5.1.400 Class C Variances | Bend Development Code

5.1.400 Class C Variances.

A. Purpose. A variance request can be specific to certain aspects of development. The purpose of this section is to provide specific criteria for reviewing certain variance requests. The specific situations identified as Class C Variances include:

1. Variance to parking standards.

2. Variance to maximum or minimum on-site development requirements to reduce tree removal and/or impacts to wetlands (Waterway Overlay Zone).

3. Variance to maximum height.

4. Variance to vehicular access and circulation standards.

5. Floodplain Sub-Zone variances.

The applicant shall provide a written narrative or letter describing the reason for the variance, why it is required, alternatives considered, and compliance with the approval criteria.

B. Class C Variance Criteria. Class C variance requests are reviewed using the specific criteria listed below.

1. Variance to Parking Standards. The City may approve a variance to the minimum or maximum standards for off-street parking in BDC Chapter 3.3 upon finding all of the following:

a. The individual characteristics of the use at that location require more or less parking than is generally required for a use of this type and intensity;

b. The need for additional parking cannot be met through provision of on-street parking, structure parking or shared parking with adjacent or nearby uses; and

c. All other parking design and building orientation standards are met, in conformance with the standards in BDC Titles 2, Land Use Districts, and 3, Design Standards.

The City may approve a reduction of required bicycle parking per BDC 3.3.600, Bicycle Parking Standards, if the applicant can demonstrate that the proposed use by its nature would be reasonably anticipated to generate a lesser need for bicycle parking.

The City may allow a reduction in the amount of vehicle stacking area required for drive-through and drive-in facilities if such a reduction is deemed appropriate after analysis of the size and location of the development and other pertinent factors.

2. Variance to Maximum or Minimum On-Site Development Requirements to Reduce Tree Removal and/or Impacts to Wetlands (Waterway Overlay Zone). The City may grant a variance to the applicable on-site requirements of this code, including building height, for the purpose of preserving a tree or trees on the site of proposed development or avoiding wetland impacts. Modification shall not be more than is necessary for the preservation of trees or wetlands on the site.

3. Variance to Maximum Height. The City may grant a variance to the maximum height limitations not otherwise exempted by this code when the following criteria are met:

a. The structure is not located within the Deschutes River Corridor or the Tumalo Creek Corridor.

b. The proposed height does not create a burden on the City’s Fire Department for fire fighting requirements.

c. The location, size, and design characteristics of the proposed structure shall have minimal adverse impact on the property values and livability of the permitted development in the surrounding area.

d. The structure will provide an aesthetically pleasing and functional environment and relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features to the greatest extent practical.

e. The requested height is the minimum deviation necessary.

f. If the structure is located in the CB Zone, the Class B approval criteria shall also apply.

4. Variance to Vehicular Access and/or On-Site Circulation Standards. The City may approve a variance to the vehicular access and/or on-site circulation standards when the following criteria are met:

i. There is not adequate physical space for shared access, or the owners of abutting properties do not agree to execute a joint access easement.

ii. There are no alternative areas to access the site from the street in question or from another street or alley.

iii. The request is the minimum variance required to provide adequate access.

iv. The approved access or access approved with conditions will result in a safe access as determined by the City Engineer.

i. The request is required due to the lot configuration, or other physical conditions or development constraints of the site.

ii. The request is the minimum variance required to provide adequate circulation.

iii. The request does not reduce the aisle width dimensions in Table 3.3.300.F.1, Parking Stall Dimensions, when there are abutting parking stalls.

i. The clear vision requirements of BDC 3.1.500, Clear Vision Areas, will be met.

ii. The variance does not create a burden on the City’s Fire Department for firefighting requirements.

Variance for deviations regarding access to State Highways are subject to review and approval by the Oregon Department of Transportation.

a. Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size that is contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing subsections (B)(5)(a)(i) through (xi) of this section have been fully considered. As the lot size increases, the technical justification required for issuing the variance increases. The City must approve, approve with conditions, or deny an application for a variance based on all of the following criteria:

i. The danger that materials may be swept onto other lands to the injury of others;

ii. The danger to life and property due to flooding or erosion damage;

iii. The susceptibility of the proposed development and its contents to flood damage and the effect of such damage on the individual owner;

iv. The importance of the services provided by the proposed development to the community;

v. The necessity to the development of a waterfront location, where applicable;

vi. The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

vii. The compatibility of the proposed use with existing and anticipated development;

viii. The relationship of the proposed use to the Comprehensive Plan and floodplain management program for that area;

ix. The safety of access to the property in times of flood for ordinary and emergency vehicles;

x. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

xi. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

b. A variance may be issued for the reconstruction, rehabilitation, or restoration of a structure listed on the National Register of Historic Places or the State Inventory of Historic Places per this subsection (B)(5).

c. A variance shall not be issued within a designated floodway if any increase in flood levels during the base flood discharge would result.

d. A variance shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

e. A variance shall only be issued upon:

i. A showing of good and sufficient cause;

ii. A determination that failure to grant the variance would result in exceptional hardship to the applicant;

iii. A determination that the granting of the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in this section, or conflict with existing local laws or ordinances.

f. A variance as interpreted in the National Flood Insurance Program is based on the general zoning law principle that it pertains to a physical piece of property; it is not personal in nature and does not pertain to the structure, its inhabitants, economic or financial circumstances. It primarily addresses small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

g. A variance may be issued for a nonresidential building in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry-floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except subsection (B)(2) of this section and otherwise complies with BDC 2.7.600, Waterway Overlay Zone (WOZ).

h. Any applicant to whom a variance is granted shall be given notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of the flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. [Ord. NS-2463, 2023; Ord. NS-2177, 2012; Ord. NS-2016, 2006]