Uses or development that are regulated by Titles 14, 17, and 19 of the Milwaukie Municipal Code shall submit and obtain approval for all required land use applications prior to establishment or construction. Table 19.901 below contains a complete list of the City's land use applications and the location of the provisions that govern their submittal, review, and approval. It also identifies the review type(s) associated with each application type. The review type determines who is given notice about land use and development proposals, when the City has to make a decision on a land use application, and who makes the final decision. Descriptions of the different review types and the procedures associated with them are located in Chapter 19.1000. Decision makers for each review type are listed in Table 19.1001.5.
|
Table 19.901
Land Use Applications
| ||
|---|---|---|
|
Application Type
|
Municipal Code Location
|
Review Types
|
|
Amendments to Maps and Ordinances:
|
Section 19.902
|
|
|
Comprehensive Plan Text Amendment
|
Subsection 19.902.3
|
V
|
|
Comprehensive Plan Map Amendment
|
Subsection 19.902.4
|
IV, V1
|
|
Zoning Text Amendment
|
Subsection 19.902.5
|
V
|
|
Zoning Map Amendment
|
Subsection 19.902.6
|
III, V2
|
|
Annexations and Boundary Changes:
|
Chapter 19.1100
|
|
|
Boundary Change
|
Section 19.1103
|
NA
|
|
Expedited Annexation
|
Section 19.1104
|
NA
|
|
Nonexpedited Annexation
|
Section 19.1102
|
IV
|
|
Appeal
|
Section 19.1010
|
Varies
|
|
Code Interpretation
|
Section 19.903
|
I
|
|
Community Service Use
|
Section 19.904
|
I, II, III
|
|
Compensation for Reduction in Property Value (Measure 37)
|
Chapter 1.20
|
NA
|
|
Conditional Use
|
Section 19.905
|
I, III
|
|
Development Review
|
Section 19.906
|
I, II
|
|
Director Determination
|
Section 19.903
|
I
|
|
Downtown Design Review
|
Section 19.907
|
I, II, III
|
|
Extension to Expiring Approval
|
Section 19.908
|
I, II
|
|
Historic Resource:
|
Section 19.403
|
|
|
Alteration
|
Subsection 19.403.5
|
I, III
|
|
Demolition
|
Subsection 19.403.7
|
III
|
|
Status Designation
|
Subsection 19.403.4
|
IV
|
|
Status Deletion
|
Subsection 19.403.4
|
IV
|
|
Land Divisions:
|
Title 17
|
|
|
Final Plat
|
Title 17
|
I
|
|
Lot Consolidation
|
Title 17
|
I
|
|
Partition
|
Title 17
|
II
|
|
Property Line Adjustment
|
Title 17
|
I, II
|
|
Subdivision
|
Title 17
|
II
|
|
Middle Housing Land Division
|
Title 17
|
II
|
|
Miscellaneous:
|
Chapters 19.500
|
|
|
Barbed Wire Fencing
|
Subsection 19.502.2.B.1.b-c
|
II
|
|
Modification to Existing Approval
|
Section 19.909
|
I, II, III
|
|
Natural Resource Review
|
Section 19.402
|
I, II, III, V
|
|
Nonconforming Use Alteration
|
Chapter 19.804
|
III
|
|
Parking:
|
Chapter 19.600
|
|
|
Quantity Determination
|
Subsection 19.605.2
|
II
|
|
Quantity Modification
|
Subsection 19.605.2
|
II
|
|
Structured Parking
|
Section 19.611
|
II, III
|
|
Planned Development
|
Section 19.311
|
IV
|
|
Residential Dwellings:
|
Section 19.910
|
|
|
Manufactured Dwelling Park
|
Subsection 19.910.3
|
III
|
|
Temporary Dwelling Unit
|
Subsection 19.910.4
|
I, III
|
|
Sign Review
|
Title 14
|
Varies
|
|
Transportation Facilities Review
|
Chapter 19.700
|
II
|
|
Variances:
|
Section 19.911
|
|
|
Use Exception
|
Subsection 19.911.5
|
III
|
|
Variance
|
Subsection 19.911.1-4
|
II, III
|
|
Willamette Greenway Review
|
Section 19.401
|
III
|
|
1
|
Level of review determined by City Attorney per Section 19.902.4.A.
|
|
2
|
Level of review determined by City Attorney per Section 19.902.6.A.1.
|
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2051 § 2, 2012; Ord. 2110 § 2 (Exh. G), 2015; Ord. 2112 § 2 (Exh. B), 2015; Ord. 2140 § 2, 2017; Ord. 2161 § 2, 2018; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2242, 4/16/2024; Ord. 2243, 5/21/2024)
(Ord. 2025 § 2, 2011)
This section establishes the process for amending the City's
Comprehensive Plan and land use regulations within the Milwaukie Municipal
Code. The approval process related to Comprehensive Plan amendments
is intended to ensure compliance with State laws and administrative
rules, including the 19 Statewide Planning Goals and the Metro Urban
Growth Management Functional Plan, Chapter 3.07, Title III of the
Metro Code. The approval process related to land use amendments is
intended to ensure compliance with the Comprehensive Plan.
The goals and policies of the Comprehensive Plan are implemented, in part, through the land use regulations of the Milwaukie Municipal Code. The sections of the Municipal Code that most directly relate to implementation of the Comprehensive Plan are Title 14 Signs, Title 17 Land Division, and Title 19 Zoning.
The requirements of Section 19.902 apply to the amendments described below.
A.
Amendments to add, modify, or delete the text of the Milwaukie Comprehensive
Plan or its ancillary documents.
B.
Amendments to add, modify, or delete the text of Titles 14, 17, and
19 of the Milwaukie Municipal Code, or any other portion of the Milwaukie
Municipal Code that constitutes a land use regulation per ORS 197.015.
Changes to the text of the Milwaukie Comprehensive Plan shall
be called Comprehensive Plan text amendments.
A.
Review Process
Changes to the text of the Milwaukie Comprehensive Plan described by Subsection 19.902.2.A shall be evaluated through a Type V review per Section 19.1008.
B.
Approval Criteria
Changes to the Milwaukie Comprehensive Plan may be approved
if the following criteria are met:
1.
The proposed amendment is consistent with the goals and policies
of the Comprehensive Plan, as proposed to be amended.
2.
The proposed amendment is in the public interest with regard to neighborhood
or community conditions.
3.
The public need is best satisfied by this particular proposed amendment.
4.
The proposed amendment is consistent with the Metro Urban Growth
Management Functional Plan and relevant regional policies.
5.
The proposed amendment is consistent with relevant State statutes
and administrative rules, including the Statewide Planning Goals and
Transportation Planning Rule.
Changes to the maps of the Milwaukie Comprehensive Plan shall
be called Comprehensive Plan map amendments.
A.
Review Process
Changes to the maps of the Milwaukie Comprehensive Plan described in SubSection 19.902.2.C shall be evaluated through either a Type IV review, per Section 19.1007, or Type V review, per Section 19.1008. The City Attorney shall have the authority to determine the appropriate review process for each Comprehensive Plan map amendment. The City Attorney's review process determination is not a land use decision per ORS 197.015 and is not subject to appeal.
Generally, Comprehensive Plan map amendments that involve 5
or more properties or encompass more than 2 acres of land are legislative
in nature and subject to Type V review. Comprehensive Plan map amendments
that involve fewer properties and encompass a smaller area of land
are quasi-judicial in nature and subject to Type IV review.
B.
Approval Criteria
Changes to the maps of the Milwaukie Comprehensive Plan shall
be evaluated against the approval criteria in Subsection 19.902.3.B.
A quasi-judicial map amendment shall be approved if these criteria
are met. A legislative map amendment may be approved if these criteria
are met.
Changes to the text of land use regulations within the Milwaukie
Municipal Code shall be called zoning text amendments, regardless
of the individual titles involved.
B.
Approval Criteria
Changes to the Milwaukie Municipal Code described by Subsection
19.902.2.B may be approved if the following criteria are met:
1.
The proposed amendment is consistent with other provisions of the
Milwaukie Municipal Code.
2.
The proposed amendment is consistent with the goals and policies
of the Comprehensive Plan.
3.
The proposed amendment is consistent with the Metro Urban Growth
Management Functional Plan and relevant regional policies.
4.
The proposed amendment is consistent with relevant State statutes
and administrative rules, including the Statewide Planning Goals and
Transportation Planning Rule.
5.
The proposed amendment is consistent with relevant federal regulations.
Changes to the Zoning Map of Milwaukie, Oregon, shall be called
Zoning Map amendments.
A.
Review Process
1.
Changes to the Zoning Map described in Subsection 19.902.2.D shall be evaluated through either a Type III review, per Section 19.1006, or Type V review, per Section 19.1008. The City Attorney shall have the authority to determine the appropriate review process for each Zoning Map amendment. The City Attorney's review process determination is not a land use decision per ORS 197.015 and is not subject to appeal.
Generally, Zoning Map amendments that involve 5 or more properties
or encompass more than 2 acres of land are legislative in nature and
subject to Type V review. Zoning Map amendments that involve fewer
properties and encompass a smaller area of land are quasi-judicial
in nature and subject to Type III review.
B.
Approval Criteria
Changes to the Zoning Map shall be evaluated against the following
approval criteria. A quasi-judicial map amendment shall be approved
if the following criteria are met. A legislative map amendment may
be approved if the following criteria are met:
2.
The need is demonstrated for uses allowed by the proposed amendment.
3.
The availability is shown of suitable alternative areas with the
same or similar zoning designation.
4.
The subject property and adjacent properties presently have adequate
public transportation facilities, public utilities, and services to
support the use(s) allowed by the proposed amendment, or such facilities,
utilities, and services are proposed or required as a condition of
approval for the proposed amendment.
5.
The proposed amendment is consistent with the functional classification, capacity, and level of service of the transportation system. A transportation impact study may be required subject to the provisions of Chapter 19.700.
6.
The proposed amendment is consistent with the goals and policies
of the Comprehensive Plan, including the Land Use Map.
7.
The proposed amendment is consistent with the Metro Urban Growth
Management Functional Plan and relevant regional policies.
8.
The proposed amendment is consistent with relevant State statutes
and administrative rules, including the Statewide Planning Goals and
Transportation Planning Rule.
C.
Conditions of Approval
Conditions of approval may be applied to Zoning Map amendments
for purposes of fulfilling identified need for public facilities and/or
meeting applicable regional, State, or federal regulations. Conditions
of approval may include actual construction of facilities or a performance
contract, bond, or escrow account to assure installation of public
facilities to specified standards.
D.
Modification of Official Zoning Map
For Zoning Map amendments not involving conditions of approval,
the Zoning Map shall be modified when the adopting ordinance goes
into effect. For Zoning Map amendments involving conditions of approval,
the Zoning Map shall not be modified until all conditions of approval
are satisfied.
E.
Revocation
If conditions of approval are not met within 2 years of ordinance adoption, the Planning Commission shall hold a public hearing to consider the revocation of the Approved zoning through a Type III review per Section 19.1006. The Planning Commission may also, upon determination that the applicant is making satisfactory progress towards completing conditions of approval, grant a one-time extension not to exceed a maximum of 2 years.
(Ord. 2025 § 2, 2011)
The purpose for both code interpretations and Director determinations
is to allow for discretionary rulings on the interpretation and application
of the provisions of land use regulations. The most common instances
for which such rulings are required are where the text of the land
use regulation is unclear, where a determination is needed about the
similarity of a proposed use and uses that are allowed outright, and
where a determination is requested regarding the legal status of a
use or property. The initial decisions on these matters are to be
made by the Planning Director at an administrative level with the
option for appeal.
Code interpretations are not intended to substitute for legislative
amendments to land use regulations. Code interpretations may, however,
be used as an interim measure to allow the City's land use regulations
to be applied consistently with regional, State, or federal requirements
until legislative amendments can be made.
The provisions of Section 19.903 apply to the situations described below.
A.
A code interpretation may be made where the language of Titles 14,
17, or 19 is unclear in its terms, meaning, or intent. An interpretation
is not necessary where the meaning of the code is unambiguous and
no discretion is required in its interpretation. An interpretation
is prohibited in either of the following situations:
1.
The code interpretation may affect the evaluation of approval standards
or criteria for any quasi-judicial land use application that is currently
under review by the City.
2.
The code interpretation is being sought as a remedy to a violation
of the Milwaukie Municipal Code for which the City has issued a citation
and the citation is pending judgment or sentencing.
B.
A Director determination may be requested for the following situations.
1.
Determination of whether a use is similar in nature to other uses
allowed outright within a zone. A formal determination is not necessary
where the comparison is obvious and the decision is nondiscretionary.
2.
Determination of the legal status of a nonconforming use or development.
3.
Determination of the legal status of a unit of land.
4.
Determination for any other situation where a discretionary decision
is needed to review the facts of a situation and make determination
as to the status, category, allowance, etc. per Titles 14, 17, or
19. This process is not available for provisions that specifically
state that a decision under that provision cannot be appealed.
A.
General Provisions
1.
Code interpretations are initiated by application to the City. The
applicant may be any member of the public, the Planning Director,
Planning Commission, or City Council. The Planning Director will decide
within 14 days of receipt of an application whether to refuse or accept
the request and issue an interpretation. Any application fees will
be refunded if a request is refused.
2.
Director determinations are initiated by application to the City.
A.
Code Interpretations
Code interpretations are different from other land use applications
in that they are an interpretation of language, policy, and legal
matters, as opposed to an evaluation of a use or development. A code
interpretation shall be as consistent as possible with the criteria
listed below. Not all of the criteria need to be met for a code interpretation
to be issued.
1.
The proposed interpretation is consistent with the common meaning
of the words or phrases at issue.
2.
The proposed interpretation is consistent with relevant policy direction
from official City documents such as the Comprehensive Plan and its
ancillary documents.
3.
The proposed interpretation is consistent with the legislative intent
for the words or phrases at issue. The intent is based on the legislative
record for the ordinance that adopted or amended the regulations at
issue.
4.
The proposed interpretation is consistent with the interpretation
of other portions of the Milwaukie Municipal Code.
5.
The proposed interpretation is consistent with regional, State, and
federal laws and court rulings that affect the words or phrases at
issue.
B.
Director Determinations
1.
Similar Use
Director determinations of similar use shall be based on the
following criteria:
b.
The proposed use is consistent with the stated purpose, if available,
of the zone under consideration.
c.
The base zone of the property where the use is proposed is reasonably
similar to other zones where the proposed use is allowed outright.
d.
The proposed use is consistent with the goals and policies of
the Comprehensive Plan regarding the appropriate locations within
the City for the proposed use.
2.
Legal Status of a Nonconforming Use or Development
Director determinations of legal status of a nonconforming use
or development shall be based on the following criteria:
a.
The nonconforming use or development was permitted under applicable
regulations at the time it was established. Evidence to address this
criterion may include the following items:
(1)
Copies of building and/or land use permits issued at the time
the use, structure, or site improvement was established.
(2)
Copies of zoning code provisions and/or maps in place at the
time use, structure, or site improvement was established.
(3)
Demonstration that the use, structure, or site improvement was
established before the applicable development code for the community
was adopted.
3.
Legal Status of a Unit of Land
Director determinations of the legal status of a unit of land
shall evaluate the date of creation or boundary change for the units
of land in question and determine whether the required City, County,
and State approvals were granted at that time to approve the land
Division or boundary change.
Evidence that required approvals were granted may include the
following items:
4.
Other
The Planning Director may make other determinations, aside from
similar use, legal status of a nonconforming use or development, or
legal status of a unit of land. Such a determination shall evaluate
the specific facts concerning the determination request and make a
ruling of how to apply the provisions of Title 14, 17 or 19, or other
land use regulations within the Milwaukie Municipal Code. The approval
criteria for this determination are as follows:
a.
The determination is consistent with relevant policy direction
from official City documents such as the Comprehensive Plan and its
ancillary documents.
b.
The determination is consistent with the purpose or intent statements,
if available, in the applicable sections of code.
c.
The determination is consistent with the legislative intent
for the words or phrases at issue. The intent is based on the legislative
record for the ordinance that adopted or amended the regulations at
issue.
d.
The determination is consistent with any legal opinions from
the City Attorney.
A.
Code Interpretations
1.
Code interpretations shall control the future application of the
sections of the Milwaukie Municipal Code to which they pertain unless
superseded by a subsequent code interpretation or legislative change
to the Milwaukie Municipal Code.
2.
The Planning Director shall maintain current code interpretations
on file at the Planning Department's offices for public review.
B.
Director Determinations: Similar Use and Other
1.
Director determinations issued under Subsections 19.903.4.B.1 and
4 are based on the specific facts presented for each determination.
Director determinations issued by the City may be relied upon for
future determinations where circumstances are similar, but do not
necessarily set precedent for subsequent code determinations.
2.
Issuance of a Director determination does not obligate the City to
issue any permit or preclude code enforcement action if the situation
evaluated by the City differs from what was presented in the determination
request.
3.
A Director determination issued under Subsection 19.903.4.B.1 or
4 does not expire unless the code used for the determination is amended.
C.
Director Determinations: Legal Status of a Nonconforming Use or Development
or Unit of Land
1.
An applicant for a Director determination issued under Subsection
19.903.4.B.2 or 3 may request a subsequent determination if new evidence
or materials become available.
2.
The City may pursue code enforcement to correct a violation of the
Milwaukie Municipal Code following a Director determination where
evidence is clear that a use, land division, or boundary change was
illegally established.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2106 § 2 (Exh. F), 2015; Ord. 2110 § 2 (Exh. G), 2015; Ord. 2112 § 2 (Exh. B), 2015; Ord. 2140 § 2, 2017; Ord. 2161 § 2, 2018; Ord. 2163 § 2, 2018; Ord. 2168 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2224 § 2, 2022; Ord. 2229 § 2, 2023)
This section allows development of certain uses which, because
of their public convenience, necessity, and unusual character, may
be appropriately located in most zoning districts, but which may be
permitted only if appropriate for the specific location for which
they are proposed. This section provides standards and procedures
for review of applications for such community uses. Community service
uses may be sited in any zone, except where expressly prohibited,
if they meet the standards of this section. Approval of a CSU does
not change the zoning of the property.
Any community service use shall be subject to the provisions
of this section. Application must be submitted to establish or modify
a community service use. Community service uses include certain private
and public utilities, institutions, and recreational facilities as
listed below:
A.
Institutions—Public/Private and Other Public Facilities
1.
Schools, public or private, and their accompanying sports facilities,
day-care centers, private kindergartens;
2.
Government office buildings for local, state, or federal government
such as a City Hall, courthouse, police station, or other similar
buildings;
3.
Hospital;
4.
Cemetery;
5.
Residential care facility;
6.
Religious institutions;
7.
Community meeting building;
8.
Temporary or transitional facility;
9.
Other similar uses as determined by the Planning Commission.
B.
Utilities
1.
Sewage pumping stations;
2.
Water wells, pump stations, reservoirs, and any other facilities
used for production, treatment, and distribution of the municipal
water supply;
3.
Electrical power substations;
4.
Public works shops, road shops, yards, bus barns, equipment and material
storage yards, and other similar uses;
5.
Public transit facilities;
6.
Passenger terminal;
7.
Other similar uses as determined by the Planning Commission.
C.
Recreation Facilities—Public or Private
1.
Private club, lodge, grange;
2.
Public and/or privately owned parks and golf courses;
3.
Pedestrian and bicycle trails;
4.
Public or private recreational facilities such as pools, gyms, indoor
and outdoor sports courts or fields, and associated facilities;
5.
Other similar uses as determined by the Planning Commission.
Except as provided in Subsections 19.904.5.C for minor modifications and 19.904.11 for wireless communication facilities, community service uses shall be evaluated through a Type III review per Section 19.1006.
An application for a community service use may be allowed if
the following criteria are met:
A.
The building setback, height limitation, and off-street parking and
similar requirements governing the size and location of development
in the underlying zone are met. Where a specific standard is not proposed
in the CSU, the standards of the underlying zone are met;
C.
The hours and levels of operation of the proposed use are reasonably
compatible with surrounding uses;
D.
The public benefits of the proposed use are greater than the negative
impacts, if any, on the neighborhood; and
E.
The location is appropriate for the type of use proposed.
A.
The Planning Commission will hold a public hearing on the establishment of, or major modification of, the proposed community service use. If the Commission finds that the approval criteria in Subsection 19.904.4 are met, the Commission shall approve the designation of the site for community service use. If the Commission finds otherwise, the application shall be denied. An approval allows the use on the specific property for which the application was submitted, subject to any conditions the Planning Commission may attach.
B.
In permitting a community service use or the modification of an existing
one, the City may impose suitable conditions which assure compatibility
of the use with other uses in the vicinity. These conditions may include
but are not limited to:
1.
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 and glare;
2.
Establishing a special yard, setback, lot area, or other lot dimension;
3.
Limiting the height, size, or location of a building or other structure;
4.
Designating the size, number, location, and design of vehicle access
points;
5.
Increasing roadway widths, requiring street dedication, and/or requiring
improvements within the street right-of-way including full street
improvements;
6.
Designating the size, location, screening, drainage, surfacing, or
other improvement of a parking area or truck loading area; and/or
7.
Limiting or otherwise designating the number, size, location, height,
and lighting of signs.
C.
The Planning Director may approve minor modifications to an approved community service per Section 19.1004 Type I Review, provided that such modification:
1.
Does not increase the intensity of any use;
2.
Meets all requirements of the underlying zone relating to building
size and location and off-street parking and the standards of Title
19;
3.
Does not result in deterioration or loss of any protected natural
feature or open space, and does not negatively affect nearby properties;
4.
Does not alter or contravene any conditions specifically placed on
the development by the Planning Commission or City Council; and
5.
Does not cause any public facility, including transportation, water,
sewer and storm drainage, to fail to meet any applicable standards
relating to adequacy of the public facility.
An application for approval of a community service use shall
include the following:
A.
Name, address and telephone number of applicant and/or property owner;
B.
Map number and/or subdivision block and lot;
C.
Narrative concerning the proposed request;
D.
Copy of deed, or other document showing ownership or interest in
property. If applicant is not the owner, the written authorization
from the owner for the application shall be submitted;
E.
Vicinity map;
F.
Comprehensive plan and zoning designations;
G.
A map showing existing uses, structures, easements, and public utilities
and showing proposed development, placement of lot lines, etc.;
H.
Detailed plans for the specific project;
I.
Any information required by other applicable provisions of local,
state or federal law;
J.
Proof of payment of the applicable fees;
K.
Additional drawings, surveys or other material necessary to understand
the proposed use may be required.
Public, private or parochial, elementary, secondary, preschool,
nursery schools, kindergartens, and day-care centers are included.
A.
Public elementary or secondary schools shall provide the site area/pupil
ratio required by state law. Other schools shall provide 1 acre of
site area for each 75 pupils of capacity or for each 2½ classrooms,
whichever is greater, except as provided in Subsection 19.904.7.B
below.
B.
Preschools, nursery schools, day-care centers, or kindergartens shall
provide a fenced, outdoor play area of at least 75 sq ft for each
child of total capacity, or a greater amount if so required by state
law. In facilities where groups of children are scheduled at different
times for outdoor play, the total play area may be reduced proportionally
based on the number of children playing out-of-doors at one time.
However, the total play area may not be reduced by more than half.
These uses must comply with the State Children's Services Division
requirements as well as the City provisions.
C.
Walkways, both on and off the site, shall be provided as necessary for safe pedestrian access to schools subject to the requirements and standards of Chapter 19.700.
D.
Where Subsection 19.904.7.B is applicable, a sight-obscuring fence
of 4 to 6 ft in height shall be provided to separate the play area
from adjacent residential uses.
E.
Public facilities must be adequate to serve the facility.
F.
Safe loading and ingress and egress will be provided on and to the
site.
H.
Minimum setback requirements:
Front yard: 20 ft
Rear yard: 20 ft
Side yard: 20 ft
Setbacks may be increased depending on the type and size of
school in order to ensure adequate buffering between uses and safety
for students.
I.
Bicycle facilities are required which adequately serve the facility.
J.
15% of the total site is to be landscaped.
A.
Utilities, streets, or other improvements necessary for the public
facility or institutional use shall be provided by the agency constructing
the use.
B.
When located in or adjacent to a residential zone, access should
be located on a collector street if practicable. If access is to a
local residential street, consideration of a request shall include
an analysis of the projected average daily trips to be generated by
the proposed use and their distribution pattern, and the impact of
the traffic on the capacity of the street system which would serve
the use. Uses which are estimated to generate fewer than 20 trips
per day are exempted from this subsection.
C.
When located in a residential zone, lot area shall be sufficient
to allow required setbacks that are equal to a minimum of ⅔
the height of the principal structure. As the size of the structure
increases, the depth of the setback must also increase to provide
adequate buffering.
D.
The height limitation of a zone may be exceeded to a maximum height
of 50 ft provided Subsection 19.904.8.C of this subsection is met.
E.
Noise-generating equipment shall be sound-buffered when adjacent
to residential areas.
F.
Lighting shall be designed to avoid glare on adjacent residential
uses and public streets.
G.
Where possible, hours and levels of operation shall be adjusted to
make the use compatible with adjacent uses.
H.
A spire on a religious institution may exceed the maximum height
limitation. For purposes of this subsection, "spire" means a small
portion of a structure that extends above the rest of the roofline,
or a separate structure that is substantially smaller than the main
structure and extends above the roofline of the main structure. "Spire"
includes but is not limited to ornamental spires, bell towers, other
towers, minarets, and other similar structures or projections. The
number of spires on a religious institution property is not limited,
so long as the spires remain only a small portion of the area of the
structures.
I.
The minimum landscaping required for religious institutions is the
lesser of 15% of the total site area and the percentage required by
the underlying zone.
J.
Park-and-ride facilities may be encouraged for institutions along
transit routes that do not have days and hours in conflict with weekday
uses (e.g., religious institutions or fraternal organizations). Such
uses may be encouraged to allow portions of their parking areas to
be used for park-and-ride lots.
A.
Hours of Operation
If a solid waste facility is to be located within 500 ft of
property planned, zoned, or used for residential purposes, no solid
waste facility shall be in operation between the hours of 7:00 p.m.
and 7:00 a.m.
B.
Traffic
No solid waste facility shall be approved except where all vehicular access to and from the solid waste facility site is via a City of Milwaukie designated arterial street or Oregon Department of Transportation highway. No solid waste facility shall be approved unless consistent with the Level of Service standards of Chapter 19.700.
C.
Litter Control
The applicant shall provide to the City of Milwaukie at the
time of application a plan for daily litter control. Said plan shall
include identification of personnel, financing, available tools and
facilities, methods to be used, and a method for public contact to
notify operators of litter, noise, or other operational problems.
E.
Storage
All materials shall be stored within an enclosed building except
as follows:
F.
After-Hours Use
Any containers provided for after-hours donation of recyclable
materials only shall be located at least 250 ft from any property
planned, zoned, or used for residential purposes.
G.
Glare
Exterior light shall be in accordance with the latest recommendations
of the Illumination Engineering Society. Glare from either direct
or indirect sources shall not exceed 0.5 footcandles. Site lighting
shall be hooded and directed downwards, onto the site.
H.
Materials Handled
No hazardous wastes, as defined and regulated by ORS 466.005
as amended, shall be disposed on the site.
A.
Applicability
The placement, construction, or modification of wireless communication
facilities are subject to the provisions of this subsection. In addition,
wireless communication facilities shall comply with all municipal
codes, heretofore or hereafter amended.
B.
Purpose
The purpose of this subsection is to establish regulations for
the siting of wireless communication facilities to allow service to
the community while protecting the community from clutter and designs
which are not consistent with existing and future land uses.
The goals of this subsection are to:
1.
Enhance the ability of providers of wireless communication to provide
comprehensive service to the community.
2.
Minimize the number of towers throughout the community.
3.
Encourage facilities to be located in areas least disruptive to residential,
park, natural resource, and Willamette Greenway areas.
4.
Encourage co-location of wireless communication facilities.
5.
Preserve and improve the appearance of the City by encouraging the
use of existing buildings, lights, utility poles, water towers, and
stealth designs, instead of constructing new towers or support structures.
6.
Minimize the visual impact on the immediate surroundings and throughout
the community by ensuring that all new wireless communication facilities
(WCFs) are located and constructed in such a manner so as to avoid
adverse impacts on their surrounding settings.
C.
Application Process
1.
Exemptions
The following are exempt from the provisions of this chapter,
subject to any other applicable provisions of this code:
a.
Temporary WCF during an emergency declared by the City.
b.
Temporary WCF located on the same site as, and during the construction
of, a permanent WCF for which appropriate permits have been granted.
c.
Licensed amateur (ham) radio stations.
d.
Satellite dish antennas 6 ft or less in diameter when located
in nonresidential zones, and satellite dish antennas 3 ft or less
in diameter when located in residential zones, including direct-to-home
satellite services, when used as an accessory use of the property.
2.
Type I Review
a.
Modification of WCFs involving the following activities are subject to Section 19.1004, provided that the proposal does not substantially change the physical dimensions of the support structure:
b.
For the purposes of this section, a modification substantially
changes the physical dimensions of an eligible support structure if
it meets any of the following criteria:
(1)
For towers other than towers in the public rights-of-way, it
increases the height of the tower by more than 10% or by the height
of one additional antenna array with separation from the nearest existing
antenna not to exceed 20 ft, whichever is greater; for other eligible
support structures, it increases the height of the structure by more
than 10% or more than 10 ft, whichever is greater;
(2)
For towers other than towers in the public rights-of-way, it
involves adding an appurtenance to the body of the tower that would
protrude from the edge of the tower more than 20 ft, or more than
the width of the tower structure at the level of the appurtenance,
whichever is greater; for other eligible support structures, it involves
adding an appurtenance to the body of the structure that would protrude
from the edge of the structure by more than 6 ft;
(3)
For any eligible support structure, it involves installation
of more than the standard number of new equipment cabinets for the
technology involved, but not to exceed 4 cabinets; or, for towers
in the public rights-of-way and base stations, it involves installation
of any new equipment cabinets on the ground if there are no pre-existing
ground cabinets associated with the structure, or else involves installation
of ground cabinets that are more than 10% larger in height or overall
volume than any other ground cabinets associated with the structure;
(4)
It entails any excavation or deployment outside the current
site;
(5)
It would defeat the concealment elements of the eligible support
structure; or
(6)
It does not comply with conditions associated with the siting
approval of the construction or modification of the eligible support
structure or base station equipment.
3.
Type II Review
Placement, construction, or modification of WCFs not involving the construction of a new monopole, other than those activities described in Subsection 19.904.10.C.1, are subject to Section 19.1005 Type II Review, provided that the antennas and base equipment comply with the standards contained in this subsection. Also see Table 19.904.10.C.
4.
Type III Review
All proposed new monopole towers, and projects exceeding the applicability for Type II review, are subject to Section 19.1006 Type III Review. Also see Table 19.904.10.C.
|
Table 19.904.10.C
Wireless Communication Facilities—Type and Review Process
| ||||
|---|---|---|---|---|
|
Towers
|
WCFs Not Involving New Tower
| |||
|
Zones
|
New Monopole Tower up to 100 Ft
|
Building Rooftop or Wall Mounted Antenna
|
Water Towers, existing Towers, and Other Stealth designs
|
On Existing Utility Pole in Row with or w/out extensions
|
|
BI
|
III
|
P/I/II
|
P/I/II
|
P/I/II
|
|
M
|
III
|
P/I/II
|
P/I/II
|
P/I/II
|
|
M-TSA
|
III
|
P/I/II
|
P/I/II
|
P/I/II
|
|
C-N
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
C-G
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
C-L
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
C-CS
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
OS
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
DMU
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
GMU
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
NMU
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
R-HD
|
N
|
P/I/II
|
P/I/II
|
P/I/II
|
|
R-MD
|
N
|
N
|
P/I/II
|
P/I/II
|
|
III
|
=
|
Type III review—requires a public hearing in front of
the Planning Commission
|
|
II
|
=
|
Type II review—provides for an administrative decision
|
|
I
|
=
|
Type I review—provides for an administrative decision
|
|
P
|
=
|
Permitted N = Not Permitted
|
D.
Application Submittal Requirements
In addition to the required submittal material the following
must also be included with the application:
1.
Applications for a WCF that will include a new monopole tower:
b.
Type of antennas the tower is designed to accommodate.
c.
Reason for the location, design and height of the proposed tower
and antenna.
d.
A photo simulation of the proposed tower in relation to the
surrounding area.
e.
A signed agreement binding present and future owners or operators
of the WCF that allows co-location of antennas on the WCF.
f.
Documentation that all necessary applications, permits, agreements
and easements have been obtained.
g.
Documentation of FAA or satisfactory evidence that FAA approval
is not required. Satisfactory evidence that FAA approval is not required
shall be an Aerospace Safety Analysis Corporation determination or
similar evidence.
h.
The signature of the property owner(s) on the application form
or a written signed statement from the property owner(s) granting
authorization to proceed with the land use application and building
permits.
i.
Documentation that alternative antenna support locations within
1,500 ft have been considered and have been determined to be technologically
or legally infeasible or inadequate. The applicant shall pay to the
City the costs of hiring a third party to review the application for
accuracy in accordance with the fee resolution adopted by the City
Council.
j.
In addition to those items required on the site plan requirements,
the following must also be included:
(1)
Landscaping plan showing existing and proposed vegetation, including
size, type and the amount of proposed vegetation;
(2)
Location of connections to utilities and right-of-way curb cuts;
(3)
Location of required easements and access drives;
(4)
Location of the proposed wireless communication facility and
related base equipment;
(5)
The lease area in relation to the underlying parcel/property
as well as neighboring parcels on all sides.
2.
WCF Not Including a New Tower
a.
Detailed narrative description describing the proposed antenna
location, design and height, the right-of-way license number, and
the type of service provided.
b.
Statement that antenna was placed so as to allow for placement
of additional antennas on the same antenna support structure, to the
extent practicable.
c.
Documentation demonstrating the proposal has been submitted
and Approved by the owner of the structure to which the antenna will
be attached.
d.
Document demonstrating that necessary applications, permits,
agreements, and easements have been obtained.
e.
For extensions to existing facilities the applicant shall provide
documentation of FAA approval of the tower design or satisfactory
evidence that FAA approval is not required. Satisfactory evidence
that FAA approval is not required shall be an Aerospace Safety Analysis
Corporation determination or similar evidence.
f.
The site plan must include the elements listed on the site plan
requirements and must also include, to the extent applicable:
(1)
Landscaping plan showing existing and proposed vegetation, include
size, type and amount of proposed vegetation. In some cases, such
as co-location on rooftops or other similar uses, the City may determine
that landscaping will not be required;
(2)
Location of connections to utilities and right-of-way curb cuts;
(3)
Location of required easements and access drives;
(4)
Location of proposed related base equipment and existing WCF;
(5)
Lease area in relation to the underlying parcel/property as
well as neighboring parcels on all sides.
E.
Use of Existing Tower or Antenna Support Structure
1.
All wireless communication providers are required to attempt to co-locate
on existing antenna support structures or locate on alternative antenna
support structures before applying to construct a WCF that will include
a new tower.
2.
New towers shall not be approved unless the applicant demonstrates
to the reasonable satisfaction of the Planning Commission that no
existing towers or alternative antenna support structure can accommodate
the applicant's need for the placement of an antenna in the vicinity
of the applicant's proposed location. Evidence demonstrating that
use of an existing or alternative support structure is not possible
shall be submitted to the Planning Commission and shall include one
or more of the following:
a.
That no existing antenna support structures are located within
the geographic area which meet the applicant's engineering requirements
in regards to location, size, and structural strength and that alternative
antenna support structures are not feasible.
b.
That use of any existing structure would cause electromagnetic
interference with the existing antennas and electronic and other radio
frequencies.
c.
That co-locating on an existing antenna support structure would
violate RF emissions standards set by the FCC.
d.
That fees, costs or contractual provisions required by the owner
in order to use an existing antenna support structure are unreasonable.
A refusal by the owner to allow co-location shall be considered an
unreasonable provision.
3.
Evidence demonstrating that alternative support structures were considered,
but determined to be technologically insufficient, submitted to the
Planning Commission for review must be verified and stamped by an
engineer licensed in the State of Oregon.
4.
All wireless communication providers shall cooperate with other wireless
communication providers and act in good faith in co-locating additional
antennas on existing support structures and/or existing buildings
or other alternative support structures. All support structures 80
ft in height or greater shall be designed to not preclude co-location.
All support structures 80 ft or greater shall be designed to hold
additional antennas that are substantially similar to the proposed
antennas array.
F.
Location and Size Restrictions
1.
Separation for New Monopole Towers
New monopole towers may not be constructed within 1,500 ft of
any preexisting tower. The Planning Commission has the authority to
approve a reduction in the minimum separation requirement to not less
than 1,000 ft, provided that the applicant can demonstrate the need
to the satisfaction of the Planning Commission, for the distance reduction.
A tower shall include any preexisting tower or any tower for which
the City has issued a building permit, or for which a land use application
has been filed and not denied. This distance shall be measured in
a straight line from the base of the existing tower to the base of
the proposed tower.
2.
Height: maximum heights. Also see Table 19.904.10.C.
b.
For co-location on existing towers extensions or pole replacements
shall be permitted, but are not to exceed 120 ft.
c.
Antennas on buildings may not extend greater than 15 ft from
the rooftop, or shall not project more than 5 ft from the side of
a building.
d.
For antennas on utility poles in the right-of-way, one 15-ft
extension is permitted to the original installation by the owner.
The carrier may replace the existing pole with a new utility pole
not to exceed 15 ft above the height of the pole that is to be replaced.
Equipment cabinets shall be attached to the utility pole. Where this
is not practicable, the base equipment shall be subject to requirements
of Subsection 19.904.10.G.1.b.
G.
Development Standards for All WCFs
1.
Setbacks and Equipment Cabinets
a.
Setbacks for new monopole towers and equipment cabinets shall
be established from the property line and not the leased area. Regardless
of the zone, the setbacks shall be as follows:
(1)
Front yard. A front yard shall be at least 75 ft.
(2)
Side yard. A side yard shall be at least 15 ft.
(3)
Rear yard. A rear yard shall be at least 20 ft.
(4)
For all properties abutting residential zones, a 75-ft setback
shall be maintained from the border of the residential zone.
(5)
The equipment cabinet shall meet the vegetative screening requirements
addressed in Subsection 19.904.10.G.6 Landscaping and Fencing Requirements.
b.
For antennas placed on existing utility pole and other support
structures located in the right-of-way, the equipment cabinet shall
be located on the utility pole to the greatest extent.
If it is technologically infeasible to place the equipment cabinet
directly on the utility pole due to cabinet size then the cabinet
shall be placed in an underground vault in the right-of-way.
If it is not technologically feasible to place the cabinet in
an underground vault then the following setbacks and standards shall
apply:
(1)
The equipment cabinet may be located in the right-of-way provided
the equipment cabinet does not exceed a length and width of 3 ft by
2 ft and 4 ft in height.
(2)
If the equipment cabinet is larger than 3 ft by 2 ft and 4 ft
in height, then the following setbacks shall apply regardless of the
zone:
Front yard: Equipment cabinets are not permitted within the
front yard setback.
Side yard: shall be at least 15 ft from the property line.
Rear yard: shall be at least 20 ft from the property line.
(3)
The equipment cabinet shall meet the vegetative screening requirements
addressed in Subsection 19.904.10.G.6 Landscaping and Fencing Requirements.
c.
Equipment cabinets for water towers, "stealth" designs or other
antenna support structures not covered by the previous subsections.
(1)
Regardless of the zone the following setbacks shall apply:
Front yard: Equipment cabinets are not permitted within the
front yard setback.
Side yard: shall be at least 15 ft from the property line.
Rear yard: shall be at least 20 ft from the property line.
(2)
The equipment cabinet shall meet the vegetative screening requirements
addressed in Subsection 19.904.10.G.6 Landscaping and Fencing Requirements.
2.
Ladder Rungs
No ladder rungs or climbing pegs on new towers or poles shall
be allowed within 20 ft of the ground.
3.
Guy Anchorage and Lattice Towers
Lattice or guyed towers shall not be permitted in any zone.
5.
Noise
When the property and adjacent properties are zoned for residential
uses or occupied by hospitals, schools, libraries, nursing homes or
other similar uses, noise-generating equipment shall be sound buffered
so that nighttime noise after construction is no louder than the ambient
nighttime noise prior to construction of the WCF. The nighttime noise
shall be measured between the hours of 10:00 p.m. and 7:00 a.m. Emergency
backup generators shall be excluded from this noise requirement.
6.
Landscaping
A landscaping plan, which demonstrates how the proposed vegetation
will effectively screen the view of the base of the tower, equipment
cabinets, and the security fence, shall be submitted with the application.
The landscaping plan shall include the following:
a.
New Monopoles
(1)
A 6-ft high security fence shall be placed around the base of
the monopole and the equipment cabinets.
(2)
The landscaping shall include a screen of plants with an anticipated
height at time of maturity of at least 6 ft. Plantings shall be placed
densely so as to form a screen.
(3)
Landscaping shall be kept healthy and maintained.
b.
Equipment cabinets for antennas placed on alternative support
structures located out of the right-of-way.
(1)
The landscaping shall include a screen of plants with an anticipated
height at time of maturity of at least 6 ft. Plantings shall be placed
densely so as to form a screen.
(2)
Landscaping shall be compatible with native vegetation found
in the surrounding area, if any.
(3)
Landscaping shall be kept healthy and maintained.
c.
Landscaping is not required for equipment cabinets located on
buildings, or in the right-of-way.
d.
In some cases equipment cabinets may be placed in areas where
landscaping may not be practical. For Type II land use applications,
the applicant may request that the Planning Director waive landscaping
requirements. For Type III land use applications, the applicant may
request that the Planning Commission waive landscaping requirements.
7.
Access Drives
All newly created access drives shall meet the following standards:
9.
Discontinued Use of and Removal of WCFs
a.
Any WCF not operated for a continuous period of 6 months shall
be considered abandoned. The WCF owner is required to remove all abandoned
facilities and base equipment within 90 days after notice from the
City of Milwaukie.
b.
If the owner of the WCF cannot be located or is no longer in
business, it shall be the responsibility of the landowner on whose
property the WCF is located to remove the abandoned facility and base
equipment.
c.
If the landowner is the City of Milwaukie, the City may invoice
the owner of the WCF for the removal.
10.
Affirmative Duty to Keep City Informed
a.
All operators of WCFs within the City of Milwaukie shall be
required to report in writing to the Planning Director any changes
in the status of their operation. The report shall include any of
the following changes:
b.
An annual written statement shall be filed with the Planning
Director verifying continued use of each of their facilities in the
City's jurisdiction as well as continued compliance with State and
federal agency regulations.
H.
Expiration of Approval
Authorization under Section 19.904 shall be void after 6 months unless substantial construction has taken place. If substantial construction has not taken place and the approval becomes void, the facility must be completely removed and the site must return to its preexisting condition. Extensions to an existing approval may be requested per Section 19.908.
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2051 § 2, 2012; Ord. 2106 § 2 (Exh. F), 2015; Ord. 2161 § 2, 2018; Ord. 2168 § 2, 2019; Ord. 2224 § 2, 2022; Ord. 2243, 5/21/2024)
The purpose of the conditional use regulations is to evaluate
the establishment of certain uses that may be appropriately located
in some zoning districts, but only if appropriate for the specific
site on which they are proposed.
Conditional uses are not allowed outright. Although they may
provide needed services or functions in the community, they are subject
to conditional use review because they may adversely change the character
of an area or adversely impact the environment, public facilities,
or adjacent properties. The conditional use review process allows
for the establishment of conditional uses when they have minimal impacts
or when identified impacts can be mitigated through conditions of
approval. The review process also allows for denial when concerns
cannot be resolved or impacts cannot be mitigated.
Approval of a conditional use shall not constitute a zone change
and shall be granted only for the specific use requested. Approval
is subject to such modifications, conditions, and restrictions as
may be deemed appropriate by the review authority.
B.
This section applies to the major or minor modification of existing
conditional uses.
C.
This section does not apply to modification of uses that received
conditional use approval at one time but are currently allowed outright
by the property's base zone and any overlay zones or special areas.
A.
Establishment of a new conditional use, or major modification of
an existing conditional use, shall be approved if the following criteria
are met:
1.
The characteristics of the lot are suitable for the proposed use
considering size, shape, location, topography, existing improvements,
and natural features.
2.
The operating and physical characteristics of the proposed use will
be reasonably compatible with, and have minimal impact on, nearby
uses.
3.
All identified impacts will be mitigated to the extent practicable.
4.
The proposed use will not have unmitigated nuisance impacts, such
as from noise, odor, and/or vibrations, greater than usually generated
by uses allowed outright at the proposed location.
5.
The proposed use will comply with all applicable development standards and requirements of the base zone, any overlay zones or special areas, and the standards in Section 19.905.
6.
The proposed use is consistent with applicable Comprehensive Plan
policies related to the proposed use.
B.
Minor modification of an existing conditional use shall be approved
if the following criteria are met:
1.
The proposed modification will not significantly increase the intensity
of the use at this location.
2.
The proposed modification will comply with all applicable development standards and requirements of the base zone, any overlay zones or special areas, and the standards in Section 19.905.
3.
The proposed modification will not negatively impact nearby uses,
protected natural features, or public facilities more than the original
conditional use.
4.
The proposed modification will comply with any conditions of approval
from the original conditional use approval.
The Planning Commission, or Planning Manager in the case of
minor modifications, may impose conditions of approval that are suitable
and necessary to assure compatibility of the proposed use with other
uses in the area and minimize and mitigate potential adverse impacts
caused by the proposed use.
Conditions of approval may include, but are not limited to,
the following aspects of the proposed use:
A.
Limiting the hours, days, place, and manner of operation.
B.
Requiring structure and site design features that minimize environmental
impacts such as those caused by noise, vibration, air pollution, glare,
odor, carbon emissions, and dust.
C.
Requiring additional front, rear, or side yard width.
D.
Limiting building height, size, or location or limiting lot coverage.
E.
Limiting or otherwise designating the size, number, or location of
vehicle access points from the street.
F.
Requiring additional landscaping or screening of off-street parking
and loading areas.
G.
Limiting or otherwise designating the location, intensity, and shielding
of outdoor lighting.
H.
Requiring screening or landscaping for the protection of surrounding
properties.
I.
Requiring and designating the size, height, location, and materials
for fences.
J.
Requiring the protection and preservation of existing trees, soils,
vegetation, watercourses, habitat areas, and drainage areas.
K.
Requiring adequate public transportation facilities and public utilities
prior to occupancy.
A.
The City will issue a conditional use permit upon the approval of
an application to establish a conditional use or allow major modification
of an existing conditional use. The Planning Director may decide if
it is necessary to revise an existing conditional use permit after
approval of a minor modification.
B.
The conditional use permit shall include the following information:
1.
A description of the use that has been approved by the City.
2.
Restrictions and/or conditions of approval placed upon the use.
3.
Ongoing responsibilities required for the operation of the conditional
use.
4.
Allowance for the transfer of rights and responsibilities upon change
in ownership of either the use or the property containing the use.
5.
Procedures for review, revisions, and suspension of the conditional
use permit.
C.
The applicant must record the conditional use permit with the Clackamas
County Recorder's Office and provide a copy to the City prior to commencing
operations allowed by the conditional use permit.
D.
A conditional use permit is not affected by a change in ownership
of the use or the property containing the use. A conditional use permit
is valid unless one of the following occurs:
E.
Compliance with the terms and conditions of the conditional use permit
is required on an ongoing basis.
F.
The notice of decision, Planning Commission minutes, and other city
records shall constitute the conditional use permit for conditional
uses that were approved prior to the effective date of this ordinance.
A.
The Planning Director may evaluate the operation of a conditional
use for compliance with the conditional use permit if it appears the
terms and conditions of the permit are being violated or complaints
are received regarding the use. An observation or complaint must be
based on one of the following occurrences:
1.
Violation of any applicable development standard or requirement that
pertains to the conditional use.
2.
Failure to operate as approved or failure to satisfy a condition
of approval from the original conditional use approval.
3.
Incidents that are perceived to be a direct result of the conditional
use and that may be detrimental to the health, safety, property, or
general welfare of the public.
B.
If the Planning Director finds that the conditional use is noncompliant
or is having unanticipated impacts that are detrimental to the health,
safety, property, or general welfare of the public, the Planning Director
shall require the owner and/or operator to resolve the issue within
a specified period of time.
C.
If the owner and/or operator of the conditional use cannot or does not resolve the issue in Subsection 19.905.7.B, the matter shall be heard by the Planning Commission to review the conditional use permit and to consider modification, suspension, or revocation of the conditional use permit. The review shall follow the procedures of Section 19.1006 Type III Review. The owner and/or operator shall not be charged a fee for this review.
The Planning Commission may take the following actions in consideration
of the conditional use permit:
1.
Allow the continued operation of the conditional use without modifications
to the conditional use permit. This option should be utilized when
the Planning Commission finds that the use is not out of conformance
with the conditional use permit or that complaints raised under Subsection
19.905.7.A.3 are not detrimental to the health, safety, property,
or general welfare of the public.
2.
Suspend the permit and require the cessation of the conditional use
until the issue is resolved. Upon suspension of the conditional use
permit, the Planning Commission shall set a future meeting date to
consider reinstating the permit. A suspended permit may be reinstated
when, in the judgment of the Planning Commission, the issue has been
resolved.
3.
Modify the conditional use permit to address the circumstance(s) that gave rise to the issue. Modifications to the conditional use permit shall be based on factors relevant to the approval criteria for conditional uses in Subsection 19.905.4. The Planning Commission may opt to suspend the permit per Subsection 19.905.7.C.2 until compliance with the modified conditional use permit is achieved.
4.
Revoke the conditional use permit. Revocation of a conditional use
permit shall only occur in either of the following circumstances:
a.
The nature of the conditional use is such that its impacts cannot
be minimized or mitigated to be consistent with the conditional use
approval criteria.
b.
The property owner and/or operator of the conditional use failed
to comply with the terms and/or conditions of the original or modified
conditional use permit.
A.
A legally established use currently identified in the code as a conditional
use is a de facto conditional use, rather than a nonconforming use,
even if:
1.
It had previously been identified as a use that was allowed outright
or a nonconforming use.
B.
A conditional use or de facto conditional use shall automatically lose its conditional use status if either of the following occurs. A dispute about whether either of these situations has occurred shall be resolved by the Planning Director through the Director determination process pursuant to Section 19.903.
1.
The conditional use or de facto conditional use undergoes a change
in use. A change in use to a use that is allowed outright, or a use
approved through another discretionary review process, results in
the loss of any conditional use status. A change in use to another
approved conditional use results in the loss of the conditional use
status only for the prior use.
A conditional use shall comply with the standards of the base
zone, and any overlay zones or special areas, in which it is located,
except as these standards have been modified by the Planning Commission
when authorizing the conditional use and as otherwise modified by
the standards in this subsection.
A.
Yards
Additional yard width requirements may be imposed as a condition
of approval to address impacts related to building height, mass, and
proximity to residential land uses.
B.
Access to Property and Building Openings
The City may limit or prohibit vehicle access from a conditional
use to a residential street, and it may limit or prohibit building
openings within 50 ft of residential property in a residential zone
if the openings will cause glare or excessive noise or will otherwise
adversely affect adjacent residential property.
C.
Surface Mining
In considering a conditional use application for surface mining,
the following Minimum requirements shall apply:
1.
Open pit and gravel excavating or processing shall not be permitted
nearer than 50 ft to the boundary of an adjoining property line, unless
written consent of the owner of such property is first obtained. Excavating
or processing shall not be permitted closer than 30 ft to the right-of-way
line of an existing or platted street or an existing public utility
right-of-way.
2.
Production from an open pit or the removal of sand and gravel shall
not leave a slope exceeding 1 ft horizontal for 1 ft vertical.
3.
An open pit or sand and gravel operation shall be enclosed by a fence
suitable to prevent unauthorized access.
4.
A rock crusher, washer, or sorter shall not be located nearer than
500 ft to a residential or commercial zone. Surface mining equipment
and necessary access roads shall be constructed, maintained, and operated
in such a manner as to eliminate, as far as is practicable, noise,
vibration, or dust which is injurious or substantially annoying to
persons living in the vicinity.
D.
Junk or Wrecking Yard
In considering a conditional use application for a junk or wrecking
yard, the Planning Commission shall require that it be enclosed by
a sight-obscuring fence not less than 6 ft high.
E.
High-Impact Commercial Use
1.
In considering a conditional use application for a high-impact commercial
use, the Planning Commission shall consider the following:
a.
Nearness to dwellings, churches, hospitals, parks, or other
uses that require a quiet environment.
b.
Building entrances, lighting, exterior signs, and other features
that could generate or be conducive to noise or other disturbance
for adjoining uses.
c.
Parking vehicles and pedestrian access and circulation that
could contribute to noise or attract habitual assembly of unruly persons.
d.
Hours of operation.
2.
In addition to consideration of the above with respect to building
and site design, the Planning Commission may attach conditions or
standards of performance and impact, and methods for monitoring and
evaluating these, to ensure that such establishments do not become
unduly or unnecessarily disruptive.
G.
Vacation Rentals
Operation of a vacation rental requires the following:
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2161 § 2, 2018; Ord. 2218 § 2 (Exh. B), 2022)
The purpose of this section is to ensure compliance with the
standards and provisions of the City's land use regulations through
an efficient review process that effectively coordinates the City's
land use and development permit review functions. Development review
is intended to encourage quality development that is compatible with
its surroundings and reflects the goals and policies of the Milwaukie
Comprehensive Plan.
A.
Type I Review
The following development proposals must submit a development
review application and are subject to the requirements of this section,
unless explicitly stated otherwise in an applicable land use approval,
waived by the Planning Manager at the time of development permit submittal,
allowed by right, or exempted per Subsection 19.906.2.C.
1.
New development and expansions or modifications of existing development
that require review against standards and criteria that are either
clear and objective, or that require the application of limited professional
judgment.
2.
A change in primary use.
3.
Parking lot expansions or modifications that change the number of
parking spaces by 5 spaces or more.
B.
Type II Review
The following development proposals must submit a development
review application and are subject to the requirements of this section.
Type II development review does not apply to development proposals
in the downtown zones as these zones have a separate design review
process.
1.
New development, or expansions or modifications to existing development,
for which the applicant elects, where a choice is available, to have
the proposal reviewed against discretionary criteria or standards.
2.
New construction of over 1,000 sq ft, either: 1) in the Manufacturing
Zone within 120 ft of areas zoned for residential uses, or 2) within
any part of the Business Industrial Zone, or 3) within any part of
the North Milwaukie Innovation Area.
3.
New development or expansions, or modifications to existing development,
where the Planning Director determines that the scale of development
and/or the level of discretion required to evaluate applicable standards
and criteria is not appropriate for a Type I Development review.
C.
Exemptions
The following development proposals are not required to submit
a development review application and are exempt from the requirements
of this section. Proposals that are exempt from this section must
still comply with all applicable development and design standards.
For proposals that require a development permit, compliance with standards
will be reviewed during the permit review process.
1.
New or expanded single detached dwelling or middle housing detached
or attached residential dwellings.
2.
Residential accessory uses and structures including accessory dwelling
units.
3.
Interior modifications to existing buildings that do not involve
a change of primary use.
4.
Construction of public facilities in the public right-of-way.
A.
General Provisions
1.
Development review generally includes review of the proposed use(s),
structure(s), and site improvements for compliance with applicable
standards. For expansions or modifications of existing development,
the review is limited to the modified portions of the site or structure
and any other site improvements that may be affected by the proposed
modifications.
2.
Development proposals that are subject to Type II development review
and require other land use approvals may submit a Type II development
review application with the other required land use application(s)
for concurrent review per Subsection 19.1001.6.B.
3.
Development proposals that are subject to Type II development review
and require Development permits may submit a development permit application
at any time; however, the City will not issue development permits
until the Type II development review application has been approved.
4.
Development proposals that are subject to Type I development review
and require Development permits may submit a Type I development review
application with the required development permits for concurrent review.
The City will not issue development permits until the Type I development
review application has been approved.
5.
Submittal of a Type II development review application may not preclude
the need for submittal of a Type I development review application.
Depending on the nature of the development proposal, Type II development
review may be required during the land use review phase of the proposal,
and Type I development review may be required during the development
permit review phase of the proposal.
B.
Review Types
1.
Type I development review applications are evaluated through a Type I review per Section 19.1004. Type I development review ensures compliance with applicable land use and site development standards, and nondiscretionary design standards.
2.
Type II development review applications are evaluated through a Type II review per Section 19.1005. Type II development review is for proposals that opt for or require discretionary review because they either do not meet clear and objective design standards or not all applicable design standards are clear and objective. The Planning Director will determine whether existing standards are clear and objective where they are not clearly identified as such.
The criteria in this subsection are the approval criteria for Type I and Type II Development review applications. The criteria are based on a review of development standards throughout Title 19 Zoning. Not all of the standards within the chapters listed below are applicable to a proposal, and the City will identify the applicable standards through the development review process. Though the criteria are the same for Type I and Type II development review, the standards evaluated in a Type I review will be clear and objective or require limited professional judgment, while the Type II review will involve discretionary standards and/or criteria.
An application for Type I or Type II development review shall
be approved when all of the following criteria have been met:
B.
The proposal complies with all applicable overlay zone and special area standards in Chapter 19.400.
C.
The proposal complies with all applicable supplementary development regulations in Chapter 19.500.
D.
The proposal complies with all applicable off-street parking and loading standards and requirements in Chapter 19.600.
E.
The proposal complies with all applicable public facility standards and requirements, including any required street improvements, in Chapter 19.700.
F.
The proposal complies with all applicable conditions of any land
use approvals for the proposal issued prior to or concurrent with
the development review application.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2106 § 2 (Exh. F), 2015; Ord. 2140 § 2, 2017; Ord. 2161 § 2, 2018; Ord. 2226 § 2, 2023; Ord. 2235 § 2, 2023)
Downtown design review is intended to achieve the following
purposes:
A.
Preserve and enhance the character of downtown Milwaukie.
B.
Ensure a degree of order, harmony, and quality in the downtown, providing
buildings and projects that are attractive individually yet contribute
to a downtown that is distinctive as a whole.
C.
Ensure that new development, and alterations or enlargement of existing development, are consistent with the downtown site and building design standards and guidelines of Section 19.508.
D.
Implement the vision of the Downtown and Riverfront Land Use Framework
Plan.
E.
Provide a design review process that allows applicants to choose
standards or more flexible discretionary guidelines.
Applications for downtown design review shall be processed through a Type I, II, or III procedure, in accordance with Chapter 19.1000, as follows:
A.
Exemptions
Downtown design review does not apply to the following projects:
1.
Demolition, unless listed on the City of Milwaukie Historic Resource Inventory and subject to the standards of Section 19.403.
2.
Building additions of less than 250 sq ft that are not visible from
streets, sidewalks, courtyards, public parks, and/or pedestrian walkways.
3.
Maintenance, restoration, and repair of a building in a manner that
is consistent with previous approvals and/or necessary for safety.
Examples include paint retouching, and other routine upkeep of the
building exterior, and in-kind restoration or replacement of damaged
materials. Maintenance, restoration, and repair does not include replacement
of materials due to obsolescence.
4.
Minor building or site upgrades needed to bring an existing development
into compliance with the Americans with Disabilities Act.
5.
Exterior painting and weatherproofing.
6.
Any exterior project that doesn't require a building permit.
7.
Interior remodeling.
8.
Minor site improvements, including, but not limited to, installation of benches, trash cans, bicycle racks, informational kiosks, site lighting, signs, and other similar improvements as determined by the Planning Director. A guide for determining whether a proposed improvement is exempt shall be the consideration of whether there are any applicable design standards provided in Section 19.508.
9.
In City parks, improvements that are consistent with an approved
master plan.
10.
Fences and/or retaining walls, which are subject to Subsection
19.502.2.B, including the standards for commercial zone fencing in
Subsection 19.502.2.B.1.b.
C.
Type II
The following projects are subject to Type II downtown design
review:
1.
Demolition or replacement of less than 25% of the surface area of any exterior wall or roof that does not meet the applicable standards of Section 19.508.
2.
Addition, elimination, or change in location of windows that decreases the overall percentage of window coverage and that does not meet the applicable standards of Section 19.508.
3.
An increase in floor area proposed for a nonresidential use by less
than 10% or 2,000 sq ft, whichever is greater.
4.
A reduction in the area reserved for common open space and/or usable
open space that reduces the open space area below the minimum required
or by 10% or less.
A.
General Provisions
Downtown design review generally includes review of the proposed
structure(s) and site improvements for compliance with applicable
design standards and/or guidelines. For expansions or modifications
of existing development, the review is limited to the modified portions
of the site or structure and any other site improvements that may
be affected by the proposed modifications.
B.
C.
Review Options
Designing a project to the design standards would result in
a Type I review process. However, applicants, at their option, may
choose to use Type III discretionary review.
Through Type II or III review, applicants can address downtown design review requirements through a combination of satisfying certain design standards in Section 19.508 and, in instances where they elect not to utilize design standards, satisfying the applicable design guidelines in Section 19.508 instead. In such a case, the Public hearing and decision will focus on whether or not the project satisfies the requirements of the applicable design guidelines only.
Applications for downtown design review shall be filed with
the Planning Department on forms prescribed by the Planning Manager.
The applicant shall demonstrate compliance with applicable zoning
criteria. In addition to all information specified on the "Submittal
Requirements" and "Site Plan Requirements" forms, each application
for downtown design review shall be accompanied by the following information:
A.
Written statement that describes the following:
B.
Footprints of surrounding buildings, including driveways and pedestrian
connections.
C.
Location, dimension, and setbacks of all proposed buildings, structures,
walls, and fences.
D.
Dimensioned building elevations indicating height, exterior materials,
colors, and details of exterior architectural features, such as cornices,
windows, and trim.
E.
A streetscape drawing showing the relationship of the proposed project
to adjacent buildings.
F.
Frontage improvements in the public right-of-way per the Public Works
Standards.
Within 7 days of issuing a notice of decision to approve a new
building with Type I Downtown design review, notice of the approval
will be provided in the following forms:
A.
Written notice of the decision will be mailed to the owners of record
of properties within 300 ft of the perimeter of the subject property
as well as to the City-recognized neighborhood district association
whose boundaries include the subject property or are within 300 ft
of the subject property.
B.
A physical sign will be posted on the subject property in a location
that is clearly visible to vehicles traveling on a public street and
legible to pedestrians walking by the property. The sign will include
a brief description of the approved building and will remain in place
for a minimum of 30 days. Pursuant to Subsection 19.1001.6.C.1.d,
the Planning Manager will adopt administrative rules for this required
signage.
|
The provided notice is for information purposes only and does
not constitute an opportunity for public comment on the approved building.
|
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2242, 4/16/2024)
The purpose of this section is to provide for an appropriate
and efficient review process for extending the time period during
which land use approvals are valid and may be utilized.
A.
Approvals Eligible for Extensions
An extension may be requested for any unexpired land use application
that was required by Titles 14, 17, or 19 of the Milwaukie Municipal
Code and that was approved through a Type I, II, or III review.
B.
Approvals Not Eligible for Extensions
An extension pursuant to this section may not be requested for
an approved land use application that has expired or where other sections
of the municipal code specifically prohibit or limit the length or
number of extensions allowed.
A.
General Provisions
1.
An extension application must be submitted and approved prior
to the expiration date of the approval. An extension application may
not be submitted more than six months in advance of an expiration
date.
2.
An extension may be approved up to a maximum of two years from
the effective date of the extension approval. Additional extensions
may be requested. There is no limit to the number of extensions that
may be requested or approved. In the case of applications approved
under Title 17, an application may be approved up to a maximum of
12 months and only one extension request is allowed.
3.
If the original application was approved through a Type III
review, the Planning Director shall notify the Planning Commission
of receipt of an extension application at the same time that public
notice is mailed for the application.
4.
If an extension application is denied, the applicant may seek
approval for the proposed development by resubmitting all applicable
land use applications. Such applications are subject to all procedures,
approval criteria, and development standards in effect at the time
of submission.
An extension shall be approved when all of the following criteria
have been met:
A.
There have been no significant changes on the subject property, in
the vicinity of the subject property, or to any relevant regulations
since the original application was approved.
B.
No modifications are proposed to the approved application or to the
conditions of approval.
C.
If the previously approved application included a transportation
impact study or a natural resource report, an updated report was provided
with the extension application that shows no significant changes on
the subject property or in the vicinity of the subject property. A
letter from a recognized professional will also satisfy this criterion
if it states that conditions have not changed since the original approval
and that no new analysis is warranted.
(Ord. 2025 § 2, 2011)
The purpose of this section is to provide an appropriate and
efficient review process for modifying approved land use applications
and development plans after approvals have been obtained but prior
to issuance of development permits.
A.
Modifications Requiring Submittal of New Application
A modification application is required for any land use application
that was approved pursuant to Titles 14, 17, or 19 of the Milwaukie
Municipal Code through a Type I, II, or III review and that has been
subsequently modified such that the proposal no longer substantially
conforms to the plans and/or other development documents upon which
the original proposal was evaluated and approved.
B.
Exceptions
A modification application is not required when modifications
are required by City staff during development review for compliance
with conditions of approval, Development standards, Public Works Standards,
or any other applicable standards that the City has the authority
to implement at the time of development.
A.
General Provisions
1.
The Planning Director shall determine whether the modified proposal
substantially conforms to the plans and/or other development documents
upon which the original proposal was evaluated and approved. This
determination is not a land use decision and is not subject to appeal.
2.
If the Planning Director determines that a modified proposal no longer
substantially conforms to the original approval, the Planning Director
shall require one of the following before approving any development
permits:
3.
For a modification requiring review under this section, the Planning
Director shall determine whether the modification is major or minor
in nature. This determination is not a land use decision and is not
subject to appeal.
a.
Major modifications are modifications that alter a condition
of approval imposed by the Planning Commission, have different or
more impacts than the original proposal, and/or require substantial
changes to the findings from the original approval.
b.
Minor modifications are all modifications not otherwise identified
as major modifications.
4.
The scope of review for a modification application reviewed under
this section is limited to the modified portions of the development
proposal and any other portions of the Development proposal that are
affected by the modification.
5.
Denial of a modification application does not invalidate the original
approval.
B.
Review Types
1.
Major or Minor Modification of Original Type I Approval
Major and minor modifications shall be evaluated through a Type I review per Section 19.1004.
3.
Major or Minor Modification of Original Type III Approval
Minor modifications shall be evaluated through either a Type I or Type II review per Section 19.1004 or 19.1005. The Planning Director shall determine the review type after considering the nature and scope of the modification. The Planning Director's determination shall favor the review type that provides the most appropriate public notice and opportunity for public comment. This determination is not a land use decision and is not subject to appeal. Major modifications shall be evaluated through a Type III review per Section 19.1006.
A.
Approval Criteria for Minor Modifications
1.
The proposed modification complies with all applicable development
standards and requirements, except as modified by the original approval.
2.
The proposed modification will continue to meet all applicable approval
criteria upon which the original approval was based.
3.
The proposed modification, as either proposed or conditioned, will
not negatively impact nearby uses, protected natural features, or
public facilities any more than what was identified in the original
approval.
4.
The proposed modification does not alter or contravene any conditions
of approval from the original approval.
B.
Approval Criteria for Major Modifications
The review authority may impose conditions of approval that
are suitable and necessary to ensure that the proposed modification
will not cause the approved development proposal to fail to meet any
approval criteria upon which the original approval was based or negatively
impact nearby uses, protected natural features, or public facilities.
This section contains applications for types of residential
dwellings that require land use approval.
(Ord. 2025 § 2, 2011; Ord. 2051 § 2, 2012; Ord. 2168 § 2, 2019; Ord. 2186 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2229 § 2, 2023; Ord. 2243, 5/21/2024)
A.
Purpose
To provide the means for reasonable accommodation of accessory
dwelling units, providing affordable housing, opportunity to house
relatives, and a means for additional income for property owners,
thereby encouraging maintenance of existing housing stock.
B.
Applicability
The procedures and standards of this chapter apply to the establishment
of any accessory dwelling unit.
C.
Procedures
An application to establish an accessory dwelling unit must
be allowed by right. accessory dwelling units are subject to the standards
of Table 19.910.1.E.4.B.
D.
Approval Standards and Criteria
1.
An application for an accessory dwelling unit is allowed by right
provided each of the following standards is met.
a.
An accessory dwelling unit is an allowed use in the base zones,
and any applicable overlay zones or special areas, where the accessory
dwelling unit would be located.
b.
The primary use of property for the proposed accessory dwelling
unit is a single detached dwelling.
c.
Up to 2 accessory dwelling units are allowed on a site with
a single detached dwelling. If there are 2 accessory dwelling units
on the site, only one may be attached to or within the primary structure.
d.
The development standards of Subsection 19.910.1.E are met.
e.
The proposal complies with all other applicable standards of
this title.
E.
Standards
1.
Creation
An accessory dwelling unit may be created by conversion of an
existing structure, addition to an existing structure, or construction
of a new structure. It is permissible to combine both an addition
to an existing structure and conversion of space in the structure
for the creation of an accessory dwelling unit.
2.
Coordination of Standards
In the event of a conflict between standards in Subsection 19.910.1.E
and other portions of this title, the more restrictive provisions
are applicable except where specifically noted.
3.
Standards for Attached Accessory Dwelling Units
The standards listed below apply to accessory dwelling units
that are part of the primary structure on the property.
a.
Maximum Allowed Floor Area
The floor area of an attached accessory dwelling unit is limited
to 800 sq ft. The measurements are based on the floor areas of the
primary and Accessory dwelling units after completion of the accessory
dwelling unit. This maximum size standard does not apply when the
basement of a primary dwelling unit is converted to an accessory dwelling
unit and the primary dwelling unit has been on the site for at least
5 years.
b.
Design Standards
(1)
The façade of the structure that faces the front lot
line shall have only 1 entrance. A secondary entrance for the accessory
dwelling unit is allowed on any other façade of the structure.
(2)
Stairs, decks, landings, or other unenclosed portions of the
structure leading to the entrance of the accessory dwelling unit are
not allowed on the façade of the structure that faces the front
lot line.
(3)
Proposals for attached accessory dwelling units that would increase
floor area through new construction are subject to the following design
standards.
(a)
The exterior finish on the addition must match
the exterior finish material of the primary dwelling unit in type,
size, and placement.
(b)
Trim must be the same in type, size, and location
as the trim used on the primary dwelling unit.
(c)
Windows on street-facing façades must match
those in the primary dwelling unit in proportion (relationship of
width to height) and orientation (horizontal or vertical).
(d)
Eaves must project from the building walls at the
same proportion as the eaves on the primary dwelling unit.
4.
Standards for Detached Accessory Dwelling Units
The standards in Subsection 19.901.1.E.4 apply to accessory
dwelling units that are separate from the primary structure on the
property. The design standards for detached accessory dwelling units
require a minimum level of design. These standards are intended to
promote attention to detail, while affording flexibility to use a
variety of architectural styles.
a.
Maximum Allowed Floor Area
The floor area of the accessory dwelling unit is limited to
800 sq ft of the floor area of the primary structure.
b.
Footprint, Height, and Required Yards
The maximum structure footprint, height, and yard regulations
for a detached accessory dwelling unit are listed in Table 19.910.1.E.4.b.
structures that exceed any of the maximums associated with an ADU
require Type II review.
|
Table 19.910.1.E.4.b
Footprint, Height, and Required Yards for Detached Accessory
Dwelling Units
| |
|---|---|
|
Level of Review
|
ADU
|
|
Maximum Structure Footprint
|
800 sq ft
|
|
Maximum Structure Height
|
25', limited to 2 stories
|
|
Required Side and Rear Yard
|
5'
|
|
Required Front Yard
|
Base zone requirement for front yard
|
|
Required Street Side Yard
|
Base zone requirement for street side yard
|
c.
Design Standards
(1)
A detached accessory dwelling unit must include at least 2 of
the design details listed below. An architectural feature may be used
to comply with more than one standard.
(a)
Covered porch at least 5 ft deep, as measured horizontally
from the face of the main building façade to the edge of the
deck, and at least 5 ft wide.
(b)
Recessed entry area at least 2 ft deep, as measured
horizontally from the face of the main building façade, and
at least 5 ft wide.
(c)
Roof eaves with a minimum projection of 12 in from
the intersection of the roof and the exterior walls.
(d)
Horizontal lap siding between 3 to 7 in wide (the
visible portion once installed). The siding material may be wood,
fiber-cement, or vinyl.
(e)
Window trim around all windows at least 3 in wide
and 5/8 in deep.
(2)
An applicant may request a variance to the design standards
in Subsection 19.901.1.E.4.c(1) through a Type II review, pursuant
to Subsection 19.911.3.B.
(3)
An accessory dwelling unit structure with a floor-to-ceiling
height of 9 ft or more is required to have a roof pitch of at least
4/12.
d.
Privacy Standards
(1)
Privacy standards are required for detached accessory dwelling
units.
Privacy standards are required on or along wall(s) of a detached
accessory dwelling unit, or portions thereof, that meet all of the
following conditions.
(2)
A detached accessory dwelling unit meets the privacy standard
if either of the following standards is met.
(a)
All windows on a wall must be placed in the upper
third of the distance between a floor and ceiling.
(b)
Visual screening is in place along the portion
of a property line next to the wall of the accessory dwelling unit,
plus an additional 10 lineal ft beyond the corner of the wall. The
screening must be opaque; shall be at least 6 ft high; and may consist
of a fence, wall, or evergreen shrubs. Newly planted shrubs must be
no less than 5 ft above grade at time of planting, and they must reach
a 6 ft height within one year. Existing features on the site can be
used to comply with this standard.
e.
Conversion of Existing Structure
Creation of a detached accessory dwelling unit through conversion
of an accessory structure legally established on or after June 3,
2022, the effective date of Ordinance #2218, is required to meet all
applicable standards for a new detached accessory dwelling unit.
Creation of a detached accessory dwelling unit through the conversion
of an existing accessory structure that was legally established prior
to June 3, 2022, the effective date of Ordinance #2218, is allowed.
The conversion must meet all standards that apply to creation of a
new detached accessory dwelling, except for the design standards in
Subsection 19.910.1.E.4.c., the maximum structure footprint, and minimum
setbacks. However, the floor area of the ADU must not exceed the maximum
floor area standard in Subsection 19.910.1.D.4.a. The conversion must
not bring the accessory structure out of conformance, or further out
of conformance if already nonconforming, with any design standards
in that subsection.
F.
Additional Provisions
A.
Purpose
This subsection is intended to complement the policies of the
Comprehensive Plan to provide for a variety of housing types including
manufactured dwelling parks in areas with suitable services and facilities
in zones allowing 6 to 12 dwelling units per acre.
B.
Application
1.
Manufactured dwelling park developments are only allowed in the R-3
and R-MD Zones. A site plan review is required prior to development
of a manufactured dwelling park within these zones. The development
must show conformance with all requirements of this subsection.
2.
Each application for a manufactured dwelling park shall include a
plot plan drawn to scale of the specific layout of the entire park.
The plot plan shall include both the dimensions and the existing and
proposed locations of all utilities, roadways, structures, parking,
landscaping and open areas, and manufactured dwelling spaces on the
site. In addition, the location of structures on adjacent properties
shall be shown.
C.
General Requirements
Manufactured dwelling parks shall be subject to review under Section 19.1006 Type III Review.
D.
Development Requirements
All manufactured dwelling parks shall meet the following minimum
requirements:
1.
The minimum size of a manufactured dwelling park shall be 2 acres.
2.
The number of units allowed in the manufactured dwelling park will
be subject to the density requirements of the underlying zone after
15% of the site has been deducted for access drives.
3.
A minimum setback of 15 ft will be observed between all manufactured
dwellings and the outer boundary of the manufactured dwelling park.
Exterior boundaries of the park shall be screened to a height of 6
ft by a sight-obscuring solid wall, fence, or evergreen or other suitable
hedge planting, exclusive of required openings. It shall be the responsibility
of the property owner to install and maintain required landscaping
and irrigation Systems.
4.
Each manufactured dwelling unit or accessory structure shall maintain
a minimum 10-ft setback from the private street and the nearest point
of the unit or accessory structure. If the manufactured dwelling space
is on the side of a private street bounded by a sidewalk, the unit
or accessory structure shall be set back 10 ft from the sidewalk.
Each unit or accessory structure shall be separated from any unit
or accessory structure on an adjacent space by a minimum of 15 ft.
5.
A minimum of 15% of the gross site area shall be reserved for common
open space for the use of all residents. Open space requirements may
include up to 100 sq ft per unit of indoor facilities. Outdoor open
space areas should be suitably landscaped.
6.
A manufactured dwelling park shall have an entrance drive from a
public street. Access to individual units shall be from private streets
within the site which have a minimum width of 24 ft of paving from
curb to curb. A paved sidewalk shall be provided along at least 1
side of each private street in the park and shall be a minimum of
4 ft in width. Parking shall be permitted on 1 side of those private
streets constructed with a minimum width of 30 ft of paving.
7.
When provided, off-street parking and recreational vehicle parking shall be developed as per Chapter 19.600.
8.
Except for a structure which conforms to the State definition of
a manufactured dwelling accessory structure, no other extension shall
be attached to a manufactured dwelling, except a garage or carport
constructed to the specifications of the Oregon State Structural Specialty
Code.
9.
All manufactured dwellings shall be set onto an excavated area with
perimeter foundation, and the excavated area shall be backfilled,
or the dwelling must be installed with an approved foundation siding/skirting
enclosing the entire perimeter of the dwelling. Foundation siding/skirting
and backup framing shall be weather-resistant, noncombustible, or
self-extinguishing materials which blend with the exterior siding
of the dwelling. Below grade level and for a minimum distance of 6
in above finished grade, the materials shall be resistant to decay
or oxidation. The siding shall be installed in accordance with manufacturer's
recommendations or approved equal standards.
10.
Requirements for lighting, utility systems, decks, play areas,
park sanitation, and maintenance not specified herein shall be those
specified in OAR 814-28 Mobile Home Parks and OAR 814-23 Mobile Homes,
Manufactured Homes, Recreational Vehicles and Accessory Buildings
or Structures.
11.
Standards of the underlying zone also apply except where otherwise
provided for in this subsection.
12.
The entire manufactured dwelling park shall comply with the
above requirements prior to occupancy.
A.
Requirements for Approval
Upon application of the property owner, the Planning Director
may approve the location of a temporary structure, such as a motor
home, recreational vehicle, or trailer house, for use as a temporary
residence during construction of a permanent Dwelling for a period
not to exceed 6 months where:
1.
There is an emergency hardship resulting from a natural catastrophe
such as fire, flood, storm, etc.
2.
The applicant has applied for a building permit for a permanent dwelling.
3.
The temporary structure will be owner-occupied.
4.
The temporary structure must be removed upon completion of the permanent
structure and prior to the issuance of the final certificate of occupancy.
5.
The use is consistent with the Milwaukie Comprehensive Plan.
6.
There is no other reasonable alternative to use of a temporary structure.
B.
Approval Conditions
In addition, the applicant must satisfy the following conditions
for approval:
1.
City approval of a sewage disposal system for the structure.
2.
Screening of the structure to minimize any adverse visual impact
on surrounding property.
3.
Placement of manufactured skirting around the structure.
4.
Any other condition imposed by the Planning Director to safeguard
the public health, safety, convenience, and general welfare.
(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2051 § 2, 2012; Ord. 2106 § 2 (Exh. F), 2015; Ord. 2110 § 2 (Exh. G), 2015; Ord. 2140 § 2, 2017; Ord. 2170 § 2, 2019; Ord. 2218 § 2 (Exh. B), 2022; Ord. 2226 § 2, 2023; Ord. 2229 § 2, 2023; Ord. 2235 § 2, 2023)
Variances provide relief from specific code provisions that
have the unintended effect of preventing reasonable development or
imposing undue hardship. Variances are intended to provide some flexibility
while ensuring that the intent of each development standard is met.
Variances may be granted for the purpose of fostering reinvestment
in existing buildings, allowing for creative infill development solutions,
avoiding environmental impacts, and/or precluding an economic taking
of property. Variances shall not be granted that would be detrimental
to public health, safety, or welfare.
B.
Ineligible Variances
A variance may not be requested for the following purposes:
1.
To eliminate restrictions on uses or development that contain the
word "prohibited."
2.
To change a required review type.
3.
To change or omit the steps of a procedure.
4.
To change a definition.
5.
To increase, or have the same effect as increasing, the maximum permitted
density for a residential zone.
6.
To justify or allow a Building Code violation.
7.
To allow a use that is not allowed outright by the base zone. Requests of this nature may be allowed through the use exception provisions in Subsection 19.911.5, nonconforming use replacement provisions in Subsection 19.804.1.B.2, conditional use provisions in Section 19.905, or community service use provisions in Section 19.904.
C.
Exceptions
A variance application is not required where other sections
of the municipal code specifically provide for exceptions, adjustments,
or modifications to standards either "by right" or as part of a specific
land use application review process.
A.
General Provisions
1.
Variance applications shall be evaluated through either a Type II
or III review, depending on the nature and scope of the variance request
and the discretion involved in the decision-making process.
2.
Variance applications may be combined with, and reviewed concurrently
with, other land use applications.
3.
One variance application may include up to three variance requests.
Each variance request must be addressed separately in the application.
If all of the variance requests are Type II, the application will
be processed through a Type II review. If one or more of the variance
requests is Type III, the application will be processed through a
Type III review. Additional variance requests must be made on a separate
variance application.
B.
Type II Variances
Type II variances allow for limited variations to numerical standards. The following types of variance requests shall be evaluated through a Type II review per Section 19.1005:
1.
A variance of up to 40% to a side yard width standard.
2.
A variance of up to 25% to a front, rear, or street side yard width
standard. A front yard width may not be reduced to less than 15 ft
through a Type II review.
3.
A variance of up to 10% to lot coverage or minimum vegetation standards.
4.
A variance of up to 10% to lot width or depth standards.
5.
A variance of up to 10% to a lot frontage standard.
6.
A variance to compliance with Subsection 19.505.1.C.4 Detailed Design,
or with SubSection 19.901.1.E.4.c.(1) in cases where a unique and
creative housing design merits flexibility from the requirements of
that subsection.
7.
A variance to compliance with Subsection 19.505.7.C Building Design
Standards in cases where a unique design merits flexibility from the
requirements of that subsection.
8.
A variance to fence height to allow up to a maximum of 6 ft for front yard fences and 8 ft for side yard, street side yard, and rear yard fences. Fences shall meet clear vision standards provided in Chapter 12.24.
9.
A variance of up to a 25% increase in the size of an Accessory Dwelling
Unit as identified in Subsection 19.910.1.E.4.
10.
A variance to interior height of a garage in a cottage cluster
to allow up to a maximum of 15 ft for cases that would use space saving
parking technology (e.g., interior car stacking) that might require
additional interior height.
C.
Type III Variances
Type III variances allow for larger or more complex variations to standards that require additional discretion and warrant a public hearing consistent with the Type III review process. Any variance request that is not specifically listed as a Type II variance per Subsection 19.911.3.B shall be evaluated through a Type III review per Section 19.1006.
A.
Type II Variances
An application for a Type II variance shall be approved when
all of the following criteria have been met:
1.
The proposed variance, or cumulative effect of multiple variances,
will not be detrimental to surrounding properties, natural resource
areas, or public health, safety, or welfare.
2.
The proposed variance will not interfere with planned future improvements
to any public transportation facility or utility identified in an
officially adopted plan such as the Transportation System Plan or
Water Master Plan.
3.
Where site improvements already exist, the proposed variance will
sustain the integrity of, or enhance, an existing building or site
design.
4.
Impacts from the proposed variance will be mitigated to the extent
practicable.
B.
Type III Variances
An application for a Type III variance shall be approved when
all of the criteria in either Subsection 19.911.4.B.1 or 2 have been
met. An applicant may choose which set of criteria to meet based upon
the nature of the variance request, the nature of the development
proposal, and the existing site conditions.
1.
Discretionary Relief Criteria
a.
The applicant's alternatives analysis provides, at a minimum,
an analysis of the impacts and benefits of the variance proposal as
compared to the baseline code requirements.
b.
The proposed variance is determined by the Planning Commission
to be both reasonable and appropriate, and it meets one or more of
the following criteria:
c.
Impacts from the proposed variance will be mitigated to the
extent practicable.
2.
Economic Hardship Criteria
a.
Due to unusual site characteristics and/or other physical conditions
on or near the site, the variance is necessary to allow reasonable
economic use of the property comparable with other properties in the
same area and zoning district.
b.
The proposed variance is the minimum variance necessary to allow
for reasonable economic use of the property.
c.
Impacts from the proposed variance will be mitigated to the
extent practicable.
A.
Applicability
A use exception is a type of variance intended to allow uses
that are not allowed outright or conditionally by a property's base
zone, overlay zones, or special areas. Use exceptions shall not be
granted to allow uses that are specifically prohibited by a property's
base zone, overlay zones, or special areas.
C.
Approval Criteria
Economic hardship shall not be a primary basis for allowance
of a use exception nor shall circumstances of which the applicant
had prior knowledge be considered upon application. The Planning Commission
may authorize exceptions to uses established by Title 19 upon a determination
that all of the following criteria have been met:
1.
Exceptional circumstances exist on or near the property over which
the property owner has no control.
2.
None of the allowed or conditionally allowed uses for which the property
is zoned are practicable.
3.
The proposed use will not be detrimental to surrounding properties,
natural resource areas, or public health, safety, or welfare.
4.
Impacts from the proposed use will be mitigated to the extent practicable.
A.
Intent
To provide a discretionary option for variances to maximum building
heights in the Downtown Mixed Use Zone to reward buildings of truly
exceptional design that respond to the specific context of their location
and provide desired public benefits and/or amenities.
B.
Applicability
The Type III building height variance is an option for proposed buildings that exceed the maximum heights or stories allowed through the bonuses specified in Figure 19.304-4, Subsection 19.304.5.B.3, and Section 19.510.
C.
Review Process
The building height variance will be subject to Type III review
and approval by the Planning Commission, in accordance with Chapter
19.907. The building height variance will be consolidated with downtown
design review.
1.
Because the building height variance provides substantial flexibility
and discretion, additional time may be required for public input and
technical evaluation of the proposal. To use this option, the applicant
will sign a waiver of the 120-day decision requirement.
2.
A special application fee may be required to use this Type III option
to allow the City to contract with a registered architect to assist
in the review of the height variance application.
3.
Design advice requests may not be made for a specific project or
site with an active land use review application.
4.
A special application fee may be required to use this Type III option
to allow the City to contract with a registered architect to assist
in the review of the height variance application.
D.
Approval Criteria
The approval authority may approve, approve with conditions,
or deny the building height variance based on the following approval
criteria:
2.
The proposed height variance will result in a project that is exceptional
in the quality of detailing, appearance and materials or creates a
positive unique relationship to other nearby structures, views or
open space.
3.
The proposed height variance preserves important views to the Willamette
River, limits shadows on public open spaces and ensures step downs
and transitions to neighborhoods at the edge of the Downtown Mixed
Use Zone.
4.
The proposed height variance will result in a project that provides
public benefits and/or amenities beyond those required by the base
zone standards and that will increase downtown vibrancy and/or help
meet sustainability goals.
A.
Intent
To provide a discretionary option for variances to maximum building
heights in the General Mixed Use Zone to reward buildings of truly
exceptional design that respond to the specific context of their location
and provide desired public benefits and/or amenities.
B.
Applicability
The Type III building height variance is an option for proposed
buildings that exceed the base maximum building heights specified
in Subsection 19.303.4.B.2.b and elect to use both of the available
height bonuses of Subsection 19.303.4.B.2 for a total building height
of 5 stories.
C.
Review Process
The building height variance shall be subject to Type III review
and approval by the Planning Commission, in accordance with Section
19.1011.
1.
Because the building height variance provides substantial flexibility
and discretion, additional time will be required for public input
and technical evaluation of the proposal. To use this option, the
applicant shall sign a waiver of the 120-day decision requirement.
2.
The applicant may request design advice from the Design and Landmarks
Committee prior to submitting an application. Design advice requests
provide the opportunity to assess approval potential prior to committing
excessive time or money to detailed design plans.
3.
Design advice requests may not be made for a specific project or
site with an active land use review application.
4.
A special application fee may be required to use this Type III option
to allow the City to contract with a registered architect to assist
in the review of the height variance application.
D.
Approval Criteria
The approval authority may approve, approve with conditions,
or deny the building height variance based on the following approval
criteria:
1.
The proposed project avoids or minimizes impacts to surrounding properties.
Any impacts from the proposed project will be mitigated to the extent
practicable. The applicant's alternatives analysis shall provide,
at a minimum, an analysis of the impacts and benefits of the variance
proposal as compared to the baseline code requirements.
2.
The proposed project is creative and is exceptional in the quality
of detailing, appearance, and materials or creates a positive unique
relationship to other nearby structures, views, or open space.
3.
The proposal will result in a project that provides public benefits
and/or amenities beyond those required by the base zone standards
and that will increase vibrancy and/or help meet sustainability goals.
4.
The proposed project ensures adequate transitions to adjacent neighborhoods.
A.
Intent
To provide a discretionary option for variances to the tree preservation and/or tree canopy standards in Section 16.32.042 to reward projects that provide significant environmental benefit.
B.
Applicability
The Type III tree preservation and tree canopy variance is an option for proposed developments that chooses not to, or cannot, meet the tree preservation and/or tree canopy standards specified in Section 16.32.042.
C.
Review Process
The tree preservation and tree canopy variance shall be subject to Type III review and approval by the Planning Commission, in accordance with Section 19.1006.
D.
Approval Criteria
The approval authority may approve, approve with conditions,
or deny the tree preservation and/or tree canopy variance based on
the following approval criteria. The applicant is required to demonstrate
that equivalent or greater environmental benefits are provided as
preserving or planting the required tree canopy. Examples of activities
that may justify a variance include, but are not limited to:
1.
Use of techniques that minimize hydrological impacts beyond regulatory
requirements (examples include porous pavement, green roofs, infiltration
planters/rain gardens, flow through planters, LIDA (low impact development
approach) swales, vegetated filter strips, vegetated swales, extended
dry basins, and constructed water quality wetlands).
2.
Use of techniques that minimize reliance on fossil fuels and production of greenhouse gases beyond regulatory requirements through the use of energy efficient building technologies, on-site energy production technologies, and green buildings standards (Section 19.510).
3.
Use of techniques that preserve and enhance wildlife habitat beyond
regulatory requirements, including, but not limited to, the use of
native plant species in landscape design, removal of invasive plant
species, and restoration of native habitat and preservation of habitat
through the use of conservation easements or other protective instruments.
4.
Use of techniques that preserve open space for sustainable urban
agriculture through the use of conservation easements or other protective
instruments at sites that are not compatible with tree canopy preservation
or planting.
