City of Milwaukie, OR Chapter 19.900 LAND USE APPLICATIONS

§ 19.901 Introduction

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)

§ 19.902 Amendments to Maps and Ordinances

(Ord. 2025 § 2, 2011; Ord. 2262, 3/3/2026)

§ 19.902.1 Purpose.

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.

§ 19.902.2 Applicability.

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.

C. Amendments to change the maps of the Milwaukie Comprehensive Plan, including maps within ancillary documents. Changes to these maps resulting from actions taken by Section 19.1104 Expedited Process are exempt from the requirements of Section 19.902.

D. Amendments to change the "Zoning Map of Milwaukie, Oregon," which is the map established by Subsection 19.107.2. Changes to this map resulting from actions taken by Section 19.1104 Expedited Process are exempt from the requirements of Section 19.902.

§ 19.902.3 Comprehensive Plan Text Amendments.

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, the Metro Regional Transportation Plan, the Metro Regional Transportation Functional Plan, and other 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.

§ 19.902.4 Comprehensive Plan Map Amendments.

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.

§ 19.902.5 Zoning Text Amendments.

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.

A. Review Process

Changes to Titles 14, 17, or 19 of the Milwaukie Municipal Code, or any land use regulation as defined by ORS 197.015, that are described by Subsection 19.902.2.B shall be evaluated through a Type V review per Section 19.1008.

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, the Metro Regional Transportation Plan, the Metro Regional Transportation Functional Plan, and other 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.

6. The proposed amendment is consistent with relevant goals and policies of the Transportation System Plan.

§ 19.902.6 Zoning Map Amendments.

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.

2. Changes that affect both the Zoning Map and text of Titles 14, 17, or 19, or other land use regulations within the Milwaukie Municipal Code shall be evaluated through a Type V review per Section 19.1008. These changes are subject to the approval criteria of Subsections 19.902.5.B and 19.902.6.B.

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:

1. The proposed amendment is compatible with the surrounding area based on the following factors:

a. Site location and character of the area.

b. Predominant land use pattern and density of the area.

c. Expected changes in the development pattern for the area.

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.

§ 19.903 Code Interpretations and Director Determinations

(Ord. 2025 § 2, 2011)

§ 19.903.1 Purpose.

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.

§ 19.903.2 Applicability.

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.

§ 19.903.3 Review Process.

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.

B. Review Procedures

1. Code interpretations are evaluated through a Type I review per Section 19.1004. In addition to other notice provisions, a copy of the notice of decision shall be sent to the Planning Commission and City Council.

2. Director determinations are evaluated through a Type I review per Section 19.1004.

§ 19.903.4 Approval Criteria.

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:

a. The proposed use and uses that are allowed outright are comparable with respect to the characteristics described below.

(1) Hours of operation.

(2) Generation of off-site impacts such as noise, lighting glare, dust, and odors.

(3) Employment and customer characteristics.

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.

b. The nonconforming use has been legally maintained over time and has not been discontinued or abandoned, as described by Subsection 19.803.2. Evidence to address this criterion may include the following items:

(1) Utility bills.

(2) Income tax records.

(3) Business licenses.

(4) Listings in telephone, business, and Polk directories.

(5) Advertisements in dated publications; e.g., trade magazines.

(6) Building, land use, or development permits.

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:

a. Title report, including related instruments of conveyance.

b. Plats on file with the Clackamas County Surveyor.

c. Deeds recorded with the Clackamas County Recorder.

d. Land use applications and decisions from the City of Milwaukie or Clackamas County.

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.

§ 19.903.5 Other Provisions for Code Interpretations and Director Determinations.

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.

§ 19.904 Community Service Uses

(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; Ord. 2260, 1/20/2026; Ord. 2262, 3/3/2026)

§ 19.904.1 Purpose.

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.

§ 19.904.2 Applicability.

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.

D. Communication Facilities

1. Telephone switching station;

2. Telephone, microwave facilities;

3. Radio and television transmission facilities, including studios;

4. Wireless communication facilities.

§ 19.904.3 Review Process.

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.

§ 19.904.4 Approval Criteria.

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;

B. Specific standards for the proposed uses as found in Subsections 19.904.7-11 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.

§ 19.904.5 Procedures for Reviewing a Community Service Use.

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;

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

8. Requiring adequate public transportation, pedestrian, and bicycle facilities.

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.

§ 19.904.6 Application Requirements.

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.

§ 19.904.7 Specific Standards for Schools.

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.

G. Off-street parking (including buses) shall be provided as per Chapter 19.600.

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.

§ 19.904.8 Specific Standards for Institutions—Public, Private, Religious, and Other Facilities not Covered by Other Standards.

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.

§ 19.904.9 Specific Standards for Solid Waste Facilities.

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.

D. Noise

Noise levels shall comply with Chapter 8.08 of the Milwaukie Municipal Code.

E. Storage

All materials shall be stored within an enclosed building except as follows:

1. Where all materials are stored within an area enclosed by a solid, opaque wall or fence 8 ft or more in height and landscaped along all street frontages, and

2. When located at least 250 ft from property planned, zoned, or used as residential, and,

3. Where all materials are nonputrescible.

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.

§ 19.904.10 Standards for Wireless Communication Facilities.

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.

e. Any maintenance or repair of previously approved wireless communications facilities provided that such activity does not increase the height, width, or mass of the facility.

f. Antennas and equipment completely located within an existing structure whose purpose is to enhance or facilitate communication function of other structures on the same property.

g. Small cell wireless facility within the right-of-way, subject to the following:

(1) Small cell antennas and accessory equipment mounted to existing public infrastructure or small cell monopoles, when they meet all conditions outlined in 47 CFR 1.6002;

(2) A valid lease, license, or franchise agreement is in place for the use of the public facility improvement or public infrastructure;

(3) A right-of-way permit has been issued for the installation of the antenna and accessory equipment;

(4) The color of the antenna and accessory equipment are of similar color to the; supportive infrastructure;

(5) All small cell wireless facilities must comply with the Milwaukie Public Works Standards, including Section 5.0210.

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:

(1) Changing the number of antennas.

(2) Removal of existing transmission equipment.

(3) Replacement of existing transmission equipment.

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:

a. A narrative description of:

(1) Tower location;

(2) Design;

(3) Height;

(4) Antenna location and type for all planned antennas;

(5) Indication of the number of additional antennas the tower will be able to accommodate;

(6) Right-of-way license number; and

(7) Type of service provided.

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.

a. Height Restrictions

The maximum height limitation of the monopole tower and antennas shall not exceed the following:

(1) BI, M, NME, and MUTSA Zones: 100 ft.

(2) New towers are not permitted in the R-HD, R-MD, GMU, NMU, C-N, C-G, C-L, OS, and DMU Zones.

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.

4. Lighting

a. The minimum security lighting necessary, as required by the FAA, to secure the tower shall be permitted. All security lighting must be directed downward onto the tower compound itself.

b. Lights on existing antenna support structures may remain.

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:

a. The driveway shall not exceed 10 ft in width.

b. On a site with an existing use, access to the site shall be achieved through existing drives to the greatest extent practicable.

c. Any portion of the access drive located within the front yard of a parcel shall be paved with asphalt or concrete.

8. Signage

a. Advertising is not permitted.

b. Identification signs are permitted, but are not to exceed 4 sq ft in area.

c. Additional signage as required by law shall be permitted.

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:

(1) Changes in or loss of FCC license from the FCC to operate;

(2) Receipt of notice of failure to comply with the regulations of any other authority over the business or facility;

(3) Loss or termination of lease for the WCF for a period of 6 months or longer.

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.

§ 19.905 Conditional Uses

(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; Ord. 2262, 3/3/2026)

§ 19.905.1 Purpose.

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.

§ 19.905.2 Applicability.

A. This section applies to the establishment of a use identified as a conditional use in the base zone in Chapter 19.300 and any overlay zones or special areas in Chapter 19.400 that are applicable to the property on which the use is proposed.

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.

§ 19.905.3 Review Process.

A. Establishment of a new conditional use, or major modification of an existing conditional use, shall be evaluated through a Type III review per Section 19.1006.

B. Minor modification of an existing conditional use shall be evaluated through a Type I review per Section 19.1004.

§ 19.905.4 Approval Criteria.

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.

7. Adequate public transportation facilities and public utilities will be available to serve the proposed use prior to occupancy pursuant to Chapter 19.700.

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.

§ 19.905.5 Conditions of 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, pedestrian, and bicycle facilities and public utilities prior to occupancy.

§ 19.905.6 Conditional Use Permit.

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:

1. There is a change in use.

2. The permit is suspended per the procedures in Subsection 19.905.7.

3. The use is discontinued as described in Subsection 19.905.8.

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.

§ 19.905.7 Review of Existing Conditional Use Permits.

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.

§ 19.905.8 De Facto Conditional Use Status and Loss of Conditional Use Status.

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.

2. It had not previously undergone conditional use review.

A de facto conditional use does not require a conditional use permit. Modifications to a de facto conditional use shall be evaluated per Subsections 19.905.3 and 4.

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.

2. The conditional use or de facto conditional use has been discontinued or abandoned as defined in Section 19.201 for more than 2 years. This discontinuation applies only to properties that both:

a. Received conditional use approval or became de facto conditional uses on or after May 14, 2011, the effective date of Ordinance #2025.

b. Are not residential conditional uses or residential de facto conditional uses.

§ 19.905.9 Standards Governing Conditional Uses.

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.

F. Multifamily Dwellings

In considering a conditional use application for multifamily dwellings, the Planning Commission shall consider the following:

1. Relationship to neighboring uses.

2. Street access.

3. Terrain of the site.

G. Vacation Rentals

Operation of a vacation rental requires the following:

1. Prior to initial occupancy, the Building Official shall verify that building code and fire code standards are satisfied.

2. With annual filing of MMC Title 5 Business Tax, the operator shall send a notice to neighbors within 300 ft that includes the following information:

a. Property owner contact information;

b. Vacation rental operator and/or property manager contact information; and

c. City of Milwaukie Police nonemergency telephone number.

§ 19.906 Development Review

(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2161 § 2, 2018; Ord. 2218 § 2 (Exh. B), 2022)

§ 19.906.1 Purpose.

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.

§ 19.906.2 Applicability.

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.

5. Temporary events as allowed in Chapter 11.04.

§ 19.906.3 Review Process.

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.

§ 19.906.4 Approval Criteria.

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:

A. The proposal complies with all applicable base zone standards in Chapter 19.300.

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.

§ 19.907 Downtown Design Review

(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)

§ 19.907.1 Purpose.

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.

§ 19.907.2 Applicability.

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.

B. Type I

The following projects are subject to Type I downtown design review:

1. New development and expansions or modifications of existing development that meet the applicable downtown design standards of Section 19.508.

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.

D. Type III

The following projects are subject to Type III downtown design review:

1. Any project, at the applicant's option.

2. A project, addition, or expansion that proposes to meet one or more of the design guidelines of Section 19.508 in lieu of complying with the design standards of Section 19.508 because additional design flexibility is desired.

3. A project that does not fit the applicability for Type I or II review.

§ 19.907.3 Review Process.

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. Review Types

To achieve the purpose of the downtown design standards and guidelines, there are 3 downtown design review processes through which to apply for approval:

1. Type I

The ministerial review track provides for a Type I review process pursuant to Section 19.1004 using the design standards in Section 19.508.

2. Type II

The administrative review track provides for a Type II process pursuant to Section 19.1005 that requires staff review utilizing the design standards and applicable guidelines in Section 19.508.

3. Type III

The discretionary review track provides for a Type III review process pursuant to Section 19.1006, through which the Planning Commission determines compliance with the downtown design guidelines in Section 19.508.

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.

§ 19.907.4 Application.

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:

1. For Type I downtown design review, how the proposal is consistent with applicable downtown design standards in Section 19.508.

2. For Type II and III Design Review, how the proposal meets applicable design standards and/or design guidelines in Section 19.508.

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.

§ 19.907.5 Approval Criteria.

A. Type I Downtown Design Review

An application for Type I downtown design review will be approved when all of the following criteria have been met:

1. Compliance with Title 19.

2. Compliance with applicable design standards in Section 19.508 and any prior land use approvals.

B. Type II Downtown Design Review

An application for Type II downtown design review will be approved when all of the following criteria have been met:

1. Compliance with Title 19.

2. Compliance with applicable design standards and/or design guidelines in Section 19.508.

C. Type III Downtown Design Review

An application for Type III downtown design review will be approved when all of the following criteria have been met:

1. Compliance with Title 19.

2. Compliance with applicable design standards in Section 19.508.

3. Compliance with the applicable design guidelines in Section 19.508 being utilized in place of the applicable design standard(s).

§ 19.907.6 (Reserved)

§ 19.907.7 Variances.

A. Variances cannot be granted for the downtown design standards of Section 19.508. applications unable to meet one or more standards must meet the applicable downtown design guideline(s) in Subsection 19.508.4 instead and use the Type III discretionary downtown design review process.

B. Variances can be granted for the downtown development standards of Section 19.304 unless otherwise specified, through the variance review process in Section 19.911.

§ 19.907.8 Public Notice for New Buildings Approved with Type I Review.

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.

§ 19.908 Extensions to Expiring Approvals

(Ord. 2025 § 2, 2011; Ord. 2036 § 3, 2011; Ord. 2242, 4/16/2024)

§ 19.908.1 Purpose.

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.

§ 19.908.2 Applicability.

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.

§ 19.908.3 Review Process.

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.

B. Review Types

1. If the original application was approved through a Type I review, the extension application shall be evaluated through a Type I process.

2. If the original application was approved through a Type II or Type III review, the extension application shall be evaluated through a Type II review per Section 19.1005 in order to provide public notice and opportunity for public comment.

§ 19.908.4 Approval Criteria.

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.

§ 19.909 Modifications to Existing Approvals

(Ord. 2025 § 2, 2011)

§ 19.909.1 Purpose Statement.

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.

§ 19.909.2 Applicability.

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.

§ 19.909.3 Review Process.

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:

a. Submittal and approval of a modification application to modify the original approval per this section.

b. Withdrawal of the original land use application and resubmittal of the application with the proposed modifications.

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.

2. Major or Minor Modification of Original Type II Approval

Minor modifications shall be evaluated through a Type I review per Section 19.1004. Major modifications shall be evaluated through a Type II review per Section 19.1005.

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.

§ 19.909.4 Approval Criteria.

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

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.

§ 19.909.5 Conditions of Approval.

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.

§ 19.910 Residential Dwellings

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; Ord. 2260, 1/20/2026)

§ 19.910.1 Accessory Dwelling Units.

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 stand alone detached accessory dwelling units and to accessory structures that contain 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.

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. A variance of up to a 25% increase in the floor area and/or structure footprint of an Accessory Dwelling Unit as identified in Subsection 19.910.1.E.4 is subject to Type II review, per Subsection 19.911.3.

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.

(a) The wall is within 20 ft of a side or rear lot line.

(b) The wall is at an angle of 45 degrees or less to the lot line.

(c) The wall faces an adjacent residential property.

(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.E.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

1. Accessory dwelling units are not counted in the calculation of minimum or maximum density requirements listed in this title.

2. Additional home occupations are allowed for a property with an accessory dwelling unit in accordance with the applicable standards of Section 19.507.

§ 19.910.3 Manufactured Dwelling Parks.

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.

B. Application

1. Manufactured dwelling park developments are only allowed in the R-HD 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 1acre.

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. 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.

10. Standards of the underlying zone also apply except where otherwise provided for in this subsection.

11. The entire manufactured dwelling park must comply with the above requirements prior to occupancy.

§ 19.910.4 Temporary Dwelling Units.

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.

C. Review Process

Applications for temporary structures shall be evaluated through a Type I review per Section 19.1004. Temporary permits that exceed the 6-month time period allowed under Subsection 19.910.4.A shall be evaluated through a Type III review per Section 19.1006.

§ 19.911 Variances

(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; Ord. 2249, 2/18/2025; Ord. 2256, 9/2/2025; Ord. 2260, 1/20/2026)

§ 19.911.1 Purpose.

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.

§ 19.911.2 Applicability.

A. Eligible Variances

Except for situations described in Subsection 19.911.2.B, a variance may be requested to any standard or regulation in Titles 17 or 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.

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 justify or allow a Building Code violation.

6. 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.

§ 19.911.3 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 will 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 floor area and/or structure footprint 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.

11. A variance of up to a 25% increase to the maximum density standard in residential and mixed-use zones.

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.

§ 19.911.4 Approval Criteria.

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.

5. The proposed variance would allow the development to preserve a priority tree or trees, or provide more opportunity to plant new trees to achieve 40% canopy, as required by Chapter 16.32 (when applicable).

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:

(1) The proposed variance avoids or minimizes impacts to surrounding properties.

(2) The proposed variance has desirable public benefits.

(3) The proposed variance responds to the existing built or natural environment in a creative and sensitive manner.

(4) The proposed variance would allow the development to preserve a priority tree or trees, or provide more opportunity to plant new trees to achieve 40% canopy, as required by Chapter 16.32.

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.

§ 19.911.5 Use Exceptions.

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.

B. Review Process

A use exception shall be evaluated through a Type III review per Section 19.1006.

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.

§ 19.911.6 Building Height Variance in the Downtown Mixed Use Zone.

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:

1. Compliance with the downtown design guidelines in Subsection 19.508.4.

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.

§ 19.911.7 Building Height Variance in the General Mixed Use Zone.

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 must 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.

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.

§ 19.911.8 Tree Preservation and Tree Canopy Standards Variance.

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.