-6-2016; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2783, Amended, 6-19-2018; Ord. No. 2784, Amended, 7-3-2018; Ord. No. 2797, Amended, 11-6-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2853, Amended, 11-3-2020; Ord. No. 2884, Amended, 4-5-2022; Ord. No. 2909, Amended, 2-7-2023]

Application for Development.

Forms and Information.

An application for a ministerial, minor, or major development shall be made on such forms and contain such information as the City Manager may require. If a railroad-highway crossing provides or will provide the only access to land that is the subject of the application, the applicant shall indicate that fact in the application.

Unified Site Plan.

All development in the R-0, R-2, R-3, R-W, CI and any PF or commercial zones and attached development in the R-5 zones will be developed under a unified site plan. The site plan will identify circulation patterns and access points, parking, method of provision of public services and general placement of lots and structures, and general area and type of uses. Proposals with multiple ownerships shall include a written agreement of all owners that development of the site will occur pursuant to the site plan approved.

Traffic Impact Study (TIS) Required.

The purpose of a traffic impact study is to:

Ensure that the existing and proposed transportation facilities in the vicinity of the proposed development are capable of accommodating the amount of traffic expected to be generated by the proposed development;

Protect future operations and safety of transportation facilities and major transit corridors, and implement the Comprehensive Plan and Transportation System Plan.

The City Engineer shall require a traffic impact study when any of the following conditions are met:

The proposed development or site modification will generate at least 25 trips in the roadway peak hour traffic period or at least 250 daily trips, prior to applying trip reduction factors; or

The site is subject to a Zoning Map or text amendment or Comprehensive Plan or Map amendment that increases the intensity (potential vehicle trip generation) of allowed uses; or

The daily use of the property increases by ten or more vehicles with a gross vehicle weight rating of 26,000 pounds or greater; or

The traffic generated by a proposed development will result in a traffic volume increase that could potentially change the functional classification of an existing or planned transportation facility (e.g., traffic volume exceeds local street classification; or

The City Engineer finds:

The City or other roadway authority has documented traffic safety or operations concerns within the study area, such as frequent crashes, poor roadway alignment, limited sight distance; or

Existing level of service of a nearby intersection is at or below LOS "D"; or

A proposed development is expected to alter traffic patterns on a local street or neighborhood collector within one-half mile of the subject lot such that access to individual properties or traffic safety is adversely impacted; or

(iv)

The site lies within one-quarter mile of the ramp terminal of an interstate freeway, as traveled along roadways.

The traffic impact study shall be conducted by a registered Oregon civil or traffic engineer with special training and experience in transportation analysis and planning, and shall either follow the TIS guidelines, approved by the City Engineer, or provide justification from a registered traffic engineer as to why the TIS guidelines should not be followed in that instance. The City Engineer shall issue TIS guidelines, which at a minimum shall address:

Identification of the study area;

Analysis of existing transportation conditions, including, as applicable, level of service and safety deficiencies, if any, on transportation facilities within the study area;

Future conditions (trip generation and trip distribution) for the proposed development;

Projected levels of service on intersections within the study area;

Analysis of impacts from projected traffic on applicable surface modes of travel (vehicular, freight, bicycle, pedestrian, and transit), including as applicable level of service, safety, and capacity for streets within the study area;

A recommendation of necessary transportation improvements or other measures to mitigate deficiencies identified by the TIS and ensure a Level of Service "E" or better at peak hour traffic period for intersections within the study area, after the future traffic impacts generated by the development are considered.

The applicant’s engineer shall certify the TIS by providing a signature and engineer stamp or seal.

[Cross-Reference: See City Engineer’s Traffic Impact Study (TIS) Guidelines.]

Burden of Proof.

The applicant for a development permit shall bear the burden of proof that their application complies with all applicable review criteria or can be made to comply with applicable criteria by imposition of conditions of approval.

Method of Application/Authority to Reject Applications.

An application for a development permit shall be filed with the City Manager. The City Manager may charge an application fee to process a development permit application.

The City Manager may decline to accept an application that, on its face, has not completed any one or more of the procedural requirements:

Pre-application conference, when required by this Code or as required by the City Manager, pursuant to LOC § 50.07.003.1.e;

Neighborhood contact and notice, when required by LOC § 50.07.003.1.f;

Payment of the filing fee, as required by this section.

Failure of the applicant to sign the application, or when the applicant is not the owner of the subject property, failure of the owner of the subject property to either sign the application or for the applicant to include the owner’s signed authorization for the applicant to file the application.

Signature on Application.

The applicant shall sign the application. If the applicant is not the owner of the property subject to the development application, the property owner shall authorize the application in writing before the City Manager may accept the application for review. For the purposes of this section, "owner" includes a public body or public agency with authority to exercise the power of eminent domain.

Pre-Application Conference.

A pre-application conference with the City Manager is required for:

Minor and major development permit applications; and

Ministerial permit applications:

For any type of accessory dwelling unit (ADU) that is not a conversion of existing floor area (including the garage floor area) in a primary structure. An ADU created by an addition to a primary structure is not a conversion. An ADU that is located in an accessory structure is not a conversion; and

Resource enhancement projects that involve work within a stream or wetland other than removal of invasive species and planting of vegetation.

	Exception: Exterior paint color review on nonhistoric buildings; modifications to an approved development permit where there is no increase in the intensity of the use and no new building permit would result; City projects to construct a nonhabitable structure not abutting a residential property; and minor variance to the fence standards when proposed to resolve a code enforcement citation.
	Pre-application conferences must be scheduled by the applicant prior to submitting an application for development or prior to submitting for a building permit for an ADU that is not a conversion.

A pre-application conference is not required for ministerial applications except for accessory dwelling units as required in subsection 1.e.i of this section, but may be scheduled at the request of the applicant or when required by the City Manager.

The purpose of the pre-application conference is to discuss the proposal, the applicable criteria and the requirements for completing an application. A copy of an adopted neighborhood plan shall also be provided to the applicant, regardless whether its provisions constitute criteria for the proposed development or not.

An applicant may request one or more additional pre-application conferences in order to discuss any changes in the applicable criteria and application requirements that may occur between the date of the pre-application conference and the filing of the development permit application.

The development permit application must be filed within one year from the date of the preapplication conference; if the development permit application is not filed within one year, a new pre-application conference is required unless the applicant requests and the City Manager approves a waiver of the additional pre-application conference.

Neighborhood Contact and Notice Required for Certain Applications.

Following a pre-application conference, and prior to submittal of an application, the applicant shall contact and discuss the proposed development with any affected neighborhood for the following development applications:

•	A partition, subdivision, or a major development, or
•	Any other development permit if the City Manager deems neighborhood contact to be beneficial.

Purpose.

The purpose of neighborhood contact is to identify potential issues or conflicts regarding a proposed application so that they may be addressed prior to filing. This contact is intended to result in a better application and to expedite and lessen the expense of the review process by avoiding needless delays, appeals, remands or denials. The City expects an applicant to take the reasonable concerns and recommendations of the neighborhood into consideration when preparing an application. The City expects the neighborhood association to work with the applicant to provide such input.

The City recognizes that potential impacts of development, such as stormwater runoff, traffic, noise or impacts on natural resources, may affect not only the area immediately surrounding the site of the proposed development, but the neighborhood in which the site is located, and adjacent neighborhoods.

Selecting Date, Time, and Location of Neighborhood Meeting.

In establishing the date, time and location of the meeting with the neighbors and with the neighborhoods:

Procedure.

The applicant shall follow the applicable procedures in subsections 1.f.ii(1)(a)(i) and (ii) of this section.

Required Organizations.

Recognized Neighborhood Association. Where the proposed development is within the boundaries of a recognized neighborhood association, the applicant shall provide the chair of the neighborhood association in which the site proposed for development is predominantly located three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

County Community Planning Organizations (CPOs). Where the proposed development is within the boundaries of a County-recognized CPO, or equivalent, the applicant shall provide the chair of the County CPO in which the site proposed for development is predominantly located three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

Homeowners Association. Where the proposed development is not within the boundaries of a recognized neighborhood association or County CPO, but is within the boundaries of a homeowners association registered with the Oregon Secretary of State, Corporation Division, the applicant shall provide the chair, president or registered agent of the homeowners association (according to the records of the Oregon Secretary of State) three alternative meeting options (on three different days, with at least seven days between the first and the last date proposed).

(iv)

Other. Where the proposed development is not within the boundaries of a recognized neighborhood association, County CPO, or registered homeowners association, the applicant shall provide the neighborhood chair of the recognized neighborhood association closest to the site proposed for development with the three alternative dates (on three different days, with at least seven days between the first and the last date proposed).

The chair of the recognized neighborhood association or County CPO, or chair, president, or registered agent of the homeowners association, as provided above in subsections 1.f.ii(i), (ii) and (iii) of this section, shall choose from the three alternatives within seven days of either the date the applicant mailed the request to establish the date and time of the neighborhood contact meeting or upon personal receipt of the written or oral request, whichever is earlier. If the chair, president, or registered agent, as applicable, fails to select the date and time of the meeting within the seven-day period, the applicant may establish the date and time of the meeting from one of the proposed alternatives.

Date, Time, and Location.

Unless approved by the chair of a recognized neighborhood association:

The meeting shall not be held on a legal holiday or the day before, as defined in ORS 187.010 (Sundays and listed holidays are "legal holidays").

The meeting shall be scheduled to commence during the evening between 6:00 and 8:00 p.m. not less than 20 days from the date of mailing of the notice.

The meeting shall be held at a location open to the public within the boundaries of the association, County CPO, or homeowners association, as applicable under subsection 1.f.ii(1)(a)(i) and (ii) of this section, in which the proposed development is predominately located or at a public facility within the City of Lake Oswego.

(iv)

If the meeting is held at a private residence or business, it shall be posted at the time of the meeting at the meeting place and shall note that the meeting is open to the public and all interested persons may attend, or if approved by the chair of the recognized neighborhood association, may be held via an online meeting platform.

Notice to Neighborhoods, Property Owners and Residents of Neighborhood Meeting.

The applicant shall contact by letter:

All recognized neighborhood associations whose boundaries contain all or part of the site of the proposed development;

All recognized neighborhood associations that are adjacent to those neighborhood(s) described in subsection 1.f.iii(1)(a) of this section; and

All property owners within 300 ft. of the site; provided, however, if there are less than 50 properties (excluding City-owned properties) within 300 ft. of the boundaries of the site, the notice area pursuant to this subsection shall be expanded, by ten-ft. increments outward from the 300-ft. boundary, until at least 50 properties (excluding City-owned properties) are included in the notice area.

The letter shall briefly describe the nature and location of the proposed development, and invite the associations and interested persons to a meeting to discuss the proposal in more detail.

On the same date the letters described above are mailed, the applicant shall provide and post notice on the property subject to the proposed application. The notice shall be posted at a location visible from the public right-of-way. The notice shall state that the site may be subject to a proposed development (e.g., partition, subdivision, major development, or as otherwise required by the City Manager) and shall set forth the name of the applicant and a telephone number where the applicant can be reached for additional information. The site shall remain posted until the conclusion of the meeting.

Manner of Providing Letter Notice of Neighborhood Meeting.

Mailed Notice.

The letters required by subsection 1.f.iii(1) of this section shall be sent as follows:

For recognized neighborhood associations:

By first class mail, and electronic mail if provided, to the chairs of the neighborhood associations, County CPO, or homeowners association; and

By first class mail to the other officers of the recognized neighborhood associations; and

For property owners, by first class mail. The names and mailing addresses of the property owners shall be as shown by the most recent property tax assessment roll.

Recording the Neighborhood Meeting.

The neighborhood associations, the applicant, and any interested person shall have the option of audiotaping the meeting. However, it is not a requirement that the meeting be audiotaped.

Applicant’s Presentation at Neighborhood Meeting.

The applicant shall provide details in the neighborhood meeting that convey the appearance (materials and colors), site design, density, natural resources protection areas, arrangement of uses, access and other relevant visual information that would be included in a complete application for the type of development proposed.

Meeting Minutes/Neighborhood Association Concerns.

The applicant shall prepare minutes of the neighborhood meeting. The minutes shall contain a record of any verbal comments made at the meeting.

The applicant shall send a copy of the written minutes of the neighborhood meeting to the respective neighborhood association chairs that received notice of the meeting pursuant to subsections 1.f.iii(1)(a) and (b) of this section, and, if applicable, pursuant to subsections 1.f.ii(1)(a)(ii) and (iii) of this section, the chair of the County CPO, or chair, president, or registered agent of the homeowners association, within 14 days following the meeting.

Each neighborhood association chair, chair of the County CPO, or chair, president, or registered agent of the homeowners association, as applicable, or representative thereof, shall submit a list of the respective neighborhood’s concerns, if any, to the City and the applicant within 14 days following the mailing of the minutes by the applicant to the neighborhood association chair or the chair’s designated representative.

The neighborhood association chairs, chair of the County CPO, or chair, president, or registered agent of the homeowners association, as applicable, shall be allowed to supplement the record with any additional comments regarding the content of the meeting, as long as such comments are filed before the record is closed.

Applicant’s Documents Filed with Application.

An application shall not be accepted for filing unless and until the applicant demonstrates compliance with this section by including with the application:

A copy of the letter to the chairs of the recognized neighborhood associations, County CPO, or homeowners association;

A copy of the letter to officers of the associations and to property owners and residents pursuant to subsection 1.f.iv of this section, including an affidavit of mailing and a copy of the mailing list containing the names and addresses of such owners and residents;

A copy of the required posted notice, along with an affidavit of posting;

A copy of the minutes of the meetings, and copies of any written comments from property owners, residents, and neighborhood association members; and

A copy of the materials that were presented at the neighborhood association meeting.

Determination of Completeness.

The purpose of this subsection and subsections 1.g.ii and iii of this section is to codify the statutory maximum review period in the applicable ORS 197.311 (Final Action on Application for Certain Residential Developments Required Within 100 Days) or 227.178 (Final Action on Certain Applications Required Within 120 Days) (referred to herein as the "Maximum Review Period Rule"). In the event of a difference in procedure for determining when an application is complete, the provisions of then ORS 197.311 or 227.178 shall supersede any inconsistent provisions of this subsection and subsections 1.g.ii and iii of this section. This subsection and subsections 1.g.ii and iii of this section are applicable only to those minor and major development applications that are subject to the requirements of the Maximum Review Period Rules under state law.

The City Manager shall review the application and determine whether it is complete. The City Manager shall mail a written notice of such determination within 30 days of the date of filing of the application. If the City Manager determines that the application is incomplete, the City Manager shall inform the applicant in the written notice of the additional information necessary to make the application complete. The application shall be complete at such time as:

All of the missing information is submitted;

Some of the missing information is submitted and written notice from the applicant that no other information will be provided; or

Written notice from the applicant is submitted that none of the missing information will be provided.

The applicant shall have 180 days to complete the application.

If the City Manager fails to mail notice of the determination within 30 days from the date of filing of an application, the application shall be deemed complete on the 31st day following filing of the application for the purposes of the applicable Maximum Review Period Rules.

When the City Manager determines the application is complete, the City Manager shall inform the applicant of the completeness by mail. A copy of the completeness letter shall also be mailed to the affected neighborhood associations identified in LOC § 50.07.003.1.f.iii(1)(a) and (b). Within ten days of the mailing of the notice of completeness to the respective neighborhood associations, the chair, or the chair’s representative, of any of the noticed neighborhood associations may request a meeting with the City Manager to discuss the application. The purpose of this meeting is to identify issues. No evidence or argument presented at this meeting shall be deemed to be made part of the record; any evidence or argument shall be submitted in the manner required by LOC § 50.07.003.3, Public Notice/ Opportunity for Public Comment, or LOC § 50.07.003.15.b.i, and LOC § 50.07.003.4.a, Conduct of the Hearing. If a meeting is requested, the applicant shall be notified of the meeting and invited to attend the meeting.

A final decision on an application, including resolution of all appeals, shall be rendered within the applicable Maximum Review Period Rules after the application is deemed complete pursuant to ORS 197.311 or 227.178.

Nothing in this section shall be deemed to be a limitation on the City’s ability to render a final decision on a land use application after the expiration of the applicable Maximum Review Period Rule.

Extensions or Continuances.

Extension to File Completed Application.

No extension or continuance is available to file a completed application, per ORS 227.178(3, 4).

Extension to Complete Review and Decision on Application.

The applicant for a major or minor development may request in writing a specified period of time for a continuance of review of a complete application. A request for an extension or continuance shall be deemed a waiver of the applicable Maximum Review Period Rule deadline contained in ORS 227.178 for the period of the extension or continuance, and for any additional time required for rescheduling or renoticing review proceedings. The total of all extensions for review of a complete application may not exceed 245 days.

Withdrawing an Application.

An applicant may withdraw an application at any time prior to adoption of a final City decision on the application. Proceedings on the application shall terminate as of the date of withdrawal. The City Manager may refund all or part of the application fee, depending on how much staff work had been completed at the time of withdrawal.

Modification of Pending Application.

Modifications of a pending application shall be considered under the standards in effect at the time the application was filed, if the modification:

Does not increase the amount of required parking, square footage, or the number of dwelling units; or

Does not change the form of a structure.

Any modification that does not comply with subsection 1.j.i of this section shall be considered a new application.

Fees and Deposits.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

The City may charge fees and deposits for applications, plan reviews, inspections, interpretations, appeals, or any other action pursuant to this Code. Such fees shall be established by resolution of the City Council. The City Manager shall review application fees annually and shall recommend proposed fees and fee changes to the Council.

The filing fee requirement shall not apply to appeals filed by the Oregon State Department of Land Conservation and Development or to appeals filed by recognized neighborhood associations entitled to receive notice of a pre-application neighborhood meeting.

Public Notice/Opportunity for Public Comment.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2668, Amended, 12-1-2015; Ord. No. 2725, Amended, 12-6-2016; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2783, Amended, 6-19-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2884, Amended, 4-5-2022]

Written and Posted Notice for Minor Development.

Prior to making a final decision on a minor development permit application, notice of the opportunity to comment upon an application and, if applicable, the date of a public hearing upon the application shall be given as follows:

Notice to Property Owners.

The City Manager shall provide written notice to property owners within 300 ft. of the entire contiguous site for which the application is made. Except for residential infill design review (RID) applications, if there are fewer than 50 properties (excluding City-owned properties) within 300 ft. of the site, the notice area shall be expanded by ten-ft. increments outward from the 300-ft. boundary until at least 50 properties (excluding City-owned properties) are included in the notice area. The list shall be compiled from the most recent property tax assessment roll.

Notice to Neighborhood Associations.

Written notice shall also be sent to:

Any recognized neighborhood association(s) whose boundaries either contain part or all of the site; and

All adjacent recognized neighborhood associations (adjacent recognized neighborhood associations are those associations which share boundaries with the neighborhood(s) identified in subsection 3.a.ii(1) of this section, and include recognized neighborhood associations that are separated from the neighborhood association(s) identified above by a street or stream).

Notice to Other Jurisdictions and Affected Roadway and Railroad Authorities.

Written notice shall be provided to:

Oregon Department of Transportation and the affected railroad company if the application indicates that a railroad-highway crossing provides or will provide the only access to land that is the subject of the application; and

A city or county or state where that jurisdiction’s boundary or transportation facility is within one-half mile of the boundary of the development site.

The City Manager may give additional notice of application to other governmental entities as deemed appropriate, e.g., TriMet.

Notice for Development within the Greenway Management Overlay District.

In addition to the notification required above, the City shall notify the Oregon State Department of Transportation by first class mail (or electronic mail if consented to) immediately upon receipt of a complete application for development, change or intensification of use in the Greenway Compatibility Review Boundary area and shall notify the Department of final actions taken on the applications.

Contents of Notice.

The notice required by this section, above, shall:

Provide a 14-day period for submission of comments prior to the decision;

State the place, date and time that comments are due;

State that issues which may provide the basis for an appeal to the Land Use Board of Appeals shall be raised with sufficient specificity to enable the City to respond to the issue;

List, by commonly used citation, the applicable criteria for a decision;

Set forth the street address or other easily understood geographical reference to the subject property;

If the application concerns a specific location, include a map identifying the subject site in relation to the nearby neighborhood and streets;

State that copies of all evidence relied on by the applicant are available for review, and that copies can be obtained at cost;

Include the name and phone number of the City Manager or such other City staff person as may be assigned by the City Manager to review the application; and

For a similar use analysis, a description of the proposed use.

Posted Notice.

Within three business days after the mailing date of the notices in LOC § 50.07.003.3.a.i through iv, the City shall post notice on the property subject to the proposed application. The notice shall be posted at a location visible from the public right-of-way. The notice shall state:

That the site is the subject of a proposed development application,

The name of the applicant,

The name and telephone number of the staff coordinator for the application,

The deadline for submission of written comments,

The date of the public hearing, if applicable,

That a copy of the mailed notice (which includes a listing of the criteria for the decision) can be obtained from the planning coordinator.

	The site shall remain posted until the conclusion of the date for submission of comments and, if applicable, the date set for the first evidentiary public hearing upon the application.
	The City Manager shall certify that such notice was given.

(Reserved)

Notice for Initial Public Hearing for Minor and Major Development.

Notice of a public hearing before a hearing body containing the information required below shall be mailed at least 20 days before the initial public hearing as follows:

To the applicant;

To property owners in the same manner as provided in LOC § 50.07.003.3.a.i;

To neighborhood associations in the same manner as provided in LOC § 50.07.003.3.a.i;

To a:

City and county when the lot is within one-half mile of the City’s or county’s boundary;

City, county, and ODOT when the lot is within one-half mile of the City’s, county’s or state’s transportation facility; and

Railroad company when the railroad-highway crossing provides or will provide the only access to land that is the subject of the application.

Persons filing comments within any comment period: If the hearing regards an appeal of a City Manager decision on a minor development application, to any person not otherwise required to be notified by this section who submitted comments during the 14-day comment period.

Nothing in subsection 3.c.i of this section shall preclude the City Manager from providing additional public notice as the City Manager deems appropriate.

Except as otherwise provided in subsection 3.c.iv of this section, the notice shall:

Explain the nature of the application and the use or uses which could be authorized;

List the applicable criteria from the ordinance and plan that apply to the application at issue;

Set forth the street address or other easily understood geographical reference to the subject property;

If the application concerns a specific location, include a map identifying the subject site in relation to the nearby neighborhood and streets;

State the date, time and location of the hearing, or if the hearing is to be held by telephonic or electronic means, date, time and the method to telephonically or electronically access the hearing;

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 hearing body an opportunity to respond to the issue precludes appeal to the City Council and the Oregon State Land Use Board of Appeals on that issue;

Include the name and phone number of the City staff person assigned to the application from whom additional information may be obtained;

State that a copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at no cost and will be provided at reasonable cost;

State that a copy of the staff report will be available for inspection at no cost at least ten days prior to the hearing and will be provided at reasonable cost; and

Include a general explanation of the requirements for submission of testimony and the procedure for conduct of the hearing.

In addition to the mailed notice above, notice shall be given by posting upon the subject property in the same manner as required by LOC § 50.07.003.3.a.vi.

[Editor’s Note: Per LOC § 50.07.004.5, notification of a circulation analysis is required if a minor development is subject to the Street Connectivity Development Standard.]

Notice for Legislative Hearing.

Notice of a hearing on a legislative decision shall be published at least once in a newspaper of general circulation in the City of Lake Oswego at least ten days in advance of the hearing. Notice shall also be mailed at least ten days in advance to the Committee for Citizen Involvement and to all recognized neighborhood associations. The notice shall include:

The time, date, and place of the public hearing;

A brief description of the proposed legislative amendment; and

A phone number for obtaining additional information.

Hearings.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2797, Amended, 11-6-2018; Ord. No. 2884, Amended, 4-5-2022; Ord. No. 2909, Amended, 2-7-2023]

Conduct of the Hearing.

The Chair of the hearing body shall conduct the initial evidentiary hearing on a major development application or an appeal of a decision on a minor development as follows:

The Chair shall open the hearing by stating the general nature of the application, followed by a summary of these procedures.

The Chair shall ask whether any member of the hearing body has any potential bias, conflict of interest, or had ex parte contact. "Ex parte contact" is any contact regarding the subject application outside of the public hearing, including a site visit. Ex parte contact does not include contact with City staff members. Any member of the hearing body who has bias, a conflict of interest, or has had an ex parte contact shall explain the nature of such bias, conflict or ex parte contact.

The Chair shall next ask if there is any challenge to a hearing body member’s right to consider the application. Unless the challenge is based upon information revealed pursuant to subsection 4.a.xi(2) of this section, a challenging party must deliver a written document setting forth the reasons and authority for such challenge to the member challenged and the hearing body Chair at least 24 hours prior to the hearing.

The Chair shall next call for presentation of the staff report. Staff shall list the applicable substantive criteria and shall explain the reasons behind the City Manager’s recommendation or decision, in the case of an appeal.

The Chair shall state that evidence and testimony must be directed to the applicable criteria described by staff or to other criteria in the Comprehensive Plan or land use regulations which the person believes to apply to the decision. The Chair shall also state that failure to raise an issue accompanied by statements or evidence sufficient to afford the decision-maker and the parties an opportunity to respond precludes appeal to the City Council or LUBA on that issue.

The Chair shall call for the applicant’s testimony.

The Chair shall call for other evidence or testimony in support of the application.

The Chair shall call for evidence or testimony in opposition to the application.

The Chair shall call for neutral evidence or testimony.

The Chair shall call for rebuttal by the applicant. The applicant’s rebuttal is limited to responding to testimony previously submitted and shall be based solely on the evidence in the record. If the applicant submits new evidence in aid of rebuttal, the Chair shall allow any person to respond to that evidence, and provide for final rebuttal by the applicant.

Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional evidence or testimony regarding the application. The hearing body shall grant such request by continuing the hearing pursuant to subsection 4.a.xi(1) of this section or leaving the record open for additional written evidence or testimony pursuant to subsection 4.a.xi(2) of this section.

If the hearing body grants a continuance, the hearing shall be continued to a date, time and place certain at least seven days from the date of the initial evidentiary hearing. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence and testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven days to submit additional written evidence or testimony for the purpose of responding to the new written evidence.

If the hearing body leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days. Any participant may file a written request with the City for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearing body shall reopen the record for a specific period of time. During this period, any person may submit written testimony raising new issues which relate to the new evidence, testimony or criteria for decision-making which apply to the matter at issue.

A continuance or extension granted pursuant to this section shall be subject to the applicable Maximum Review Period, unless the continuance or extension is requested or agreed to by the applicant.

Unless waived by the applicant, the hearing body shall allow the applicant at least seven days after the record is closed to all other parties to submit final written arguments in support of the application. The applicant’s final submittal shall be considered part of the record, but shall not include any new evidence.

xiii.

If no continuance is granted and the record is not left open, or at the conclusion of such continuance or open record period and/or any additional seven-day rebuttal period granted to the applicant pursuant to subsection 4.a.xii of this section, the Chair shall return the matter to the table for deliberation and decision. The hearing body’s deliberations may include questions to or testimony by City staff regarding the criteria, evidence and testimony in the record. The hearing body may also direct questions to any person present. If any person other than City staff is questioned or allowed to make comments during deliberation, the Chair shall allow any other person to respond to such comments.

xiv.

For purposes of this section:

"Argument" means assertions and analysis regarding the satisfaction or violation of legal standards or policy believed relevant by the proponent to a decision. "Argument" does not include facts.

"Evidence" means facts, documents, data or other information offered to demonstrate compliance or noncompliance with the standards believed by the proponent to be relevant to the decision.

Time Limits on Testimony.

The purpose of time limits on testimony is to provide all interested persons with an adequate opportunity to present and respond to testimony while at the same time ensuring that the hearing can be conducted in an efficient and expeditious manner. The following time limits on testimony shall be observed during a hearing conducted by a hearing body, subject to the right of the Chair, with hearing body consent, to amend or waive the time limits:

Twenty minutes for the applicant’s presentation;

Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

Five minutes for other persons; and

Five minutes for rebuttal.

The time limits set forth in this section shall not include time taken up resolving objections or by questions or response to questions from the hearing body.

As a general guideline, if the Chair decides to increase or decrease the time limits for testimony, the Chair shall do so in equal proportion for both the appellant and the applicant. The Chair may increase the time limit for rebuttal without increasing other time limits on testimony, however, in cases where the testimony in opposition is so complex or extensive that five minutes would not give the applicant an adequate opportunity to respond to the testimony.

Any person in attendance at the hearing may cede their time for testimony to a representative or another person and thereby increase that representative’s or other person’s time for testimony. No person’s or other representative’s testimony may be increased to greater than ten minutes. No person may cede their time to the applicant or the appellant.

Testimony, Exhibits, and Other Evidence.

Any person may present testimony at a public hearing before a hearing body on a major development application or appeal of a minor development decision.

Any person may submit exhibits or written comments prior to the public hearing. Written comments or exhibits submitted prior to the public hearing must be received by the City Manager by noon on the day of the scheduled hearing to be submitted by staff at the hearing. Exhibits or written comments that are merely referred to in testimony but which are not placed before the hearing body pursuant to this section shall not become part of the record of the proceedings.

The hearing body may take official notice of all adjudicative facts and law which may be judicially noticed pursuant to ORS 40.060 to 40.090, including an ordinance, comprehensive plan, resolution, order, written policy or other enactment of the City of Lake Oswego. Matters officially noticed need not be established by evidence and may be considered by the hearing body in determination of the matter.

Objections.

The purpose of the hearing procedures set forth in this Code is to provide all interested persons a reasonable opportunity to participate in the hearing process and to provide a full and impartial hearing on the application or appeal before the hearing body. Any question concerning the proper conduct of a hearing held pursuant to this Code may be raised by any person during the proceeding by making an objection. The Chair shall rule on any objection, subject to the right of the hearing body to overturn the Chair’s ruling by majority vote.

Preservation of Order.

The Chair shall preserve order and decorum, discourage personal attacks, and confine debate to the material issues. The Chair may eject from the hearing any person in attendance who becomes disorderly, abusive or disruptive, or who fails or refuses to obey a ruling of the Chair. The Chair may summon assistance of the Lake Oswego Police to assist in maintaining order.

Continuances.

The hearing body shall continue a public hearing or leave the record open when required to do so, pursuant to LOC § 50.07.003.4.a.xi.

The hearing body may elect to continue a hearing one or more times on its own motion or at the reasonable request of a party. Any continuance or extension of the record requested by an applicant shall result in a corresponding extension of the time limitations of the applicable Maximum Review Period. If the initial evidentiary hearing has not been completed pursuant to LOC § 50.07.003.4.a, the continued hearing shall resume at the point in the proceedings at which the hearing was continued. If the initial evidentiary hearing has been concluded and the hearing body desires a continuance to reopen the record for additional testimony, the continued hearing shall be conducted as provided in subsection 4.f.iii of this section. In the latter case, the hearing body may limit evidence or testimony to a particular issue or issues, but any person shall be allowed to raise new issues which relate to the new evidence, testimony or criteria for decision-making for which the hearing body continued the hearing.

Except as otherwise provided in subsection 4.f.ii of this section, a continued hearing shall be conducted as follows:

The Chair shall open the continued hearing.

The City Manager shall give a staff report which shall include the reason for the continuance.

If applicable, the Chair shall state that testimony at the hearing is limited to addressing the new documents or evidence described by staff and any new issues which relate to such documents or evidence.

The Chair shall call for the applicant’s testimony.

The Chair shall call for testimony from persons in favor of the application.

The Chair shall call for testimony from persons opposed to the application.

The Chair shall call for testimony from persons neutral on the application.

The Chair shall call for rebuttal by the applicant.

Unless an extension of the record is requested pursuant to LOC § 50.07.003.4.a.xi(1), and/or the applicant exercises their right to final rebuttal pursuant to LOC § 50.07.003.4.a.xii, the Chair shall return the matter to the table for deliberation and decision as described in LOC § 50.07.003.4.a.xiii. If an extension of the record is requested and/or the applicant exercises their right of final rebuttal, the Chair shall continue deliberation to a time, date and place certain following final closure of the record.

Notice.

No additional notice of a continued hearing is required if the hearing body continues the hearing to a date, time and location or telephonic/electronic means of attendance certain. If a public hearing must be continued due to lack of a quorum of the hearing body, no additional notice of the continued hearing is required if all entrances to the hearing location are posted by the time and date of the originally scheduled hearing with a conspicuous written notice setting forth a date, time and place certain for the continued hearing, or if the hearing was to be held by telephonic or electronic means, the continuance is so announced at that time in the designated telephonic or electronic manner. In all other cases, public notice of a continued hearing shall be given pursuant to LOC § 50.07.003.3.c.

Decision of the Hearing Body.

At the conclusion of deliberations, the hearing body shall make a preliminary oral decision to approve, approve with conditions pursuant to LOC § 50.07.003.5, or deny an application based upon the applicable standards and criteria and the evidence and testimony in the record. The preliminary oral decision is not a final decision. At any time prior to the adoption of the final order pursuant to subsection 4.g.ii of this section, the hearing body may modify or change its decision or choose to reopen the hearing.

The hearing body shall adopt a final written order either immediately after making its preliminary oral decision or at a public meeting within a reasonable time after making the preliminary oral decision. The final written order shall consist of a brief statement that explains the criteria and standards considered relevant, states the facts relied upon in rendering the decision and explains the justification for the decision based upon the criteria, standards and facts set forth. The order shall also contain or incorporate by reference any conditions of approval deemed necessary or appropriate by the hearing body. A proposed order may be prepared by the City Manager or may be prepared by the prevailing party subject to review and approval of the City Manager. The hearing body shall amend the proposed order if it finds that the proposed order does not accurately articulate the hearing body’s decision. Except as provided in subsection 4.g.iii of this section, the written order is the final decision on the application and the date of the order for purposes of appeal is the date on which it is adopted by the hearing body.

In the case of a major development which requires an amendment of the Comprehensive Plan, or the text or map of this Code, the hearing body’s order adopted pursuant to subsection 4.g.ii of this section shall be considered a recommendation to Council and not a final decision. The notice of the hearing body’s decision provided pursuant to LOC § 50.07.003.4.h shall be modified to note that the decision is a recommendation which will be forwarded to the Council for public hearing and final decision. The Council shall review the recommendation pursuant to LOC § 50.07.003.7.f through o, Appeals, and LOC § 50.07.003.4.e, Preservation of Order, except that, for purposes of the appeal hearing in LOC § 50.07.003.7.i, Conduct of the Appeal Hearing, the applicant shall proceed with testimony, followed by persons in favor of the application, opponents, and rebuttal by the applicant.

Motions for reconsideration of either a preliminary decision or final order filed by a party shall not be allowed. The City Manager may recommend reconsideration prior to adoption of the final order if the City Manager, in consultation with the City Attorney, believes reconsideration is necessary to correct a procedural error that prejudiced a party’s substantial rights.

Notice of Decision.

Notice of the decision shall be sent to the applicant and to all persons who testified either orally or in writing before the hearing body. The notice of decision shall:

Include the file number, date and brief summary of the final decision;

Include the name and address of the applicant;

Include an easily understood geographical reference to the subject property and a map, if applicable;

State that a copy of the decision is available for review, and that a copy can be obtained at cost; and

State that the decision may be appealed by filing a written notice of intent to appeal with the City Manager within 15 calendar days of the date of the final decision. The notice shall include the requirements for filing a notice of intent to appeal contained in LOC § 50.07.003.7.d. The name, address and phone number of the City Manager shall be included in the notice.

Record of Proceedings.

The City Manager shall maintain a record of all proceedings on requests processed pursuant to this Code. The record of proceedings leading to approval of a request shall be maintained for a period of time to be determined by the City Manager, which shall not be less than two years from the date of the approval.

Conditions on Development.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014]

The reviewing authority may impose conditions of approval on a major or minor development permit in one or more of the following circumstances:

The condition is necessary to bring the application into compliance with applicable approval criteria.

The condition is required as a condition of approval, construction or implementation by the development standards, the Lake Oswego Code or state statute.

The condition is reasonably related to alleviation of a need for public services or facilities created or contributed to by the proposed development. As used in this section, "public services or facilities" includes sewer, water, surface water management, parks, open space, streets, sidewalks, and pathways.

The condition is reasonably related to eliminating or mitigating a negative impact on natural features or processes or on the built environment of the neighborhood which is created or contributed to by the proposed development. As used in this section, "natural features or processes" includes tree groves, stream corridors and natural drainage ways, significant tree(s), wetlands, and other natural areas.

The proposed variance or exception to a code requirement is based on the preservation of tree(s), and the condition of approval is reasonably related to preserving the tree(s) that is the basis for the variance or exception.

Conditions of approval contemplated by LOC § 50.07.003.5.a include, but are not limited to:

Imposition of a development schedule.

Requiring reservation or protection of land for open space or to protect significant natural features.

Requiring dedication of property, rights-of-way, easements or conservation easements for public facilities such as streets, utilities, pathways, sidewalks, surface water management and street trees, or for protection of tree groves, wetlands, stream corridors or other natural features. Dedications of property or property rights pursuant to this subsection must be based upon findings pursuant to LOC § 50.07.003.5.a.iii or iv.

Requiring on-site and off-site construction of or improvements to public facilities where necessary to ensure adequate capacity and where service demand will be created or increased by the proposed development. The costs of off-site improvements may be prorated between the applicant and the City in proportion to the increased service demand which will be created by the project when compared to the demand existing if the project were not constructed.

Requiring construction and maintenance guarantees to ensure that required public facilities are constructed to and will comply with City standards, regulations or conditions.

Requiring modifications in the design or intensity of a proposed development or to require or prohibit certain construction methods.

Requiring approval, inspection, or evaluation by another agency, jurisdiction, public utility or consultant.

Limiting the number, location or design of street accesses to a proposed development to maintain street capacity, improve safety, or otherwise comply with an approval criterion.

Requiring covenants, conditions or restrictions to be recorded against the property.

Effect of Decision.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

Effective Date of a Decision.

Except as provided by subsection 6.a.ii of this section, a final decision approving a development permit becomes effective upon expiration of the local appeal period, unless an ordinance amendment is required in order to implement the approval. In the latter case, the approval becomes effective at the time the ordinance becomes effective pursuant to the Lake Oswego Charter. The filing of an appeal automatically stays the decision until resolution of the appeal by City appellate authorities.

A final decision of the City Council approving a development permit is effective immediately and is not stayed by appeal to Land Use Board of Appeals (LUBA), unless LUBA so orders pursuant to ORS 197.845.

Effect of Decision to Approve.

An approved and effective development permit is binding upon the City, the applicant and successors in interest, unless it expires, is amended or is revoked pursuant to this Code.

Effect of Denial; Resubmittal.

A final decision denying a development permit is effective immediately.

If an application is denied and is not appealed, or the denial is affirmed on appeal, no new application for the same or a substantially similar proposal shall be filed within six months after the date of final denial. A new application shall not be considered "the same or substantially similar" if it can be modified, and is modified, to address the reasons why the original application was denied.

Appeals.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2768, Amended, 1-16-2018; Ord. No. 2797, Amended, 11-6-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2909, Amended, 2-7-2023; Ord. No. 2938, Amended, 4-2-2024]

Review by Hearing Body.

An application for a major development, minor developments in the R-DD zone pursuant to LOC § 50.07.003.14.a.ii(1), or an appeal of a decision of the City Manager regarding a minor development application (except any minor development decision specified by this Code to be made by the City Engineer) shall be decided by a hearing body following a public hearing held pursuant to this Code.

Appeal of Minor Development Decision.

A final decision of the City Manager on a minor development application may be appealed to a hearing body by the applicant or any person aggrieved by the decision. An appeal shall be made by filing a written request for a hearing with the City Manager within 15 calendar days of the date of decision.

Exception: Minor development decision specified by this Code to be made by the City Engineer.

For decisions made by the City Manager on historic resources, the applicant or any person aggrieved by the decision may appeal that decision. (If notice of the application was given, the person must have participated in the process leading to the Manager’s decision in order to appeal.) The City Manager shall determine if the Development Review Commission or Historic Resources Advisory Board is the appropriate hearing body based upon the nature of the decision appealed, the notice of appeal, and the expertise of the Commission and Board.

For decisions made by the City Manager on a similar use analysis, the Planning Commission is the hearing body for an appeal.

A written request for a hearing shall contain:

A reference to the City application number and date of the final decision;

A request that a hearing be held on the application;

The name, address, and signature of the appellant; and

A filing fee. The filing fee shall be set by resolution of the City Council, but shall be no more than authorized by state law. The filing fee shall be refunded if the appellant prevails at the hearing or on a subsequent appeal. The filing fee requirement shall not apply to appeals filed by the Oregon State Department of Land Conservation and Development or to appeals filed by recognized neighborhood associations entitled to receive notice of a pre-application neighborhood meeting pursuant to LOC § 50.07.003.1.f.iii(1)(a) and (b).

Neighborhood Association Documentation: Not later than 5:00 p.m. on the business day prior to the public hearing for persons opposing the application, a neighborhood association shall submit documentation that the request for hearing filed on behalf of the neighborhood association was approved or is ratified in the manner provided by the association’s bylaws or by board or membership vote. If this documentation is not provided, the neighborhood association’s request for hearing shall be deemed withdrawn and the appeal shall be dismissed.

The City Manager shall reject the appeal if it is not filed within the 15-day appeal period set forth in subsection 7.b.i of this section, is not filed in the form required by subsection 7.b.ii of this section, or does not include the filing fee required by subsection 7.b.ii of this section. If the City Manager rejects an appeal, the City Manager shall so notify the appellant by letter. This letter shall include a brief explanation of the reason why the City Manager rejects the appeal. A decision of the City Manager to reject an appeal pursuant to this section is final and is not subject to appeal to the hearing body or the City Council. An appeal rejected pursuant to subsection 7.b.ii of this section may be corrected if it is refiled within the 15-day appeal period set forth in subsection 7.b.i of this section.

An appeal of a City Manager decision regarding a minor development shall be heard de novo by the hearing body pursuant to LOC §§ 50.07.003.3.c, 50.07.003.4 and 50.07.003.15.b.i and ii.

Exception: Minor development decision specified by this Code to be made by the City Engineer.

Filing an Appeal of a Hearing Body or City Engineer Decision.

A final decision of a hearing body or City Engineer may be appealed to the Lake Oswego City Council by the applicant, any person who appeared before the hearing body either orally or in writing regarding the application, or any person that submitted written comment to the City Engineer on the City Engineer’s decision. An appeal shall be made by filing a notice of intent to appeal with the City Manager within 15 calendar days of the date of the hearing body’s final decision.

A notice of intent to appeal shall be in writing and shall contain:

A reference to the City application number and date of the final decision;

A statement that demonstrates the appellant is the applicant or appeared either orally or in writing in front of the hearing body;

The name, address, and signature of the appellant or the appellant’s representative;

An appeal fee, if applicable, per subsections 7.b.ii(4) and (5) of this section; and

A discussion of the specific issues raised for Council’s consideration and the specific reasons why the appellant contends that the hearing body decision is incorrect or not in conformance with the applicable criteria. This requirement shall not limit, however, the right of the appellant or other persons appearing at the hearing from raising other issues that were raised before the hearing body.

Exception: For appeal of the City Engineer’s decision, a discussion of the specific issues raised for Council’s consideration and the specific reasons why the appellant contends the City Engineer’s decision is incorrect or not in conformance with the applicable criteria.

The appeal fee shall be set by resolution of the City Council. The appeal fee shall be reasonable and shall be no more than the average cost of such appeals or the actual cost of the appeal.

The City Manager shall reject the appeal if it is not filed within the 15-day appeal period set forth in subsection 7.c.i of this section, is not filed in the form required by subsection 7.c.ii of this section, or does not include the filing fee required by subsections 7.c.ii and iii of this section. If the City Manager rejects an appeal, the City Manager shall so notify the appellant by letter. This letter shall include a brief explanation of the reason why the City Manager rejects the appeal. A decision of the City Manager to reject an appeal pursuant to this section is a final City decision as of the date of the letter and is not subject to appeal to a hearing body or the City Council. The appellant shall be allowed to correct a failure to comply with subsection 7.c.ii or iii of this section, if the correction can be made and is made within the 15-day appeal period provided in subsection 7.c.i of this section.

Multiple Appeals; Consolidation.

If more than one person files a Notice of Intent to Appeal a specific hearing body decision, the appeals shall be consolidated into one proceeding. The appeal fee shall be divided equally among the multiple appellants; any amount deposited in excess of the amount determined by the City Recorder to be owed shall be refunded on a pro rata basis.

The appellants shall share the appellant’s time for testimony equally or may make such other split as they mutually agree, or the appellants may elect to have one person represent all appellants. If appeals are filed by opposing parties (i.e., an applicant for a project and a person opposed to the project), they may be consolidated into one proceeding but shall be heard separately prior to the decision. The Mayor, with Council consent, may decide to alter the time limits for testimony depending on the circumstances.

Withdrawing an Appeal.

A Notice of Intent to Appeal may be withdrawn at any time prior to a final decision. Proceedings on the appeal shall terminate as of the date of withdrawal. The City Manager may refund the appeal fee either in full or in part, depending on the amount of staff work expended preparing the appeal for hearing.

Preparation of Record and Staff Report; Transcript.

Record of Hearing Body Proceedings.

Following receipt of a Notice of Intent to Appeal filed in compliance with subsection 7.b of this section, the City Manager shall prepare a record for Council review containing:

All staff reports and memoranda prepared regarding the application that were presented to the hearing body;

Minutes of all hearing body proceedings at which the application was considered;

All written testimony and all exhibits, maps, documents or other written materials presented to and not rejected by the hearing body during the proceedings on the application; and

The final written order of the hearing body, or for a minor development decision of the City Engineer the written order of the City Engineer.

Staff Report.

The City Manager shall prepare a staff report on the appeal explaining the basis for the decision as relates to the reasons for appeal set forth in the Notice of Intent to Appeal, and such other matters related to the appeal as deemed appropriate. The staff report shall be available for public inspection at least ten days prior to the appeal hearing.

Transcript.

A verbatim transcript of the hearing body proceedings is not required. Any person who appeared before the hearing body on the application may prepare a certified verbatim transcript of all or part of the hearing body proceedings at that person’s own expense. The City Manager may prepare a certified verbatim transcript of all or part of the hearing body proceedings at the City’s expense if the City Manager deems a transcript necessary or advisable. A certified transcript prepared pursuant to this subsection shall be considered to be part of the record of the hearing body proceedings, and, if offered, shall be accepted into evidence and considered by the City Council.

Notice of the Appeal Hearing.

Written notice of the appeal hearing before the City Council shall be sent by electronic mail to the email address provided, or if no email address is provided then by regular mail, no later than 14 days prior to the date of the hearing to the appellant, the applicant if different from the appellant, and all persons who testified either orally or in writing before the hearing body, or, for a minor development decision of the City Engineer, submitted written testimony to the City Engineer.

Notice of the hearing shall:

Reference the applicable Planning Department file number or numbers;

Set forth the street address or other easily understood geographical reference to the subject property;

State the date, time and location of the hearing;

State that an appeal has been filed, set forth the name of the appellant or appellants and contain a brief description of the reasons for appeal;

State that City Council review is confined to the record before the hearing body, that only persons who testified either orally or in writing before the hearing body may testify before the City Council, and that the only issues that may be raised before the Council are issues that were raised before the hearing body with sufficient specificity to enable the hearing body to respond;

Exception: For appeal of the City Engineer’s decision, state that City Council review is confined to the record before the City Engineer, that only persons who testified in writing may testify before the City Council, and that the only issues that may be raised before the Council are issues that were raised before the City Engineer with sufficient specificity to enable the City Engineer to respond.

Include the name and phone number of the City staff person assigned to the application from whom additional information may be obtained;

State that a copy of the decision being appealed, the application, all documents and evidence contained in the record, and the applicable criteria are available for inspection at no cost and will be provided at reasonable cost; and

Include a general explanation of the requirements for submission of testimony and the procedure for conduct of the hearing.

Scope of Council Review.

Except as provided in subsections 7.h.ii and iii of this section, Council review is limited to the evidence in the record. No new evidence may be presented at the hearing and no person may testify unless that person appeared either orally or in writing before the hearing body or City Engineer, as applicable. No issue may be raised on appeal to the Council that was not raised with sufficient specificity to enable the hearing body and the parties or, if applicable, the City Engineer, to respond.

The City Council may take official notice of all adjudicative facts and law which may be judicially noticed pursuant to ORS 40.060 to 40.090, including an ordinance, comprehensive plan, resolution, order, written policy or other enactment of the City of Lake Oswego. Matters officially noticed need not be contained within the record and may be considered by the hearing body in determination of the matter.

The Council may reopen the record and consider new evidence if such a request is made prior to or at the Council hearing by the appellant or any person who testified before the hearing body or, if applicable, the City Engineer, and the requesting party demonstrates:

That a procedural error was committed that prejudiced the requesting party’s substantial rights and that reopening the record is the only alternative to remanding the application to the hearing body or, if applicable, the City Engineer, to correct the error; or

That new evidence material to the decision on appeal exists and could not have been initially presented. A requesting party may only qualify for this exception if they demonstrate that the new evidence concerns an unanticipated event which occurred after the close of the time to submit evidence. This exception shall be strictly construed by the Council in order to ensure that all relevant evidence and testimony is submitted to the hearing body or, if applicable, the City Engineer.

Conduct of the Appeal Hearing Before City Council.

The Mayor shall conduct a hearing on appeal pursuant to the requirements of LOC §§ 50.07.003.4.a.i through x and 50.07.003.4.a.xiii, Conduct of the Hearing. For the purposes of this section, "Mayor" includes the Council President or any other Councilor who serves as presiding officer of the Council in the Mayor’s absence.

Time Limits on Testimony.

The provisions of LOC § 50.07.003.4.b shall be applicable here with the following time frames substituted for those in LOC § 50.07.003.4.b.i:

If the appellant is the applicant:

Fifteen minutes for the applicant’s presentation;

Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

Five minutes each for other persons; and

Five minutes for the applicant’s rebuttal.

If the appellant is not the applicant:

Fifteen minutes for the applicant’s presentation, except if the time is expanded by the Mayor pursuant to LOC § 50.07.003.4.b.iii;

Fifteen minutes for the appellant’s presentation. If there is more than one appellant, the appellants shall have a total of 15 minutes, unless the time is expanded by the Mayor pursuant to LOC § 50.07.003.4.b.iii;

Ten minutes for a representative of a recognized neighborhood association, homeowners association, government or government agency, or other incorporated public interest organization;

Five minutes each for other persons; and

Five minutes for the applicant’s rebuttal.

Presenting Testimony.

Any person who testified either orally or in writing before the hearing body (or for an appeal of a decision of the City Engineer, any person who testified in writing before the City Engineer) may testify either orally or in writing before the Council on appeal. Such testimony shall be limited to argument regarding issues raised before the hearing body (or City Engineer), and shall be based solely upon the record of the proceedings. Enlargements, illustrations, maps or other exhibits may be submitted as long as they are part of the record or are entirely derived from evidence in the record.

A Written testimony may be submitted prior to the public hearing and must be received by the City Recorder by 12:00 p.m. two business days prior to the scheduled hearing. Written comments that are merely referred to in testimony but which are not placed before the hearing body pursuant to this section shall not become part of the record of the proceedings. Written comments that attempt to present new evidence or raise new issues not presented or raised before the hearing body shall be rejected.

Objections.

The purpose of the hearing procedures is to provide all interested persons a reasonable opportunity to participate in the hearing process and to provide a full and impartial hearing on the application or appeal before the hearing body.

Exception: For minor development decisions of the City Engineer, the purpose of the review procedure is to provide, per ORS 197.195, all interested persons a reasonable opportunity to participate in the review process and to provide a full and impartial opportunity to comment on the application.

Any question concerning the proper conduct of a hearing held pursuant to this Code may be raised by any person during the proceeding by making an objection. The Mayor shall rule on any objection, subject to the right of the Council to overturn the Mayor’s ruling by majority vote.

Continuances.

The Council may elect to continue a hearing one or more times on its own motion or at the reasonable request of a party. No continuance shall be granted at the request of the applicant unless the applicant waives the applicable Maximum Review Period in writing or on the record. If the hearing has not been completed pursuant to LOC § 50.07.003.7.j, the continued hearing shall resume at the point in the proceedings at which the hearing was continued. If the hearing has been concluded and the Council desires a continuance to reopen the hearing for additional testimony, the continued hearing shall be conducted as provided in subsection 7.m.ii of this section. In the latter case, the Council may limit testimony to a particular issue or issues. If the appeal hearing has been concluded and the Mayor has returned the matter to the table for deliberations, the Council may continue deliberations to a date, time and place certain.

If an appeal hearing is continued to reopen the record for additional testimony, it shall be conducted as follows:

The Mayor shall open the continued hearing.

The City Manager shall give a staff report which shall include the reason for the continuance.

The Mayor shall call for the appellant’s testimony.

The Mayor shall call for testimony from persons in favor of the appeal.

The Mayor shall call for testimony from persons opposed to the appeal, beginning with the applicant, if the applicant is not the appellant.

The Mayor shall call for testimony from persons neutral on the appeal.

The Mayor shall call for rebuttal by the appellant.

The Mayor shall return the matter to the table for deliberation and decision as described in LOC § 50.07.003.4.a.xiii.

Notice.

No additional notice of a continued hearing is required if the Council continues a hearing to a date, time and place certain. If a public hearing must be continued due to lack of a quorum of the Council, no additional notice of the continued hearing is required if all entrances to the hearing location are posted by the time and date of the originally scheduled hearing with a conspicuous written notice setting forth a date, time and place certain for the continued hearing. In all other cases, public notice of a continued hearing shall be given pursuant to LOC § 50.07.003.7.h.

Decision of the Council.

At the conclusion of deliberations, the Council shall make a preliminary oral decision. The Council may affirm, reverse or modify the hearing body’s decision in whole or in part, or may remand the decision back to the hearing body for additional evidence or consideration. The preliminary oral decision is not a final decision. At any time prior to the adoption of the final order pursuant to subsection 7.n.ii of this section the Council may modify its decision based upon the record or choose to reopen the hearing.

The Council shall adopt a final written order either immediately after making its preliminary oral decision or at a public meeting within a reasonable time after making the preliminary oral decision. The final written order shall consist of a brief statement that explains the criteria and standards considered relevant, states the facts relied upon in rendering the decision and explains the justification for the decision based upon the criteria, standards and facts set forth. The order shall also contain or incorporate by reference any conditions of approval deemed necessary or appropriate by the Council. A proposed order may be prepared by the City Attorney or may be prepared by the prevailing party subject to review and approval of the City Attorney. The Council shall amend the proposed order if it finds that the proposed order does not accurately articulate the Council’s decision. The written order is the final decision on the application and the date of the order for purposes of appeal is the date on which it adopted by the Council.

Notice of Decision.

Notice of the Council’s decision shall be sent by regular mail to the appellant, the applicant if different from the appellant, and to all persons who testified either orally or in writing before the Council. The notice of decision shall:

Include the file number, date and brief summary of the final decision;

Include the name and address of the applicant;

Include an easily understood geographical reference to the subject property and a map, if applicable;

State that the decision is available for review, and that a copy can be obtained at cost; and

State that the decision may be appealed by filing a written notice of intent to appeal with the Oregon State Land Use Board of Appeals (LUBA) within 21 days of the date of the final decision. The address and telephone number of the Land Use Board of Appeals shall be included in the notice.

Remands.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014]

Remands from the Council to the Hearing Body.

An order of the City Council remanding an application to a hearing body is a final decision for purposes of appeal to LUBA. If not appealed, all issues resolved by the remand order shall be considered decided and may not be revisited on remand, unless addressing the remanded issues results in amendments to the application which change the criteria or the factual basis on which the Council based its decision regarding an issue or issues not remanded.

The hearing body shall issue public notice and hear the application on remand as provided in LOC § 50.07.003.15.b.i and ii and LOC § 50.07.003.3.c, except that issues shall be limited as provided in subsection 8.a.i of this section.

Remands from LUBA to the City Council.

When a final decision of the City Council is remanded to the City by the Oregon Land Use Board of Appeals (LUBA), the City Council shall either:

Hold a hearing on remand if the issue upon which LUBA remanded the decision can be resolved by the City Council without reopening the record for additional evidence. Notice of the hearing on remand shall be given pursuant to LOC § 50.07.003.7.g, Notice of the Appeal Hearing, to all persons who testified before the City Council at the public hearing or hearings that led to the decision remanded by LUBA. Instead of the explanation contained in LOC § 50.07.003.7.g.ii(4), the notice shall set forth issues on remand that will be considered by the Council. The hearing shall be conducted pursuant to LOC § 50.07.003.4, Hearings, except that testimony shall be limited to the issues upon which LUBA remanded the decision to the City, unless the application is amended on remand in a manner which changes the applicable criteria or the factual basis on which LUBA or the City Council based its decision regarding an issue or issues not remanded.

Remand the application to the hearing body if the issue upon which LUBA remanded the decision requires reopening the record for additional evidence. Notice of the hearing on remand shall be given pursuant to LOC § 50.07.003.3.c, Notice for Public Hearing, and the hearing shall be conducted pursuant to LOC § 50.07.003.4, Hearings, except that the notice of the applicable criteria and the testimony shall be limited to the criterion or criteria or the issue or issues upon which LUBA remanded the decision to the City, unless the application is modified in a manner which changes the applicable criteria or the factual basis on which LUBA or the City Council based its decision regarding an issue or issues not remanded. A decision of the hearing body on remand may be appealed to the City Council pursuant to LOC § 50.07.003.7.c, Filing an Appeal of a Hearing Body Decision.

Improvements and Security.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2908, Amended, 6-6-2023; Ord. No. 2909, Amended, 2-7-2023]

Obligation to Construct Public Facilities; Security; Acceptance of Improvements.

When an applicant for a development permit has an obligation to construct or improve public facilities imposed by a standard or criteria or as a condition of the permit, the obligation shall be fulfilled prior to the issuance of a permit for building construction on the site unless the City Manager has granted a waiver in writing of this requirement and the applicant has filed with the City Manager an acknowledgment of the obligation. The acknowledgment shall state the nature of the obligation, the time within which the obligation is to be met, identify the property subject to the obligation and contain a security deposit in a form acceptable to the City Manager and in an amount equal to 120% of the cost of fulfilling the obligation as estimated by the City Manager for the year in which fulfillment of the obligation is anticipated. A sufficient performance bond, cash deposit, or letter of credit are acceptable forms of security. Return of the security deposit shall be conditioned upon the applicant carrying out the obligation.

As an additional and separate part of the acknowledgment, the applicant shall agree to maintain the public facility for a period of one year following acceptance by the City Manager, to include but not be limited to repair, replacement and all things necessary to ensure the operational integrity of the facility, and shall provide the City with security in the amount of 10% of the cost of the improvement to insure the fulfillment of this obligation.

The security shall be forfeited to the City if the applicant does not fulfill the requirements stated in the acknowledgment. The City may use the security to complete the obligation or any part of it. Until the obligation is completed the security shall remain in the custody of the City or shall be placed in an escrow account subject to City control.

Upon receipt of written notice to the City Manager that the public facility has been completed and is ready for final inspection and acceptance, the City Manager shall within ten calendar days make such inspection. If the City Manager finds the work to be acceptable, there shall promptly be issued a final certificate stating that the work has been completed and is accepted.

10.

Certificate of Occupancy.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

In order to assure completion of the work in the manner and at the time approved, the premises shall not be used or occupied for the purposes set forth in the permit until the City has issued a certificate of occupancy following completion of the work in substantial conformance to the permit. Prior to the final completion of all work, a certificate of occupancy may be issued for a portion of the premises or conditioned upon further work being completed by a date certain.

11.

Modification of Development Permits.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]

Modification of Approved Permit.

For ministerial or minor development permits, modifications to a development permit are classified as the same type of development as the original permit and shall be reviewed under the applicable review criteria for that classification of development, except that the review criteria shall be limited to those criteria that are affected by the requested modification.

[Cross-References: See LOC § 50.07.007.4.c – Planned Development zone requirement modifications; LOC § 50.07.006.8, Changes to the Overall Development Plan and Schedule; LOC § 50.07.005.4, Modification of Conditional Use Permit.]

12.

Exempt Development.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2695, Amended, 2-16-2016; Ord. No. 2841, Amended, 9-1-2020; Ord. No. 2856, Amended, 1-19-2021; Ord. No. 2847, Amended, 1-4-2022]

Classification.

Exempt developments include:

Landscaping or landscape alterations, unless:

Such landscaping or alterations would modify or violate a condition of approval of a prior permit. In such instance, the permit shall be processed as a modification of the prior permit;

Located within the Greenway Management Overlay District or flood management area; or

Located within an RP or RC overlay district, or an RC or HBA protection area, and not exempt from the requirements of the Sensitive Lands regulations pursuant to LOC § 50.05.010.2.b.

The site is listed on the Landmark Designation List and landscaping is identified in the findings of fact regarding the historical, architectural, archaeological, or cultural significance of the landmark for its designation.

Normal or emergency repair or maintenance of public or private buildings, structures, or utilities.

Construction of a structure that does not require a building permit unless in flood management area.

Interior remodeling which does not change a structure’s occupancy classification or change the structure to a use that does not qualify as a permitted use in the zone, unless in flood management area.

Exterior remodeling of a structure that does not require a building permit, (1) and the structure is not identified as a landmark on the City Landmark Designation List and is not a contributing resource in a Historic District; or (2) unless in the flood management area.

Exterior remodeling of a National Register property that (1) is not a "demolition" as defined in OAR 660-023-0200(1), and (2) does not require a building permit.

Street vacations.

Temporary structures and uses listed in LOC § 50.03.005 or which are for relief of victims of disaster or in an emergency.

Where an awning is the only change to the facade of an existing building, and the awning is funded or partially funded utilizing a financial incentive grant, provided by or obtained through the authority of the City of Lake Oswego or LORA. "Financial incentive" includes a grant, fee waiver, revolving loan, tax abatement, property exchange, or similar financial incentive provided by or secured through the City or LORA.

Where an awning or canopy covering an outdoor seating area of a restaurant is the only change to the facade of a building, and the canopy/awning is constructed during October 21, 2020 through May 31, 2021 (COVID-19 exemption window). In such instance, it shall cover no more than 30 percent of the width of any street-facing facade and shall be set back no less than 20 feet from any residential zone. Any lighting under the awning/canopy shall be directed downward and shielded or screened to prevent lighting off-premises areas.

Development Review.

No development permit pursuant to this Code is required for exempt development.

Note: Projects that are exempt from development permit review under this chapter may be subject to requirements in other chapters of Lake Oswego Code.

13.

Ministerial Development Decisions.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2526, Amended, 12-18-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2651, Amended, 2-17-2015; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2668, Amended, 12-1-2015; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2695, Amended, 2-16-2016; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2753, Amended, 11-7-2017; Ord. No. 2784, Amended, 7-3-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2841, Amended, 9-1-2020; Ord. No. 2851, Amended, 9-15-2020; Ord. No. 2847, Amended, 1-4-2022; Ord. No. 2892, Amended, 6-7-2022; Ord. No. 2909, Amended, 2-7-2023; Ord. No. 2908, Amended, 6-6-2023]

Ministerial Development Classification.

Requirements of Ministerial Decisions.

A ministerial development is a development which requires a permit or review from the City where the decision:

Is made pursuant to land use standards which do not require interpretation or the exercise of policy or legal judgment;

Approves or denies a building permit issued under clear and objective land use standards; or

Determines final engineering design, construction, operation, maintenance, repair or preservation of a transportation facility which is otherwise authorized by and consistent with the Comprehensive Plan and land use regulations.

Ministerial Development Types.

Exterior modification of single-family detached dwellings (including exterior modifications that reduce setbacks pursuant to LOC § 50.04.003.3.c), accessory dwelling units, or middle housing, or modification of an accessory structure in the R-DD zone.

Construction or exterior modification of a detached single-family dwelling, accessory dwelling unit, middle housing, or a structure accessory to such structures which:

Is not processed through the residential infill design review process pursuant to LOC § 50.08.003.2.e;

Is not located within a delineated RP resource, RC protection area, or HBA protection area pursuant to LOC § 50.05.010, Sensitive Lands Overlay Districts;

Does not impact a historic landmark designated pursuant to LOC § 50.06.009;

Is not located within a Historic District;

Does not change the nature of the use or occupancy classification to a use that does not qualify as a permitted use in the zone or as an approved conditional use;

Does not require special design review by the zone, design district, prior development approval or Overall Development Plan and Schedule (ODPS) for the development in which the subject property is located; or

(g)

Is not located in the Greenway Management Overlay District, as identified in LOC § 50.05.009.

(h)

Is not middle housing located in a commercial, industrial or mixed use zone, as identified in LOC § 50.02.002.1.

Is not middle housing located in a special purpose zone, as identified in LOC § 50.02.003.

Exterior modification of a structure other than a detached single-family dwelling, accessory dwelling unit, middle housing, or structure accessory to such structures which:

Does not increase building footprint or height, except if the increase in building height is required to comply with Building or Fire Codes and does not substantially modify any street-facing facade, or the increase in building footprint is 100 sq. ft. or less and does not substantially modify any street-facing facade; or

Does not modify, either by itself or cumulatively with prior modifications after December 1, 2011, more than 25% of the facade, as the facade existed on December 1, 2011, excluding in both cases a change of color of the facade; or

If the property abuts property zoned for residential use, does not modify any portion of the facade visible from the residentially zoned property; or

Does not modify any facade, including change of color of facade, for a building that was the subject of a prior development review approval ("change of color" occurs when the new color is not within the shades or tones of the approved color); or

Does not result in additional illumination of the facade, including accent lighting, for a building that was the subject of a prior development review approval; and

Complies with subsections a.ii(2)(a) through (i) of this section.

Lot line adjustments that:

Do not increase the allowable density on a site; and

Do not involve a historic landmark site and are not located in an historic district.

Resource enhancement projects in an RP or RC district, or HBA protection area.

Passive use recreational facilities within an RC or RP district, or HBA protection area, if such facility would otherwise qualify as a ministerial development.

Passive use recreational facilities that require a building permit such as pedestrian bridges, observation decks and handicapped facilities.

Construction or alteration of public transportation or utility facilities, and associated development abutting the public right-of-way when designed to address impacts of a transportation project, consistent with the applicable public facility master plan and land use regulations, and is not located in a delineated RP district, RC protection area, or HBA protection area.

Mitigation required under LOC § 50.05.010.4.f for exempt development or sensitive lands violation mitigation.

Building permits for structures approved pursuant to a prior approved major or minor development.

(11)

Collocated telecommunications facilities.

(12)

Delineation of an RC or HBA resource boundary.

(13)

Fill in quantities of ten cubic yards or less when located within the Flood Management Area and outside of the floodway boundary.

(14)

When located within the floodplain of Oswego Lake, fill in quantities greater than ten cubic yards, provided the fill is associated with development of a single-family dwelling, duplex, zero lot line dwelling, water dependent use, or related accessory structure.

(15)

Change of Use/Parking Effect.

A change of use from one permitted use to another, including from the use assumed in a development review approval, that increases on-site parking or loading requirements under LOC § 50.06.002.2 and:

There are sufficient number of parking spaces available (off-street parking, or if in the Downtown Redevelopment Design District, also on-street parking, pursuant to LOC § 50.05.004.9.a.vi), applying the reductions permitted in Table 50.06.002-4, Parking Requirement Modifiers, except for reductions permitted by a parking study; or

The use of a parking easement to provide some or all of the parking or loading requirements under LOC § 50.06.002.2.

(16)

Developments in parks, on Park and Natural Area (PNA) zoned land, when the development is in accordance with a master plan adopted pursuant to LOC § 50.07.004.6.c, including parks within the Greenway Management Overlay District.

(17)

Landscaping or landscape alterations that are not "exempt development" per LOC § 50.07.003.12.a. (No ministerial permit shall be required; City Manager review and approval shall be sufficient for the ministerial decision.)

(18)

Construction of a residential fence, wall, retaining wall, or a combination thereof, that meets the standards for an exception to LOC § 50.06.004.2.b.i(1).

(19)

Construction of a seasonal restaurant enclosure that:

Is set back at least 20 feet from any lot frontage, any lot containing a residential use, public open space, or public access easement, and, if abutting a residential use, must be screened by a sight-obscuring fence or wall not less than six feet in height.

Is not more than 400 square feet in area for dining enclosures or 50 square feet in area for an entrance vestibule. If both a dining enclosure and entrance vestibule are proposed, the maximum combined size of both shall not exceed 400 square feet in area; and

Does not include any walls over 12 feet in height.

(20)

Any development that is not "exempt development" per subsection 12.a of this section because the development is located within the flood management area.

(21)

A variance to the flood management area development standards, residential or nonresidential construction standards (LOC § 50.05.011.6.b.iv(1) or (3)), for detached accessory structures used only for functionally dependent uses that are for the parking of vehicles, including boats, and storage at grade if the structure is:

In special flood hazard areas (Zones A, AE, AH, AO, and A1-30), not larger than 500 square feet and walls have flood openings in compliance with the requirements of LOC § 50.05.011.6.b.iv(6), Flood Openings;

Anchored to resist flotation, collapse, and lateral movement;

Flood damage-resistant materials used below the LODFE (as defined in LOC § 50.05.011.3) comply with the requirements of LOC § 50.05.011.7.b;

Mechanical, electrical, and utility equipment comply with the requirements of LOC § 50.05.011.6.b.v and 7.b;

and the variance requirements of LOC § 50.05.011.8 are met.

[Cross-Reference: LOC § 50.05.009, Greenway Management Overlay District.]

Application.

Application for a ministerial decision shall be made pursuant to LOC § 50.07.003.1, Application.

Public Notice/Opportunity for Public Comment.

Ministerial decisions are made without notice or opportunity for appeal.

Hearing.

No public hearing is required for a ministerial decision.

Review and Decision.

Decision-Making Authority.

Ministerial development applications shall be reviewed and approved by the City Manager.

Review Criteria for Ministerial Developments.

A ministerial development shall comply with the requirements of the zone, including overlay zones, in which the subject lot or parcel is located, the Stormwater Management Code (LOC Article 38.25) and, other than development that is classified as ministerial development per subsection 13.a.ii.(20) of this section, shall comply with the following sections of the development standards:

Parking, LOC § 50.06.002.

Hillside Protection, LOC § 50.06.006.2.

On-Site Circulation – Driveways and Fire Access Roads, LOC § 50.06.003.2.

If the ministerial development involves placement of a manufactured home, Manufactured Homes, LOC § 50.03.003.1.b.

Building Design Standard, LOC § 50.06.001.5.b.viii (mechanical equipment screening).

Weak Foundation Soils, LOC § 50.06.006.1, for construction of structures where the requirements of LOC § 50.06.006.1 have not been previously addressed for the development site.

Building Design Standard, LOC § 50.06.001.2 through .4, for construction or exterior modification of a detached single-family dwelling, middle housing, or a structure accessory to such structures.

Utilities; Streets/Sidewalks (Pathways) and Other Public Infrastructure, LOC § 50.06.008.

Appeal.

Ministerial decisions are made without the opportunity for appeal.

[Cross-Reference: LOC § 50.05.009, Greenway Management Overlay District.]

14.

Minor Development Decisions.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013; Ord. No. 2651, Amended, 2-17-2015; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2668, Amended, 12-1-2015; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2695, Amended, 2-16-2016; Ord. No. 2713, Amended, 9-20-2016; Ord. No. 2723, Amended, 10-18-2016; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2768, Amended, 1-16-2018; Ord. No. 2784, Amended, 7-3-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2841, Amended, 9-1-2020; Ord. No. 2851, Amended, 9-15-2020; Ord. No. 2847, Amended, 1-4-2022; Ord. No. 2892, Amended, 6-7-2022; Ord. No. 2908, Amended, 6-6-2023]

Minor Development Classification.

A minor development is a development which requires a permit from the City that:

Requires a more discretionary level of review than a ministerial decision. "Minor development" is intended to include decisions defined as "limited land use decisions" pursuant to ORS 197.015(12); or

Is reviewed based on Clear and Objective Housing Standards for Approval in LOC § 50.06.001.7, Building Design; LOC § 50.05.004.13, Downtown Redevelopment Design District; LOC § 50.05.006.9, Old Town Neighborhood Design; or LOC § 50.05.005.9, West Lake Grove Design District, together with other applicable zoning and development standards.

"Minor development" under subsection 14.a.i(1) of this section includes:

In the R-DD zone:

Construction of new single-family detached dwellings, middle housing dwellings, multi-family dwellings or exterior modification of a structure containing a nonconforming use that requires a building permit.

Expansion or reconstruction that results in an expansion of floor area of an existing structure by more than 50%.

Any exterior modification of a single-family detached dwelling that reduces setbacks pursuant to LOC § 50.08.003.2.a, R-DD Administrative Modification.

Construction or exterior modification of a detached single-family structure, middle housing dwelling or a structure accessory to such structures which:

Does not qualify as a ministerial decision pursuant to LOC § 50.07.003.13.a.ii(1) or (2); or

Requires one or more variances.

Involves a determination by the City Manager that a use not expressly permitted in the zone may be allowed pursuant to the considerations contained in LOC § 50.03.002.1.g, Authorization for Similar Uses.

Involves an improvement to an existing school facility that will not increase the capacity of the school facility, generate additional traffic, or generate significant additional noise or other negative impact on the surrounding neighborhood.

Construction of a structure other than a detached single-family dwelling, middle housing dwelling or accessory structure, or an exterior modification of such a structure, which does not qualify as a ministerial development pursuant to LOC § 50.07.003.13.a.ii(3) or (19).

Lot line adjustments that:

Increase allowable density on the site; or

Involve a historic landmark site or are located in an historic district.

Partitions.

Subdivisions (with or without a planned development overlay).

Review of development phases subject to an ODPS.

Change of Use or Access/Parking Study.

A change of use from one permitted use to another, including from the use assumed in a development review approval that:

Changes access requirements pursuant to LOC § 50.06.003.1, Access/Access Lanes (Flag Lots), or that will result in the construction of private streets, driveways; or

Involves the use of a parking study pursuant to LOC § 50.06.002.

(11)

Determining an RC district protection area or HBA protection area pursuant to LOC § 50.05.010.5.b, except as required under LOC § 50.07.003.15, Major Development Decisions.

(12)

Construction of a structure described in LOC § 50.06.003.4.a.iii, Local Street Connectivity.

(13)

Fill in the floodway or fill in quantities greater than ten cubic yards when located elsewhere in the Flood Management Area, excluding fill for single-family detached dwellings, duplexes, zero lot line dwellings, water dependent uses, or related accessory structures when the fill is located within the floodplain of Oswego Lake, as provided by LOC § 50.05.011, Flood Management Area.

(14)

Outright permitted residential dwellings or accessory structures in residential zones, other than in the R-DD zone, Downtown Redevelopment Design District, and Lake Grove Village Overlay District, when processed through the residential infill design review process (LOC § 50.08.003.2.e).

(15)

Minor variances, design variances, and major variances (LOC Article 50.08), and flood management area variances (LOC § 50.05.011.8).

(16)

Construction of any public or private road, or major transportation or utility facility within a delineated RP district, RC protection area, or HBA protection area.

(17)

Permitted uses in the PNA zone that are not listed as exempt in LOC § 50.07.003.12 or classified as a ministerial use.

(18)

Minor changes to minor or major development review permits, pursuant to LOC § 50.07.003.11.

(19)

Delineation of an RP district.

(20)

Modification of dimensional standards and setbacks pursuant to LOC § 50.05.010.4.b (Sensitive Lands), Modifications to Dimensional Standards, Setbacks, and Floor Area of the Underlying Zone, and LOC § 50.05.010.6.b.iii, Reduction of RP District.

(21)

Development within the Greenway Management Overlay District that is not classified as ministerial development.

(22)

Expansion of an existing parking lot.

(23)

Exterior painting of any structure that was the subject of a major or minor development permit including all structures in the R-DD zone, with the exception of detached single-family dwellings, duplexes, zero lot line dwellings, or structures accessory to those dwelling types.

Exception: Exterior painting that is the same color palette as the existing color(s).

(24)

Designation or removal of designation of a historic landmark, historic district or contributing resource [LOC § 50.06.009.4].

(25)

Moving, demolition, or minor or major alteration of a historic landmark or contributing resource [LOC § 50.06.009.6].

(26)

"Demolition" (as defined in OAR 660-023-0200(1)) or relocation of a National Register property [LOC § 50.06.009.9].

(27)

Building paint color change on a historic landmark when the findings of fact regarding the historical, architectural, archaeological, or cultural significance of the landmark include building paint color in the landmark’s designation.

(28)

Establishment of a marijuana facility.[1]

[1]

Editor’s Note: Ord. 2689 bans all marijuana facilities in the City, and the voters approved continuation of the ban on Nov. 8, 2016.

(29)

Reduction to the special street setback as authorized in Table 50.04.002-1.

(30)

Limitation to requirement to design and install required utilities; streets/sidewalks (pathways) and other public infrastructure (LOC § 50.06.008.7).

[Cross-Reference: LOC § 50.05.009, Greenway Management Overlay District.]

Application.

Application for a minor development decision shall be made pursuant to LOC § 50.07.003.1, Application.

Public Notice/Opportunity for Public Comment.

Notice shall be provided pursuant to LOC § 50.07.003.3, Public Notice/Opportunity for Public Comment.

Review and Decision.

Reviewing Authority.

Except for applications for a minor development in the R-DD zone, downtown redevelopment, LGVCO, and FMU district design variances (LOC §§ 50.08.003.2.a through 50.08.003.2.d), major variances, and appeals of a decision of the City Manager regarding a minor development application, minor development permit applications shall be reviewed and decided by the City Manager. In the alternative, the City Manager may refer a minor development application directly to a hearing body for public hearing and decision pursuant to LOC § 50.07.003.4, Hearings.

Minor development in the R-DD zone, design variances in the downtown redevelopment, LGVCO, and FMU districts, and major variances shall be reviewed by the Development Review Commission pursuant to LOC § 50.07.003.4, Hearings.

Designation and removal of designation of landmarks and historic districts; demolition, moving, alteration of a landmark; and demolition and relocation of National Register properties shall be reviewed as provided in LOC § 50.01.003.2 and .3.

Review Criteria for Minor Developments.

A minor development shall comply with:

The requirements of the zone in which it is located;

The development standards applicable to minor developments;

Any additional statutory, regulatory or Lake Oswego Code provisions which may be applicable to the specific minor development application, as provided for in this Community Development Code (LOC Chapter 50), Stormwater Management Code (LOC Article 38.25), streets and sidewalks chapter (LOC Chapter 42), and the tree cutting chapter (LOC Chapter 55); and

Any applicable condition of approval imposed pursuant to an approved ODPS or prior development permit affecting the subject property.

[Cross-Reference: If applicable, see LOC § 50.05.009 – Greenway Management Overlay District.]

Final Decision.

City Manager Approve, Condition, or Deny Application.

The City Manager shall make a final decision on a minor development application following expiration of the 14-day comment period. The City Manager shall approve, approve with conditions pursuant to subsection 5 of this section, or deny the application based upon the applicable criteria and the evidence submitted by the applicant and other interested persons during the comment period. Approval or denial of an application shall be accompanied by written findings that explain the criteria and standards considered relevant to the decision, state the facts relied upon in rendering the decision and explain the justification for the decision based on the criteria, standards and facts set forth. The date of the decision for purposes of appeal is the date on which the City Manager signs the written findings.

Notice of Final Decision.

The City Manager shall send notice of a final decision on a minor development application to the applicant, all persons and neighborhood associations entitled to notice of the application pursuant to subsection 3 of this section, Public Notice/Opportunity for Public Comment, and any other persons who submitted comments during the comment period. The notice of decision shall:

Include the file number, date of the decision, and the name and address of the applicant;

Include an easily understood geographical description of the property and a map, if applicable;

Briefly summarize the decision-making process and the decision made;

State that a copy of the decision is available for review, and that a copy can be obtained at cost; and

State that the decision may be appealed by filing a written request for a hearing before the appropriate hearing body with the City Recorder within 15 calendar days of the date of the final decision. In addition, the notice shall contain the requirements for requesting a hearing pursuant to subsection 3.7.b of this section. The name, address and phone number of the City Recorder shall be included in the notice.

Appeal.

The appeal procedures for minor development decisions are provided by subsection 3.7.b of this section, Appeal of a Minor Development Decision.

15.

Major Development Decisions.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2599, Amended, 12-18-2012; Ord. No. 2695, Amended, 2-16-2016]

Major Development Classification.

[2]

A major development is a development which requires a permit from the City involving the greatest level of review.

"Major development" includes:

Conditional uses;

Any development defined as major development pursuant to this section which is proposed to be phased pursuant to adoption of an Overall Development Plan and Schedule (ODPS); and

Any development which requires a quasi-judicial Comprehensive Plan and/or zoning map amendment.

A major development is subject to public notice, hearing and opportunity for appeal as described in this section.

[2]

Editor’s Note: Rezone of a parcel is not a "development" and hence is not a major development, but is to be processed as a major development. Also see LOC § 50.05.009 – Greenway Management Overlay District.

Application.

Application for a major development decision shall be made pursuant to LOC § 50.07.003.1, Application. The following additional requirements shall be applicable to applications for major development:

Applicant’s Evidence.

All documents or evidence relied on by the applicant for a development shall be submitted to the City and be available for inspection by the public at no cost.

Staff Report.

The City Manager shall prepare a staff report on the application. The staff report shall contain an analysis of the applicable criteria and the evidence in the record. Based upon this review, the City Manager shall recommend approval, approval with conditions, denial, or continuance of the application. The staff report shall be completed and shall be available for public inspection at no cost at least ten days prior to the date of the public hearing.

Public Notice/Opportunity for Public Comment.

Notice shall be provided pursuant to LOC § 50.07.003.3, Public Notice/Opportunity for Public Comment.

Review and Decision.

Decision-Making Authority.

Major developments are reviewed by a hearing body.

Review Criteria for Major Developments.

Major Development Other Than Rezoning to FMU in the Foothills Special District Plan Area.

A major development shall comply with:

Any applicable regulatory policies of the Lake Oswego Comprehensive Plan;

The requirements of the zone in which it is located;

The development standards applicable to major developments;

Any additional statutory or Lake Oswego Code provisions which may be applicable to the specific major development application, such as the variance provisions, Stormwater Management Code (LOC Article 38.25), the streets and sidewalks chapter (LOC Chapter 42), and the tree cutting chapter (LOC Chapter 55); and

Any conditions of approval imposed as part of an approved ODPS or prior development permit affecting the subject property.

Rezoning to FMU in the Foothills Special District Plan Area.

Rezoning within the Foothills Special District Plan to the FMU zone shall comply with the following:

The property is designated FMU on the Comprehensive Plan.

The proposed development is in substantial conformance with the conceptual lot and street pattern of the Foothills Special District Plan Chapter of the Comprehensive Plan.

The owner of the property has executed (or will execute as a condition of the rezone) a development agreement with either the City or LORA for a proposed development on the property that is consistent with the Goals and Policies of the Foothills Special District Plan, including street and other public right-of-way improvements.

The proposed development, including any street improvements, will not result in other properties within the Foothills Special District Plan Area becoming functionally inaccessible or otherwise rendered unviable.

Appeal.

Major development determinations are subject to appeal as provided by LOC § 50.07.003.7.c, Filing an Appeal of a Hearing Body Decision.

16.

Legislative Decisions.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2668, Amended, 12-1-2015; Ord. No. 2909, Amended, 2-7-2023]

Legislative Decisions Defined.

A "legislative decision" is an amendment to the policies, procedures, standards, criteria or map designations of the Comprehensive Plan, and this Community Development Code, unless such amendment applies to a small number of identified properties only or is required to effect a particular development permit application.

An amendment to the policies, procedures, standards, criteria or map designations of the Comprehensive Plan or this Community Development Code which is not a "legislative decision" as defined in subsection 16.a.i of this section shall be considered "quasi-judicial" and shall be processed as a major development.

Criteria for a Legislative Decision.

A legislative decision is generally a policy decision which is up to the discretion of the City Council, but shall:

Comply with any applicable state law;

Comply with any applicable statewide planning goal or administrative rule adopted pursuant to ORS Chapter 197; and

In the case of a legislative amendment to this Community Development Code, comply with any applicable provision of the Lake Oswego Comprehensive Plan.

Required Notice to DLCD.

Except as provided by subsections 16.c.ii and iii of this section, any proposed amendment or addition to the City’s acknowledged Comprehensive Plan or land use regulations shall be forwarded to the Director of the Oregon Department of Land Conservation and Development (DLCD) as required by OAR 660-018-0020 before the first evidentiary hearing on adoption. The City shall include the text of the proposed amendment and any supplemental information that the City believes is necessary to inform the Director as to the effect of the proposal. The notice shall include the date set for the first evidentiary hearing.

Advance notice to the Director of DLCD is not required when the City determines that the statewide planning goals do not apply to the proposed amendment or new regulation.

The City may submit the proposed amendment or new regulation with less than the required notice by OAR 660-018-0020 where the City determines an emergency exists requiring expedited review.

Not later than 20 days following a final decision pursuant to subsections 16.c.i through iii of this section, the City shall provide a copy of the adopted text and the findings to the Director of DLCD. If the text of the amendment as adopted differs substantially from that sent to the Director of DLCD pursuant to subsection 16.c.i of this section, the City Manager shall note the changes that have been made in the notice to the Director of DLCD. If the text and findings are mailed, they shall include a signed statement by the person mailing them indicating the date of deposit in the mail.

[Cross-Reference: See also ORS 227.186 (individual property owner mailed notice at least 20 days prior to first evidentiary hearing) if legislative change "changes the base zone" or "limits or prohibits land uses previously allowed in the affected zone."]

Planning Commission Recommendation Required.

Except in cases where a legislative amendment is mandated by state statute, a legislative decision shall be referred to the Planning Commission for review and recommendation. In cases where a legislative amendment is mandated by state statute, referral to the Planning Commission for review and recommendation is not required. If an amendment is not referred to the Planning Commission for review and recommendation, a copy of the proposed amendment shall be sent to the Planning Commission, along with notice of the City Council’s hearing on the proposed amendment. In cases where part of a proposed amendment is mandated by state statute but part is not, the legislative decision shall be referred to the Planning Commission for review and recommendation pursuant to this section.

The Planning Commission shall hold at least one public hearing on the proposed legislative decision.

Notice.

Notice of a Planning Commission hearing on a legislative decision shall be published pursuant to LOC § 50.07.003.3.d, Notice for Legislative Hearing.

Conduct of the Hearing.

The Chair of the Planning Commission shall follow the following procedures when conducting a legislative decision hearing:

The Chair shall briefly explain the nature of the legislative decision.

The Chair shall call for the staff report. The staff shall explain the applicable criteria, if any, and the reasons for the proposed legislative amendment.

The Chair shall open the public hearing and take testimony or evidence presented. Any person may appear and be heard.

The Chair shall close the public hearing and return the matter to the table for deliberation and decision. The hearing body may ask questions of staff or any member of the public during deliberations.

Time Limits on Testimony.

The following time limits on testimony shall be observed, subject to the right of the Chair, with Planning Commission consent, to modify or waive the time limits: five minutes each for individuals and ten minutes each for recognized neighborhood associations, homeowners associations, government or governmental agency or other incorporated public interest organizations. The time limits shall not include time taken up by questions and response from the Planning Commission. Any person in attendance may cede their time for testimony to another person, but in no case shall any person’s testimony be increased to greater than ten minutes.

Recommendation of Planning Commission.

The Planning Commission shall make a preliminary decision recommending enactment, enactment with modifications, or rejection of the proposed amendment. Within a reasonable time after making its preliminary decision, the Planning Commission shall adopt an order setting forth its recommendation and explaining the reasons for its decision.

A final recommendation of the Planning Commission shall be forwarded to the Council for review.

City Council Review and Decision.

The City Council shall hold at least one public hearing on the proposed legislative decision.

Notice.

Notice of a City Council hearing on a legislative decision shall be published pursuant to LOC § 50.07.003.3.d, Notice for Legislative Hearing. Notice shall also be mailed at least ten days in advance to the Committee for Citizen Involvement, to all recognized Neighborhood Associations and to all persons who appeared either orally or in writing at the Planning Commission hearing. The notice shall include:

The time, date and place of the public hearing;

A brief description of the proposed legislative amendment; and

A phone number for obtaining additional information.

Conduct of the Hearing.

The Mayor shall follow the same procedures identified for the Planning Commission hearing in LOC § 50.07.003.16.d.iv, Conduct of the Hearing, when conducting a legislative decision hearing.

Time Limits on Testimony.

The following time limits on testimony identified for the Planning Commission in LOC § 50.07.003.4.b shall be observed in the City Council hearing.

Decision.

The Council may approve, reject or modify the proposed amendment in whole or in part. Within a reasonable time after making its preliminary decision, the Council shall adopt findings setting forth its decision and explaining the reasons for such decision. The legislative decision shall be enacted by ordinance. The ordinance adoption procedures of the Lake Oswego Charter shall be followed.

The legislative decision shall become final for purposes of appeal on the date of enactment of the ordinance pursuant to the Lake Oswego Charter.

On the same day that the text and findings are mailed or delivered, pursuant to subsections 16.c.i through iii of this section, the City shall also mail notice of the decision to all persons who participated in the hearings leading up to the decision who have filed a written request for notice of the final decision with the City Recorder. The notice shall:

Briefly describe the decision;

State the date of the decision;

If delivered by mail, include a certificate of mailing containing a statement signed by the person mailing it indicating the date the notice was deposited in the mail;

State the date, time and place where the decision, including the text and the findings, may be reviewed; and

Explain the requirements for appeal of the decision pursuant to ORS 197.830 to 197.845.

Effective Date of Legislative Decision.

A legislative decision becomes effective on the thirtieth day from the date of enactment of the ordinance, or immediately if adopted by emergency, pursuant to the Lake Oswego Charter, unless a stay of application is granted by LUBA pursuant to ORS 197.845.

A decision on an application subject to a legislative amendment that is effective pursuant to subsection 16.f.i of this section, but which has not been acknowledged pursuant to ORS 197.610 to 197.650, shall include findings of compliance with those statewide land use planning goals applicable to the legislative amendment. The issuance of a permit under an effective but unacknowledged comprehensive plan or land use regulation shall not be relied on to justify retention of improvements so permitted if the comprehensive plan or land use regulation does not gain acknowledgment.

17.

Expiration of Development Permit.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2853, Amended, 11-3-2020]

Except as otherwise provided in LOC §§ 50.07.005.5, 50.07.007.3, 50.07.007.4.f, another provision of this Code, or as specifically stated as a condition of approval of a development permit, any permit issued under this Code shall expire three years following the final decision and effective date of any order constituting or approving the development permit unless:

If development involves construction of a structure, at least 15% of the structural construction has occurred within three years of the date of final decision. For major public facilities, the three-year limitation does not apply to a conditional use permit (or modification) and a development review permit (or modification) is subject to a five-year deadline; and

Development authorized by the permit is commenced and work has reasonably continued to completion of the development.

If the permit does not involve physical construction or development on the site (e.g., lot line adjustments and resource delineations) the document finalizing the approved development action must be filed, recorded or such other action as provided in the approval or as required by law to give effect to the approval (e.g., recording the approved adjustment or delineation survey) within the three-year period. If not, the approval expires.

Upon expiration, no further work on the development or use authorized by the development permit may be undertaken without obtaining a new development permit.

The City Manager shall, in writing grant, a one-year extension to a development permit where the request for the extension is made by written application prior to the expiration of the three-year period.

If the City Manager believes that work on the development has ceased prior to completion, or has otherwise been abandoned, the City Manager may, at any time, require the applicant to demonstrate that the applicant is proceeding with efforts to commence or to continue the development.

§ 50.07.004 Additional Submission Requirements.

This section contains submission and review criteria for the procedures listed below. Where review criteria are important for an understanding of the substantive requirements of a section or limited in size they have been maintained with the substantive provisions.

Stormwater Management Standards.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2695, Amended, 2-16-2016]

The applicant shall submit information as required by the City Manager pursuant to LOC § 38.25.120 (see Stormwater Management Manual) for all development where:

Greater than or equal to 1,000 sq. ft. of impervious surface is created;

The sum of impervious surface created and/or replaced is greater than or equal to 3,000 sq. ft.; or

Greater than or equal to 3,000 sq. ft. of existing impervious surface is repaired and/or maintained in a manner that results in an additional off-site hydrologic impact.

[Cross-Reference: See City Engineer’s Surface Water Management Design Manual.]

(Reserved)

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]

Hillside Protection.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2909, Amended, 2-7-2023]

Submission Requirements.

For all applicable development or construction, the applicant shall submit the following:

Survey Required.

Development Types.

All development proposed on land with existing undisturbed slopes greater than 20%;

All major development permit applications;

A survey may be required for a minor development permit if the City Manager determines that the information is needed to know whether the standard is being met.

Contents.

The survey shall be used to provide accurate topographic information for site and building designs which will minimize disturbance or removal of soils during construction and shall show:

Specific contours,

Location and types of trees,

Soils,

Rock outcroppings or surface rock, and

Drainage ways.

Grading Plan Required.

For all development proposed on land with undisturbed slopes greater than 20%, a specific grading plan shall be provided and approved which shows all proposed changes in natural terrain, including the following:

Site contours at one ft. intervals.

Location of existing structures and buildings, including those within 100 ft. of the development site on adjacent property.

Limiting dimensions or finish contours of proposed grading, including all cut and fill slopes, proposed drainage and related structures or construction.

Description of all methods to be employed in disposing of soils or other materials to be removed, including location of disposal site.

All proposed cuts, fills or retaining walls shall be shown on development applications.

Removal of Vegetation.

All development applications shall show areas where grubbing, clearing or removal of vegetation is to occur, and shall describe provisions to protect soils during construction in accordance with LOC Chapter 52, Erosion Control.

Potential Severe Erosion of Landslide Hazard Areas.

Where development is to occur on a potential severe erosion or landslide hazard area, a report evaluating soil conditions and potential hazards shall be submitted to the City Manager.

The report shall be prepared by a registered geotechnical engineer or engineering geologist and shall contain the following:

Evidence that a field investigation was made to determine the actual hazard.

Statements regarding the exact nature and extent of the hazard.

Recommendations on site preparation and construction methods to minimize the effects of the hazard.

If erosion hazard exists, a specific erosion control plan to be approved by the City Manager, in accordance with LOC Chapter 52, Erosion Control.

A description of any hazard area which should not be disturbed by construction.

If landslide hazard exists, a statement as to whether or not a proposed development constructed in accordance with the recommended methods is reasonably likely to be safe and to prevent landslide or damage to other property.

Historic Preservation.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2841, Amended, 9-1-2020]

Process to Initiate Historic Review.

Designating or Removing a Designation of a Landmark or Contributing Resource.

The City Council, Historic Resources Advisory Board (HRAB), property owner, City Manager, or their authorized representative may initiate the following processes:

Designating a landmark or a contributing resource;

Removing a landmark or contributing resource designation.

Creating or Modifying a Historic District.

The City Manager shall make available information regarding the benefits and restrictions of a designation to all the property owners within the proposed Historic District boundaries. The City Council, HRAB, or owners of not less than one-third of the privately owned property in the area sought to be designated may initiate the creation or modification of a historic district. If there is multiple ownership in a parcel of land, the vote of the property shall be determined by the majority ownership of the parcel.

In the case of a boundary modification:

If adding area to the Historic District: the properties within the area to be added shall be counted.

If subtracting area from the Historic District: all properties within the Historic District shall be counted.

Demolishing or Moving a Landmark or Contributing Resource.

The process for demolishing or moving a landmark or contributing resource may be initiated only by the property owner or their authorized representative.

At least 120 days prior to submittal of the application, the applicant shall prepare and submit a plan for preservation of the landmark. One or more pre-application conferences shall be scheduled to allow the applicant and staff to discuss the proposal, the preservation plan requirements and the applicable criteria. The preservation plan may be submitted to the City after seven days following the pre-application conference.

Preservation Plan.

The preservation plan shall include a narrative describing how the applicant will accomplish all of the following:

The applicant or the applicant’s agent shall advertise the resource in local, regional and historic preservation newspapers of general circulation in the area once per week during the pre-application period and shall provide evidence of such advertising.

Give public notice by posting the hearing notice on site in addition to a "For Sale" sign which shall read: HISTORIC BUILDING TO BE MOVED OR DEMOLISHED – FOR SALE. The sign shall also state the City department and telephone number to call for further information. The sign shall be provided by the City and be posted in a prominent and conspicuous place within ten ft. of each abutting public right-of-way on which the resource is located. The applicant is responsible for assuring that the sign is posted for the entire pre-application period.

Prepare and make available information related to the history and sale of the property to all who inquire.

Provide information regarding the proposed use for the landmark site.

Keep a record of the parties who have expressed an interest in purchasing and/or relocating the structure. To ensure that an adequate effort has been made to secure a relocation site within the district, the applicant shall provide a list of property locations and owners who were contacted regarding purchase of a relocation site.

Media Release.

Following receipt of the preservation plan, the City Manager shall issue a media release to local and state newspapers of general circulation in the City. The media release shall include, but not be limited to, a description of the significance of the landmark, the reasons for the proposed demolition or removal, and possible options for preserving the landmark.

Postponement of Decision on Demolition of Landmark.

The Board may postpone up to 60 days making a final decision to approve, or approve with conditions, a request to demolish a landmark if it meets the criteria in LOC § 50.06.009.6.b.i(2), ESEE analysis, or (3) hardship. The postponement period may be invoked if the Board finds that:

There is a program or project underway that could result in preservation of the landmark; or

There is substantial evidence that a program or project will soon be underway and will successfully preserve the landmark.

Issuance of Moving or Demolition Permit.

A moving or demolition permit for a landmark found to comply with LOC §§ 50.06.009.6.a.i or LOC § 50.06.009.6.b.i(2) or (3) shall not be issued until all development permit applications for the new use or development have been approved by the City.

Demolition of Unsafe Buildings.

This section shall not be construed to make it unlawful for any person, without prior approval of the Board, to comply with an order by the City Manager or other competent authority to remove or demolish any landmark determined to be dangerous to life, health, or property.

Moving or Demolition of a Contributing Resource.

If the application is based upon compliance with LOC § 50.06.009.6.e.ii, the following actions must be commenced at least 90 days before an application can be approved:

Contact the City Manager.

Continuously post a "For Sale" sign on the contributing resource site which shall read: "Contributing Historic Resource to be moved or demolished – For Sale," with property owner and City contact information also included. The sign will be provided by the City and shall be posted in a prominent and conspicuous place within ten ft. of each abutting right-of-way.

The applicant or the applicant’s agent shall advertise the resource in local and state newspapers of general circulation in the area once per week for 90 days and shall provide evidence of such advertising.

To ensure that an adequate effort has been made to secure a relocation site within the district, the applicant shall provide a list of property locations and owners who were contacted regarding purchase of a relocation site.

Casualty Destruction of a Historic Resource.

A historic resource damaged or destroyed by unintentional means to the extent that the cost of rebuilding damaged portions would exceed 50% of the replacement value of the entire historic resource may be removed from the Landmark Designation List by requesting such action of the City Manager and providing such proof as is necessary to establish that the requirements of this section are met.

Local Street Connectivity.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014]

Submission Requirements.

For all applicable development or construction, the applicant shall submit:

Proof of notification of a circulation analysis pursuant to this subsection and subsection 5.a.ii of this section, to all property owners within 530 ft. of the boundaries of the parcel on which a development or construction is proposed, if any future streets or accessways are proposed beyond the boundaries of the subject parcel. Notification shall be in a form substantially similar to the example provided by the City. Notification shall be sent to the applicant and the owners of record on the most recent property tax assessment roll as stated above, in the manner required in LOC § 50.07.003.3.c, Notice for Initial Public Hearing for Minor and Major Development.

A circulation analysis, which includes a scaled site plan showing at a minimum:

The subject site and the entirety of all properties within 530 ft. of the parcel on which the development or construction is proposed;

A scaled site plan showing existing and proposed topography with contour intervals not more than five ft.;

Drainage features, floodplains, and existing natural resource areas and significant vegetation;

The name, location, right-of-way, pattern and grades of all existing and approved streets bikeways and pedestrian ways;

Proposed streets and bike or pedestrian facilities identified in the Transportation Improvement Program in the Comprehensive Plan or applicable neighborhood plans;

All permanent structures;

Property lines;

Bus lines or activity centers, such as schools, shopping or parks, within one-quarter mile (1,320 ft.) of the site; and

All streets and residential accessways proposed by the applicant, containing sufficient dimensions, spot elevations, existing structures and land features on the subject site and abutting parcels, to demonstrate compliance with this standard.

The circulation analysis shall graphically and textually illustrate how the proposed development or construction complies with this standard. The applicant must illustrate how proposed streets and residential accessways will provide connections to surrounding properties within 530 ft. of the subject site or to the nearest through street pairs, whichever is closer, in compliance with this standard.

Parks and Natural Areas Master Plan.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]

Master Plan Elements.

At a minimum, a master plan shall include the plan elements and public involvement processes as follows:

Plan Elements.

Plan vision or goals;

Design program, including statement of character, proposed uses, and size of facilities;

A site plan, including general circulation patterns and approximate access points, methods of public services, and general placement of structures and type of uses;

A site inventory and environmental analysis;

Identification of opportunities and constraints;

A site master plan, including provisions for protecting natural resources, where applicable; and

Construction estimating and phasing plan.

Public Involvement Elements.

Development of the master plan through a committee approved by the City of Lake Oswego.

Public meetings to address the following items:

Project introduction;

Discussion of site analysis, opportunities, and constraints; and

Discussion of design alternatives and selection of a preferred alternative.

A study session has been held where members of affected boards and commissions have been invited to review the proposal.

Master Plan Procedure.

The review of a master plan shall be subject to the following procedure below:

The public hearing notice shall follow the same requirements in LOC § 50.07.003.3.c, Notice for Public Hearing.

The Planning Commission shall hold a public hearing to review the master plan application and the Commission shall forward a recommendation to the City Council whether or not a proposed master plan satisfies the criteria below.

The City Council shall hold a public hearing to consider the hearing body’s recommendations and make the final decision based on the criteria below.

Master Plan Criteria.

A master plan presented to the City Council shall be approved if it complies with the following criteria:

The master plan satisfies applicable regulatory policies of the City Comprehensive Plan;

The characteristics of the site are suitable for the proposed use considering size, shape, location, topography, existence of improvements and natural features;

The improvements and uses proposed for the site are capable of being served by the existing or planned transportation systems, public facilities and services;

The proposed uses will not alter the character of the surrounding area in a manner which substantially limits, impairs or precludes the use of surrounding properties as allowed by the respective underlying zone;

A master plan shall include an analysis of the projected average daily vehicle trips to be generated by the proposed uses to be authorized under the master plan and their distribution pattern, and the impact of the traffic on the capacity of the street system which would serve the uses; and

The allowed development will be compatible or can be made compatible with the surrounding neighborhood to the extent practicable.

Master Plan Conditions of Approval.

In reviewing the master plan, conditions may be imposed that are suitable and necessary to assure compliance with the criteria in this section. These conditions may include, but are not limited to:

Limiting the manner in which the uses are conducted, by restricting the time an activity may take place and by minimizing such environmental effects as noise, vibration, air pollution, glare and odor;

Establishing a special yard, setback, lot area or other lot dimensions;

Limiting the height, size or location of a building or other structure;

Designating the size, number, location and design of vehicle access points;

Increasing roadway widths, requiring street dedication, and/or requiring street;

Designating the size, location, screening, drainage, surfacing or other improvement of a parking area or truck loading area;

Limiting or otherwise designating the number, size, location, height and lighting of signs;

Limiting the location and intensity of outdoor lighting, including any shielding necessary;

Requiring berming, screening or landscaping and designating standards for its installation and maintenance;

Designating the size, height, location and materials for fences;

Protecting and preserving existing trees, soils, vegetation, water resources, wildlife habitat or other significant natural resources; and

On- and off-site public improvements including, but not limited to, stormwater and transportation.

Master Plan Modification.

Unless otherwise established through the master plan, modification of an approved master plan shall comply with LOC §§ 50.07.004.6.a and 50.07.004.6.c as applicable to the modification.

Minor modifications of the master plan may be approved by the City Manager; provided, that such change:

Meets all requirements of the development standards and other legal requirements; and

Does not significantly affect other property or uses, nor significantly affect any public facility; and

Does not affect any condition specifically placed on the development by action of the hearing body or City Council.

Modifications of the master plan that are not minor modifications shall be processed in the same manner as a master plan (LOC § 50.07.004.6.b).

Park and Open Space Contribution.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2687, Amended, 12-15-2015]

Application.

Development applications shall include a scaled plan which identifies the site’s proposed open space.

Identification on Plat or Development Plan.

Open space land shall be clearly and accurately depicted on the final plat map or development plan and documented in the development permit record. If not dedicated by plat and the land is to be in public control, the conveyance shall be by document acceptable in form to the City Attorney.

Priority Open Space Areas.

Lands shall be selected by the City for reservation as open space areas in accordance with the following priorities:

Delineated RP resources;

RC district protection areas;

Proposed public open space including intra-city bike/pedestrian pathways;

Woodlands, tree groves, including HBA protection areas;

Specimen trees;

Natural meadows;

Topographic variations, such as rock outcrops, cliffs, extreme slopes, riverbanks;

Conveniently located areas where recreation opportunities can be created. Examples include trails, nature study sites, picnic areas, or view points;

Scenic views and vistas; or

Others.

Review and Decision.

The decision on whether land is acceptable by the public for control and maintenance for open space purposes is to be made by the City Manager at the City Manager’s discretion. Formal acceptance of open space lands shall be by City Council resolution. Lands may be approved by the City to be counted toward meeting the open space requirement that are not acceptable to the City for public control and maintenance.

Final approval of open space boundaries shall be made by the hearing body at the time of the public hearing on the development proposal.

Granting of Partial Rights to Open Space Lands.

Up to 100% of the open space requirements may be met by the granting of partial rights or reservations, such as:

Scenic or view easements or cross easements, or

Imposition of deed restrictions such as tree cutting restrictions in yards or special setback requirements.

Sensitive Lands Designations, Map Corrections and Delineations.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2635, Amended, 5-6-2014; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2658, Amended, 12-16-2014; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2853, Amended, 11-3-2020]

Criteria for Designating Property within an Overlay District.

Goal 5 Analysis Required.

In order to add a resource (RP or RC district, or HBA) overlay to the Comprehensive Plan Map and Zoning Map, designating a new property or a new group of properties RP, RC, or HBA, the reviewing body shall find that the resource on the site or sites has been ranked and evaluated through an Economic, Social, Environmental, and Energy (ESEE) Process Analysis in compliance with Statewide Land Use Planning Goal 5 and merits a Resource Protection (RP) and/ or Resource Conservation (RC), or qualifies for Habitat Benefit Areas (HBA) designation.

Procedure.

An RP, RC, or HBA designation may be applied, modified or removed pursuant to either a City or area-wide Goal 5 analysis or a Goal 5 analysis of a single property or small number of individual properties. A City-wide or area-wide analysis shall be processed as a legislative Comprehensive Plan Map and Zoning Map amendment pursuant to LOC § 50.07.003.16.a.i, and an analysis affecting a single property or small number of individual properties shall be processed as a quasi-judicial Comprehensive Plan Map and Zoning Map amendment pursuant to LOC § 50.07.003.16.a.ii.

Designation of Resources.

Submission of Application.

Within 90 days of receiving evidence that a previously unmapped resource is likely to meet the criteria for resource designation, the City Manager shall submit an application for designation of resource to the reviewing authority pursuant to subsection 8.a.ii of this section.

Criteria.

The reviewing authority shall adopt a Comprehensive Plan Map and Zoning Map amendment to add the resource to the Sensitive Lands Map, and designate the RP district, RC, or HBA overlay district, as applicable, if the reviewing authority finds that the proposed resources are "significant resources," by meeting the requirements of either subsection 8.a.v of this section (stream or wetland) or subsection 8.a.vi of this section (tree grove), and if an ESEE analysis shows that the resources are required to be protected.

Methodologies.

The methodologies for determining whether or not the criteria for designation of a resource has been met shall be the following:

Lake Oswego ESEE Analysis Methodology to Be Utilized.

The City shall use the following methods to determine:

Tree grove:

The Wildlife Habitat Assessment Score (HAS); or

Stream corridors and wetlands:

The Oregon Freshwater Wetland Assessment Methodology developed in the City of Lake Oswego Resource Areas Report and ESEE Process Analysis for evaluation and comparison of inventoried sites pursuant to Statewide Land Use Planning Goal 5. The HAS is a numerical ranking applied in an ESEE inventory which represents the relative wildlife values of a given natural resource site. Six features are evaluated to determine the total Wildlife Habitat Assessment Score: Water; Food; Cover; Disturbance; Linkage; Unique Features. In addition, the City shall consider the scenic value of the resource pursuant to the methodology established in the ESEE analysis. See Lake Oswego Resource Areas Report and ESEE analysis dated April 1, 1997, as revised on July 15, 1997, on file with the Lake Oswego Community Planning and Building Services Department.

Oregon Freshwater Wetland Assessment Methodology.

The City shall utilize the then current Oregon Freshwater Wetland Assessment Methodology, as adopted by the Oregon Department of State Lands, to evaluate wetland sites with respect to water quality and hydrologic control functions.

Applicability of RP Overlay District.

The Resource Protection (RP) overlay district shall protect environmentally significant stream corridors and wetlands. Nonjurisdictional irrigation ditches and nonjurisdictional roadside and railway ditches, as defined by the Oregon Department of State Lands, shall not be placed within the RP district. The following resources may be placed within the RP district:

Stream corridors and wetlands that have a HAS ranking of 50 or more (defined as "Class I" stream corridors and wetlands).

Stream corridors and wetlands that have a HAS ranking of 35 to 49 or have a "high" ranking for scenic values (defined as "Class II" stream corridors and wetlands).

Wetlands that are significant under Oregon Freshwater Wetland Assessment Methodology (OFWAM) guidelines, including:

Wetlands fed by surface flows, sheet flows or precipitation, that have evidence of flooding during the growing season, and have 60% or greater vegetated cover, and are over one-half acre in size; or other wetlands that qualify as having "intact water quality function" under the OFWAM guidelines; or

Wetlands in the Flood Management Area, that have evidence of flooding during the growing season, and are five acres or more in size, and have a restricted outlet or no outlet; or other wetlands that qualify as having "intact hydrologic control function" under the OFWAM guidelines; or

Wetlands where at least a portion of the resource is within a horizontal distance of less than one-fourth mile from a water body which meets the Department of Environmental Quality definition of "water quality limited water body" in OAR Chapter 340, Division 41.

All perennial streams.

Applicability of RC and HBA Overlay Districts.

The Resource Conservation (RC) overlay district shall protect significant tree groves on public open spaces, private designated open space tracts, or on properties brought into the Urban Growth Boundary after December 28, 2005.

The Habitat Benefit Area (HBA) overlay district is an incentive program for tree grove conservation on private properties located within the Urban Growth Boundary as of December 28, 2005.

Quality of tree grove:

Has a HAS ranking of at least 35; or

Has a "high" ranking for scenic values in the study; or

Is associated with a stream corridor or wetland that has an RP ranking.

Map Corrections.

A map correction may be initiated by the City Manager or the owner of any lot containing an RC or RP district.

Within 45 days of receiving a property owner request regarding a possible error in the existence or location of an RC or RP district, the City Manager shall advise the affected property owner(s) in writing of the applicable procedure to process the request.

Where the map correction is initiated by the City Manager, the City Manager shall notify the property owner(s) in writing of the proposed corrective action.

Based on information provided by the property owner, as applicable, and such maps, aerial photographs, prior resource delineations, and studies or reports prepared by qualified professionals, etc., the City Manager shall select the applicable review procedure, which shall be:

Ministerial Development Decision, for corrections to scrivener’s errors. The Sensitive Lands Map shall be updated with each correction;

Minor Development Decision, for map corrections other than scrivener’s errors; or

Legislative Decision, for map corrections affecting more than a small number of identified properties.

The reviewing authority shall approve a map correction, including the removal or redelineation of a resource, as applicable, where the applicant demonstrates one of the following is met:

That the inventoried resource no longer exists because it was lawfully filled, culverted, logged, or developed;

The boundaries of the resource have changed since adoption of the resource inventory;

There was a mistake in the analysis used in the designation of the resource and it does not meet the criteria for designation under subsection 8.a of this section, and a re-application of the ESEE analysis demonstrates that the designation is no longer justified;

There was a mistake in the location, size, or configuration of the designation, including instances where no portion of the resource is on the subject lot; or

The tree grove is an isolated tree grove not located on public open space, on a private designated open space tract, or on property brought into the Urban Growth Boundary after July 10, 2012, and removing the RC district complies with Metro Code Section 3.07.1330(A)(2).

A map correction shall not be approved as a result of damage caused by the property owner, another party, or other than natural causes.

[Cross-Reference: See Ord. 2658, Finding #3 (map correction procedure not to be used by City to designate new RC/RP districts or to add properties to existing RC/RP districts.]

Environmental Review.

An applicant for a development subject to LOC § 50.05.010.2 shall comply with:

For exempt development under LOC § 50.07.003.12 occurring within an RC or RP district or its associated construction setback, or within an HBA protection area, the applicant shall:

Comply with the applicable development standards for RP and RC districts, and HBA protection areas (LOC §§ 50.05.010.5.c or 50.05.010.6.c), as applicable;

Comply with the construction standards (LOC § 50.05.010.4.d) to the satisfaction of the City Manager;

Meet the steps of avoidance and minimization as stated in LOC § 50.05.010.4.f; and

File a mitigation plan that complies with the standards of LOC § 50.05.010.4.g for the review and approval of the City Manager.

For development other than subsection 8.c.i of this section, the environmental review requirements in LOC §§ 50.07.004.8.d, 50.05.010.4.b and 50.05.010.4.c, 50.05.010.5.b and 50.05.010.5.c (for RC districts and HBA protection areas), 50.05.010.6.b through 50.05.010.6.d (for RP zones) or 50.05.010.6.e (Special Standards for the Oswego Canal), whichever sections are applicable.

Delineation of Streams, Wetlands, and Tree Groves.

Preparation/Criteria.

Except as provided in subsection 8.d.iv of this section, an applicant for a development subject to environmental review shall first delineate the stream, wetland, or tree grove. A delineation is a more precise, site specific determination of the location of the tree grove or water resource prepared by a qualified professional. The delineation shall include a map showing the delineated boundary to plus or minus two ft. The delineation map shall also show the protected riparian area if required for the particular resource. Resource boundaries shall be delineated as follows:

Tree Groves.

The RC district or HBA district, as applicable, shall be delineated as follows:

The boundary of a tree grove shall be measured at the outer edge of a contiguous tree canopy based on aerial photos and/or visual field observations, but shall not include any tree canopy that is within a wetland or below the top bank of a stream. Tree canopy from invasive tree species and nonnative tree species, per the City’s Plant List, shall not be included in the measurement of contiguous tree canopy, and the delineated boundary shall not increase the size of the RC district by more than 15% from what is designated on the Sensitive Lands Map.

Wetlands.

A wetland boundary shall be delineated in accordance with the 1987 Federal Manual for Identifying and Delineating Jurisdictional Wetlands, except that:

The methodology must include soils testing, and

When a delineated wetland boundary is abutting a steep slope, the protected riparian area shall be applied from the top of the slope rather than from the delineated boundary. The top of the slope shall be determined according to the same criteria as the top of the bank, pursuant to Table 50.07.004-A and Figure 50.07.004-A: Wetland and Stream Corridor Measurement.

Stream Corridors.

A stream corridor boundary shall be measured or delineated based on topographic maps, hydrology maps, and/or field observations, pursuant to Table 50.07.004-A and Figure 50.07.004-A: Wetland and Stream Corridor Measurement; provided, that the protected riparian area shall not extend more than 200 ft. from the edge of the ordinary high water line of the stream corridor. The ordinary high water line is defined according to Oregon Administrative Rule (OAR) 141-085-0510.

Stream and Wetland Riparian Areas Measurement.

The following areas are protected riparian areas. They are measured outward from the edge of a delineated stream corridor or wetland boundary and are included in the RP district:

TABLE 50.07.004-A: STREAM AND WETLAND RIPARIAN AREA MEASUREMENT
Stream/Wetland Classification	Slope Adjacent to Resource	Width of Vegetated Corridor and Method of Measurement
Class I	<25%	30-50 ft., measured from the outer edge of the stream corridor or delineated wetland as shown on the Sensitive Lands Map and as detailed in Figure 50.07.004-A.
Class I	>=25%	30-200 ft., measured from the outer edge of the stream corridor or delineated wetland to the natural break in the 25% slope, as shown on the Sensitive Lands Map and as detailed in Figure 50.07.004-A. Slope is measured perpendicular to and at intervals of not more than 25 ft. along the outer edge of the stream or wetland. Where a stream or wetland is confined by a ravine or gully, the top of ravine is where there is a consistent break in the 25% slope that is more than 30 ft. from the stream/ wetland edge; the width of the vegetated corridor may vary.
Class II	<25%	25-50 ft., measured from the outer edge of the stream corridor or delineated wetland as shown on the Sensitive Lands Map and as detailed in Figure 50.07.004-A.
Class II	>=25%	25-50 ft., measured from the outer edge of the stream corridor or delineated wetland to the natural break in the 25% slope, as shown on the Sensitive Lands Map and as detailed in Figure 50.07.004-A. Slope is measured perpendicular to and at intervals of not more than 25 ft. along the outer edge of the stream or wetland. Where a stream or wetland is confined by a ravine or gully, the top of ravine is where there is a consistent break in the 25% slope that is more than 25 ft. from the stream/ wetland edge; the width of the vegetated corridor may vary.

Figure 50.07.004-A: Wetland and Stream Corridor Measurement*

*Figure 50.07.004-A is for illustration purposes. The standards in Table 50.07.004-A govern.

Review of Delineation.

The reviewing authority shall compare the applicant’s delineation maps with the 1994/1995 ESEE Study and the Sensitive Lands Map, and shall inspect staked, delineated resource boundaries. The reviewing authority shall approve the delineation if the delineated boundary more accurately reflects the locations of stream, wetland, and/or tree grove resources than the boundary as shown in the Sensitive Lands Map. If the reviewing authority finds that the evidence is contradictory or does not support the proposed delineations, the application shall be denied. In the alternative, review of the application may be continued for additional information if:

The applicant agrees to conduct a new delineation by an expert selected by the City Manager at the applicant’s expense; and

The applicant waives the applicable statutory deadline for completing a local decision on the application for the period of time necessary to conduct the new delineation.

Adjustment of Overlay District Boundaries to Reflect Approved Delineation.

An approved delineated boundary shall replace the boundary in the Sensitive Lands Map for the purposes of review of the development proposal for compliance with this section. If and when the proposed development receives final approval, including resolution of any appeals, the boundary of the RP or RC district as shown in the Sensitive Lands Map shall be modified as necessary to be consistent with the delineated boundary.

Delineation Not Required; Exceptions.

An applicant for a development subject to this section shall not be required to delineate the resource pursuant to this section if:

The resource has been previously delineated pursuant to an earlier development application subject to this section. Exception: The City Manager may require a new delineation if:

The applicant desires to demonstrate that the previously delineated boundary is no longer accurate;

There is evidence of a substantial change in circumstances on the property that has affected the location of the resource as previously delineated; or

The City Council has adopted new delineation standards or requirements since the previous delineation; or

The proposed development consists solely of landscaping and/or tree removal or qualifies as a resource enhancement project, and complies with LOC § 50.05.010.6.c.ii(1)(a), Landscaping; LOC § 50.05.010.6.c.ii(1)(b), Tree Removal; or either LOC § 50.05.010.5.c.iii(6), Utilities, or LOC § 50.05.010.6.c.ii(1)(f), Resource Enhancement Projects; or

The entire subject property is designated RP or RC, and the applicant agrees that a delineation would not reduce the area covered by the RP or RC district; or

The City Manager finds based on the 1994/1995 ESEE Study, the Sensitive Lands Map, existing aerial photography or remote sensing that the proposed development disturbance area is clearly located outside the subject RP or RC district including required protection areas and construction setbacks.

Delineation in the Absence of a Development Application.

An applicant may apply to delineate a resource in absence of an application for a specific development.

Solar Access Permit.

[Repealed by Ord. No. 2797, 11-6-2018]

10.

Weak Foundation Soils Determination Procedures.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2526, Amended, 12-18-2012; Ord. No. 2909, Amended, 2-7-2023]

Report Required.

If a development is located in an area of Potential Weak Foundation Soils, the applicant shall provide the City Manager a report prepared by a registered professional soils engineer or engineering geologist. This report shall describe the nature, distribution, and strength of the soils, including findings regarding the adequacy of the soils to support the proposed use and structure(s).

Exception: At the discretion of the Building Official for small projects, e.g., small addition, hot tubs/spas, the registered professional soils engineer or engineering geologist may submit a letter, based on observation of the soil condition, that the soils are adequate for the proposed use and structure.

If soils characteristics are determined by the applicant’s registered professional soils engineer or engineering geologist not to be adequate for the proposed use or structure(s) without compensating for the effect of the soils, the engineering report shall include conclusions and recommendations for design criteria for corrective measures which are appropriate to the soils and types of proposed structures.

If the site has been previously evaluated under this standard, the construction of a structure shall be deemed to comply with this standard if either:

The soils engineer or engineering geologist concluded that the soil is adequate for the proposed use and structure(s); or

The building plans for the structure comply with the corrective measures recommended under subsection 10.a.ii of this section.

The application materials shall include description of the design or engineering features which will compensate for the soils in accordance with the recommendations of the engineering report. The proposed design shall be certified by a registered professional engineer.

City Manager Review.

If soils characteristics are determined by the applicant’s registered geotechnical engineer or engineering geologist to be adequate for the proposed use and structure(s), no further consideration of compensating design shall be necessary.

Pursuant to the building code:

The Building Official shall specifically review design or engineering features in the development application which are intended to compensate for weak foundation soils.

The Building Official may require modifications in the proposed design or engineering where necessary to assure adequate structural support.

11.

Utilities; Streets/Sidewalks (Pathways) and Other Public Infrastructure.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2908, Amended, 6-6-2023]

For all applicable development or construction, the applicant shall submit:

A scaled utility plan of existing and proposed utilities shall be furnished to the City as part of any development plan application.

A scaled site plan showing the existing and proposed nature, size, and location of:

Street right-of-way and of street and sidewalk (pathways) paving or other suitable surface, curbs, gutters, or drainage swales, as required by LOC § 50.06.008.

Other public infrastructure as required by LOC § 50.06.008.

Easements and dedications shall be recorded in the final plat or plan or by separate instrument to serve the development.

12.

Telecommunication Facilities.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2723, Amended, 10-18-2016]

New Facilities.

In addition to standard required application material, the applicant for a new facility shall submit the following information in conjunction with an application for a new facility:

A site reconnaissance study containing, at a minimum:

A vicinity map depicting the proposed extent of the service area.

A graphic simulation showing the appearance of the proposed tower and accessory structures from five points within the impacted vicinity. Such points are to be mutually agreed upon by the City Manager and applicant.

An inventory within the applicant’s proposed service area depicting the height and location of nonhabitable structures, including poles, towers, and appurtenances that could accommodate collocation of the proposed antennas.

Recognizing that technology in this field is changing rapidly, a demonstration that an alternative technology that does not require the use of new towers, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, or any other less visually obtrusive method, is unsuitable. For the purposes of this subsection, a "less visually obtrusive method" means a reasonably practicable alternative technology that will better accomplish the purposes of this section as set forth in LOC § 50.03.003.5.g.i, Purpose. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

A landscape plan drawn to scale showing proposed landscaping, including type, spacing, size and irrigation methods.

Evidence demonstrating collocation has been explored and is impractical on existing structures, existing transmission towers, and existing tower facility sites for reasons of safety, available space, or failing to meet service coverage area needs.

A report containing the following information:

A description of the proposed tower and reasons for the tower design and height.

Documentation to establish the proposed tower has sufficient structural integrity for the proposed uses at the proposed location in conformance with minimum safety requirements as required by the State Structural Specialty Code, latest adopted edition.

Ice hazards and mitigation methods which will be employed, including increased setbacks, and/or deicing equipment.

The general capacity of the tower in terms of the number and type of antennas it is designed to accommodate.

Documentation demonstrating compliance with non-ionizing electromagnetic radiation (NIER) emissions standards adopted by the Federal Communications Commission (FCC).

A signed agreement stating that the applicant will allow collocation with other users, provided all safety and structural requirements are met. This letter shall also state that any future owners or operators will allow collocation on the tower. This agreement is not necessary if the applicant does not own the facility or structure; however, a consent to allow the owner to grant access to other users for the same structure or facility shall be required.

A soils report if the property contains weak foundation soils or has landslide potential.

Identification of any other antenna sites owned or operated by the applicant in the City.

Collocated Facilities.

In addition to standard required application material, the applicant shall submit the following information in conjunction with an application for a collocated facility:

Documentation demonstrating that the collocated facility will comply with non-ionizing electromagnetic radiation (NIER) emissions standards adopted by the Federal Communications Commission (FCC).

13.

Flood Management Area.

[Ord. No. 2847, Added, 1-4-2022]

This subsection 13 shall be interpreted to implement the requirements of LOC § 50.05.011. The definitions of LOC § 50.05.011 shall be applied to the terms herein when applicable.

Application for a development permit may be made on forms furnished by the Floodplain Administrator and may include, but not be limited to, plans drawn to scale showing the nature, location, dimensions, and elevations of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities, and the location of the foregoing. Specifically, the following information is required:

Information to Be Submitted and Maintained.

The following information shall be submitted by the applicant and then maintained and made available for public inspection by the City as needed. (The obligation to "record" does not mean record with the County Clerk; FEMA intends it to mean the City shall retain the information in perpetuity.)

Submit the actual elevation (in relation to mean sea level) of the lowest floor (including basements) and all attendant utilities of all new or substantially improved structures where base flood elevation (BFE) data is provided through the Flood Insurance Study (FIS), Flood Insurance Rate Map (FIRM), or obtained in accordance with subsection 13.b of this section. (The City shall record, and maintain the actual elevation (in relation to mean sea level) of the lowest floor (including basements) and all attendant utilities of all new or substantially improved structures where BFE data is provided through the FIS, FIRM, or obtained in accordance with subsection 13.b of this section.) In riverine flood zones, submit the proposed elevation (in relation to mean sea level) of the lowest floor (including basement) and all attendant utilities of all new and substantially improved structures, in accordance with the requirements of subsection 13.a of this section.

Submit the elevation (in relation to mean sea level) of the natural grade of the building site for a structure prior to the start of construction and the placement of any fill and ensure that the requirements of LOC § 50.05.011.6.b.xi, Encroachment within Floodway, and 50.05.011.5.a.ii, Authority and Criteria, are adhered to. (The City shall record the elevation (in relation to mean sea level) of the natural grade of the building site for a structure prior to the start of construction and the placement of any fill and ensure that the requirements of LOC § 50.05.011.6.b.xi, Encroachment within Floodway, and 50.05.011.5.a.ii, Authority and Criteria, are adhered to.)

Upon placement of the lowest floor of a structure (including basement) but prior to further vertical construction, submit documentation in the form of a FEMA elevation certificate, prepared and sealed by a professional licensed surveyor or engineer certifying the elevation (in relation to mean sea level) of the lowest floor (including basement).

Where base flood elevation data are utilized, submit as-built certification of the elevation (in relation to mean sea level) of the lowest floor (including basement) prepared and sealed by a professional licensed surveyor or engineer prior to the final inspection.

Submit required elevation certificates (EC). (The City shall maintain all elevation certificates (EC) submitted to the City.)

Submit:

The elevation (in relation to mean sea level) to which the structure and all attendant utilities were floodproofed for all new or substantially improved floodproofed structures where allowed under LOC § 50.05.011 and where base flood elevation (BFE) data is provided through the FIS, FIRM, or obtained in accordance with subsection 13.b of this section.

Proposed elevation in relation to mean sea level to which any nonresidential structure will be floodproofed.

(The City shall record, and maintain the elevation (in relation to mean sea level) to which the structure and all attendant utilities were floodproofed for all new or substantially improved floodproofed structures where allowed under LOC § 50.05.011 and where base flood elevation (BFE) data is provided through the FIS, FIRM, or obtained in accordance with subsection 13.b of this section.)

The applicant shall submit certification by a registered professional engineer or architect licensed in the state of Oregon that the floodproofing methods proposed for any nonresidential structure meet the floodproofing criteria for nonresidential structures in LOC § 50.05.011.6.b.iv(3).

Submit floodproofing certificates required under LOC § 50.05.011. (Applicants floodproofing nonresidential buildings shall be notified by the City Manager that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g., a building floodproofed to the base flood level will be rated as one foot below)).

Submit justification for all variance actions. (The City shall record and maintain all variance actions, including justification for their issuance.)

Submit all hydrologic and hydraulic analyses performed as required under LOC § 50.05.011.6.b.xi, Encroachment within Floodway. (The City will obtain and maintain all hydrologic and hydraulic analyses performed as required under LOC § 50.05.011.6.b.xi, Encroachment within Floodway.)

Submit substantial improvement calculation for any improvement, addition, reconstruction, renovation, or rehabilitation of an existing structure. (The City will record and maintain all substantial improvement and substantial damage calculations and determinations as required under LOC § 50.05.011.9, Calculations for Determining Substantial Improvements and Substantial Damage.).

Residential and Nonresidential Structures.

For development of a residential or nonresidential structure, the applicant shall submit a site plan and supporting information. Application materials shall be verified by an on-site survey by a registered professional land surveyor or registered professional engineer and, at a minimum, shall provide survey information for the portion of the subject property within the flood management area. The City Manager may require submittal of the following supporting information for the subject property:

The boundary lines for the base flood and floodway;

The elevation, in relation to mean sea level, of the base flood and the datum used;

The existing and proposed topography at the two-foot contour interval in those areas where development is proposed (including fill, excavation, and stockpile areas);

The location and description of existing streams;

The location of existing and proposed structures, utilities, streets, and other development; and

The elevation, in relation to mean sea level, of the lowest floor of all proposed habitable structures.

Appurtenant Structures.

For appurtenant structures, submit a site plan that includes, at a minimum, the following information for the subject property:

The boundary lines for the base flood and floodway;

The elevation, in relation to mean sea level, of the base flood and the datum used; and

The location of existing and proposed structures, utilities, streets, and other development.

For any variance granted, the Floodplain Administrator shall notify the applicant in writing that the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage and such construction below the base flood level increases risks to life and property.

Such notification shall be maintained with a record of all variance actions as required in subsection 13.a.xii(2)(b) of this section; and

The City shall maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Federal Insurance Administrator.

xiii.

The amount and location of any fill or excavation activities proposed.

xiv.

Alteration or Relocation of Watercourses.

When alteration or relocation of a watercourse is proposed within a riverine floodplain:

The applicant shall provide a description of the extent to which any watercourse will be altered or relocated.

The City Manager shall notify adjacent communities, Oregon Department of Land Conservation and Development, and other appropriate state and federal agencies prior to any alteration or relocation of a watercourse, and the applicant shall submit evidence of such notification to the Federal Insurance Administration.

xv.

Development in Portions of Tryon, Springbrook and Oswego Creeks.

For development within portions of Tryon Creek, Springbrook Creek, and Oswego Creek defined by LOC § 50.05.011.6.b.xii and when the development increases the base flood elevation by more than one foot in areas, submit a FEMA CLOMR/LOMR application and pay any processing or application fees associated with the CLOMR/LOMR prior to the issuance of a development permit.

xvi.

Submit description of the extent to which any watercourse will be altered or relocated.

xvii.

In riverine flood zones, the proposed elevation (in relation to mean sea level), of the lowest floor (including basement) and all attendant utilities of all new and substantially improved structures; in accordance with the requirements of subsection 13.b of this section.

Information Regarding Base Flood Elevation and Floodway Data/FEMA Notification.

For all development applications:

Base Flood Elevation Data.

Applicant shall submit:

BFE data from the FIS, FIRM, or other authoritative source; or

When BFE data per subsection 13.b.i(1) of this section is not available, e.g., unnumbered A Zones, provide, for review by the City Manager, BFE data available from a federal, state or other source, in order for the City Manager to administer the Encroachment within Floodway, Flood Management Area Development, and Standards for Construction.

Where elevation data is not available either through the Flood Insurance Study, FIRM, or from another authoritative source, applications for development permits for structures shall be reviewed to assure that the proposed structure will be reasonably safe from flooding. A structure will be considered reasonably safe from flooding if the floor level is elevated at least two feet above the highest adjacent grade in the unnumbered A zones. "Highest adjacent grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure.

Failure to elevate at least two feet above grade in unnumbered A zones may result in higher insurance rates.

Exception: Development proposals that are either five acres or more in size or are 50 lots or more are required to include within the application material BFE data. In unnumbered A Zones, the applicant shall provide an engineering analysis to establish the base flood elevation.

Submit all technical data to determine if the development will increase or decrease the base flood elevation, and if the base flood elevation is changed, submit all technical data to support a FEMA CLOMR/LOMR application.

Applicant shall notify FEMA within six months of project completion when an applicant has obtained a Conditional Letter of Map Revision (CLOMR) from FEMA. This notification to FEMA shall be provided as a Letter of Map Revision (LOMR).

14.

Alteration and Continuation of Nonconforming Dwellings.

[Ord. No. 2891, Added, 2-21-2023]

For applications to remodel a nonconforming dwelling where a nonconformity is proposed to be maintained, the City Manager may require:

Scaled site plan or plans, floor plans, and elevations that clearly identify and label, with calculations (sq. ft.), all exterior walls, perimeter foundations, and roofing proposed to remain, and all such features proposed to be removed;

Certification by a registered structural engineer for exterior walls, foundations, and roofing to remain; and

Any other information the City Manager deems necessary to evaluate compliance with LOC § 50.06.001.2.a.

§ 50.07.005 Conditional Use Permits.

Intent and Purpose; Effect of Use Under Prior Code Which is Conditional Under Current Code.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

A conditional use is an activity which is permitted in a zone but which, because of some characteristics which are not entirely compatible with other uses allowed in the zone, cannot be permitted outright. A public hearing and review of the proposed conditional use by the hearing body and the imposition of conditions, if necessary, is intended to ensure that the use proposed will be as compatible as practical with surrounding uses, and is in conformance with the purposes and requirements of the district, if any, and with other applicable criteria and standards of the City.

An alteration in a use which was classified by the prior zoning code as a permitted use that is by this Code classified as a conditional use shall conform to the requirements of this Code.

A use that existed before December 16, 1982, which is permitted only upon receiving a conditional use permit under the terms of this Code, is not a nonconforming use, but is without further action to be considered a conforming use.

Application.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

Application for a conditional use shall be made on forms provided by the City for that purpose and shall be signed by the property owner, or shall be accompanied by the owner’s written authorization. The application shall include:

Name, address and telephone number of applicant.

Map number and/or subdivision block and lot.

Narrative concerning the proposed request explaining how the applicable criteria are complied with.

Copy of deed, signed earnest money agreement, or other document showing ownership or interest in property.

Vicinity map.

Comprehensive Plan and zoning designations.

One map showing existing uses and a second map drawn in the same scale showing proposed development, placement of lot lines, etc. A survey map is not required.

Detailed plans for the specific project (working drawings are not required).

Names and addresses of property owners whose property is within 300 ft. of the applicant’s property which is the subject of the application or contiguous property owned by the applicant.

Proof of payment of the applicable fees.

Additional drawings, topographic surveys, photographs or other material necessary to understand the proposed use, and of its relationship to surrounding properties, may be required. The City Manager shall determine the completeness of an application. Variances may be applied for and considered concurrently with a conditional use application. All notifications for the conditional use application or hearing shall specifically state that variances have been applied for and clearly describe the proposed variances in terms understandable to a person of ordinary intelligence.

Authorization to Permit or Deny Conditional Uses.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2723, Amended, 10-18-2016]

An application for a conditional use shall be allowed if:

The requirements of the zone are met; and

Special conditions found in LOC §§ 50.03.003.3, 50.03.003.4.a through 50.03.003.4.c, 50.03.003.5.a, 50.03.003.5.c, 50.03.003.5.e through 50.03.003.5.f, 50.03.003.5.h, 50.03.003.6.a and 50.03.003.6.p.i, if applicable, are met; and

The site is physically capable of accommodating the proposed use; and

The functional characteristics of the proposed use are such that it can be made to be reasonably compatible with uses in its vicinity.

In permitting a new conditional use, or the modification of an existing conditional use, the hearing body, or the City Manager in the case of a minor modification, may impose conditions which are suitable and necessary to assure compatibility of the proposed use with other uses in the vicinity. These conditions may include, but are not limited to:

Limiting the manner in which the use is conducted, by restricting the time an activity may take place and by minimizing such environmental effects as noise, vibration, air pollution, glare and odor.

Establishing a special yard, setback, lot area or other lot dimension.

Limiting the height, size or location of a building or other structure.

Designating the size, number, location and design of vehicle access points.

Increasing roadway widths, requiring street dedication, and/or requiring improvements within the street right-of-way.

Designating the size, location, screening, drainage, surfacing or other improvement of a parking area or truck loading area.

Limiting or otherwise designating the number, size, location, height and lighting of signs.

Limiting the location and intensity of outdoor lighting, requiring its shielding, or both.

Requiring berming, screening or landscaping and designating standards for its installation and maintenance.

Designating the size, height, location and materials for fences.

Protecting and preserving existing trees, soils, vegetation, water resources, wildlife habitat or other significant natural resources.

On- and off-site public improvements.

The number of residential units allowed by the provisions of this Code on a site may be reduced only if it is found that development to that number will result in a violation of the standards stated in LOC § 50.07.005.3.a.

Modification of Conditional Use Permit.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]

A request by the conditional use permit holder to substantially modify a conditional use permit shall be processed in the same manner as a request for a conditional use permit. Minor modifications of permits may be approved by the City Manager; provided, that such change:

Meets all requirements of the development standards and other legal requirements; and

Does not significantly affect other property or uses; will not cause any deterioration or loss of any natural feature, process or open space; nor significantly affect any public facility; and

Does not affect any condition specifically placed on the development by action of the hearing body or City Council.

Abandonment of Conditional Use.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2832, Amended, 1-7-2020]

If a use operating pursuant to a conditional use permit is discontinued for a period of at least one year, any further use of the property shall conform to the requirements of this Code. The City Manager shall, in writing, grant a one-year extension to a conditional use where the request for the extension is made by written application prior to the expiration of the one-year period. After the expiration of any extension of use, such a conditional use shall not operate without first obtaining a new conditional use permit.

Review of Conditional Use Permits; Amendment and Revocation Procedures.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014]

Uses operating pursuant to a conditional use permit may be reviewed to determine whether or not the conditions applied are continuing to be met.

The hearing body is authorized to amend a conditional use permit or to provide for further conditions to more adequately assure compatibility of such uses to adjacent land uses, public facilities or other requirements of this Code, or to terminate a permit, if it is found that the applicable requirements or conditions are not being met.

A conditional use permit may be revoked or modified by the hearing body if the applicable conditions or the specific requirements of this Code are not continuously met and also for the reasons stated in LOC § 50.09.002.3, Revocation of Permit.

Amendment or revocation pursuant to LOC § 50.07.005.6.b may only occur after a hearing before the hearing body at which the permit holder and interested persons have been given an opportunity to be heard on the question. This procedure is not exclusive and is in addition to any other procedure allowed by law.

The owner of record of the affected property shall be notified, by certified mail, and notice shall be posted on or within 50 ft. of the property not less than ten days prior to the date of the hearing of the public hearing. The notice shall specify the nonconformance alleged and the actions which may be taken if nonconformance is confirmed.

The hearing body shall hold a hearing pursuant to the provisions of LOC § 50.07.003.3.c and LOC § 50.07.003.15.b.i and ii. After consideration of all evidence presented at the public hearing, the City Manager’s report, the applicable Code provisions, the use permit requirements, and the criteria set forth in LOC § 50.09.002.3, Revocation of Permit, the hearing body may revoke, terminate, allow continuation of the use, amend the use permit, or may grant additional time to bring the use into conformance. If additional time is granted, specific direction may be given setting forth the changes required to achieve conformance. An appeal to the City Council may be taken pursuant to LOC § 50.07.003.7, Appeals.

The hearing body’s action shall be transmitted to the owner of the affected property by mail, together with an explanation of the procedures for appeal to the City Council.

§ 50.07.006 Overall Development Plan and Schedule.

Phasing.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

A minor or major development may be planned and constructed in phases. A separate development permit shall be approved for each phase.

Purpose of Overall Development Plan and Schedule.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

The purpose of the ODPS is to:

Assure that the proposed development, considered as a whole, will conform to the Comprehensive Plan and development standards;

Assure that individual phases will be properly coordinated with each other and can be designed to meet the development standards;

Provide preliminary approval of the land uses, limit uses permitted within the ODPS, maximum potential intensities or densities, arrangement of uses, open space and resource conservation and provision of public services of the proposed development; and

Provide the developer a reliable assurance of the City’s expectations for the overall project as a basis for detailed planning and investment.

Density Bonus Within Phased Development.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

Density bonuses, identified and allowed by this Code, may be granted for any phase of a development provided the cumulative bonuses for any total development may not exceed, by more than 25%, the density and intensity determination of the ODPS.

[Cross-Reference: Density bonuses of up to 25% are permitted for public agency rental housing. See LOC § 50.04.001.2.b, Density – Additional Standards, R-5 and R-DD zones and LOC § 50.04.001.3.b, Density – Additional Standards, R-0, R-2, and R-3 zones.]

Overall Development Plan and Schedule (ODPS).

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

Development permits for individual phases within a major development shall be approved and conditioned in accordance with the ODPS. Development permits for each phase shall assure that the development plans conform to the ODPS, as well as the Comprehensive Plan and development standards.

Application.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2612-A, Amended, 5-21-2013]

Submission Requirements.

Vicinity map.

Maps and narrative indicating present use of land, including all natural and man-made features. A survey is not required.

Maps and narrative indicating types and location of land uses to be provided including park and open space sites or other reserved land.

General layout of streets, utilities and drainage management measures including areas reserved for water improvements.

General layout or siting of public transit, bicycle and pedestrian circulation.

Maps and/or narrative showing off-site improvements necessary to serve the proposed development.

An overall schedule of phasing; and the development to occur in each phase.

The City Manager may require additional information related to the particular circumstances of an ODPS. All maps except vicinity and detail maps shall be at the same scale.

Public Notice/Opportunity for Public Comment.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

Notice shall be provided pursuant to LOC § 50.07.003.3, Public Notice/Opportunity for Public Comment.

Review and Decision.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2832, Amended, 1-7-2020]

Decision-Making Body.

The appropriate hearing body shall consider the ODPS at a public hearing conducted pursuant to LOC § 50.07.003.4, Hearings, and notice shall be given in accordance with LOC § 50.07.003.3.c, Notice for Initial Public Hearing for Minor and Major Development.

The Planning Commission shall approve mixed use ODPS applications prior to consideration of a related development permit application. The ODPS may be considered concurrently with a zoning application.

Single use ODPS applications shall be reviewed and approved by the Development Review Commission.

Review Criteria for ODPS Consideration.

The hearing body shall approve the proposed ODPS only if it finds that the plan and schedule will satisfy the requirements of LOC § 50.07.003.15.d.ii, Review Criteria for Major Developments; and

Provides an overall general site plan which is properly related to and preserves natural features and resources consistent with the provisions of this Code;

Provides for land uses and intensities that are consistent with the provisions of the Comprehensive Plan, this Code, and with the planned capacities of public facilities;

Provides clear guidance for the specific design and coordination of future phases.

Content of the Approved Final Overall Development Plan and Schedule.

The approved overall development plan and schedule shall consist of the following documents:

A site plan showing location and type of all approved land uses, approximate lot area, and approximate number of units or square footage of uses.

A general utility plan showing streets, utilities, drainage management measures, bike and pedestrian ways and transit locations.

A statement acknowledging need for off-site improvements as required.

A schedule of the overall phasing and development to occur within each phase.

	These documents shall be prepared subsequent to hearing body approval and shall be approved by the City Manager. If the City Manager finds that the final submittal does not accurately reflect the hearing body action, then the documents shall be returned to the hearing body for approval.
	Upon approval, the documents will be stamped "Approved Final Plan" and filed in the ODPS project file.

Changes to the Overall Development Plan and Schedule.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012]

The City Manager shall have the authority to approve minor changes to the ODPS, including the transfer of densities within the project as a whole, which do not change the overall land uses, densities, amount of open space, decrease public facility capacities or affect the relationship of the development to adjacent land uses. Any other changes must be processed as a new application pursuant to this article.

§ 50.07.007 Land Divisions.

Requirements for Land Divisions.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2762, Amended, 3-6-2018; Ord. No. 2783, Amended, 6-19-2018]

All land divisions shall meet the requirements of this Code including all zone district standards and dimensions except as modified in this section.

Duration of Exemption from Subsequently Adopted Land Use Laws.

Pursuant to ORS 92.040(2) and (3), for lots created by subdivision after July 19, 2018, construction within an approved subdivision shall be subject to the Lake Oswego land use laws in effect on the date of subdivision application and shall not be subject to subsequently adopted Lake Oswego land use laws unless the applicant elects otherwise, in which case all current laws apply. This exemption shall terminate three years from the date the tentative subdivision became final. [Additional transition exemption expiration: For such lots created before July 19, 2018, the exemption shall expire on July 19, 2019.]

Flag Lots.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2526, Amended, 12-18-2012; Ord. No. 2612-A, Amended, 5-21-2013; Ord. No. 2643, Amended, 11-4-2014; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2762, Amended, 3-6-2018; Ord. No. 2832, Amended, 1-7-2020; Ord. No. 2853, Amended, 11-3-2020; Ord. No. 2884, Amended, 4-5-2022; Ord. No. 2909, Amended, 2-7-2023; Ord. No. 2938, Amended, 4-2-2024]

Purpose; Applicability.

The purpose of the flag lot section is to:

Enable the efficient use of residential land and public facilities and services;

Provide standards for site, building, and design compatibility of the new development with the existing neighborhood character;

Reduce the area of impervious surface resulting from redundant access paving, and improve the appearance where pavement is necessary; and

Minimize the disturbance of natural resources.

The provisions of this section shall apply to all land divisions and lot line adjustments creating flag lots in residential zones after September 6, 1998, and to any development occurring on a flag lot in a residential zone created after September 6, 1998.

Exception: These provisions do not apply to existing flag lots that are reconfigured through a lot line adjustment; the standards in effect at the time of the existing flag lot’s creation remain applicable.

Compliance with Zone Standards.

Flag lots shall comply with the requirements of the underlying zone except where noted in this article. A land division or lot line adjustment creating a flag lot shall also comply with any specific residential design criteria contained within an applicable adopted neighborhood plan.

Parcelization Plan.

In addition to the general application requirements for land divisions or lot line adjustments, an application to create a flag lot shall include a conceptual plan of complete parcelization of the subject property illustrating the maximum potential density, and shall include a site plan illustrating the location of existing structures on adjacent parcels. The reviewing authority may impose conditions in order to ensure that parcelization of the subject property will not preclude the development of surrounding properties. Such conditions may be related (but not limited) to access, circulation, building location, utility availability, and natural resource protection.

Exceptions.

The reviewing authority may allow exceptions to this section without the need to obtain a formal variance pursuant to LOC Article 50.08, Variances, in one or more of the following circumstances:

Landscaping required by LOC § 50.07.007.2.f.i as separation between driveways, which would not result in screening or buffering as intended due to topography, lot configuration, or existing natural resources which would be preserved, may be modified or may not be required;

Setback adjustments of up to two ft. which are necessary to site a dwelling in compliance with this article, or will result in additional separation from existing dwellings on surrounding lots, may be permitted;

If an existing structure(s) would be located on a proposed flag lot created by partition and the structure(s) would become noncomplying with any regulation of this Code, the proposed partition may be approved if the standard causing the noncompliance can be adjusted under LOC § 50.04.003.2, General Exception to Lot Area and Dimension Requirements;

Minimum driveway widths of 12 ft. required by LOC § 50.07.007.2.c.iii may be reduced, when approved by the City of Lake Oswego Fire Marshal.

Access.

When creating flag lots, the reviewing authority shall require that access to the flag lots is consolidated into a single shared access lane with the non-flag lot(s) or off site. If not practicable, then new lots may have individual access points.

Flag lots shall have access to a public street; however, actual street frontage shall not be required.

A driveway shall be used to serve a single lot. An access lane shall serve no more than three lots total, up to two of which may be flag lots.

Driveway widths shall be a minimum of 12 ft. Driveway length, construction standards, and turnaround requirements shall be determined by LOC § 50.06.003.2, On-Site Circulation – Driveways and Fire Access Roads.

See LOC § 50.06.003.1.d, Standards for Access Lanes, for width of access lanes.

No more than two driveways (whether to flag lot or non-flag lots) or access lanes shall be permitted within a distance equal to the minimum lot width of the underlying zone, or within 50 ft. of each other if no minimum exists, as measured from the closest edge of each driveway or access lane.

All dwellings on flag lots must post an address at the beginning of the driveway or access lane. The address shall be no less than six in. tall, must be on contrasting background, plainly visible, and must indicate the direction to the dwelling.

Lot Configuration Requirements.

Determination of Front Yard.

The front yard shall be determined as follows:

Except as provided below, the front yard(s) of a flag lot shall be measured from the access lane (see LOC § 50.07.007.2.e.iv for setback requirements).

Exception: For a flag lot at the farthest end of the access lane or a flag lot served by a driveway, the zone front yard setback shall apply and is measured from either the property line most parallel to the public street or the property line most parallel to the orientation of the projected access lane or driveway (see Figure 50.07.007-B).[1]

[1]

Editor’s Note: Figure 50.07.007-A was repealed by Ord. 2762, and the reference is reserved for future use.

Lot Width.

Lot width shall be measured by a line connecting two points on opposite side yard property lines, that will result in a line parallel to the front yard.

Lot Size.

Area of access easement or flagpole shall be deducted from the gross square footage of the flag lot. The "flag" portion of the lot shall be equal to or exceed the square footage of the underlying zone.

[Cross-Reference: See LOC § 50.04.003.6.c – Determination of Front Yard for Flag Lots Created Prior to September 6, 1998, and Lots Accessing by Easement.]

Building and Site Design Standards.

Building Orientation.

The reviewing authority shall require the following:

Except for dwellings on flag lots at the farthest end of the access lane or flag lots served by a driveway, new dwellings on flag lots shall have the front of the house oriented towards the access lane.

Buildings shall be oriented to provide the maximum separation and privacy from existing dwellings on abutting lots outside of the partition site. The reviewing authority may require conditions of approval to include measures such as specific building locations, increased setbacks, additional height restrictions, location and orientation of windows and other openings.

Maximum Structure Height.

The height of a single-family residential structure and any accessory structures on a flag lot shall not exceed:

For flag lots created after August 14, 2003, the taller of:

Twenty-two ft.; or

The average height of all dwellings on properties abutting the development site, as determined prior to the time of creation of the flag lot. Where there is no dwelling on the abutting property or where a dwelling is located more than 100 ft. away from the development site:

The maximum height permitted in the underlying zone shall be used for calculating the average, except:

(A)

In cases where the abutting property is zoned to permit a height greater than that allowed on the subject site, then the maximum height for the zone in which the subject site is located shall be substituted and used to calculate the average.

For flag lots created before August 14, 2003, the taller of:

The maximum building height limitation established at the time of creation of the flag lot. The methodology used to calculate the maximum building height permitted by this subsection shall be the same methodology used at the time of lot creation to establish the maximum building height; or

Twenty-two ft. (see LOC § 50.10.003.2, Height of Building, for methodology).

The City Manager may execute and record amendments to previously recorded development restrictions, upon the owner’s or adjacent property owner’s request, or at the City’s discretion, if necessary to reflect a taller building height limitation than previously approved.

Modification of Approved Building Height.

The maximum building height of single-family residential structures and accessory structures on a flag lot (whether created prior to or after August 14, 2003) may be modified from that previously determined at the time of creation of the flag lot to the average height of all dwellings on properties abutting the development site. Where there is no dwelling on the abutting property or where a dwelling is located more than 100 ft. away from the development site, then the maximum height permitted in the underlying zone shall be used for calculating the average. In cases where the abutting property is zoned to permit a height greater than that allowed on the subject site, then the maximum height for the zone in which the subject site is located shall be substituted and used to calculate the average. Where an existing structure on an abutting lot exceeds the maximum height allowed by the underlying zone, then the maximum height permitted by the underlying zone shall be used for purposes of calculating the average.

An application for modification of maximum building height for a flag lot shall be processed pursuant to LOC § 50.07.003.11, Modification of Development Permits, as a new application. The City Manager may execute and record amendments to previously recorded development restrictions.

Exceptions to Maximum Structure Height.

A greater height than otherwise permitted for roof forms or architectural features, such as cupolas or dormers, may be allowed pursuant to LOC §§ 50.04.001.1.g.ii, 50.04.001.2.g.ii, or 50.04.001.3.f.iv(2).

Access Lane Siting.

The access lane shall be located no closer than five ft. to any existing dwellings, measured from the access easement boundary.

Setback Requirements.

The standard front yard setback of the zone shall be superseded by the following front yard requirement: A minimum 15-ft. front yard setback is required from the access lane, except that a 20-ft. setback is required from the access lane to the front of a garage or carport when the garage or carport opening faces the access lane. For flag lot partitions or subdivisions that receive a minor variance to the determination of the front yard, per LOC § 50.08.002.2.m, the setbacks from the access lane described above shall apply. For purposes of this standard, the access lane shall include the projected extension of the access lane through the property as illustrated in Figure 50.07.007-B: Access Lane.

Exception: This provision does not apply to the flag lot(s) at the farthest end of the access lane. In such case, the zone front yard shall apply and be measured from either the property line most parallel to the public street or the property line most parallel to the orientation of the projection of the access lane.

Figure 50.07.007-B: Access Lane

Where a flag lot abuts a lot in a residential district of lower density, the greater setback requirements of the more restrictive district shall apply for those yards that have abutting property lines.

The side and rear yard setbacks shall be established at the time of flag lot creation, subject to the following requirements:

The sum of the side and rear yard setbacks on flag lots shall be not less than:

Fifty ft. in R-10 and R-15 zones; and

Forty-five ft. in the R-7.5 zone; and

Thirty-five ft. in the R-5, R-3 and R-0 zones.

In applying the flexible standard, provide yard dimensions that are similar to the yard dimensions of primary structures on abutting properties that are not part of the partition site and that abut the rear or side yards of the flag lots, but in no event shall the rear or side yard established under this section be less than:

Ten ft. in R-15, R-10 and R-7.5 zones; and

Seven and one-half ft. in the R-5, R-3 and R-0 zones.

Lot Width Requirements.

The lot width dimension of a flag lot shall not be less than the minimum lot width requirements of the underlying zone.

Lot Coverage and Floor Area.

For the purposes of calculating lot coverage and floor area on flag lots, the area of access easement or flagpole shall be deducted from the gross square footage of the flag lot.

Screening, Buffering and Landscape Installation.

A minimum five-ft. landscape strip shall be provided between the access lane and the perimeter of the development site when the shared access lane is located along the perimeter of the development site. Where land area is not sufficient to accommodate the five-ft.-wide landscape strip, the reviewing authority may impose conditions of approval to include measures that will provide effective buffering and screening. These measures may include landscaped islands, fencing, and meandering access lane.

Exception: If a new lot is provided on both sides of an access lane, the landscape strip is not required.

The reviewing authority shall require the landscape strip to be planted with trees and shrubs in order to mitigate the visual impact of wide expanses of pavement, and to provide a visual buffer between the access lane and the affected dwelling(s) located on abutting parcels. Plant materials used for screening and buffering shall be of a size to provide an effective screen within two years of planting. Trees shall be a minimum two-in. caliper, and shrubs shall be a minimum of five-gallon at time of planting. Maintenance of the buffer is an ongoing obligation of the property owner.

Exception: Trees are not required when the trees would conflict with utilities.

Existing mature vegetation and trees shall be integrated as screening where practicable. The reviewing authority may require dwelling and garage placement or orientation in a manner that will minimize the removal of specific trees, hedges, or other vegetation that would serve to screen the proposed structures from existing and potential surrounding homes.

The perimeter of the flag lot(s) shall be screened from abutting lots outside of the development site with a six feet.-tall solid, sight-obscuring fence, except:

Where a four feet fence is required by LOC § 50.06.004.2.b.i, Fences, or where such screening would conflict with standards for Sensitive Lands Overlay Districts, Flood Management Areas, or where the property line abuts Oswego Lake or Oswego Canal; or

A landscaped buffer within the deepest side or rear yard provided in compliance with the flexible setback standard of LOC § 50.07.007.2.e.iv(3), a minimum of six ft. in width, shall be created along the property line and planted with a deciduous or evergreen hedge, a minimum four ft. in height at planting, which shall grow to a height of six ft. within two years and shall be maintained at a minimum of that height. This requirement is not applicable where the deepest yard abuts Oswego Lake or railroad rights-of-way.

Tree Removal Mitigation.

A minimum of one evergreen or deciduous tree shall be planted at a 1:1 ratio where practicable in order to mitigate the removal of existing trees necessary for site development as a part of the creation of the lot or for the first dwelling constructed on the lot. The mitigation trees shall be of a species which will attain a minimum of 30 ft. in height. Deciduous trees at planting shall be a minimum of two-in. caliper and evergreen trees shall be a minimum of eight ft. tall.

Plant materials listed as nuisance or invasive in LOC § 50.11.004, Appendix D, and the Invasive Tree Species List on file at the Planning Department are prohibited in landscaping required by this section.

Platting.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2783, Amended, 6-19-2018]

Preparation and Submittal of Final Plan or Plat.

The final plan or plat shall be recorded within three years of the date of the order setting forth the final decision. Upon written application, prior to expiration of the three-year period, the City Manager shall, in writing, grant a one-year extension. Additional extensions may be requested in writing and will be submitted to the approving authority which approved the final decision for review of the project for conformance with the current law, development standards and compatibility with development which may have occurred in the surrounding area. The extension may be granted or denied and if granted may be conditioned to require modifications to bring the project into compliance with then current law and compatibility with surrounding development.

A final plan or plat shall include all information required by the final decision on the plan.

A final plan or plat for a subdivision shall accurately reflect the preliminary approval granted by the hearing body, with all conditions satisfied and shall also contain the following information:

The proposed name of the subdivision. The name shall not duplicate or resemble the name of another subdivision in the Urban Service Area.

Location of the subdivision by section, township and range.

Reference points of the existing surveys identified, related to the plat by distance and bearings, and reference to a field book or map as follows:

Stakes, measurements or other evidence found on the ground and used to determine the boundaries of the subdivision.

Adjoining corners of adjoining subdivisions.

Other monuments found or established in making the survey of the subdivision or required to be installed by provisions of this article.

The location and width of streets and easements intercepting the boundary of the tract.

Tract, block and lot or parcel boundary lines and street rights-of-way and centerlines, with dimensions, bearings and deflection angles, radii, arcs, points of curvature and points of tangency. Floodplain or high water line for major water bodies. Plat accuracy shall be determined by the County Surveyor.

The width of the portion of streets being dedicated and the width of existing rights-of-way. For streets on curvature, curve data shall be based on the road centerline. In addition to the centerline dimensions, the radius and central angle shall be indicated on each right-of-way line. Also, arc and chord data shall be shown on each line for all lots as applicable.

Easements, clearly identified and, if already of record, their recorded reference. If an easement is not definitely located of record, a statement of the easement shall be given. The width of the easement, its length and bearing, and sufficient ties to locate the easement with respect to the subdivision lines shall be shown. If the easement is being dedicated by the plat, it shall be properly referenced in the owner’s certificates of dedication.

Lot number beginning with the number "1" and numbered consecutively in each block in the subdivision.

Block numbers beginning with the number "1" and continuing consecutively without omission or duplication throughout a subdivision. The numbers shall be solid, of sufficient size and thickness to stand out and so placed as not to obliterate any figure. Block numbers in an addition to a subdivision of the same name shall be a continuation of the numbering in the original subdivision.

Identification of land to be dedicated to the public and a specific statement of the purpose of the dedication.

(11)

The following certificates may be combined where appropriate:

Certificate signed and acknowledged by all parties having any recorded title interest in the land (excluding lien holders), consenting to the preparation and recording of the plat.

Certificate signed and acknowledged as above, dedicating all land intended for public use except land which is intended for the exclusive use of the lot owners in the subdivision or their lessees, tenants, employees and visitors.

Certificate with the seal of and signed by the engineer or the surveyor responsible for the survey and final map.

Certificate for execution by the City Manager.

Certificate for execution by the County Surveyor.

Certificate for execution by the County Tax Collector.

(g)

Certificate for execution by the County Assessor.

(h)

Other certifications now or hereafter required by law.

(12)

Other information as required by ORS Chapter 92.

(13)

Deed restrictions and covenants shall be submitted as a separate document at the time as the final plat is submitted.

Review of the Final Plan or Plat, Filing Requirements.

Staff shall determine whether the final plan or plat conforms to the final decision of the hearing body, including all conditions, and other applicable state statutes and City codes.

If staff determines that the plan or plat is in conformance, then the appropriate signatures shall be affixed to the plan or plat, such signatures signify City approval of the plan or plat. Final plats shall be recorded with the appropriate county within 30 calendar days of signature. Acceptance by the City of the land dedicated to the public by means of a plat occurs upon the recording of the plat. Any plat not so recorded is void.

If staff determines that the final plan or plat does not conform, the applicant shall be advised by a written notice which shall list the reasons for the decision.

The applicant shall have 30 calendar days to correct the plan or plat or to schedule a review of the final plan or plat by the Development Review Commission. When the differences have been resolved and the plan or plat approved, the procedure in subsection 3.b.ii of this section shall be followed.

Approval of a final plan or plat authorizes the issuance of development permits for actions or uses as approved therein.

Planned Development Overlay.

[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2526, Amended, 12-18-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2687, Amended, 12-15-2015; Ord. No. 2732, Amended, 2-21-2017]

Purpose.

The purpose of the Planned Development (PD) Overlay is to provide, for parcels of sufficient size, greater flexibility in development of land as compared to a standard subdivision, encourage variety in the development pattern of the community, encourage developers to use a creative approach in land development, conserve natural land features, facilitate a desirable aesthetic and efficient use of open space, create public and private common open spaces, and provide for flexibility and variety in the location of improvements on lots. If these public purposes are accomplished, exceptions to certain zoning standards may be granted as provided by LOC § 50.07.007.4.d, Authorization.

Applicability.

Use of the PD overlay is allowed in any zone for subdivision proposals, except when the property is located in the R-7.5, R-10, or R-15 zone, at least one of the following circumstances must exist:

The property is greater than 75,000 sq. ft. in size;

An RP district or HBA overlay is located on the property; or

A tree grove greater than 15,000 sq. ft. in size exists on the property.

Procedures.

Multi-Phase PD Overlay Approval.

The establishment of a PD overlay for projects containing more than one phase shall occur in conjunction with the approval by the reviewing authority of an Overall Development Plan and Schedule (ODPS) pursuant to the provisions of LOC § 50.07.006. The ODPS shall contain a section which identifies the zone requirements and uses to be applied in the PD overlay. These requirements may be adopted by referring in the final order to existing provisions of this section or by creating special zoning standards pursuant to this section.

Single-Phase PD Overlay Approval.

A request for a PD overlay for a project that will contain only one phase may be considered by the reviewing authority. No ODPS shall be required, but the requirements of subsection 4.c.i of this section for the adoption of zone requirements in the final order shall be complied with.

Following Approval of a PD Overlay:

A subsequent request for modification from the underlying zone requirements for any lots within the planned development shall be processed in the following manner:

PD Modified at Least One Lot Requirement in Subdivision.

If any modifications were made to the above zone requirements, then any subsequent request for modification to these zone requirements shall be processed either as:

A planned development modification, pursuant to LOC § 50.07.003.11; no variance (LOC §§ 50.08.002 or 50.08.004) is permitted); or

A residential infill design review (RID), pursuant to LOC § 50.08.003.2.e; to the extent RID permits exceptions to certain zone standards, no planned development permit modification is required.

PD Modified None of the Lot Requirements in Subdivision.

If no modifications were made from the zone requirements, then any subsequent request for modification to the zone requirements shall be processed as:

A variance pursuant to LOC §§ 50.08.002 or 50.08.004; or

For qualified residential developments, processed according to the provisions of LOC § 50.08.003.2.e, RID.

PD Applications Filed Prior to August 14, 2003.

For PD applications filed prior to August 14, 2003, the following standards do not apply:

The maximum floor area standards of LOC § 50.04.001.1, Residential Low Density Zones;

The maximum floor area standards of LOC § 50.04.001.2, Residential Medium Density Zones – R-5 only;

The height exception, front setback plane, side yard setback plane, and garage appearance and location standards for all residential districts.

Maximum Structure Height in PD.

The maximum height of structure permitted in the zone at the time of approval of the PD overlay, and the methodology for determining the maximum height, shall be applied to structures within the PD overlay.

Authorization.

Underlying Zone.

In considering an application for a PD overlay, the reviewing authority shall apply the requirements of the underlying zone. The maximum floor area and lot coverage requirements may be applied with reference to the total area.

If the proposed PD is part of an approved ODPS as described in LOC § 50.07.006, requirements of the ODPS approval regarding arrangement of uses, open space and resource conservation and provision of public services will be considered when reviewing the considerations in subsection 4.d.i(1) of this section for the PD.

Dimensional Exceptions.

The reviewing authority may grant exceptions to zone requirements (except for the zone requirements and limitations listed below) if the applicant demonstrates that the proposed PD provides the same or a better sense of privacy, appropriate scale and open space as a PD designed in compliance with the standard or standards to which an exception is sought. The reviewing authority shall consider the factors listed in subsection 4.d.ii(2) of this section in determining whether to approve the exceptions.

No exceptions shall be approved for the following zone requirements:

The special setback requirements for steeply sloped lots in the R-5 zone [LOC § 50.04.001.2.e.i(2)] and R-0, R-2, and R-3 zones [LOC § 50.04.001.3.e.iv];

Height of building;

Use;

Open space; and

Density.

Lot Coverage and Floor Area Limitations.

The aggregate lot coverage for all of the lots shall not exceed the maximum lot coverage based on the net developable area of the project;

The total floor area of all lots shall not exceed the aggregate of the floor areas as determined based upon the respective lot area and the floor area methodology required by the zone.

In making the determination under subsection 4.d.ii(1) of this section, the reviewing authority may consider:

Whether the applicant has reserved or dedicated more than the minimum amount of open space required by park and open space contributions [LOC § 50.06.005];

Whether the requested exception allows the lots to be designed in a manner that provides better access to common open space areas from within and/or outside the PD, better protects views, allows better solar access, maintains or improves relationships between structures, maintains or improves privacy and/or improves pedestrian or bicycle access to surrounding neighborhoods;

Whether the requested exception will allow a more attractive streetscape through use of meandering streets, access through alleys or shared driveways, provision of median plantings, or other pedestrian amenities;

Whether the requested exception will enhance or better protect a significant natural feature on the site, such as a wetland, a tree or tree grove, or a stream corridor;

Whether the requested exception will provide better linkage with adjacent neighborhoods, open space areas, pathways, and natural features; or

Whether the requested exception will allow the development to be designed more compatibly with the topography and/or physical limitations of the site.

Side Yard Setback Exceptions.

The reviewing authority may grant exceptions to the minimum side yard setbacks of the underlying zone, without the necessity of meeting the requirements of LOC Article 50.08, Variances, if the requirements of subsection 4.d.ii of this section are met, and:

Proposed lot sizes are less than the minimum size required by the underlying zone; or

Lesser setbacks are necessary to provide additional tree preservation or protection of abutting natural areas;

Side yard setbacks shall not be reduced to less than eight ft. except under the following circumstances:

Structures on abutting lots within the development are separated by no less than 16 ft. when all portions of the structure within the standard setback are no greater than 18 ft. in height.

Structures on abutting lots within the development are separated by no less than 20 ft. when any portion of the structure exceeds 18 ft. in height within the standard setback area.

This limitation does not affect the underlying base zone yard setbacks when those setbacks are less than eight ft. See Figure 50.07.007-C: Side Yard Setbacks.

Figure 50.07.007-C: Side Yard Setbacks

In the R-7.5, R-10, and R-15 zones, where the parcel being developed is less than 75,000 square ft. in size, the following additional provisions apply:

Rear Yard Setback Exceptions.

For lots where the rear yard setback abuts open space land, the rear yard setback may be reduced by up to 50% of the base zone requirement.

For lots where the rear yard setback does not abut open space, the rear yard setback may be reduced by the percentage of the gross site area that is designated as open space, but in no case greater than 20% of the base zone requirement.

Lot Size Exceptions.

Lot sizes may be reduced by the percentage of the gross site area that is designated as open space, but in no case greater than 20% of the base zone requirement.

PD Standards.

Lots which are located on the perimeter of a development located in an R-0, R-2, WLG R-2.5, R-3, R-5, R-6, R-7.5, R-10 or R-15 zone, and which are adjacent to lots in an R-7.5, R-10 or R-15 City zone upon which are constructed single-family dwellings, may be not less than:

Development in R-0, R-2, WLG R-2.5, R-3, R-5, R-6 zones: 75% of the minimum lot area per unit of the adjacent zone or the minimum lot size of the zone in which the development is located, whichever is less.

Development in R-7.5, R-10, and R-15 zones: 80% of the minimum lot area per unit of the adjacent zone or the minimum lot size of the zone in which the development is located, whichever is less.

Housing types located on the perimeter lots described in subsection 4.d.iii(1) of this section shall be single-family, zero lot line or duplex dwellings, except three attached dwelling units may be placed on three lots which abut at a common point with the middle lot being a corner lot.