1. 
Classification of Variances.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
a. 
There are three different types of variances:
i. 
Minor Variances.
Minor variances allow small adjustments from certain standards of this Code where the change would have little or no impact on the streetscape or surrounding properties and where no demonstration of hardship is required.
ii. 
Design Variances.
Design variances allow adjustments of certain standards of this Code where the resulting design would be superior to development in the surrounding neighborhood or would better achieve the purpose/objectives of the applicable zone or design district and design standards. No demonstration of hardship is required.
iii. 
Major Variances.
Major variances are more significant adjustments from certain standards of this Code where, owing to special circumstances or conditions beyond the applicant’s control, application of the Code standards would result in undue and/or unique hardship.
2. 
Variances Not Allowed.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2768, Amended, 1-16-2018; Ord. No. 2847, Amended, 1-4-2022]
No variance shall be granted for the following:
a. 
To permit a use not permitted in the applicable zoning district (unless that variance is required by state or federal law based on the special rights of the occupant).
b. 
To increase the allowable residential density in any zoning district.
c. 
To vary a Code standard that has already been modified by a planned development approval, except that zone standards applicable to a planned development may be varied through the residential infill design review process.
d. 
To modify review and approval procedures.
e. 
To a setback required under LOC § 50.05.010, Sensitive Lands Overlay Districts. This provision does not prevent modification of protected riparian areas or setbacks as permitted in that section.
f. 
To a setback required under LOC § 50.04.002, Special Street Setbacks.
g. 
To vary a standard under LOC § 50.05.011, Flood Management Area, except per LOC § 50.05.011.8, Flood Management Area Variance.
[Cross-References: LOC § 50.07.007.4.c.iii – modifications to planned developments, and LOC § 50.07.003.11 – modification of development permit. Accessory Dwelling Units: (1) LOC § 50.03.004.1.b.vi(1)(e) – No variance of site development requirements of the underlying zone permitted solely to site ADU; (2) LOC § 50.03.004.1.b.vi(h) – no variance to front facade entrance placement prohibition for internal conversions.]
1. 
Purpose.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
The purpose of a minor variance is to allow small adjustments to certain standards of this Code that generally have little or no impact on surrounding properties or users or on the streetscape.
2. 
Minor Variance Classifications.
[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. 2644, Amended, 4-7-2015; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2784, Amended, 7-3-2018; Ord. No. 2884, Amended, 4-5-2022; Ord. No. 2892, Amended, 6-7-2022; Ord. No. 2909, Amended, 2-7-2023; Ord. No. 2938, Amended, 4-2-2024]
a. 
A variance for a single-family dwelling, middle housing dwelling, or an associated accessory structure that does not comply with LOC § 50.03.004.2.b, Reduction of Side or Rear Yard Setbacks for Accessory Structures, provided:
i. 
Twenty percent or less reduction from yard setbacks or the Oswego Lake setback:
(1) 
The resulting side yard setback is not less than five ft.; and
(2) 
If located in the R-6 zone, a minor variance to front yard setbacks shall be limited to two ft. or less; or
ii. 
If the request is necessary to preserve a tree:
(1) 
The request is the minimum necessary to preserve the tree; and
(2) 
The resulting yard setback is not less than 50% of the required standard; and
(3) 
Side yards are not reduced to less than five ft., and if located in the R-6 zone, the required front yard setback is not reduced by more than two ft.
b. 
A variance from yard setbacks for a structure other than a single-family dwelling, middle housing dwelling, or associated accessory structures up to:
i. 
Side or front yards: two ft.;
ii. 
Rear yards: five ft.; or
iii. 
Fifty percent or less of the required setback if necessary to preserve a tree provided:
(1) 
The request is the minimum necessary to preserve the tree; and
(2) 
The resulting yard setback is not less than 50% of the required standard; and
(3) 
Side yards are not reduced to less than five ft., and if located in the R-6 zone, the required front yard setback is not reduced by more than two ft.
c. 
A variance from minimum lot width of five ft. or less.
d. 
A variance to the maximum floor area for single-family homes or middle housing dwellings of up to 15%; provided, that the lot in question has at least the following minimum lot area:
TABLE 50.08.002-1: VARIANCE IN FLOOR AREA
Zone
Minimum Lot Size Required
R-5
10,000 sq. ft.
R-6
12,000 sq. ft.
R-7.5
15,000 sq. ft.
R-10
15,000 sq. ft.
R-15
22,500 sq. ft.
e. 
A variance to standards in LOC § 50.06.004.2 for a fence, wall, retaining wall, or a combination thereof.
f. 
A variance to the maximum grade of a driveway or access lane.
g. 
A variance for construction of a dormer that does not exceed the height of the roof ridge in which the dormer is being constructed in an existing single-family or middle housing dwelling that is nonconforming relative to lot coverage or setbacks.
h. 
A variance to distance of driveway from intersections (LOC § 50.06.003.2.b).
i. 
A variance to street frontage at the time of creation of subdivision lots (LOC § 50.06.003.1.c).
j. 
A variance to driveway and access lane width for flag lots (LOC § 50.07.007.2.c).
k. 
A variance to yard requirements for extension of existing nonconforming walls, provided:
i. 
The square footage of any new encroachment into the setback does not exceed the square footage of the existing nonconforming, encroaching portion of the structure.
ii. 
The resulting structure complies with the floor area, lot coverage and other setback requirements.
iii. 
The variance shall not reduce the yard setback by more than 50% and shall not reduce any side yard setback to less than five ft.
iv. 
No previous variance has been granted for an extension of the subject nonconforming wall.
v. 
The expansion area shall be defined by the extension of two or more existing exterior walls.
l. 
A variance to dimensional requirements that is necessary due to prior errors in land surveying. Prior errors in land surveying are errors that were made before the applicant acquired the property or gained control of the property.
m. 
A variance to a determination of the front yard (LOC § 50.07.007.2.d) and orientation of the front of the house for flag lots (LOC § 50.07.007.2.e.i(1)).
n. 
A variance to the limitation on maximum height of roof-mounted solar energy system in LOC § 50.04.003.4.b.ii.
o. 
A variance to a standard of this Code required to comply with state or federal law based on the rights of the occupant, where the application identifies the state or federal law granting the right.
p. 
A variance to one or more of the following standards established by the Lake Grove Village Center Overlay District (LGVCO) or a base zone district underlying the LGVCO by up to 20% or four feet, whichever is less:
i. 
Yard setbacks in LOC § 50.05.007.4.d, but not including Village Transition yard setbacks adjacent to residential zones or residential uses;
ii. 
Build-to line (LOC § 50.05.007.4.e.i);
iii. 
Minimum street frontage (LOC § 50.05.007.4.e.ii);
iv. 
Parking facility edge landscaping requirement (LOC § 50.05.007.6.e.viii(5)); or
v. 
Buffering area and screening requirements adjacent to R-7.5 or R-10 parcels (LOC § 50.05.007.6.f.i).
q. 
A variance to the accessory dwelling unit standards of LOC § 50.03.004.1.b.vi(1)(d) and (e).
3. 
Minor Variance Criteria.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2687, Amended, 12-15-2015]
a. 
General.
Except as provided in subsection 3.b of this section, the reviewing authority may grant a minor variance from the requirements of this Code if the following criteria are met:
i. 
The granting of the variance will not be detrimental to the public health or safety;
ii. 
The granting of the variance will not be materially injurious to properties or improvements within 300 ft. of the property;
iii. 
The granting of the variance will have little or no negative impact on the streetscape (e.g., pedestrian environment or other aspects of the public realm that contribute to the neighborhood character); and
iv. 
The proposed development will not adversely affect existing physical and natural systems such as traffic, drainage, Oswego Lake, hillsides, designated Sensitive Lands, historic resources, or parks, and the potential for abutting properties to use solar energy devices any more than would occur if the development were located as specified by the requirements of the zone.
b. 
Compliance with State or Federal Law.
If the applicant asserts that a variance is necessary to comply with a state or federal law based on the rights of the occupant, and the reviewing authority determines that the request may be related to a state or federal legal right, the reviewing authority may grant a minor variance from the requirements of this Code if:
i. 
The applicant and proposed use meet the qualifications for applicability under a state or federal law that may require the City to waive, adjust, or reasonably accommodate land use regulations; and
ii. 
The requested variance is necessary to comply with state or federal law requirements for adjustment, waiver, or reasonable accommodation of land use regulations, e.g., federal Fair Housing Act, Americans with Disabilities Act, Rehabilitation Act, Religious Land Use and Institutionalized Persons Act; and
iii. 
The variance is the minimum necessary to comply with the applicable state or federal law.
4. 
Recordation and Termination of Minor Variance.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
a. 
If a minor variance pursuant to LOC § 50.08.002.2.o (a variance based on a specific state or federal legal right of the occupant) is approved, notice of the conditions or events that will terminate the variance shall be recorded in the county deed records as follows:
i. 
Variances that allow use of a lot not otherwise permitted by this Code but required under state or federal law shall expire upon termination of the occupancy of the lot by the activity, use, or individual/entity qualifying for the use variance under state or federal law.
ii. 
Variances relating to the placement of the structure, the dimensional standards of the lot, or other variances relating to the structure (other than to the use of the structure) shall expire when the portion of the structure that received the variance is damaged or destroyed and occupancy of the lot by the activity, use, or individual/entity qualifying for the variance under state or federal law has ceased.
1. 
Purpose.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
The purpose of a design variance is to allow adjustments of certain standards of this Code where the resulting design would be superior to development in the surrounding neighborhood or would better achieve the purpose/objectives of the applicable zone or design districts and design standards.
2. 
Design Variance Classifications.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2853, Amended, 11-3-2020; Ord. No. 2892, Amended, 6-7-2022]
a. 
R-DD Design.
For exterior modifications of a single-family or middle housing dwelling in the R-DD zone built before 1960, minimum setbacks may be reduced between two ft. and five ft. if the modification maintains at least 50% of the exterior walls (measured by sq. ft.) and does not increase height by more than 100%. Minimum setback adjustments of two ft. or less are exceptions to the R-DD district standards pursuant to LOC § 50.04.003.3.c.
b. 
Downtown Redevelopment Design District.
A variance from any standard of this Code, unless prohibited by LOC § 50.08.001.2.
c. 
Foothills Mixed Use District.
A variance from the FMU zone standards except height and floor area ratio standards (LOC § 50.11.007, Appendix G).
d. 
Lake Grove Village Center Overlay District.
A variance from any standard of this Code that cannot be approved through a minor variance pursuant to LOC § 50.08.002.2.p, but not including variances to:
i. 
Maximum building height limit (LOC § 50.05.007.4.b.i);
ii. 
Maximum lot coverage (LOC § 50.05.007.4.c);
iii. 
Village Transition Area yard setbacks adjacent to R-7.5 and R-10 parcels (LOC § 50.05.007.4.d); or
iv. 
Any matter prohibited by LOC § 50.08.001.2, Variances Not Allowed.
e. 
Residential Infill Design (RID) Review.
Except for properties located in the R-DD zone or a design district, variances from any of the following standards for residential dwellings and accessory structures where those standards prevent development that is otherwise compatible with the character of the neighborhood and surrounding residential development:
i. 
Floor area;
ii. 
Lot coverage;
iii. 
Building height;
iv. 
Yard setbacks;
v. 
Street front setback plane;
vi. 
Side yard setback plane;
vii. 
Side yard appearance and screening;
viii. 
Garage appearance and location;
ix. 
Accessory structure standards;
x. 
Oswego Lake setbacks;
xi. 
Oswego Lake setback height and footprint requirements in LOC § 50.04.003.7.b; provided, that no accessory structure may exceed 18 ft. in height and no boathouse footprint may exceed 800 sq. ft.; and
xii. 
Long wall planes.
3. 
General Design Variance Criteria.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2754, Amended, 9-5-2017; Ord. No. 2832, Amended, 1-7-2020]
The reviewing authority shall only approve a design variance if it determines that the following criteria have been met. In the Downtown Redevelopment Design District (DRD), the following criteria apply only to design variances to the requirements in LOC §§ 50.05.004.8 through 50.05.004.12 and to any other Code provision (other than the above DRD standards) for which a design variance is requested:
a. 
The applicant demonstrates that:
i. 
Compliance with the applicable standard is not practicable due to the physical characteristics of the site or existing structure; or
ii. 
An alternative design will better accomplish the purposes, goals, or objectives of the base district and any adopted plan or overlay district applicable to the property.
b. 
The applicant demonstrates that the proposed variance will:
i. 
Result in a project that is exceptional in the quality of detailing, appearance and materials; or
ii. 
Create a positive unique relationship to other nearby structures, views or open space; or
iii. 
If in the DRD (within R-2 only), the variance is necessary to create a complementary relationship with a viable existing structure on an abutting lot that is not designed in the Lake Oswego style.
c. 
If the subject property is located in the R-DD zone or the Foothills Mixed Use District, the applicant demonstrates that:
i. 
The variance will not create an incompatible relationship between the proposed structure and the scale or character of the neighborhood, the scale or character of the street frontage, or the privacy of properties within 300 ft. of the subject property; and
ii. 
Any significant impacts to properties within 300 ft. of the applicant’s property resulting from the variance are mitigated to the extent practical through building or site design features on the site.
4. 
Downtown Redevelopment Design District (Except Within R-2) Design Variance Criteria for Building Siting and Massing, Building Design, and View Protection Requirements.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015; Ord. No. 2668, Amended, 12-1-2015; Ord. No. 2732, Amended, 2-21-2017; Ord. No. 2754, Amended, 9-5-2017; Ord. No. 2832, Amended, 1-7-2020]
The reviewing authority shall only approve a design variance to the requirements in LOC §§ 50.05.004.5 through 50.05.004.7 if it determines that the following criteria have been met:
a. 
At least one of the criteria in subsections 4.a.i through v of this section:
i. 
The variance is necessary to create a complementary relationship with a viable existing structure on an abutting lot that is not designed in the Lake Oswego style;
ii. 
Compliance with the applicable standard is not practicable due to the physical characteristics of the site or existing structure;
iii. 
The variance is necessary to allow a unique building function of a permitted use in the zone;
iv. 
The variance is necessary to allow one or more of the following features where the feature exceeds the minimum requirements of LOC Chapter 50 and other City regulations:
(1) 
Renewable energy production (solar, geothermal, or wind);
(2) 
Enhanced indoor air quality;
(3) 
Use of daylight for interior lighting;
(4) 
Protection of views of Lakewood Bay or Mount Hood;
(5) 
Acoustic building performance;
(6) 
Water efficiency, such as rainwater harvesting;
(7) 
Increased seismic resiliency; or
v. 
The alternative design better accomplishes the objectives of the East End Redevelopment Plan or the objectives and principles of the Urban Design Plan.
b. 
And the variance:
i. 
Results in a project that is exceptional in the quality of detailing, appearance and materials; and
ii. 
Creates a positive unique relationship to other nearby structures, views or open space, and streetscapes.
5. 
Lake Grove Village Center Overlay (LGVCO) Design Variance Criteria.
[Ord. No. 2644, Added, 4-7-2015; Ord. No. 2687, Amended, 12-15-2015]
The reviewing authority shall only approve a design variance in the LGVCO District if it determines that the application meets criteria in LOC §§ 50.08.003.3.a and 50.08.003.3.b, and also meets the following criteria:
a. 
The variance will not adversely affect existing physical and natural systems such as traffic, access, circulation, connectivity, drainage, designated Sensitive Lands, historic resources, or parks, and the potential for abutting properties to use solar energy devices any more than would occur if the development fully met the LGVCO standards; and
b. 
The applicant shall present an analysis of alternative designs in relation to variances from LGVCO standards requested to demonstrate that the application avoids the need for variances to the degree practicable; and
c. 
The proposed design achieves the listed policies of the Lake Grove Village Center Plan better than would result if the LGVCO standards were fully met after considering each of the following goals and policies, as applicable:
TABLE 50.08.003-1: GOALS CONSIDERED FOR VARIANCE
Goal Title
Policies
Enhance the Pedestrian Environment and Connectivity Within the Village Center
3.1, 3.2, 3.3, 3.4
Strengthen the Lake Grove Sense of Place and Community
5.1, 5.4
Enhance Village Character
6.1, 6.2, 6.3, 6.4, 6.5
Protect the Residential Character of Adjoining Neighborhoods
7.1, 7.2
Protect Natural Resources and Enhance the Natural Environment Within the Village Center
8.1, 8.2, 8.4, 8.5, 8.6
Support Businesses in the Village Center
9.3, 9.4, 9.6
d. 
For variances to setbacks or site perimeter landscaping and buffering standards, the applicant shall demonstrate that:
i. 
If the requested variance is for a setback or landscaping or buffering required at the perimeter of the site that is adjacent to R-7.5 or R-10 zones, the applicant considered alternative site plans that adjusted internal landscaping or other dimensional standards internal to the site and there is no practicable alternative to the requested variance at the perimeter of the site.
ii. 
If the requested variance is to a landscaping and buffering standard required around the perimeter of the site and is adjacent to any zone other than R-7.5 or R-10, the applicant considered alternative site plans to adjust internal landscaping and there is no practicable alternative to the requested variance at the perimeter of the site.
6. 
Residential Infill Design (RID) Review Variance Criteria.
[Ord. No. 2644, Added, 4-7-2015; Ord. No. 2853, Amended, 11-3-2020]
The reviewing authority may grant a residential infill design (RID) variance for a residential dwelling or accessory structure in a residential zone if it determines that the criteria in LOC §§ 50.08.003.3.a and 50.08.003.3.b and the additional criteria below have been met. In making these determinations, the reviewing authority shall consider the pattern and character of development of all lots within 300 ft. of the subject site and shall also consider any neighborhood design objectives or guidelines for residential development that have been adopted by the local neighborhood association.
a. 
Residential Dwelling or Accessory Structure Size.
A variance to the following standards may be approved when a more compatible, positive relationship between the size of a proposed residential dwelling or accessory structure and the scale and character of a neighborhood can be demonstrated in other ways:
Floor area;
Lot coverage;
Yard setbacks;
Building height;
Accessory structures;
Boathouse footprint in the Lake Oswego setback;
Long wall planes; and
Height of accessory structures in the Oswego Lake setback (except as limited by subsection 2.e.xi of this section).
That relationship shall be evaluated by considering the degree to which a proposed design offers features that diminish the perceived scale and improve the perceived character of greater size. That review will include consideration of:
i. 
Distance and visibility from street and adjoining properties;
ii. 
Topography;
iii. 
Building number (more smaller versus one larger, for example);
iv. 
Building form(s), massing and orientation; and
v. 
Landscaping.
b. 
Relationship to the Street.
A variance to the following standards may be approved when a more compatible, positive relationship between a proposed design and the scale and character of the street can be demonstrated in other ways:
Front yard setback;
Front setback plane; and
Garage door openings.
That relationship will be evaluated by considering the degree to which a proposed design offers features that enhance the perceived scale and character of the street from a pedestrian’s perspective. While the scale and character will vary from neighborhood to neighborhood and from street to street, a positive contribution is typically one that enhances the safety and experience of a pedestrian using the street. That review will include consideration of:
i. 
Distance and visibility from street;
ii. 
Prevailing patterns of front yard setback, building alignment and spacing (rhythm);
iii. 
Topography;
iv. 
Preservation of existing trees and features of perceived value to the street;
v. 
Perceived building form, proportion, massing and orientation relative to the street;
vi. 
Porch and/or entry location and treatment relative to the street;
vii. 
Garage distance and visibility from the street;
viii. 
Perceived size and scale of garage doors from the street;
ix. 
Perceived area and scale of driveways and parking areas from the street;
x. 
Fencing or screens; and
xi. 
Landscaping.
c. 
Relationship to the Neighbors.
A variance to the following standards may be approved when a more compatible, positive relationship between a residential dwelling or accessory structure and the scale, character and privacy of its neighbors can be demonstrated in other ways:
Side yard setback;
Side yard setback plane;
Side yard appearance and screening; and
Long wall planes.
That relationship will be evaluated by considering the degree to which a proposed design offers features that enhance perceived scale, character and privacy relative to adjoining properties. While the scale, character and privacy of one building relative to another will vary from street to street, and from lot to lot, a positive contribution is typically one that adjusts the location and perceived scale, character and views from or to a new residential dwelling or accessory structure to avoid visual conflict with neighbors. That review will include consideration of:
i. 
Distance and visibility from adjoining properties;
ii. 
Preservation of existing trees and features of perceived value to adjoining properties;
iii. 
Topography;
iv. 
Perceived building height, form, proportion, massing and orientation relative to adjoining properties;
v. 
Treatment of elevations exposed to adjoining properties;
vi. 
Perceived sight lines to and from windows, decks and outdoor living spaces;
vii. 
Fencing or screening; and
viii. 
Landscaping.
1. 
Purpose.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
The purpose of a major variance is to allow more significant adjustments to the standards of this Code when, owing to special circumstances or conditions beyond the applicant’s control, application of the Code standards would result in undue and unique hardship, or that failure to grant a variance would result in Code standards applicable to the property creating a taking of private property without compensation under state and federal law.
2. 
Major Variance Classification.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
A variance to any other requirement of this Code that is not eligible for approval through the minor variance or design variance process, unless expressly prohibited by LOC § 50.08.001.2, Variances Not Allowed.
3. 
Major Variance Criteria.
[Ord. No. 2579, Repealed and Replaced, 3-20-2012; Ord. No. 2644, Amended, 4-7-2015]
a. 
Major Variance Criteria.
The reviewing authority may grant a major variance from the requirements of this Code if:
i. 
The request is necessary to prevent unnecessary hardship based on the following considerations:
(1) 
The physical circumstances of the property involved;
(2) 
Whether a hardship was created by the person requesting the variance;
(3) 
The economic impact on the applicant if the variance is denied; and
(4) 
Other factors deemed relevant by the reviewing authority.
ii. 
Development consistent with the request will not be injurious to the neighborhood in which the property is located or to property affected by the request based on the following considerations:
(1) 
An analysis of the physical impacts such development will have, such as visual, noise, traffic and the increased potential for drainage, erosion and landslide hazards;
(2) 
The perceptions of residents and owners of property in the neighborhood concerning the incremental impacts occurring as a result of the proposed variance; and
(3) 
Other factors deemed relevant by the reviewing authority.
iii. 
The request is the minimum variance necessary to make reasonable use of the property.