HomeMy WebLinkAboutAgenda Packet - 2004-08-23 ``,. SAKEOli City of Lake Oswego
PlanningCommission
,t4
`- -,-0,
1 Monday, August 23, 2004
OREGO$ 6'00 L"m'
Work Session
Members:
Kenneth L. Sandblast,Chair City Hall Council Chamber
Frank Groznik,Vice Chair 380 A Avenue
Mary Beth Coffey,Julia Glisson,Mark Stayer, Lake Oswego, OR 97034
Daniel Vizzini and Alison Webster
For Information: 503/635-0290
Council Liaison: Jack Hoffman
AGENDA
This meeting is in a handicapped accessible location. For any special accommodations,please
contact Iris Treinen, 503/697-6591, 48 hours before the meeting.
I. CALL TO ORDER
II. ROLL CALL
III. CITIZEN COMMENT—Regarding Issues Not On the Agenda(3 minute limit per individual)
IV. APPROVAL OF MINUTES
June 28, 2004
July 12, 2004
V. GENERAL PLANNING—WORK SESSION
• Variances and Adjustments—LU 04-0055 (P 04-0007)
Staff coordinator is Dennis Egner, Long Range Planning Manager.
• Partitions and Flag Lots—P 04-0008
Staff coordinator is Dennis Egner, Long Range Planning Manager.
VI. OTHER BUSINESS
V I I. ADJOURNMENT
OFtAREos Community Development
O,�� �� w�OO
�� ' Department
,�
/" Memorandum
opcWN
TO: Plannine Commission
FROM: Demiis �gner, AICP, Long Range Planning Manager
DATE: Au�ust 19, 2004
SIIBJECT: Class 1V'ariances LU 0�}-0055 (I' 04-0007)
On August ]0, 2004, the Planning Commission discussed proposed amendments to
variance criteria and standards to expand the applicability of Class 1 variances. The
Conunission requested that the following items be given additional consideration prior to
a public hearing on the proposaL
l. Is there a need to detine the scope of"neighborhood" in tlie first criterion: "scale
and cliaracter of the neighborhood"? And is the neighborhood different than, or the same
as, the notice area?
Depuq� City Attorney Evan Boone notes that neiehborhood should not be given specific
distance, or refer to the neighborhood association boundaries, because similar to tlte
conditional use standard of"reasonabl} compatible with uses in its vicinit}�", the area of
impact caused by the development defines the area of concern.
2. Is the "scale, character" in the third criterion -- "tl�e scale, character and privacy to
properties within 300 feet of the property" -- duplicative oCthe first criteriott. so that in
the third criterion we should be focusing only on tl�e privac}' issue?
Mr. Boone notes that scale a��d character impact on tl�e neighborhood can be different
than scale and character on adjacent properties, because a large house might not have a
negative impact on the nei�hborhood generally, but when viewed i�� relation to tl�e
smaller houses of its immediate neighbors, there might be different findings.
In addition. Commission members felt that the third criterion should address the fine
erain detail of compatibility with immediate neighbors while the first criteriou should
address the broader concept of how the development fits into the neighborhood as a
whole. Staff has amended the criteria to respond to the Commission's direction.
Plannine Commission ACork Session Pacc 1
Aueus�-,- '_OU�y _
3. Applicability
a. Whetl�er tlie currcnt limitatiou oi� yard setbacks for non-sin�le fan�il��
d�vellings oC< 2 Feet for side or Cront. and < 5 feei ior rear yard should he
expanded for Class 1-
We may find that there are instances �vhcre no liardship can be deiuonsu��ted
but that a yard adjustment greater than '_' feet might be perfectly reasonable
with no si�iificant impacts on neigl�bors. Staff has changed Uie proposal to
allo��� tlle sethack adjustments of�0°ib for non-single family dwellings.
b. There was diseussion about whether a full 100% variattce from the Os���ego
Lake setback should be as a Class 1+, or whether a lesser percentage would he
appropriate.
Mc Boone has argued that due lo the unique setback that the lake �vaters offer, and the
freyuent presence of Lake Oswego Corporation property between the properiy boundar�.
that there is always an underlying side yard or rcar yard setback that would also ha�c to
be varied and those setbacks can not be reduced to 0 under the proposed Class 1
procedure. The key issue is whether one can show the vanance. does not hann the
neigitborhood or privacy of neighbors.
To address Commission concern, staff has reduced the Class 1 ' vaiiance to �0°�� of the
required setback.
Key Issues for Commission consideration:
1. Do the revised criteria adequately address the chan��e in perspectiec trom thc
overall nei_hborhood to the neighboring properties'?
2. How should we address the lake setback°
3. Should the applicability section be expanded to allow Class 1+ variances for
building heieht, front setback planes, and lot width/depth requirements?
Attachmenis:
1. Va�iance Proposal - Au�ust 18, 200d
Planning Cocmnission Work Session Pa��c 2
Aueust 23, 2004
A Proposal to Expand the Applicability aud
Re��ise the Criteria for Class 1 Variances
August 18, 2004
Overview
Present:
The current Class 1 va�iance was revised in 2000 (LU 99-0059) to eliminate the
necessity of showing a l�ardship for variances to the Code requirements that
would have "little or no effecY' on adjacent neighbors and no impact on natural
resources /traff c. Tlie applicability of Class l is limited to very small incursions
into the setbacks or small cl�anges from the code requirements, i.e., less than 20%
ofthe yard setUacks.
In the past 3+ years, a Class 1 variance has been granted if there is no showing of
a�naterial injury on surroundin�property and no impact on natural resources/
ttaffic. Absent a showina of some matenal impact on surrounding properties,
�ehich is generally sho���n by the presence of neighbor objections or comments to
the variance request, no design requirements are needed as a condition of
approval to mi[igate any adverse impacts.
The Problem:
Class 1 —no hardship — variances are available in only limited instances. Staff
l�as found that the applicabiliry of a Class 1 variance should be expanded. Tl�e
motivation to examine the re-examine the criteria and applicabiliry of Class 1
variances arises from small expansions to existing structures.
Although a small expansion was thought not to be harmful to the neighbors and
tl�e neighborhood, an applicant ma_y fail to qualify for a variance because:
• The amount of variance exceeded the limited Class 1 applicability; but
• The applicant failed to qualify for a Class 2 variance because the applicant
��as not been denied reasonable use of the property (no hardship to the
applicant).
Tl�e initial thought is to expand the applicability of Class 1 variances. However,
in expanding the applicabilit}�of Class 1, there is a greater potential that, at least
in some instances, the development will have an impact on more than just the
properties located within 300 feet, or that even in the absence of specific
comments from neiehbors, the development proposal �vill be inconsistent with the
overall nei�hborhood development pattem or general purposes of the zone
requirements. As the magttitude of the variance increases. the need to address the
impact of the development upon a lar�er concept of neighborhood also increases.
Planning Commission 1 LU 04-0055 (P 04-0007)
Worl: Session— Au�;ust "_'3. �004
Au eaisting altemative to Class 1 variance, but still without tl�e necessity of the
applica��t ro show a hardship, is the Residential Infill Design Review (RTD
Review) standards. RID Review is generally applicable to i�ew construction or
major reconstruction because it requires that the design of the resulting
development Ue "equal or greater" than could be constructed in accordance ��ith
the code. Typically, small additions to existing construction would not meet the
"equal or greater" test for RID Revie���.
The Proposal:
Expand the applicability oCClass 1, but change ihe criteria so that tl�e affect ot'a
development proposal could be examined based upon the impact ro the
neighborhood and streetscape (which is referred [o here as Class l+ for purposes
of discussion, and to distinguish from current Class 1 applicability and criYenal.
The proposal borrows from the concepts underlying the RID Review standards,
but adopts a "no liarm" test, rather tl�an RID's `equal or better".
The ability to impose design solutions currently exists for Class 1 and Class 2
variances, through the use of conditions of approval to mitigale ihe impact of the
variance. Under Class 1 applicability, no design conditions have been imposed on
those applications dunn� ihe past 3� years because the applicability of Class 1 is
limited to "little or no effect"to adjacent properties. By expanding tUe
applicability of Class 1, to Class 1=, the potential necessity to impose design i
landscaping solutions to mitigate the impact will be increased. But that does not
mean that a design / landscapina condition of approval need be imposed in ever�
Class 1+ variance approval.
Staff may adopt an administrative guideline to ehe effect that in cases tl�at are
within the current Class 1 ��ariance applicability, there is most likeh�not a hann
under Yhe tluee new criteria (because those variances currently have "little or no
effect"on neighboring property and thus are not likely to result in a harm on tl�e
neighbors, greater neigl�borhood, or lhe streetscape th�t requires a dcsign /
landscape solution.
But when a Class l+ va�iance is sou�ht for dcvelopment that is greater than tl�e
cun'ent Class 1 variance applicability limits, lhe administrative guideline could
suggest that a closer eye must be�iven as to whether or not design / landscaping
solutions are necessary far the development not to create hami on neighbors, the
neighborhood, or the streetscape. This does not mean ihat in every case where tl�e
Class 1+ variance is areater than the current Class ] variance applicability a
desi�i / landscape solution is necessar}�. In some cases, there may be no harm on
the neiahbors, the neiehborhood, or streetscape and hence no desim� / landscape
solution is required. I�� other case, a design % landscape solution may be necessar��
in order for the ��ariance request to iueet the "no hami" standard under the Class
Planiiin�= Commission 2 LU 04-005� (P 04-0007)
Work Session —Au�ust ?3, 200�
]+ variance criteria. The guidelinc merely suggests that a closer examination of
impact be �iven.
Staff's threshold for a "design/ landscaping" analysis does not preclude
neighbors from showing tliat a development proposal that what would no�v be a
Class 1 variance does, in fact, have harm,just as they can now show that
mitigation is reyuired for a Class I variance.
Summarv:
Because the applicabiliry of Class 1 vatiances is being expanded to situations that
would require design/ ]andscape solutions to miti�ate the impact of a variance,
the criteria of what constiwtes a negative impact needs to be more clearly stated,
to assist applicants a�id neighbors in deciding �vhether a design / landscape
solution should be considered in the application. Staff may, through a statement
of administrative guideline, indicate those [ypes of Class 1+ variances that
generally would not have a negative impact to the neighborhood, to guide both
applieants and staff in review of variance applications—specifically, the eurrent
Class 1 variances have, through application, not bee� foimd to require a desig�� %
landscape miti�ation.
Planning Couunission 3 LU �4-0055 (P 04-0007)
ti�ork Session — Au�usl _'3, 201�4
LOC g0.68.010 Variance Standards
1. The reviewin, authority may gzant a �anance fiom the requirements of this Code, except as
expressly prohibited, iC it is established that:
a. Class 1 (Minor) Variance Standards.
i. The erantine of the vari�nce ���ill not re,ult in an incompatible ne�ative
relationshio between the oroposed develoament and: � � ,
A. The eeneral scale and oh<uacter of ihe lareer nciehbnrhood %
,, �.
This is the `ho harm" test akin to tTie"fiouse size" test for RID Review-�'
Loc so.�z.ozo�z���).
[3. �I-he scale and cl�ar�cter of anv4he street abuttint� the develooment includin� �
the overall streetscape and= �,�.�:;-R;cn the safetv or e�perience of e-nede5tri�ms usin¢ the{�p� streer
and
This is the "no harm" test akin to the "relationship to the stieet" test for
RID Re4�ew-LOC 50.72.0?0(2)(b).
C �Thc � ,n,�crties within 300 fcct of thc
}�r�rH+clzrelopment cons'iderin�_ desi�m detail� that c�leci —scalc character �nd Pri� �c�
1'k�is is fhe "no l�arm" test akin to the "relatibnship to the� neigl�bors" test
for RID Review, EXCEY'1'ruther than using "adjoining neighbors", wl�ich
would ]imit the scope to immediately adjoi�ing neighbors (See LOC
50.02.00�, "adjoinin;"), tlie area of concem was retained at 300 feet.
which is the current Class 1 "zone of impact". "Neighboring pr�per[ies"
was no[ used because that oould ha��e been interpreted to ]imit criterion A
above to thz same "pri�ac}•zonc".
i. "�'—,;;r-��-�{=tlae-�:t+i:++a�-w+{I-Hrrt-l��taetri+thwtn! Ea E!�^ � .�.�:� ?:,,:,�:, ;. ,�,#
r
�rrc+ . . . ' ��ttf??C'Rh-Kik�i++i-_`���.�.}:�. '--�:.�`�-F:f.=7ic1"fi-.
"Ihis section is delcted as it is thought that the new criteria A, B, ai�cl C
embody the "puUlic health and safety" and "matenally injurious" to
property standard.
ii. The proposed development will not adversely affect existing physical and natural
systems such as traffic, drainage, Oswego Lake, hillsides; designated sensitive lands, historic
resources, or parks, and the potential for abutting properties to use solar energy devices am more
than would occur if the development were locatzd as speclfled by the requirementc of the zone.
No change to the `'natural resource"no impact criterion.
b. Class 2 Variance.
i. Class 2 Variance Standards.
(1) The requestis necessary to prevent unnecessarc hardship; and.
Plannin�Com�nission 4 LU 04-00�5 (P 0�J-00�7)
�Vork Scssion- Aueust 23. 3004
(2) Developmen[ consistent �vith [he request will not be injurious to the
neighborhood in which the property is located or to property established to be affected by the
request; and,
(3) The request is the minimum variance necessary to make reasonable use of the
property; and,
(4) The request is not in conflict with the Comprehensive Plan.
ii. Class 2 Vanance Pactors and Considerations.
In evaluatine whether a particular request is to be granted, the gran[ing authorit��
shall consider[he following,together with any other relevant facts or circumstances:
(1) Relevant factors to be considered in determining whe[her a hardship exists
include:
(A) Physical circumstances related to the piece of property involved.
(B) Whether a reasonable use similar to like propeRies can be made of the
proper[y without the variance.
(C) Whether the hardship was created by the person reyuesting the variance.
(D) The economic impact upon the person requesting the variance if tl�e
request is denied.
(2) Relevant Sactors to be considered in determining whether development
consistent with the request is injurious include:
(A) An analysis of the physical impacts such development will have, such as
visual,noise, fraffic and the inereased potential for drainage, erosion and landslide hazards.
(B) The perceptions of residents and owners of property in the neighborhood
conceming the incremental impacts occurring as a result of the proposed vanance.
2. A determination of whether the standards set forth in subseciion l(b)(i) are satisfied
necessarily involves the balancing of competing and conflicting interests. The considerations listed
in subsection 1(b)(ii) (1) and (2) are not standards and are not intended to be an exclusive list of
considerations. The considerations are to be used as a guide in the granting authonty's
deliberations.
, (Repeal pronosed in CDC Uodate 2004) �
LOC 50.68.015 Classification of Variances
A variance whicl� would allow development not in conformance with the requirements of the
development standards may be granted.
1. Class 1 (+»i+�y-variances are �changes from the Code requirements �H
wi�4that eenerallv have little or no sienifican[ e4fett-im�1ct on �he neiehborhood. streetscape, or
neiehbors„a;,,,.,..., .._,....._... .............
Class 1 �fvariances include:
Planning Commission 5 LU 04-0055 (P 04-0007)
Work Session -August 23, 2004
Standard to be Varied Current Class 1 applicabilit� Recottnnended for inclusion
as Class 1+
1'ard Setbacks, when Less than 20°io Less than 50%
residential single family
dwelling and accessory
structures that don't comply
with LOC 50.14.005(a-c).
Yard Setbacks, non-single <2 feet for side or front yard n'�, �.�„a„��Less than �0%
family dwelling <� feet for rear yard
Oswego Lake Setback Probably treated as 20% - �°�Less than 50%
technicallv should be Class 2
Building Heigh[ None (Class 2) Class 2, except for building
heightchanges when changing
from a tlat to a pitched roof
Front Yard Setback Plane Class 2 No change(Class 2)
Side Yard Setback Plane Class 2 Less than or e ual to 25"/�
Lot Width or Dcpth < 5 feet No change
Lot Coverage, single family < 15% Less than or equal to 25°�0
and accessory, small platted
lots
FAR, single family and < 15°io Less than or equal to 25%
accessor •. small platted lots
Fence Requirements, includin� All No change
fence heieht
Pri��ate Street or Drive���ay All No change
Grade
Consmicuon of a dormer that All No change
does not exceed the height o£
[he roo1� ridge in which the
domier is being constructed in
an existin� single family
detached dwelling that is non-
conforming relative to lot
coverage orsetbacks
Distance of driveway from All No change
intersections (LOC 50.58.015).
Street frontage (LOC All No change
50.57.015).
Drivewa}�width for Flag Lots All No chan�e
(LOC 50.20_020).
Changes to below standards would be made to conform[o table abovc. �i
Planning Commission 6 LU 04-0055 (P 04-0007)
Work Session — August 23, 2004
a. Variance fiom yard setback requiremenis for a single-laniily dwelling, or its
associated accessory structure that does not comply with the three criteria set forth in LOC
�0.14.005 (5)(a)-(c),of 20%,or less.
b. Vanance from yard setback requirements for a sh-ucriue other than those described in
subsection (1)(a) of this section of two feet or less in side or fronC yards or five feet or less in rear
yards.
c. Variances from minimum lot width or depth of 5 feet or less.
d. Variances in lot coverage or [loor area ratio (FAR) on platted lots which were platted
��ith an area less than the curtent zoning requiremen[ for single-family residential dwellings and
acces,ory structures of up to and including 15°�0 of the maximum allo���ed lot coverage or FAR.
e. Variations from maximum fence height restrictions.
f. Variation to the maximum grade of a private street or dnveway.
g. Variances for construction of a dormer that does not exceed the height of the roof
ridee in which the dornier is being constructed in an existing single family detached dwelling that
i� non-conforming relative to lot coverage or setbacks.
h. Variances to distance of dri��eway frum inrersections(LOC 50.58A15).
i. Variances to street frontaee(LOC 50.57.015).
j. Variances to driveway width for Flag Lots(LOC 5020.020).
2. Class 2 variances �:4�ie4rare ��c•�.-,:�:'nhanges from the Code requirements a+x4-that are
likclv to have si�nifrmt imuact on the ttei�hborhood streetscape or neiehhors.e�ate-i�ae�e�
Class 2 variances include:
a. Variances from setback requirements for a single-family dwelling, or its associated
accessory structure tha[ does not comply with the three criteria set forth in LOC 50.14.00� (5)(a)-
(c), of more than 20%.
b. Vanances from the minimum lot width or depth of more [han 5 feet.
c. Variances from setback requirements for structures other than those described in
subsection(1)(a) oC this section of more than Z feet in side and front yards and more than 5 feet in
rear vards.
d. Variances from the ]ot coverage or floor area ratio (FAR) for other than a single-
family residential dwelling or its associated accessory sh-ucttues.
e. Variances to building height.
f. Variances to any other requirement of this Code except as classified as a Class 1
(minor) variance above, and applicable to a developmen[.
3. Tbe City Manaeer shall decide the classification of any variance application.
4. For Class 1 frt�ey-variances, the City Manager shal have th� uthority to require an
applicant to fulfill the requirements of LOC 50.77.025 at hisi r discretion�is authority is solely
at the discretion of the City Manager and is not subject to appea . -
--------------------------------------------
Planning Conunission 7 LU 04-0055 (P 04-0007)
Work Session - AuQust 2�, 2004
�
A Proposal to Expand the Applicability and
Revise the Criteria for Class 1 Variances
(P 04-0007)
August 3, 2004
Oven�ie�v
Present:
The current Class 1 variance was revised in 2000 (LU 99-0059) to eliminate the
necessity of showing a hardship for variances to the Code requirements that
would have"little or no effect"on adjacen[neighbors and no impact on natural
resources / traffia The applicability of Class 1 is limited to very small incursions
into the setbacks or small changes from the code requirements, i.e., less than 20%
ofthe yard setbacks.
In the past 3+ yeazs, a Class I variance has been granted if there is no showing of
a material injury on surrounding property and no impact on natural resources /
traffic. Absent a showing of some material impact on surrounding properties,
which is generally shown by the presence ofneighbor objections or comments to
the variance request, no design requirements are needed as a condition of
approval to mitigate any adverse impacts.
The Problem:
Class 1 — no hardship—variances are available in only limited ins[ances. Staff
has found that the applicability of a Class 1 variance should be expanded. The
motivation to examine the re-examine the criteria and applicability of Class 1
variances arises Crom small expansions to existing structures.
Although a small expansion was thought not to be harmful to the neighbors and
the neighborhood, an applicant may fail to qualify for a current Class 1 variance
because:
• The amount of variance exceeded Ihe limited applicability; and
• The applicant failed to qualify for a Class 2 variance because the applicant
was not been denied reasonable use of the property(no hardship fo the
applicant).
The initial thought is to expand the applicability of Class 1 variances. However,
in expanding the applicability of Class 1, there is a greater potential that, at least
in some instances, the development will have an impact on more than just the
properties located within 300 feet, or that even in the absence of specific
comments from neighbors, the development proposal will be inconsistent with the
overall neighborhood development pattem or general purposes of the zone
requirements. As the magnitude of the variance increases, then so too does the
Planning Commission 1 P 04-0007
Work Session —August 9, 2004
I
necessity to address the impact of the development upon a lazger concept of
neighborhood.
An existing altemative to Ciass 1 variance, but still without the necessity of the
applicant to show a hardship, is the Residential Infill Design Review (RID
Review) standards. R1D Review is generally applicable to new construction or
major reconstruction because it requires that the design of the resulting
development be "equal or greater"than could be constructed in accordance with
the code. Typically, small additions to existing construction would not meet the
"equai or greater"test for RID Review.
The Proposal:
Expand the applicability of Class 1, but change the criteria so that the affect of a
development proposal could be examined based upon the impact to the
neighborliood and streetscape (which I refer to as Class l+ for purposes of
discussion, and to distinguish from current Class 1 applicability and criteria).
The proposal borrows from the concepts underlying the RID Review standards,
but adopts a"no harm" test, rather than RID's"equal or better".
The ability to impose design solutions currendy exists for Class 1 and Class 2
variances, through the use of conditions of approval to mitigate the impact of the
variance. Under Class 1 applicability, no design conditions have been imposed on
those applications during the past 3+ years because the applicability oFClass 1 is
limited to "little or no effecP' to adjacent properties. By expanding the
applicability of Class l, to Class 1+, the potential necessity to impose design/
landscaping solutions to mitigate the impact will be increased. But that does not
mean that a design / landscaping condition of approval need be imposed in every
Class l+ variance approval.
Staff may adopt an administrative guideline to the effect that in cases that are
within the current Class 1 variance applicability, there is most likely not a harm
under the three new criteria (because those variances currently have "little or no
effecf' on neighboring property and thus are not likely to result in a harm on the
neighbors, greater neighbodiood, or the streetscape that requires a design /
landscape solution.
But when a Class 1+ variance is soughf for development that is greater than the
current Class 1 variance applicability limits, the administrative guideline could
suggest that a closer eye must be given as to whether or not design / landscaping
solutions are necessary for the development not to create hann on neighbors, the
neighborhood, or the streetscape. This does not mean that in every case where the
Class 1+ variance is greater than the current Class 1 variance applicability a
design/ landscape solution is necessary. In some cases, there may be no harm on
the neighbors, the neighborhood, or streetscape and hence no design / landscape
Planning Commission 2 P 04-0007
Work Session — August 9, 2004
�
solution is required. In other case, a design /landscape solution may be necessary
in order for the variance request [o meet the "no harm" standard under the Class
]+ variance criteria. The guideline merely suggests that a closer examination of
impact be given.
StafPs threshold for a"design/landscaping" analysis does not preclude
neighbors from showing that a development proposal that what would now be a
Class 1 variance does, in fact, have harm,just as they can now show that
mitigation is required for a Class 1 variance.
Summarv:
Because tlie applicability of Class 1 variances is being expanded to situations that
would require design/ landscape solutions to mitigate the impact of a variance,
the criteria of what constitutes a negative impact needs to be more clearly stated,
to assist applicants and neighbors in deciding whether a design/ landscape
solution should be considered in the application. Staff may, through a statement
of administrative guideline, indicate those types of Class I+variances that
generally would not have a negative impact to the neighborhood, to guide both
applicants and staff in review of variance applications— specifically, the current
Class 1 variances have, through application, not been found to require a design/
(andscape mitigation. -
Planning Commission 3 P 04-0007
Work Session — August 9, 2004
LOC 50.68A10 Variance Standards
1. The reviewing au[hority may grant a vanance from the requirements of this Code, except as
expressly prohibited, if it is established that
a. Class 1 (Minor)Variance Standards.
i. The erantina of the variance will not result in a incomnatible, neeative
relationshio behveen the pr000sed development and:
A. The scale and chara'cit r nf the nei �hborhoud
��ti;
� This is the "no harm" test akin to Yhe "house size" test for RID Review—
� LOC 50.72.020(2)(a).
Q. The scale and character of the street, such that the safetv or esperience of a
pedestrian usin�!the street ahutting the development is diminished; and
T'his is the "no harm" test akin to the "relationship to the streeY' tesYfor
RID Review—LOC 50.72.020(2)(b).
C. lhe scale, chnracter and �ri��ac�• to ro enies within 300 feet of the ro eK �.
� . This is the "no harni" rest aldn ro the "relationship to the neighbors" test
� ���e-' for RID Review,EXCrPT rather than using"adjoining neighUors", which
� '� ��=n"� t would limit the scope to immediately adjoining neighbors (See LOC
M'��C 50.02.005, "adjoining"), [he area of concem was retained at 300 feet,
.�� whicl� is the current Class 1 "zone of impacY'. "Neighboring properties"
was not used beca�se that could have been interpreted to limit criterion A
above to the same "privacy zone".
f�'�
I, T6.
1. ..�....d.... ,.{'J... ..,,J....,... ...:11 ..,.�� 1.,. ,l..�.'.......�..I �.. N.,. ... L_I:,. 6,..,1e6 ... ..,.f�.�
a .
T'his section is deleted as it is thought that the new criteria A, B, and C
embody the "public health and safety" and "materially injm-ious" to
propetty standard.
ii. The proposed development will not adversely affect existing physical and natural
systems such as traffic, drainage, Oswego Lake, hillsides, designated sensitive lands, historic
resources, or parks, and the potential for abutting properties to use solar energy devices any more
than would ocwr if the development were locared as specified by the requirements of the zone.
No change to the"natural resource"no impact criterion.
b. Class 2 Variance.
i. Class 2 Variance Standards.
(1) The request is necessary to prevent unnecessary hardship; and,
(2) Development consistent with the request will not be injurious to the
neighborhood in which the property is located or to property established to be affected by the
request and,
Planning Commission 4 P 04-0007
Work Session—August 9, 2004
�
(3) The request is the minimum variance necessary to make reasonable use of[he
property; and,
(4) The request is not in conflict with the Comprehensive Plan.
ii. Class 2 Vanance Factors and Considerations.
In evaluating whether a particular request is to be granted, the granting authority
shall consider the following,together with any other relevant facts or circumstances:
(1) Relevant factors to be considered in determining whether a hardship exists
include:
(A) Physical circumstances related to the piece of property involved.
(B) Whether a reasonable use similar to like properties can be made of the
property without the variance.
(C) Whether the hardship was created by the person requesting the variance.
(D)The economic impact upon the person requesting the variance if the
request is denied.
(2) Relevant factors to be considered in deternuning whether development
, consistent with the request is injurious include:
(A) M analysis of the physical impacts such development will have, such as
visual,noise, traffic and the increased potential for drainage, erosion and landslide hazards.
(B) The perceptions of residents and owners of property in the neighborhood
conceming the incremental impacts occurring as a result of the proposed variance.
2. A determination of whether the standazds set forth in subsection 1(b)(i) are satisfied
necessarily involves the balancing of competing and conFlicting interests.The considera[ions listed '�
in subsectiou 1(b)(ii) (1) and (2) are not standards and are not intended to be an exclusive list of q;
considerations. The considerations are to be used as a guide in the granting authority's �i
deliberations.
^••''•�-�•' �^ -��^''`••� �'� �'�������.�Repeal proposed in CDC Upda[e 2004)
LOC 50.68.015 C►assification ot Variances �!
A variance which would allow development not in conformance with the requirements of the
development standards may be granted.
l. Class 1 �}-variances are s+Nel1—changes from the Code requirements e�—wHieli
w+�4that ¢enerallti' have little or no significant e€€esE-fmoact on the neighborhood, streetscape, or
nei�hbors^a'^ �^` � .
Class 1 �}variances include:
Planning Commission 5 P 04-0007
Work Session — August 9, 2004
Staudard to be Varied Current Class 1 applicability Recommended for inclusion
as Class 1+
Yard Setbacks, when Less than 20% Less than 50%
residential single family
dwellin� and accessory
structures that don'[ comply
with LOC 50.14.005(a-c).
Yard Setbacks, non-single <2 feet for side or front yard No Change
family dwelling < 5 feet for rear yard
Oswego Lake Setback Probably treated as 20% - lOQ°�o
technicall should be Class 2
Building Height None (Class 2) Class 2, except for building
height changes when chan�ing
from a flat to a pitched roof
Front Yard Setback Plane Class 2 No chan �e(Class 2)
Side Yard Setback Plane Class 2 Less than or e ua] to 25%
Lot Width or Depth <5 feet No chan e
Lot Coverage, single family < 1 S% Less than or equal to 25%
and accessory, smal] platted
lots
FAR, single family and < 15% Less than or equal to 25%
accesso , small latted lots
Fence Requirements, including All No change
fence hei ht
Private Street or Driveway All No change
Grade
Construction of a dormer that All No change
does not exceed the height of
the roof ridge in which the
dormer is being constructed in
an existing single family
detached dwelling that is non-
conforming relative to lot
covera�e or setbacks
Distance of driveway from All No change
intersections(LOC 50.58.015).
Street frontage (LOC All No change
S O.S 7.015).
Dnveway width for Flag Lots All No change
(LOC 50.20.020).
Changes tn below standards would be made to conform to table above.
Planning Commission 6 P 04-0007
Work Session — August 9, 2004
�r
a. Vanance from yard setback requirements f'or a single-family dwelling, or its
associated accessory structure that does not comply with the three criteria set forth in LOC
50.I4.005 (5)(a)-(c), of 20%,or less.
b. Variance from yard setback requirements for a structure other than those described in
subsection (1)(a) of this section of two feet or less in side or front yards or five feet or less in rear
yards.
c. Variances from minimum lot width or depth of 5 feet or less.
d. Variances in lot coverage or floor area ratio (FAR) on platted lots which were platted
�vith an area less than the current zoning requirement for single-family residential dwellings and
accessory struchues of up to and including 15%of the maximum allowed lot coverage or FAR.
e. Variations from maximum fence height restrictions.
£ Variation to the maximum grade of a private street or driveway.
g. Variances for conshuc[ion of a dormer that does not exceed the height of Ihe rooF
ndge in which the dormer is being constructed in an existing single family detached dwelling that
is nonconforming relative to lot coverage or setbacks.
h. Variances to distance of driveway from intersec[ions(LOC 50.58.015).
i. Variances to street frontage(LOC 50.57.015).
j. Variances to driveway width for Flag Lots(LOC 50.20.020).
2. Class 2 variances w#�ielt-aze °�^^��-:.hanges from the Code requirements arx#-that aze
likely to have significant impact on the neiehborhood, streetscape, or neiehbors.u�eate-i�3r�ast�
,r .. ., e�. ..
Class 2 variances include: "
a. Variances from setback requirements for a single-family dwelling, or its associated
accessory struchue thal does not comply with the three criteria set foRh in LOC 50.14.005 (5)(a)-
(c), of more than 20%. �
b. Variances from the minimum lot width or depth of more than 5 feet.
c. Variances from setback requirements for structures other than those described in ��
subsection (1)(a)of this section of more than 2 feet in side and front yards and more than 5 feet in
rear yards. ,
d. Variances from the lot coverage or floor area ratio (FAR) for other than a single-
family residential dwelling or its associated accessory structures.
e. Variances[o building height.
f. Variances to any other requirement of this Code except as classified as a Class 1
(minor) variance above,and applicable to a development.
3. The City Manager shall decide the classification of any variance application.
4. For Class 1 Fn��variances, the City Manager shall have the authority to require an
applicant to fulfill the requirements of LOC 50.77.025 at his/her discretion. This authority is solely
at the discretion of the Ciry Manager and is not subject to appeal.
------------------------------------------
'i
�� - -�- �f� 1Z .
�� ��,.
1
�- � � � ' \ "� � 1 =`� ' �
F r - �
^�
Planning Commission 7 P 04-0007
Work Session — August 9, 2004
Eqner, Dennis
From: Boone, Evan
Sent: Tuesday, August 10, 2004 8:45 AM
To: Egner, Dennis; Lashbrook, Stephan; Pishvaie, Hamid
Cc: Powell, David
Subject: Class 1+ variance/ Planning Commission meeting 8/23
Gentlemen:
��
Class 1+
variance.doc
At the PC meeting last night, in the work shop discussion of the Class 1+ variance, the following items suggested that
further staff thought would be appropriate, as we move towards a public hearing on the proposal:
1. Is there a need to define the scope of"neighborhood" in the first criterion: "scale and character of the
neighborhood"? Md is the neighborhood different than, or the same as, the notice area?
I have argued lhat neighborhood should not be given specific distance, or refer to the neighborhood association
boundaries, because similar to the conditional use standard of"reasonably compatible with uses in its vicinity", the area of
impact caused the development defines lhe area of concern.
2. Is the "scale, character" in lhe third criterion --"the scale, character and privacy to properties within 300 feet of the
property"-- duplicative of the first criterion, so that in the third criterion we should be focusing only on the privacy issue?
I have argued that scale and character impact on neighborhood can be different than scale and character on adjacent
properties, because a large house might not have a negative impact on the neighborhood generally, but when viewed to
the smaller houses of its neighbors, that might present a different analysis.
3. Applicability
a. Whether the current limitation on yard setbacks for non-single family dwellings of< 2 feet for side or front,
and < 5 feet for rear yard should be expanded for Class 1+. '
Or to state it differenNy, could there be instances in which a 2.5'front yard setback variance for a duplex might be "for the I
yood of baseball" and it could not show a hardship for a Class 2 variance7 '
b. There was discussion about whether a full 100% variance from the Oswego Lake setback should be as a
Class 1+, or whether a lesser percentage would be appropriate. The Commission was lo give this more thought, at least
in terms of what to notice the ordinance amendmenl for public hearing as.
I have argued that due to the unique selback that the lake waters offer, and the frequent presence of Lake Corp. properly
between the property boundary, and that there is always an underlying side yard or rear yard setback that would also have
to be varied and those do not go to 0, that a full Oswego Lake setback variance should be able to be applied for; of course
whether one can show it does not harm the neighborhood or privacy of neighbors is another matter. Particularly so, in my
mind, when a new house construction can apply for a RID Review adjustment to 0 for the Oswego Lake setback. I
The work session was continued to the 8/23 Planning Commission meeting, to receive further staff input. I will NOT be
attending the meeting, and hence I am forwarding this email (along with a slightly revised staff report) [revision is on Page
1, The Problem, paragraph 2] to Dave in case he attends the Planning Commission meeting.
Also, Denny, this attachment should replace the electronic August 3 version that you /Susan have, to pick up the revision
and from which you make further revisions. In other words, I think the staff proposal should now be in your hands, as we
have moved pasl initial staff discussions and further revisions should be through you.
Thanks,
Evan P. Boone
Lake Oswego Deputy Cily Attorney
i
r
eboo ne@ ci.oswego.or.us
P.O. Boz 369
Lake Oswego, OR 97034
503.635.0225/503.699.7453 fax
2
V. GENERAL PLANN[NG - WORK SC-SSION
Vari�nces and Adiustments- LU 04-0055 (P 04-0007)
Dennis Ggner, Long Rauge Planning Manager, presented the staff reporL He advised
that tl�e proposed amendments �vould expand the scope of Class I variances. He recalled
that the Class 1 variance process did not require the applicant to show hardship and the
variance was typically approved if no one complained. He gave a PowerPoint
presentation showing changes the staf�f proposed since the previous meeting. He said the
staff had follo�ved Commission directio❑ and clarified applicability language so it
provided that the result of a Class 1 Varia��ce proposal was to be compared to the broader
❑eighborhood, the streetscape and neighboring propeRies. He pointed out the staff had
modified the draft amendment that allowed as mucl� as 100% variance to the Oswego
Lake Sethack so it would only allow up to 50°/o variance. He pointed out the proposal
no�v allowed «p to 50% adjustment to the setback for non-single-family dwellings. He
recommended inseRing the term, `9ess than or equal to" before each percentage. He
explained ihe staff did not propose any change to Ihe Building f{eight standard because
there were other ways to address exceptions to height via a Residei�tial L�fill Design
(RID) review process, or using the height exceptions in the current Code, or using a Class
2 variance. He reported they proposed a 25% adjustment limit to the side yard setback
plane because a RID review or a Class 2 ��ariance could allow greater adjustments. He
pointed out they had not changed the proposed five-foot adjuslment limit to lot widtli or
depth, or the 25% limit to an adjustn�ent to lot coverage and Floor Area Ratio (FAR).
Acting Chair Vizzini saw a need to mare specifically describe the larger neighborhood to
help the staff interpret the standards regarding a site's relationship to the broader
neighborhood. He suggested the `9arger neighborhood" mi�ht be defined by a consistent
pattern of lot sizes and a consistent paltem of development, and he suggested that criteria �
be developed to demonstrate that the result of Ule variance would liave something in ' <7��
common �vith the larger neighborhood. The Commissioners observed that a far-away , ,
resident migl�t object to seeing nn�� house on a hill in his aie�v. They wondered whether `
300 feet was a reasonable range to set within for considering the effect of a development �' �
on the scale, character and privacy of immediate neighbors. Mr. Egner advised that 300 i
feet was the range currently used for reviewiug Cl�ss l variances. Commissioner Stayer � ,
agreed there should be more specific definitions and guidance in the amendments to help
those who admii�istered U�e process. Acting Chair Vizzini asked the staff to prepare for �
the heazing by illustrating how the proposed range of adjustments listed in the Table on/
page G of tl�e stafC report would apply to "real world" examples. The staff clarified fo
the Commissioncrs that dte proposed amendments �vould give the City Manage
discretion to require or not require an applicant for a Class 1 variance to accomplish th�e
neighborhood noticing requirements fomid in LOC 50.77.025. �
Public Commenfs
Jol�n Pullen, 18 Britten Court, Lake Os�vego, 97035, suggested that "neighborhood"
should be defined in the proposed amendments. Acting Chair Vizzini recalled that the
Deputy City Attorney had told the Commission that he anticipated part of the process of
C�it�� nf I.ake Os���e�iu Planuing Commission Ya�e 2 of6
V inwcs of:luguit ?;, 70pd
����K`°=wf Community Development
�,r �o
������� Department �
\ %.
Memorandum
� ,
�¢[GON ��
TO: Plannin� Commission
FROM: Dennis Egner, AICP, Long Range Plannin�Manager
UATE: August 19, 2004
SOBJECT: Partitions and Flag Lots (P 04-0008)
�'ith new annexations in the Lake Forest, Rosewood, and Forest Highlands areas, there
are increasing pressures for laud divisions and infill development. Tlie in611 amendments
adopted last year focused on the compatibility of new structures with existing
dc��elopment but they did not adequately address the pattem of development, i.e. how do
parlitions and land divisions fit the pattern of developmeut in the neighborhood and the
community. Often new development occurs throu�h minor partitions that create [lag lots
- a lot with a house tucked in behind an existing house at the fi�ont of�vhat had been a
dcep lot. This pattern resulis i�i disconnected pockets of development that do not build a
su ong sense of place or neighborhood character. In the Lake Forest neighborhood there
is a great amoimt of infill potential and how new development occurs will determine what
type of neighborhood resulCs.
This memo introduces the topic and provides an opportunity for the Planning
Commission to discuss the issues.
Gsisting Yatterns
Thc map on the next paee depicts a portion of the Lake Forest neiehborhood. The area is
mosUy outside the current City limits but it is planned for R-7.5 zoning which allows
7.>00 square foot lots. Manv of the existin� lots far exceed the minimum lot size and
have the polential to be divided inlo two, three, or sometimes more parcels. If ihese land
divisions occur as flag lots, there will be a less efficient development pattern and litfle
opportunity to create a better connected street system. You can see some examples of
esisting flag lot development in this area. Today, the only thing preventing major
rcdevelopment of this area is the lack of sanitary se�ver sen�ice. Once se�ver is extended.
it is likel��that many of these properties �aill be divided.
Platming Commission R�ork Se>sion Page 1 P 0.!_U00�
Au��ust 23.200�
Luke Forest Pieighborhood — Existiog Development Pattern
S � � y �.� .o �m�s
S 6 'o q � ..
� '�. '_ �� •
y� '� ' — �
(� - "s � ,.e,
Cj� � � .f6W IOLLt � � �
�4� i i u.x ,un
�� .]. �a�ns I
4 � �swa wu� � ia�a i��� .t
� `� � �6 1fN� pN0 1 �Sfp 1W i . vi('
�� 4,t i qa� ieao nm�{ iews \
/ � roa�
,
� _�,.o,. ,�,� ��W, I
i non � nme pon �. voH
����\ u� InOa� gi seu �o um
tIOO la
'd'`� Mtl6 i � �... 1WH IMy
� C� �' � nw ( ° S um ' nm uub I uwx �
� � , niw � u�ss
�� i - . rn wue �n
�. ,� �ewi
�{" .. �� 1f1T � Ul! VI>f 1N�{ �If1Y
UUl
.� �� I � una nan � �nu wm I nam u�
� .�� ,��P una ia+a �ex� u�a
� � , +� ns �er+c wa� � ui� �� i ���eu �et
y M1'
J'P1� ��� iam uv
� � . �' �.. � .a w..a I ,.n. na� �
� ! �
liill 11L0 ��� I�ilO 1�
_ g �-A �.� �.. . _/�Nii, � ��, viw usu � ' Hsro
��... e g �i-- — ' . �' nm'� j uw w'i° i ,w+ ,sa�
<
+ei nw! �.u�« v�u �� � � 9� � nyi nw� ��si ! u�so n
uua r�. � wac ' � �w� um
IN N� kW I�KI�II�tlO pp J6 ... ' f N I�YI � �U�1D H
F�. � �s�a� NYi
UY[ A� MAY 1� YM 1�
` +�� � . .� n� I�KI INAI ���
9 n�u uw +A�'¢�. t�p �nwo usa '� ine� a
- � _- $ � g � J y •F \ nss ume �as��
J- � � —' — .' ' _ uE �_(\ I ��+ naw us
"� " ��I ' C �� m� � I"S� C �I.o.. . J� A ^ � �es.s ���cae �s
t �P
Future Development Pattern
1'o avoid a continuing pattem of flag lots, a pro-active planning cffort needs to be enacted
to guide how development occurs. This process may invoh�e:
• identifying where new street connections are t�eeded;
• Developing new lo��� impact street standards; and
• Identifying tree groves and natural areas for protectioii.
In the Lake Grove area there are a number of ways a coordinated pattern of ne�t
development might occur. An example illustrating t��ro approaches for road coimecti�it�
is illustrated on the next page.
There are many factors that �vill ultimately intluence ho��� plans for thc se areas arc
developed. These include:
• Location of existin�� homes:
• Development pote��tial:
• Tree �oves and natural areas; and
• Nei�hbar cooperation.
Plaunine Conunission N'ork Sessio❑ Pnee 3 Y 0-}-UOUS
.�ugusi23, 2004
\o anal��sis of these factors �vas conducted lor the illustration belo�c. The}� �t�ere
developed only to enhance discussion.
Lake Forest Neighborhood—Potential Counectivity
, , � ,u�.
� b 6 "0 6 p fl , � � b
6 � lvi � . '� 1
�� �i �� ' .• �-��� d 19M1 �
� �/'�y� ��°� � �001 � � �1
�'b\ ..1fi0B Ip11� � I• 12tl5
�����w � tSKo Ii121 �
� 4r � � 1�Ilf i)Hi 151A 15N1 - l
�, yi �/.i9�� ��. IOPD IfRl la9q . .
. ua� — �
�. \ - � � q011
`/
N001 \�Of6 IIIi� II�M1
. ' / ' �
�{ � \` \0� t�Gb 9CQ 1�60 1�Oa1
/f�a'� t uuc .�..g._ uora � ��na uuz I nw '�
� \ �+ � A1N I D e I{18 II11�
+ �. ,ya n»� uus iuw wv� in
,� M�� 1l1F � NIQ NVi 1BY 1�IM
1�1��
r4�' '. �� 1{i)I . 1\FO I�!!l � L1ip f�Hl .., I f�JEG tl
7 � �� `ryF .f I H¢M 1 1GDii . ttile �If)5
, � .. 4M1' 1�1Y 1!1!G ti90 � 1tM1 ' t��U lIt
y i �'��,J'Lr�g ,es. � item 6�
�� uvse ��nr
g! � 5 '-� ��J� ��%�� � uwc u�ir uao �� � �. nno n
— �e u� ' w,�. ,d u�s, � naro
6 � 9 � � $ � s � , f om-. � i�w w"° i iea+ u�i
w uw� u+« uu� �uw a s �� fA ,:sy'i n�r ,as, '.,. uim �.
�ro u�r uw�. '� a' /�
u�e iaax p ` ��u uri v��e n
�� ` � uu� ��u� �
xw wa�° aaa ✓' � ��w N �
♦
1{ p� f�01] '�+�' _� # �y IIG10 1f1N r�W ,�liN{ 1��
s ± � � ;�Y� 1�
� Y _ � � � � � y 'F � \�-� ieve �, .usir n
I �� Iliq 1�5
�: � � �1 � 1�� �� C__..�� .y'F�A � rs�s iim
s 'P M
Code Requirements
Relevant development code requirements include Flag Lot and Street Connectivity
standards. These Code sections are attached for yoin� review. No analysis of the code has
been conducted at this time.
l�ext Steps
Sta('f is proposing that we examine partitio�ing and flag lot standards to identify potential
proUlems with the code and find ��ays to encourage greater connecti��ity and coordinated
neighborhood development. As part of iliis project, we propose development of a
focused plan for how a portion of a neighborhood might redevelop. The Lake Grove
neighborhood would be an excellent case stud�. 1'herc is the potential to receive a TGD�i
quick response grant to assist with this work.
Planning Commission Work Session Pa,e 3 P 04-OOOS
Aueust 2;. 2004
Article 50.20 Flag Lots.
Section 50.20.00� Puipose; Applicability.
L The purpose of the Flag Lot Ordinance is to:
a. Enable tl�e efficient use oCresidential land and public facilities and ser��ices.
b. Provide standards for site and building design compatibility of new
development with tl�e existing neighborhood character,
c. Reduce tl�e area of impervious surFace resulting from redundant access pavin�"
and improve the appearance where pavement is necessary, and
d. Nlinimize the disturbance of natural resources.
2. Th�provisions of LOC 50.20.00� tln�ough 50.20.035 shall apply to all land
divisions creating flao lots, and to any development occurring on a fla�� lot created
subsequent to die adoption of this ordinance.
3. The creation of flag lots is periuitted only in r'esidential zones.
(Ord. No. 2316, Added, 03/OS/2002)
Section 50?0.010 Authorization; Application Requirements.
1. Flag lots shall comply «�ith the requiremen[s of the underlyin� zonc except wherc
noted in this article. A land division creatin�a flag lot shall also comply wifli any
specific residential design criteria contained within an applicable adoptcd neigl�Uorliood
plan.
2. In addition to the general application requirements for land divisions, an
application to create a flag lot shall indude a conceptual plan of complete parcelization of
�the subject property, and shall indude a site plan illustrating the location of existing
,p�( �J� strucmres on adjacent parcels. The reviewing authority may impose conditions in order to
'� � ensme that parcelization of the subject property will not preclude flic develonment of
L� surrounding properties. Such conditions may be related (but not limited) to access,
� circulation, building location, utilitv availabilit��, and naturul resource protectio�i.
(Ord. No. 2316, Added, 03/0�/2002)
Section 50.20.015 Exceptions.
For land divisions, the reviewing authority may allow exceptions to this Article
without tl�e need to ob[ain a fomial variai�ce pursuant to LOC Artide 50.68, in one or
more of the followim� circumstances:
L Landscapin� required by LOC �0.20.035 (1) as separation between dnve�vays,
which would not result in screening or buffering as intendcd due to topography, ]ot
configuration, or existing natural resources which would be preserved, may be modified
or ma}'not be required;
2. Setback adjustments of up to 2 feet which are necessary to site a dwelling in
compliance with this Article, or will result in additional separation from existing
d�vellines on surrounding lots, ma��be pennitted;
3. If an existin� structure(sl �vould be located on a proposed flag lot created h}
partition and the svucture(s) would become non-complying wi[h a��y regulation of this
Code, the proposed partition ma�� be approved if the standard causine the non-compliance
can be adjusted under LOC 50?2.00�.
4. Minimum driveway widths of 12 feet required by LOC 50.20.020 (3) may be
reduced, when approved by the City of Lake Oswego Fire Marshal.
Planning Commission Work Session Paee 4 P 04-OOOS
Aueust 23, 2004
(Ord. 2346, Amended, 06/10/2003, Prior"l�ext; Ord. No. 2316, Added, 03/0�/2002)
Section 50.20.020 Access.
1. For land divisions creatin� flag lots, the reviewing authority shall require [hat
access to the fla� lots shall be consolidated into a single shared driveway wherever
practicable, including consolidation with the access of the parent lot.
2. Flag lots shall ha�re access to a public or private sireet; however, actual street
frontage shall not be required.
3. Driveway widths shall be a minimum of 12 feet. Driveway length, construction
standards, and turnaround requirements shall be detennined by LOC Article 50.58 "On
site Circulation - Dm�eways and Fire Access Roads".
4. No more tUan two driveways shall be pennitted within a distance equal to die
minimum lot width of the undedying zone, or within 50 feet of each other if no minimum
eaists, as measured fiom the closest edge of eacl� driveway.
�. All buildings on flao lots must pos[ an address at the beginning of the driveway.
'I'he address shlll be no less tiian 6 inch tall, must be on contrasting background, plainly
visible, and must indicate the direction to the building.
(Ord. No. 2316, Added, 03lOS/2002)
Section �0.20.025 Lot Confi�uration Requirements.
1. Detern�ination of Front Yard: At the Cime of land division review for a [lag lot
creation, the front yard shall be detennined as follows:
The front yard os a flag lot is measured from the lot line that is most parallel and
closest to the street, excluding the pole portion of the flag lot. If this standard is not
practieabie due to placement of strucmres on adjacenf lots, topography, lot confi�uration,
or similar reasons, then the front yard will be measured from a property line that abuts Ihe
access portion of the flag or easement.
2. Lot Width: Lot width shall be measured by a line connecting two points on
opposite side yard property lines, that will result in a line parallel to the front yard.
3. Lot Deuth: The lot depth shall be measured at the mid-point of the front and rear
properiy lines of the "fla;".
4. Lot size: Area of access easement or fla�ole shall be deducted from the gross
acreage o f Nie flag lot. The "flag" portion of the lot shall be equal to or exceed the square
footage of thc underlying zone.
[Cross-Reference: See LOC 50.22.025 (3) - Deterniination of Front Yard for Flag
Lots and Lots Accessing by Easement.]
(Ord. No. 2316, Added, 03/OS/2002)
lNoT
Section 50.20.030 Buildin� and Site Design Standards. / �'
1. Buildine Orientation: For land divisions the reviewin; aulhority shall require that ��
buildin�s be orieuted to provide the maximum se aration and privacy from existing and
funire dwellings on adjacent lots. he reviewing authonty may require conditions of
approval to include measures such as specific building locations, increased setbacks,
additional height restrictions, location and orientation of windows and other openings.
3. Garage placement shall be reviewed at the time of building pennit application ro
eusure minimmn visibility ofthe garage from the streat. Gara�e placement shall meet tl�e
following rcquirements:
Pl�imine Cominissim� At-ork Sessior� Pa_�e 5 P 0�-00(Jb
:August 2�. �00-t �
I
a. Be side-loading where a tuming radius can be provided that allows for a
minimum of 24 feet separation from the garage door and any obstructions or property
lines, or
b. Be placed such that no more than 40% of garage wall area is visible from the
intersection of the fla� lot driveway and street.
c. When a garage is visible &om the street, the front or side of the exposed garage
building wall sliall have more than one plane, or shall include fenestration equal to at
least 10% of the facade visible from any point at the intersection of the driveway and the
public street.
To demonstrate compliance with tl�is standard, building elevatioi�s shall be
submitted which depict the Cacade area visible from the street at a width equal to the�
access easement.
The area of a specific facade of a buildino is deterniined by adding the square
footage of surface area of each section of«�all visible from that perspective. For
buildin�s with more thnn one wall (plane) along one facade (for example, rooms jutting
out from tlie main building or a building wherc each floor is set back froin the (loor
below), all of the walls are included in the total area. Tlie total area does no[ include any
roof area.
3. Maximum Structure Hei�ht. The height of a single-family residential structure
and any accessory stiuctures on a flag lot shall not exceed:
a. For fla� lots created after August 14, 2003, the taller of:
i. 22 feet, or
ii. The average l�eight of all dwellings on properties abutting the development
site, as determined prior to the time of creation of the tlag lot. Where there is no dwellin�
on the abuttin�property or«�here a dwelling is located more Ihan 100 feet away from the
development site, then the maximum height permitted in the undcrlying zone shall be
used for calculating the average. In cases where tlie abutting property is zoned to perniit
a height greater than that allowed on the subject site, then the maximum height for the
zone in which the subject site is located shall be substituted and used to calculate the
average.
b. For flag lots created beCore August 14, 2003, the taller of:
i. The maximwu building height limitation established at the time of creation of
the flag lot The metl�odology used to calculate the maximum building height permitted
by this subsection shall be the same methodology used to at the time of lot creation to
establish the maximwn huilding height, or
ii. 22 feet (see LOC 50.02.00�, "Height of Building" for methodology).
The City Manager ma�� execute and record amendments to previously reeorded
development restrictions, upon the O�mer s or adjacent property owner's request, or at
the City's discretion, if�ecessary to reflect a taller building height limitation than
previously approved.
c. Modification of Approved Building I-Ieight. The maximum building height of
si��gle family residential structures and aecessory structures on a flae lot (wlrether created
prior to or after August 14, 2003) ma} be modified from that previously deternlined at the
time of creatiou of the flag lot to the average height of all dwellings on properties
abutting the development site. �1'here there is no dwelling on the abutting property or
where a dwelling is located more than 100 feet a�vay from the dcvelopment site, then the
maximum height perniitted in the underlyin� zouc shall be used for calculatin� the
average. In cases where the abutting property is zoned to pennit a height greater than
Planning Commissiou A4�ork Session Yaee 6 P 0=1-OGDS
Aucust '_. 300=1
that allo�ved on the subject site, then the maximum height for the zone in whicl� the
subject site is located shall be substituted and used to calcula[e the average. Where an
existing structure on an abutting lot exceeds the maximum hei�ht allowed by the
underlying zone, then the maximum height permitted by the underlying zone shall be
used for purposes of calculatine the average.
An application for modification of maximum building height for a flag lot shall be
processed pursuant to LOC 50.86.025 as a new application. The City Manager may
execute and record amendments to previously recorded development restrictions.
d. Exceptions to Maximum Structure Heiglit. A greater height than othenvise
permitted is allowed for roof fonns, or architectural features, such as cupolas or dormers
provided that these roof forms or features:
i. Do not extend more Ihan 6 feet above the maximum specified height,
ii. Do not, in total, exceed one-third of the «�idth of the building for an
individual roof form or projeclion or do not exceed one-half uf tlie width of the building
for two or more separate roof forms or projections, as measured on any elevation drawing
and,
iii. Do not, in total, cover more than 20% of the roof area on wliicl� they are
located, as viewed from directly ahove for a�i individual roof fonn or projection or 30�o
for nmltiple roof forms or projections.
4. Where a flag lot abuts a lot in a residential district of lower density, the greater
setback requirements of the more restrictive distnct shall apply for those yards which
have abutting property lines.
(Ord. 2333, Amended, 07/15/2003, Priur Text; Ord. No. 2316, Added, 03/0�/2002)
Section 50.20.03� Screening, Buffering and Landscape (nstallation.
1. ror land divisions, a minimum 6 foot landscape strip shall be provided as
separation between driveways lhat are within 10 feet of each other (as measured from the
closest ed�e of each driveway) and wherc a dnveway is within 10 feel of an adjacent
residential structure. Where land area is not sufficient to accommodate a 6 foot wide
landscaped buffer behveen the new driveway and an existino dwelling, the review
authority may impose conditions of approval to include measures that will provide
cffcctive buffering and screening. These measures may indude landscaped isla��ds,
fencing, and meanderin� drive�a�ays.
The reviewing authority shall require the landscape strip to be planted with trees and
shrubs in order to mitieate the visual impact of�vide expanses of pavement, and to
providc a visual and noise buffer between the drive�va�� and the affected dwelling(s)
located on adjacent parcels. Plant materials used for screening and buffering shall be of a
size to provide an effective screen within two years of planting. Trecs sl�al] be a
minimum 2 inch caliper, and slu-uUs shall be a minimum of 5 gallon at time of planting.
Maintenance of the buffer is an ongoing obligation of the property owner.
? For land divisions, existing mature veeetation and trees shall be integrated as
screenin�where practicable. The review audiority ma} require dwelling and garage
placement or orientation in a maoner that will minimize the removal of specific trees,
hedoes, or other ve�etation that would serve to screen the proposed structures from
esisting and potential surromlding homcs.
3. The rear and side yards of the lot where the new development occurs shall be
scrcened from adjacent property with a 6 foot tal] fence, except where a 4 foot fence is
reyuired by LOC 45.15.020 (1 ) of the Building Code, and except where the abutting
Planning Commission Wurk Sessiun Pa�e 7 P 04-ODOS
August _'�;, 20U4
property owner agrees in writii�� tliat a fence is uot necessary along the common property
line. ui addition, a landscaped buffer within the rear yard setback a minimum of 6 feet in
width shall be created along ihe rear property line and planted with a deciduous or
evergreen hedge, a minimum 4 feet in height at planting which shall grow to a height of G
feet within h��o vears and shall be maintained at a minimum of ihat height, except wherc
the abutting property o���ner agrees in writing that a landscaped buffer is not necessary.
The above requirements pertaining to the "rear yard" are not applicable where the mar
yard abu[s Oswego Lake.
4. Tree removal miti�ation: A minimum of one evergreen or deciduous tree, of a
species which will attain a minimum of 30 feet in height, sh�ll be planted at a 1:1 ratio
where practicable in order to mitigate the removal of existing trees necessary for site
development. Deciduous trees at planting shall be a minimum of2 inch caliper aud
evergreen trees shall be a minimum of S feet tall.
(Ord. No. 2316. Added, 03/OS/2002)
Planniug Cotntnissioii A1�ork Session Page F P 0-1-0(�0:
Auetts[23. 2004
Article 50.60 Local Street Connectivity
Section 50.60.005 Applicability.
This standard is applicable to:
1. Any development that results in the construction of a street, or
2. Construction of a detached single family dwelling, duplex, zero lot line dwelling,
commercial, industrial, institutional, or public facility structure; and is located on a parcel
or parcels of vacant or redevelopable land of five acres or lazger.
(Ord. No. 2316, Added, 03/OS/2002)
Section 50.60.010 Purpose and Intent.
The pu�ose of the connectivity standard is to eusure that:
1. The layout of the local street system does not create excessive travel lengths or
limit route choices. This �vill be accomplished through an interconnected local street
system to reduce travel distance, promote the use of alternative modes of travel, provide
for efficient provision of utility and emergency services, provide for more even dispersal
of traffic, and reduce air pollution and energy consumption;
2. Streets, alleys and residential accessways shall be designed to meet the needs of
pedestrians and cyclists and encourage walking, bicycling and transit as transportation
modes;
3. Street and pedestrian and bicycle accessway design is responsive to topography
and other natural features and avoids or minimizes itnpacts to Sensitive Lands Overlay
Zones, pursuant to LOC Article 50.16; Floodplains, pursuant to LOC Ariicle �0.44; and
steep slopes, pursuant to LOC Aiticle 50.43;
4. Local circulation systems and land development pattems do not detract from the
efficiency of the adjacent collector or arterial streets;
5. The street and accessway circulation pattem contributes to connectivity to and
fi�om activity centers, such as schools, commercial areas, parks, employment centers and
other major trip generators;
6. The Metro Urban Growth Management Functional Plan street connectivity
requirements (Metro Code 3.07.630) are met;
7. Proposed development will be designed in a manner which will not preclude
properties within the vicinity that meet the definition of further developable, Gom
meeting the requirements of this s[andard; and
S. To �uide la��d owners and developers on desired street and bicycle and pedestrian
accessway connecfions lo the existin�transportation system that will improve local
access to schools, transit, shopping and emplo}anent areas.
(Ord. No. ?316, Added, 03/0�/2002)
Section 50.60.015 Definitions.
Full Street: For the purposes of providing multi-modal access, a street section that
includes auto and bike travel surface, and pedestrian travel area, li�hting, landscaping,
drainage and a11 other City standards or requirements.
Redevelopable: For the purpose of this article, land on whicl� development has already
occurred, but due to present or expected market forces, there exists the siron� likelihood
that current development will be converted to more i��tensive uses duri��� the plamvng
period.
Plannina Conmiission Abbrk Scssion Paee 9 P Od-000�
�u�_ust '=. ?00-!
(Ord. No. 2316, Added, 03/OS/2002)
Section 50.60.020 Standards for Approval of Development Which Requires the
Coostruction of a Street.
1. Local and neighborhood collector streets and residential accessways shall bc
designed to connect to the existing transportation system to meet the requirements of this
standard as detern�ined b}' the Review Authority.
2. Local and neigl�borhood collector street design sliall provide for full street
connections between through streets with spacing of no more than 530 feet, measured
beriveen the center of the intersection of rivo through streets that provide for vehicle
traffic movement in geuerally the same direction ("through street pairs") with the cross
street. This requirement shall be applied to all throueh street pairs which surround thc
site. If tl�e nearest boundary of the site(or boundaries exYended to the street) is morc than
100 feet from the intersection of a through street nearest to the site and the cross street,
Ihe provisions of this Standard shall be met, except when the provisions of subsection (�1
below are met. (See Appendix 50.60-A).
3. Streets shall be designed to comiect to all existin�or approved stub streets which
abut the development site.
4. Cul-de-sacs and permanent closed-end streets shall be prohibited except where a)
the requirements of this standard for street and residential accessway spacing are met and
b) construction of a throuah street is found to be impracticable. When cul-de-sacs or
closed-end streets are allowed under subsection (5), tbey sl�all be limited to 200 feet and
shall serve no more than 25 dwellings, except where the Revie�v Authority has
deterniined that this standard is impracticable due the cnteria listed in subsection (5).
belo�ti'.
5. The Review Authority may allo�v an exception to the review standards of
subsections (1) through (4), above, based on findings that the modification is the
minimwn necessary to address the constraint and the application of the standards is
impracticable due to the following:
a. Extreme topogaphy (over 15% slope) in the longitudinal direction of a
projected automobile route;
b. The presence of Sensitive Lands as described in LOC Article 50.16 or
floodplains LOC Article �0.44, or other lands protected by City ordinances, where
regulations discourage construction of or prescribe different standards for street facilitics.
imless the nearest through street pairs (See Appendi� 50.60-A) surrounding the subject
site are more than '/< mile apart. The Revie« Autliority may determine that connectivity is
not required under this circumstance, if a benefit/cost analysis shows that the traffic
impacts from development are low and do not provide reasonable justification for the
estimated costs of a full street connection;
c. The presence of free�+-ays, existing development pattems on abuttin�propertti
���hich preclude the logical connection of streets or arterial access restrictions;
d. Where reqttiring a particular location of a road would result in violation of other
city standards, or sta[e or county 11ws or standards, or a[raffic safety issue that can not he
resolved; or
e. Wherc reyuiring streets or accessways �vould violate provisio�is of leases,
easements, covenants, restrictions or other agreements existing as of May 1, 199�, which
preclude required street or accessway connections.
Planning Commission Nork Session Page ]0 Y 0-3-ODUC
Aueus:2_, 2U0�
6. If the Review Authority allows an exception to subsectio� (2) for full stree[
connections, it shall require residential accessway connections on public easements or
rights-oC-way so tl�at spacing between bicycle and pedestrian connections shall be no
more than 330 feet measured from the centerline of the nearest bicycle and pedestrian
connection intersection with the cross street.
7. The Review Authority may allow a reduction in the number of residential
accessway connections required by subsection(6) based on findings that demonstrate:
a. That reducing the number or location of connections would not significantly add
to travel time or distance from the proposed development to bus lines or activity centers
in the area, such as schools, shopping, or parks; or
b. Thai existing development patterns on abutting properties preclude logical
connection of residential accessways; or
a That the traffic impacfs from development, redevelopment or both are low and
do not provide reasonaUle justification for the estimated costs of suci� accessway.
[Cross-reference: Section 4 - See also LOC 42.03.085]
(Ord. No. 2316, Added, 03/OS/2002)
Section 50.60.025 5tandards for Approval of Construction of Structures that Do Not
Require Construction of a Street but are Located on a Parcel(s) Five Acres or Greater in
Size.
When an applicant proposes construction of a structure subject to LOC �0.60.005 (2)
that does not require the construction of a street, but is located on a parcel or parcels five
acres or greater in size, the Review Authority shall require:
l. A futm�e connectivity plan to be filed with the City and recorded in the applicable
County Clerk records, as a condition of development approval. The future connectivity
plan shall show how the location of future streets and accessways will provide for full
development of the subject parcel as well as any abutting properties in order to meet tUe
standards of LOC 50.60.020 (2) - (7); and
2. Placement of structures in a manner that allows for the future street(s) or
accessways to be constnicted, as well as an area sufficient to meet the required zone
setbacks from the future streets.
(Ord. No. 2316, Added, 03/0�/2002)
Section �0.60.030 Procedures.
For all applicable development or construction, tl�e applicant shall submit:
1. Proof of notification of a circulation ai�alysis pursuant to this subsection and
subsection (2), below, to all property owners within �30 feet ofthe boundaries oCthe
parcel o� �t�hicl� a de��elopment or construction is proposed, if any fuhire streets or
accessways are proposed beyond the boundaries of the subject parcel. Notification shal]
be in a fonn substantially si�nilar to the example provided by the City. Notification shall
Ue sent to the applicant and the owners of record on the most recent property tax
asscssment roll as stated above, in the manner required in LOC 50.82.020.
'_. A circulation analysis, which indudes a scaled site plan showin� at a minimum:
a. The subject site and the entirety of all properties n�itl�in 530 feet of the parcel on
�chich the development or construction is proposed;
b. A scaled site plan showing e�xisting and propose�d topo�raphy witli contour
intorvals not more tiian i fe�et;
Pl:mning Conunis�ion U�ark Session Pa�e 11 P 0�-OUO�
Aueust ?=. ?004
�
� � � � � � ��� � 1
c. Drainage features, flood plains, and eaistine namral resource areas and
significant vegetation;
d. The name, location, right-of-way,pattern and grades of all existing and
approved streets bikeways and pedestrian ways;
e. Proposed streets and bike or pedestrian facilities identified in the Transportation
improvement Program in the Comprehensive Plan or applicable Neighborhood Plai�s;
f. All permanent strucmres;
g. Property lines;
h. Bus lines or activity centers, such as schools, shopping or parks, within one-
quarier mile (1,320 feet) of the site; azid
i. All streets and residential accessways proposed by the applicant, containin�
sufficient dimensions, spot elevations, existing stnictmes and land features on the subject
site and abutting parcels, ro demonstrate compliance with Uiis standard.
2. The circulation analysis shall graphically and texlually illustrate how the proposed
development or construction complies with 8iis standard. The applicant must illustrate
how proposed streets and residential accessways will provide comrections to surrounding
properties ���ithin 530 feet of the subject site or to the nearest tl�rough stmet pairs,
whichever is closer, in compliance with this standard.
(Ord. No. 2316, Added, 03/OS/2002)
Section 50.(0.035 Standards for Construction.
1. Standards for construction of full street com�ectioi�s shall be those included in
LOC Chapter 42.
2. Standards for consttuction otresidential access�vays shall be those included in
LOC �0.59.015.
(Ord. No. 2316, Added, 03/OS/2002)
Plmmim_Commission U'ork Session Yaee L P ��-�-�������
Au�ust2:. 3004
``t��F�pKEOgwFCO Community Development
, ��� �� � Department
I
� Memorandum
�._ %;
oQEf,pN/.-
TO: Plannine Commission
FROM: Demiis Egner, AICP, Long Range Plamiing Manager
DATE: August 19, 2004
SUI3JECT: Infill Interpretation — LU 04-00]0
On May 24, 2004, tlie Commission held a work session ou proposed inYill a�nendments.
These proposed amendments are being incoiporated into the overall Community
Development Code update and are scheduled for a hearing before the Commission on
September 27, 2004. Depeaiding on the complexity of the hearing ai�d scheduling with
City Council, it is likely thaC any new ordinance changes won't go into effect until
January 2005 at the earliest. One infill code issue in particular continues to be a problem
for homeowners and builders and we ma}� be able to provide a more immediate fix with a
code interpretation. Deputv Ciry Attorney rvan Boone recommended that the proposed
interpretation be brought beCore tbe Planning Commission for 1 decision. Prompt aclion
��ould allow a few proposed building additions to get started before the end of the year.
Thc Problem: The infill changes adopted last year tied the height of buildings to the
setback. It rcduced the required setback for low-scaled buildiugs. For example in tl�e R-
10 zone, a house could be setback anywhere from 10 10 15 feet from the property line if it
did not exceed 18 feet in height. IPlhe house was setback 1> feet or greater, it could be
huilt to the maximum height allowed by the zone (in the case of R-10, maximum height
is 30 feet).
This concept works ror new
construction but it is a sign�cant `���
problem for existing homes that are �, �'
already within 15 feet of the property ���� �
li��e and where owners �yould like to
add ai� upper story or even expand an
upper stor��. The owners of these ' ' '" " ''
�. ,.
__ .._._ --
properties h�ve been prevented from ExampleojHeightDependenlSelbacA
makin�� additiou� because
Flannine Commission A1=ork Se�;iun Panc I LU 0�-OU1p
Aueust33. ?OOd
Section �0.08.030 of the Community Development Code refers to "Piimaiy Structure"
height and staff has interpreted that to mean the entire structure rathcr than a portion of
the structure. Tl�e proposed infill code amendments remedy [he situation by tyin� the
setbacks to the "poriions ot" structures tl�at are under or above 18 feet in height (see
below).
The Solution: A temporary fix to the problem can be provided by inteipretine
Community Development Code section 50.08.030 in such a way that it currently applies
to the portions of structures that are under or above 1 S feet in heieht Staff recommends
that the� Planning Commission take� this action.
Proposed Code Amendments
Section 50.08.030 Fnrd Selbncks.
Primar}�Struclnres flecessorp Structures
Odier Side Yard lj���� S'i�le nnd Renr }'nrds
l rtrd
Zmie Fron! Side 3'nrd Portin�rs o Portioas n Sn-t�cnn-e Strucn�re
Fard Adjncent�o n Street Sn�uctures Sn�ucn�rer
< l8 jee� > l8(eet � 18(eet > 18 feet
in height in height in herglrt in height
20 jeet on arterial mrd 5 ft. min. widd�, 5(ee1. side l0 feet. side �
R-7.5 25jeet collecmr, /Ojee�or� loca! totalcornbined lOfeet 30fee! /Ofeet, rear /Sfeet. rear
stree�s widdr ISfeet �
?0 feel o�v m�terial m�d /0 feet, side �I
R-/0 2>feet callec�or, 1�jeet oi�]ocnl l0(eet /.i feet 30 feet �5 feet, rem� l5,feet
str'eets
201eet m�ar�eriul and l0(eet, side
RJS ?5(eet col(ecror, IS feer on loca/ !0 jee7 15 feet 30 feet �5 feet, reur IS(eet
sn�ee�s
Plannin� Commissfon\Vork Sessioo P�ee 2 LL�Od-0OIO
Aueusl2;, 2004
���AKEOSk, Community Development
��� . � ��� .
r� ' ' � ���i Department
;
Memorandum
OR[�OT�
TO: Planning Commission
FROM: Dennis Egner, AICP, Loi�� Range Yla�ming ManaQer
DATE: August 19, 2004
SUBJECT: Ballot Measure 37
1 am attaching a memorandum on Ballot Measure 37 prepared by City Attorney David
PowelL This memorandum was prepared for the City Council and provides facts about
the measure. Ballot Measure 37 is the statewide ballot measure that is intended to require
compensation for certain types of gover�ment regulations.
This item is inforniational onl� and not scheduled for Plan��ing Commission discussion.
Planning Commission Meeting Pa�e 1
Au�us[23.200d
``1y0p�Al(EOSwECO City Attorney's Of�ce .
� Council Report
�REG�`�
To: Judie Hamtnerstad, Mayor
Members of Lake Oswego City Council
Doug Sclunitz, City Manager
From: David Powell, Ciry Attorney
Date: July 29, 2004
Subject: 2004 Ballot Measure 37 (Initiative Petition #36) �
On July 21st, Secretary of State Bill Bradbury announced that Initiative Petition #36 had
received enou�h valid sionatures to qualify for the November 3, 2004 General Election ballot.
I\vo days ago, the ]nitiative was designated as Ballot Measure 37, and will be referred to as such
in this memo.
in general ternis, Measure 37 requires that, if a land use regulation reduces the value of land, a
govemment en[ity nmst either pay the property owners for the reduced value or for�o
enforceinent of the re�ulation. The voters adopted a similar initiative, Ballot Measure 7, in the
2000 General Election. However the Oregon Supreme Court invalidated Measure 7 because it
�iolated the provision of the Oregon Constitution that prohibits amending multiple, unrelated
parts of the Constitution through a single ballot measure. Measure 37 avoids this issue by
amending the Oregon statutes rather than lhe Constitution.
�FFECT OF MEASURE 37
General Rule
Measure 37 provides that if a public entity (including the State, Metro, a city or a counry)
"enacts" or "enforces" a land use regulation [hat restricts the use of property, and has the effect
ol reducing the value of the property, the public entity must pay the owner compensation equa]
to dte reduction in value. As an alternative, the puUlic entity may forgo enforcement of the
regulation against that property rather than paying compensation.
The right to compensation does not apply if the regulation �vas enacted before Uie property was
acquired Uy the o�vner or a "family member" of the owner. The measure defines `Yamilv
member" as including spouses, children, parents, certain in-laws, aunts and uncles, nieces and
nephews, stepparents, stepchildren, grandparents and grandchildren — or the estates of any of
these relatives. Consequentl��, in the case of propeny passed down from parents or m'andparents
Council Report
Ballot Measure 37
July 29, 200�1
Page 2
to the current owner, the right to compensation could apply to regulations adopted man� years
ago.
Land Use Re�ulations subiect to compensation requirement.
The compensation requirement applies to `9aiid use regulations," which are defiued as includin�:
• Stahites regulating the use of land or any interest in land;
• LCDC administrative rules and goals;
• Local govemment comprchensive plans, zoning ordinances, ]and division ordinances and
transportation ordinances;
• Metro frame�vork plans, functioual plans and planning goals and objectives; and
• Stamtes and administrative rules govenvn� farmiug and forest practices.
Exceptions
The right to compensation does not apply to:
• Regulations prohibiting activities historically recognized as "nuisances" under conunon
la�;
• Public health and safety regulations such as fire and buildin� codes, as �vell as health,
sanitation, solid �vaste, harardous waste and pollution control regulations;
• Regulations that are required in ordcr to comply with federal law;
• Re�ulations prohibiting or restricting pomo��aphy or nude dancing; and
• Regulalions enac�tedbeforetheacquisitionoCthepropertybytheowneror � "famil��
member" (discussed above).
Procedure
If the land �se regulation �vas enacted before the effecti�e date of A9easure 37, ihe claimant must
61e a written demand for compensation within two years of the effective date of the Measure, or
the date lhe public entity applies the regulation as an approval criterion in a developmerit
application suUmitted by the propertyowner, whichever is latec. If theregulation is enacted
afier ihe effective date of Measure 37, written demand must be made �vithin rivo years of the
enactment of the regulation, or the date the owner submits a land use application for which U�e
regulation is a criterion, wltichever is later.
As discussed above, in lieu of payment. the public entiry may elect to "modify, reinove or not to
lsic) apph� thc land use re_ulation . . . to allo��� the o���ner to use tl�c piroperty for a use pennitled
Council Report
Ballot Mcasure 37
July 29, 2004
Pa�e 3
at the time the owner� acquired the propeny." The Measure provides that this may occur despite
any contrary requirements in state statues.
If the public entity continues to enforce the regulation against tl�e property 180 days after the
«�ritten demand is made, it must pay the property owner an amount equal to the reduction in the
fair market value of the property resulting from the enactment or enforcement of the regulation.
If it fails to pay, the property owner may sue the public entity in Circuit Court for the
compensation plus attomey fees, court costs and any other expenses "reasonably incurred" in
collectino die compensation. In addition, if the claim for compensation has not been paid within
rivo years from the date it "accrues;' the owner must be allowed to use the property"as permitted
at the time the owner' acquired the property."
AIEASURE 37 APPLIED TO LAKE OSWEGO
Measure 37 would apply to those regulations wilhin the Community Development Code (CDC)
and the Lake Oswe�o Comprehensive Plan that `Yestrict the use of property." While the quoted
pin�ase is not defined in the Measure, arguably almost any regulation within the CDC or
Comprehensive Plan could be said to "restrict" use in some way.
CDC regulations relate to general categories of use (residential, commercial, industrial, etc.),
types of uses allowed in various zones within the general categories (for example, for residential:
single family, multi-family, group care homes, etc.; for coinmercial: retail sales, services,
lodging, m edical facilities, r estaurants, a uto s ales, e tc.) 1 ot s ize a nd d imensions, 1 ot c overage,
floor area ratio, densities, height, setbacks, lol coverage, landscaping and screening standards,
open space requirements, parking standards and building design standards. Certain districts have
unique design standards, induding the Downtown Redevelopment District, Old To�vn District
and West Lake Grove Design District. It could also be argued that Measure 37 would apply to
much of the Lake Oswego Tree Code and Si�� Code.
If au owner of real properly in the City were to determine that an�� of these regulations ��ere
enacted after he or she acquired the property, or were enacted after the owner's ancestors (as far
back as �andparenis) or other family members acquired the property, the owner could make a
claim against the City far compensation under Measure 37. If fhe fair market value of the
propert����'ithou[ the challenged restriction were m ore than the value of the property�y�ith the
restrictiou, the City would have to either pay the owner the difference in value or release the
property from the restriction.
' The use here of only the term`b���ei'appears to be an error as it fails to take into account those instances in which the land
use regulatio��was enacted before acquisition by the claimanb'owner, but afrer acquisi[ion of the by an ancestor"family
member"of the owner. See discussion under section litled"Generai Rule."
� See ti>o�no�e I.
Council Report
Ballot Measure 37
July 29. 200a
Page d
If the City chose to release the restriction, the o�vner would be allowed to use the propert�� as
pem�itted at the time the property �vas acquired or, presumably, as permitted when the ancestor
acquired the property. If the ownership by a parent or erandparent went back a numUer of
decades, and if the entire current Code were challenged aud released, it could result in thc owner
possessing a parcel with virtually no development or use restrictions.
bteasure 37 does not limit the number of reaulations that may be combined in a daim. Nor docs
it prohibit clairnants from making multiple claims, as long as all claims are made within the time
limitations discussed wider"Procedure," above.
Follo�ving the adoption of Measure 37, the City Council would need to carefully consider
whelher any proposed amendments to City land usc regulations presented in the future could bc
viewed as more restrictive than the status yuo. lf so, additional claims for compensation could
be expected following adoption of the amendments.
The Measure establisl�es no enteria or a process for how a govemment entity decides when to
pay compensation and when to release property fro�n regulations. If Measure 37 passes, it would
be ad��isable for the Council ro �dopt daim procedure�s and payment or release criteria.
Measure 37 does not address annexations. The Measure expressly exempts land use regulations
"enacted" prior ro the date Yhe property was acquired by the owner (or ancestor). The Measure
does not state whether re�ulations are considered to be "enacted" as to a specific property as of
the date that property is annexed to the City (annexation being when those regulations are first
applied to the property), or considered to be "enacted" wUen first made part of the Code, even iC
they did �ot apply to the subject property until it was annexed at a la[er time.
The Measure also does not address whether rezoning properiy within the City amounts to
"enactin�" ne�v regulations for that property, or merely applying previousiy enacted zone
restrictions.
Finally the Nleastn'e does not specify whether the temi "pro}�erty owner" includes corporate
en[ities. If so, lhis could expand the potcntial extent of lhe�4casure's relroactivity.