Code Streamlining and Updates Project Nonconformities and Variances Draft Annotated Outline

What is this About? 2010: Lake Oswego Code Audit finds: CDC needs to be reorganized Non-conformities section needs to be updated Variances and adjustments need to be much simpler 2011: CDC is reorganized and all variances and adjustments are put in one section (but not updated) : Consultant prepares Annotated Outline of how nonconformities and variances/adjustments should be revised to achieve the goals of the Audit That Outline is the topic of tonight’s meeting

What are Nonconformities? Development that was legal when it was built, but that is no longer legal due to some later amendment of the Code. Examples: – Lots (too small or narrow) – Buildings (too tall or too close to a lot line) – Land Uses (commercial in a residential zone) – Site Features (not enough parking or landscaping) Non-conformities are generally allowed to continue, but: – NC commercial and industrial structures and uses require approval of a Conditional Use Permit to expand; (EXPAND?) – NC commercial buildings must comply with the code after a flood or fire if damaged by more than 50% of replacement cost; (REBUILD?); and – NC uses are not allowed to restart after discontinuing for 6 months (RESTART?).

What Needs to Be Fixed? We have identified the following issues with Lake Oswego’s nonconformity provisions. Nonconforming provisions are scattered in different sections of the Code They use a confusing array of undefined terms for similar actions (i.e. redevelopment, remodeling, reconstruction, enlargement, expansion, damage, destruction) They do not distinguish or address all four of the common types of nonconformities

What Needs to Be Fixed? We have identified the following issues with Lake Oswego’s nonconformity provisions. They use a “percentage of replacement cost” methodology to determine whether a damaged building may be rebuilt – which has been manipulated in the past to allow heavily damaged buildings to be rebuilt in their former state. A conditional use permit is required to expand NC commercial and industrial uses in commercial or industrial zones– even if the expansion is conforming to the CDC. – Other structures, such as NC institutional, are not addressed and cannot technically be expanded in any way.

How Will They Be Fixed? Consolidate similar terminology and define where necessary Rules applicable to NC uses, buildings, lots, and site features will be distinguished Allow a NC use to be expanded within an existing structure, but not to an addition or another portion of the lot without the issuance of a CUP Distinguish between willful damage by an NC owner (which may not be rebuilt) and other forms of damage (which can be rebuilt) – Instead of the current distinction between damage by Acts of God (which may be rebuilt) and all other damage (which may not be rebuilt) – which has proven to be an unworkable distinction.

How Will They Be Fixed? Clarify that NC buildings may be expanded if the expansion complies with the applicable code standards BUT When NC buildings in design overlay districts are expanded by over 50% (cumulative) of their gross floor area, the entire building and site needs to be brought into compliance with the CDC

How Will They Be Fixed? Replace the “percentage of replacement value” test for rebuilding a damaged structure with a “percentage of gross floor area damaged” test – which is more objective. Revise the current time period that a discontinued NC use is required to be brought into compliance to: – Extend the period from 6 months to 2 years; and – Allow the City Manager to grant a 1 year extension if the property is still being actively marketed for the NC use

Variances and Adjustments The Code has 11 varieties of variances and adjustments – far more than needed by a city this size: Sensitive Lands Setback Modifications ( b) R-6 District Modifications ( ) R-DD Modifications ( ) Solar Setback Modifications ( ) Minor Variance ( ) Hardship Variance ( ) Reasonable Accommodation Variance ( ) Downtown Redevelopment Design District Exceptions ( ) Lake Grove Village Center Adjustments ( ) Residential Infill Development (RID) Process ( ) Foothills Mixed Use Design District Adjustments

Variances and Adjustments Generally – cities need: EXCEPTIONS Automatic – like chimneys can poke through height limits MINORS Administrative – No hearing -- No showing of hardship required MAJORS -- Hearing required -- Showing of hardship required DESIGN VARIATIONS -- Based on superior design Usually decided by DRC

Variances and Adjustments Generally – cities need: EXCEPTIONS Automatic – like chimneys can poke through height limits MINORS Administrative – No hearing -- No showing of hardship required MAJORS -- Hearing required -- Showing of hardship required DESIGN VARIATIONS -- Based on superior design Usually decided by DRC

Proposed Consolidation Solar Setback Modifications R-DD Modifications R-6 District Modifications Reasonable Accommodation Variance Minor Variance Lake Grove Village Center Adjustments Downtown Redev. Design District Exceptions RID Foothills Mixed Use District Adjustments Sensitive Lands Setback Modifications Hardship Variance EXCEPTIONS MINORS DESIGN VARIATIONS MAJORS

Proposed Consolidation R-6 District Modifications X Reasonable Accommodation Variance Minor Variance Lake Grove Village Center Adjustments Downtown Redev. Design Dist. Exceptions RID Foothills Mixed Use District Adjustments Sensitive Lands Setback Modifications Hardship Variance EXCEPTIONS MINORS DESIGN VARIATIONS MAJORS

Proposed Consolidation Sensitive Lands Setback Modifications Hardship Variance EXCEPTIONS MINORS DESIGN VARIATIONS MAJORS

Impact of the Changes 1. Minor Variances A single list of criteria based on the Minor Variance criteria expanded to replaces the separate lists for R-6, Reasonable Accommodations, and Lake Grove Village Center (Minor). 2.Design Variances Simplify (but keep separate where necessary) criteria for: R-DD Modifications (Major) Lake Grove Village Center (Major) Downtown Redevelopment Design District RID 3.Major Variances Separate criteria for: Sensitive Lands Adjustments Hardship Variances

Impact of the Changes Additional changes – Language related to “hardship” and “the least variance necessary to respond to the hardship” will be removed from LGVC adjustments, as those concepts do not apply well in contexts where adjustments are based on design merit. – Text will clarify that in LGVC approved variances can be used to vary base as well as overlay standards in order to make the variance effective. – Clarify that requests for design-based variances too large to be approved through a Design Variance process may be approved through the Hardship Variance process (if hardship criteria are met).

Next Steps – Additional Outreach Meet with interested neighborhood associations – Work session with the PC on April 29 – Prepare draft Code Amendments by the end of June – Additional PC work session and public hearing to be scheduled for summer and early fall

Discussion Questions

Discussion Question #1 Should NC commercial and industrial buildings be allowed to expand in a conforming manner without a Conditional Use Permit?

Discussion Question #2 Should large expansions to NC buildings located in design districts require that the entire building and site be brought into conformance with the code?

Discussion Question #3 Should the nonconforming standards in the LGVC for damaged structures and nonconforming uses be the same as the rest of the City?

Discussion Question #4 Are there any concerns about the elimination of the R-6 Administrative Modification procedure?

Additional questions or concerns?