Agenda Item - 2022-07-11 - Number 06.1 - Staff Memo 06-27-2022 PCWS-2 07-11-2022 w-Attach PP 22-0002 of LA os MEMORANDUM
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TO: Planning Commission
FROM: Scot Siegel, Community Development Director
SUBJECT: Residential Nonconforming Development—Work Session #2 (PP 22-0002)
DATE: June 27, 2022 MEETING DATE: July 11, 2022
INTRODUCTION
On July 11, 2022, the Planning Commission will continue its review of the requirements for
nonconforming residential developments. This project came out of a concern from the Middle
Housing Code Advisory Committee that the current code (LOC 50.01.006) was not maintaining
neighborhood character and livability when nonconforming single-family dwellings were
remodeled (versus demolished).
Nonconforming development is development that complied with the Code when it was
established but no longer conforms due to some later amendment of the Code. These are
structures that no longer meet required setbacks or other development or design standards
due to code changes that occurred after the structure was built. The Community Development
Code allows that "Portions of a nonconforming structure that are not being altered as part of
the expansion are not required to be brought into conformance with this Code." (LOC
50.01.006.3.a.ii) For the complete text of LOC 50.01.006 Nonconforming Uses, Structures, Lots
and Site Features, please refer to Attachment A.
This work aligns with the City Council goal to "Conserve the community's quality of life by
planning for change and growth", and the Council Initiative, to "Adopt codes that comply with
HB 2001 that are consistent with the community's sense of place, neighborhood character, and
livability." The City has adopted HB 2001 compliant code but the City Council and Planning
Commission are reviewing and updating other code requirements relating to housing, including
those for nonconforming development.'
' In June 2022,the City Council adopted Ordinance 2894, amending the definition of Demolition (of residential
structures) in LOC 45.12.100. Demolition now means removal of more than 50%of a dwelling's exterior walls or
perimeter foundation. Demolition previously was defined as removal of all exterior walls or foundation.
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
Page 2
BACKGROUND
On June 15, 2021, the City Council appointed the Middle Housing Code Advisory Committee
(committee)to recommend code concepts for attaining compliance with House Bill 2001
(Oregon Administrative Rules, OAR 660, Division 46). In addition to addressing the
requirements of HB 2001, the committee identified other optional measures the City could
adopt to help maintain neighborhood character as residences are remodeled and properties
redevelop. Specifically, the committee recommended, and the Council agreed, that the City
should consider amending the criteria for remodels to nonconforming residences.
For reference, during 2021 the City approved 33 building permit applications for additions to
single-family dwellings, of which approximately 1/3 were additions to nonconforming
development. By comparison, permits were issued for 30 residential demolitions in 2021.
Earlier this year, staff convened a workgroup2 to study the issue of demolitions/remodels and
nonconforming development. The workgroup was comprised of Planning and Building staff, the
chair of the Middle Housing Code Advisory Committee, a neighborhood association chair, and a
local builder with experience developing both single-family residences and middle housing. The
City Council subsequently enacted Ordinance 2894, amending the definition of Demolition in
LOC 45.12.100.
Under the new definition, a Demolition Permit is required when removing 50% or more of a
dwelling's exterior walls or perimeter foundation over five years. Demolition previously was
defined as removal of all exterior walls or foundation. This distinction is important because
once a nonconforming dwelling was "demolished" it no longer retained its nonconforming
status. Under the new definition, it is now possible to remove major portions of a dwelling and
meet the definition of demolition while retaining some nonconforming aspect of the structure.
On February 28, 2022 the Planning Commission met to review the workgroup
recommendations, and on May 27 the Commission and staff toured six recent residential
remodels in four neighborhoods. The case studies included examples of remodels where only
one wall of the original structure was left standing and a new dwelling was built. In all of the
examples, the resulting dwellings were larger than those they replaced. This was enabled in
part by the Community Development Code's allowance that, "Portions of a nonconforming
structure that are not being altered as part of the expansion are not required to be brought into
conformance with this Code." (LOC 50.01.006.3.a.ii) See also, Attachment A.
2 This workgroup was comprised of staff in the Planning and Building departments and three community members:
Randy Arthur, Chair of the Middle Housing Code Advisory Committee; Rob Mathews of Blue Palouse Properties;
and Carole Ockert, First Addition Neighbors-Forest Hills Neighborhood Association and Middle Housing Code
Advisory Committee member.
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
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DISCUSSION
The purpose of the July 11 work session is for the Commission to review the requirements for
continuation of nonconforming residences and provide direction on whether to amend the
code. The following summarizes the code concepts developed by the workgroup; their
complete proposal, including non-land use recommendations, is contained in Attachment B.
1. Should residential nonconformities not be allowed to continue when a dwelling is
demolished (50% or more of the exterior walls or perimeter foundation are removed)?
Pro: Moves more properties toward conformance, including conformance to the
requirements of neighborhood overlays and design districts.
Con: Reduces development rights and would result in more demolitions, which may
lead to more tree removal.
Alternative: Establish a different threshold (e.g., 80% removed) for full conformity.
2. Currently, nonconforming developments may be expanded so long as the expansion
does not increase the degree of nonconformity. Should there be a limit on how much a
nonconforming dwelling may be enlarged even where there is no increase in
nonconformity? (The work group discussed this idea but did not reach consensus.)
Pro: Could promote remodels that are more in character with the neighborhood,
particularly in areas with historic landmarks or where surrounding residences are
similarly nonconforming.
Con: Reduces development rights and could result in more demolitions, which may
lead to more tree removal.
3. Should a pre-submittal meeting with staff, or a formal pre-application conference with
neighborhood input, be required for building permits when a nonconforming portion of
a building is proposed to remain?
Pro: Might reduce complications during plan review and inspections, for example
where a critical component of a structure that was supposed to remain is
removed and the building loses its nonconforming status.
Con: Adds costs and delay in the permit process, which is already complicated.
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
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The work group suggested other changes to the permit process, which staff is already
implementing under the revised demolition code. For more information, please refer to the
web page, at https://www.ci.oswego.or.us/building/residential-demolition-information.
Additional background is provided in Attachment C— Planning Department Informational
Handout, and Attachment D—Summary of Other Cities' Codes.
NEXT STEPS
Based on the Commission's feedback, staff will prepare a public review draft of any code
concepts and begin outreach to the building and remodeling industry.
ATTACHMENTS
A. LOC 50.01.006 Nonconforming Uses, Structures, Lots and Site Features
B. Workgroup Concepts Paper, 02/18/2022
C. Nonconforming Single-Family Structure Planning Department Handout, 02/01/2022
D. Summary Table of Other Cities' Codes, 02/17/2022
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
50.01.006 NONCONFORMING USES, STRUCTURES, LOTS AND SITE FEATURES
1. NONCONFORMING DEFINED; RIGHTS GRANTED
a. Nonconforming; Illegal
i. A use, structure, lot, or site feature (e.g., landscaping, parking, etc.; see Sign Code, LOC Chapter 47 for nonconforming signs) is nonconforming if
the use, structure, lot, or site feature was initially lawfully established, but does not comply with or would not be permitted to exist under this Code due to
a subsequent enactment or amendment to this Code, or due to annexation.
ii. An illegal use, structure, lot or site feature is one that was not lawfully established because it does not comply with or would not be permitted under
this Code or any prior versions of this Code. A use, structure, lot or site feature that was lawfully established under a prior jurisdiction but did not comply
with this Code at the time of annexation is not illegal. An illegal use, structure, or site feature is a violation of this Code and may be subject to abatement
or penalties pursuant to LOC Article 50.09. An illegal lot may obtain legal status only if it meets the requirements set forth in LOC 50.01.003.5,
Development Restricted on Illegal Lot.
b. Approved Variance
A use, structure, lot, or site feature for which a variance was granted is not considered nonconforming solely because the characteristic of the use, structure,
lot, or site feature for which the variance was granted fails to comply with the requirements of this Code. However, the existence of an approved variance
does not prevent the use, structure, lot, or site feature from being classified as nonconforming as to another characteristic that fails to comply with the
requirements of this Code.
c. Applicability to Approvals and Incomplete Construction
If a use, structure, or site feature that received final development approval becomes nonconforming within a year after approval, but before construction is
completed, no change in plans, construction or use for which a final development approval was received is required. All rights granted by this section are
extinguished if the development permit or building permit is revoked or becomes void. The structure, use, or site feature shall thereafter conform to all
applicable provisions of this Code.
[Cross-Reference: LOC 50.07.005.1 —Uses Under Conditional Use Provisions Not Nonconforming Uses.]
(Ord. 2644, Amended, 04/07/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)
2. CONTINUATION AND MAINTENANCE OF NONCONFORMITIES
a. Continuation of Nonconformity
Subject to the provisions of this section, and except as otherwise provided by this Code, a nonconforming use, structure, lot, or site feature may be continued
in use so long as it remains otherwise lawful.
b. Maintenance
PP 22-0002 ATTACHMENT A/PAGE 1 OF 5
On any nonconforming structure or site feature, maintenance may be performed in a manner not in conflict with the other provisions of the City Code. Nothing
in this Code shall be deemed to prevent the strengthening or restoring to a safe condition of any structure, or portion thereof, or site feature declared to be
unsafe by any official charged with protecting the public safety, upon the order of that official.
(Ord. 2644, Amended, 04/07/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)
3. EXPANSION OR CHANGE OF NONCONFORMITIES
(Di
a. Nonconforming Structures
A nonconforming structure may only be expanded or changed in accordance with the provisions of this subsection.
i. Nonconforming structures may only be expanded if:
(1) The expansion does not increase the degree of any existing nonconformity; and
(2) The expansion does not create any new nonconformity.
ii. Portions of a nonconforming structure that are not being altered as part of the expansion are not required to be brought into conformance with this
Code.
iii. Extensions of nonconforming walls may be approved through the Minor Variance process set forth in LOC 50.08.002.2.k.
iv. For residential structures, a change in roof pitch on a nonconforming portion of the structure may be permitted if the roof height is not increased by
more than six ft. and does not exceed the base zone height.
v. Use of Expansion Area
(1) If the building being expanded contains a permitted use, that use may also occupy the building expansion area.
(2) If the building being expanded contains a conditional use, that use may only be enlarged to also occupy the building expansion area with a
modification of the conditional use permit.
(3) If the building being expanded contains a nonconforming use, that nonconforming use may be enlarged to also occupy the expanded area with
a conditional use permit, but the conditional use criterion in LOC 50.07.005.3.a.i, Authorization to Permit or Deny Conditional Uses, as it relates to
uses in the zone shall not apply.
b. Nonconforming Uses
i. A nonconforming use may only be expanded with a conditional use permit, but the conditional use criterion in LOC 50.07.005.3.a.i, Authorization to
Permit or Deny Conditional Uses, as it relates to uses in the zone shall not apply.
ii. A nonconforming use with outdoor operations may only expand its outdoor operations to new areas of the property with a conditional use permit.
iii. A nonconforming use may only be changed to:
PP 22-0002 ATTACHMENT A/PAGE 2 OF 5
(1) A permitted use; or
(2) A conditional use, with a conditional use permit.
c. Nonconforming Site Features
i. If a property is nonconforming with respect to landscaping or open space and the expansion of a structure on the property is proposed, the applicant
shall install new landscaping and/or open space in an amount equal to the lesser of:
(1) The footprint of the new building addition multiplied by the percentage of landscaping and/or open space prescribed by this Code; or
(2) The amount of landscaping and/or open space needed to bring the property into compliance with the minimum amounts of landscaping and/or
open space required by this Code.
(Ord. 2644, Amended, 04/07/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)
4. DAMAGE AND RECONSTRUCTION OF NONCONFORMING STRUCTURES
a. Single-Family and Duplex Dwellings, Accessory Structures, and Historic Landmarks
This subsection is applicable to nonconforming single-family (attached or detached)and duplex dwellings, historic landmarks designated or listed upon the
Landmark Designation List, and accessory structures to a single-family dwelling, duplex dwelling, or historic landmark.
i. Nonconforming Structures Not Located in the Flood Management Area
Subject to the time limitation in subsection 4.c of this section, when all or any portion of a nonconforming structure listed above is damaged by any
cause other than an intentional act of the owner, and no part of the structure is located in the flood management area, the reconstruction of the
nonconforming structure shall be exempt from the provisions of this Code to the extent that the damaged portions of the structure failed to conform.
ii. Nonconforming Structures Located in the Flood Management Area
Subject to the time limitation in subsection 4.c of this section, when all or any portion of a nonconforming structure is damaged by any cause other than
an intentional act of the owner, and part of the structure is located in the flood management area, the reconstruction of the nonconforming structure shall
be exempt from the provisions of this Code to the extent that the damaged portions of the structure failed to conform, except that no part of the structure
shall be reconstructed within the flood management area.
iii. Nonconforming Single-Family or Duplex Dwelling or Landscaping Located in an RP or RC District or Construction Setback
(1) Nonconforming Structures
See LOC 50.05.010.4.a, Rebuilding Nonconforming Single-Family or Duplex Dwelling Located in RP or RC District or Construction Setback, and
LOC 50.05.010.2.b and c, General and Specific Exceptions.
(2) Nonconforming Landscaping
PP 22-0002 ATTACHMENT A/PAGE 3 OF 5
See LOC 50.05.010.5.c.iii(8)(e), Landscaping in an RC district, and LOC 50.05.010.6.c.ii(1)(a)(v), Landscaping in an RP district.
iv. Damage to a Nonconforming Structure by an Intentional Act of an Owner
When all or any portion of a nonconforming structure is damaged by an intentional act of the owner, all reconstruction of the structure shall conform to
this Code.
b. Structures Other Than Single-Family or Duplex Dwellings, Accessory Structures, and Historic Landmarks
i. Applicability
This subsection is applicable to structures other than those listed in subsection 4.a of this section.
ii. Ability to Construct or Reconstruct Nonconforming Structure
(1) Damage to Nonconforming Structures of Less than 50% of the Structure Replacement Cost
If a nonconforming structure is damaged from any cause to the extent that the cost of rebuilding the damaged portions is less than 50% of the
current replacement cost of the entire building, the rebuilding may be reconstructed to the extent that it was nonconforming, except that no portion
of the structure shall be reconstructed in the flood management area.
(2) Damage to Nonconforming Structures of More than 50% of the Structure Replacement Cost
If a nonconforming structure is damaged from any cause to the extent that the cost of rebuilding the damaged portions is 50% or more of the current
replacement cost of the entire building, the rebuilding shall conform to City codes and standards.
c. Time Limitation
i. In order to use any rights to reconstruct a damaged nonconforming structure without full compliance with this Code, above, the building permit for
the new construction or reconstruction must be issued within one year from the date of damage. If the building permit is not issued within the one-year
period, or if the building permit is issued but later expires, the ability to reconstruct a nonconforming structure not in compliance with this Code shall
cease.
ii. On demonstration that a good faith effort has been made by the owner to be able to apply for the building permit to reconstruct the damaged
structure (including obtaining funding and completion of architectural work)and a written request for extension is submitted prior to expiration, the City
Manager may extend the construction rights for an additional year. Construction shall be completed within two years of the issuance of the building
permit or extension granted by the City Manager.
iii. The time limitations in subsections 4.c.i and 4.c.ii of this section, may be extended by the City Manager if the owner can demonstrate that the
reconstruction of a damaged nonconforming structure is pending review under an insurance claim or litigation. Construction shall be completed within
two years of the settlement date or decision of the insurance claim or litigation.
(Ord. 2832, Amended, 01/07/2020; Ord. 2644, Amended, 04/07/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)
PP 22-0002 ATTACHMENT A/PAGE 4 OF 5
5. NONCONFORMING LOTS
a. Development Permitted
A nonconforming lot that does not meet the minimum size or dimensional requirements of the zone in which it is located may be developed as permitted in
that zone; provided, that (i)the structure complies with all applicable Code standards or(ii)the applicant obtains a variance pursuant to LOC Article 50.08,
Variances.
b. Lot Line Adjustment
Lot lines may be adjusted; provided, that the degree of any existing nonconformity is not increased and no new nonconformity is created on any of the lots
involved as a result of the adjustment.
(Ord. 2644, Amended, 04/07/2015; Ord. 2599, Amended, 12/18/2012; Ord. 2579, Repealed and Replaced, 03/20/2012)
6. DISCONTINUATION OF NONCONFORMING USE
a. One-Year Time Limit
If a nonconforming use is discontinued for a period of at least one year, the nonconforming use may not be restarted and future use shall comply with the
requirements of this Code. For the purpose of this standard, "discontinued" means the use has vacated or ceased operation on the site.
b. One-Year Extension
Up to two one-year extensions may be granted by the City Manager if the owner demonstrates that they are actively marketing the property for continuation of
the nonconforming use but have been unable to find a buyer or tenant for that use. The owner shall file each request for a one-year extension separately.
After three years, the nonconforming use may not be restarted, and any future use of the structure shall comply with the requirements of this Code.
(Ord. 2644, Amended, 04/07/2015; Ord. 2579, Repealed and Replaced, 03/20/2012)
The Lake Oswego Municipal Code is current through Ordinance 2890, and legislation City Website: https://www.ci.oswego.or.us/
passed April 5, 2022. (https://www.ci.oswego.or.us/)
Disclaimer: The City Recorder's Office has the official version of the Lake Oswego Municipal City Telephone: (503) 635-0290
Code. Users should contact the City Recorder's Office for ordinances passed subsequent to the Code Publishing Company (https://www.codepublishing.com/)
ordinance cited above.
PP 22-0002 ATTACHMENT A/PAGE 5 OF 5
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
Note to Reviewers:Sample new text shown in bold with double underline.Strikeouts indicates text that would be
removed.Text boxes are not part of code.Options for input by the Planning Commission are shown with italicized
text in brackets[50%/80%].
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2. CONTINUATION AND MAINTENANCE OF NONCONFORMITIES
a. Continuation of Nonconformity
i. Subject to the provisions of this section, and except as otherwise provided by this Code, a
nonconforming use, structure, lot, or site feature may be continued in use so long as it remains otherwise
lawful.
ii. Ina residential zone, upon removal of(50/801 aercent or more of the exterior walls of a
nonconforming dwelling or expansion of floor area of the dwelling by(50/801 or more as it
existed on (effective date of ordinancel. either as a single oroiect or cumulatively over five years
or less. the entire dwelling shall be brought into conformance with this Code
iii. Applications to demolish less than (50/801 aercent of the exterior walls of a nonconforming
dwelling (partial demolition) or to expand the floor area of the dwelling after partial demolition
shall include:
(1) A site plan. floor plans. and elevations drawn to scale that clearly identify and label,with
calculations (square feet). all exterior walls. foundations. and roofing proposed to remain, and
all such features proposed to be removed;
(2) Certification by a registered structural engineer for exterior walls. foundations. and roofing
to remain; and
131 Any other information the City Manager deems necessary to evaluate compliance with
subsection ii.
iii. "Exterior wall"for the purpose of LOC 50.01.006.2 means a wall enclosing a dwelling or an
attached garage that has an exterior surface exposed to the outside. including all framing and
sheathing. from top plate to bottom plate on all stories
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PP 22-0002 ATTACHMENT B/Page 1 of 6
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
Comment: Division 46(HB 2001)contains the following relevant provision:
Currently,the Code allows that"Portions of a nonconforming structure that are not being altered as part of the
expansion are not required to be brought into conformance with this Code." (50.01.006.3.a.ii, below)This would
change for dwellings in residential zones but would continue to be allowed for dwellings in nonresidential zones
and for other uses.This could encourage demolition of some structures that would otherwise be"retained"with
less than 50%of the original walls and floor area,which could have a positive or negative impact on neighborhood
character. Does the Planning Commission agree that full conformance should be required for dwellings in
residential zones upon removal of a certain percentage or more of walls or floor area? If so,what should the
threshold be? It need not be the same as the definition of demolition,which pertains to the demo tax and
b. Maintenance
On any nonconforming structure or site feature, maintenance may be performed in a manner not in
conflict with the other provisions of the City Code. Maintenance does not include changes to the
supporting members of a structure such as a foundation. bearing walls or bearing partitions,
columns. beams. trusses. girders, or other structural elements. Nothing in this Code shall be
deemed to prevent the strengthening or restoring to a safe condition of any structure, or portion thereof,
or site feature declared to be unsafe by any official charged with protecting the public safety, upon the
order of that official.
Comment:The above amendment incorporates the existing staff interpretation of Maintenance. However,
currently there is no way to prevent an owner from allowing a structure to deteriorate to the point that it is
declared unsafe,then being allowed to perform maintenance regardless of whether it involves structural
alterations.See also,the existing Planning Department Existing Single-Family Nonconforming Development
Handout. Does the Commission have any input on this with respect to protecting neighborhood character?
3. EXPANSION OR CHANGE OF NONCONFORMITIES
a. Nonconforming Structures
A nonconforming structure may only be expanded or changed in accordance with the provisions of this
subsection.
i. Nonconforming structures may only be expanded if:
(1) The expansion does not increase the degree of any existing nonconformity; and
(2) The expansion does not create any new nonconformity.
ii. Portions of a nonconforming structure that are not being altered as part of the expansion are
not required to be brought into conformance with this Code except as required by LOC
50.01.006.2.a.
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PP 22-0002 ATTACHMENT B/Page 2 of 6
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
Comment:This change is required only if LOC 50.01.006.2.a is amended to require full conformance in
some instances.
iii. Extensions of nonconforming walls may be approved through the Minor Variance process set
forth in LOC 50.08.002.2.k.
Comment:This has limited applicability.
iv. For residential structures, a change in roof pitch on a nonconforming portion of the structure
may be permitted if the roof height is not increased by more than six ft. above the existing wall
top plate and does not exceed the base zone height.
Comment:This amendment clarifies the intent,which is to allow changes in roof pitch (for example from
flat to a gable or shed) but not allow an increase in wall height.
***
Comment regarding HB 2001/Division 46:The above concepts appear to be consistent with HB 2001, however,
staff will need to confirm with DLCD that the limitations on continuation of nonconforming development comply
with Division 46.
660-046-0230 Middle Housing Conversions,
"1.Additions to,or conversions of,an existing detached single-family dwelling into Middle Housing is allowed in
Large Cities pursuant to OAR 660-046-0205(2), provided that the addition or conversion does not increase
nonconformance with applicable clear and objective standards, unless increasing nonconformance is otherwise
permitted by the Large City's development code."
These clear and objective standards cannot result in unreasonable cost or delay to the development of the middle
housing type.
The following is from a DLCD FAQ document: "OAR 660-046-0230 requires cities to allow additions to or
conversions of existing single-family dwellings into Middle Housing, provided that it does not increase
nonconformance with applicable clear and objective standards(unless otherwise allowed by the City's code).
Therefore,a City would be permitted to apply design standards to the portion of a conversion that would increase
nonconformance with applicable design standards(e.g. new building facade,entrances,etc.), but not the portions
that would not increase nonconformance(e.g.existing facade,entrances,etc.)."
3 ' Page
PP 22-0002 ATTACHMENT B/Page 3 of 6
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
50.01.002 APPLICATION OF CODE
1. APPLICABILITY
Development of real property within the corporate limits of the City of Lake Oswego shall be governed by
this Code. All provisions in other sections of the Lake Oswego Code which conflict with applicable
provisions of this Code are hereby superseded.
50.10.003 DEFINITIONS
//
2. DEFINITION OF TERMS
The following terms shall mean, except as may be otherwise defined for a specific section:
Development
Any manmade change to improved or unimproved real property, including, but not limited to, construction,
installation or alteration of a building or other structure fincludina partial demolition of a residential
structure where a nonconforming portion remains!, change of use, land division, establishment or
termination of a right of access, storage on the land, grading, clearing, removal or placement of soil,
paving, dredging, filling, excavation, drilling or removal of trees.
Comment:The amended definition of development is necessary only if the code is also amended to require pre-
application conferences for partial demolitions of a nonconforming structures,as discussed below. If the
Commission recommends an informal pre-submittal meeting with staff instead then there is no need to include
demolition in the definition of development.See also the discussion under LOC 50.07.003, below.
50.07.003 REVIEW PROCEDURES
1. APPLICATION
//
e. Pre-Application Conference
i. A pre-application conference with the City Manager is required for:
(1) Minor and major development permit applications; and
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PP 22-0002 ATTACHMENT B/Page 4 of 6
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
(2) Ministerial permit applications:
(a) For any type of accessory dwelling unit (ADU)that is not a conversion of existing
floor area (including the garage floor area) in a primary structure. An ADU created by an
addition to a primary structure is not a conversion. An ADU that is located in an
accessory structure is not a conversion;-and
(b) Resource enhancement projects that involve work within a stream or wetland other
than removal of invasive species and planting of vegetation(.
lc) Partial demolition of a nonconforming dwelling under LOC 50.01.006.2.a4
Comment:The workgroup suggested either having preapplication conference or an informal
pre-submittal consultation with Planning and Building staff prior to an applicant submitting
building permit plans for"c".The purpose would be to identify code requirements for
maintaining any nonconformity, including engineering evaluation of existing walls to remain.
The City Manager will need to consider the workload implications of making preapplication
conferences mandatory for another type of ministerial permit. During 2021,there were 33
residential building permits for additions,of which 11 involved nonconforming structures.
Exception: Exterior paint color review on nonhistoric buildings; modifications to an approved
development permit where there is no increase in the intensity of the use and no new building
permit would result; City projects to construct a nonhabitable structure not abutting a residential
property; and minor variance to the fence standards when proposed to resolve a code enforcement
citation.
Pre-application conferences must be scheduled by the applicant prior to submitting an application
for development or prior to submitting for a building permit for an ADU that is not a conversion.
ii. A pre-application conference is not required for ministerial applications except for accessory
dwelling units land partial demolitions of a nonconformina dwellina where a nonconforming
Portion is to remain)as required in subsection 1.e.i of this section, but may be scheduled at the
request of the applicant or when required by the City Manager.
iii. The purpose of the pre-application conference is to discuss the proposal, the applicable
criteria and the requirements for completing an application. A copy of an adopted neighborhood
plan shall also be provided to the applicant, regardless whether its provisions constitute criteria for
the proposed development or not.
An applicant may request one or more additional pre-application conferences in order to discuss
any changes in the applicable criteria and application requirements that may occur between the
date of the pre-application conference and the filing of the development permit application.
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PP 22-0002 ATTACHMENT B/Page 5 of 6
Workgroup Draft Code Concepts for Nonconforming Single-Family Development
02/18/2022
iv. The development permit application must be filed within one year from the date of the pre-
application conference; if the development permit application is not filed within one year, a new pre-
application conference is required unless the applicant requests and the City Manager approves a
waiver of the additional pre-application conference.
//
13. MINISTERIAL DEVELOPMENT DECISIONS
a. Ministerial Development Classification
i. Requirements of Ministerial Decisions
A ministerial development is a development which requires a permit or review from the City where
the decision:
(1) Is made pursuant to land use standards which do not require interpretation or the
exercise of policy or legal judgment;
(2) Approves or denies a building permit issued under clear and objective land use
standards; or
(3) Determines final engineering design, construction, operation, maintenance, repair or
preservation of a transportation facility which is otherwise authorized by and consistent with
the Comprehensive Plan and land use regulations.
ii. Ministerial Development Types
//
((22) Partial demolition of a nonconforming dwelling under LOC 50.01.006.2.a.j
Comment:As discussed above, if the Commission recommends requiring a preapplication conference for partial
demolitions of nonconforming dwellings(and additions post-partial demolition), it will be necessary to add
"demolition"to the definition of development and classify partial demolition as ministerial development in
Community Development Code.On the other hand, if the Commission recommends an informal pre-submittal
meeting with staff instead,then the above amendment is not necessary.See also the discussion under LOC
50.10.003.2,above.
//
Wage
PP 22-0002 ATTACHMENT B/Page 6 of 6
I.Ki
Department of Planning and Building Services
t� 380 A Avenue
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Post Office Box 369
I Lake Oswego, OR 97034
503-635-0290
G p� www.ci.oswego.or.us
RETENTION, REMODELING, AND MAINTENANCE OF NONCONFORMING
SINGLE-FAMILY/DUPLEX STRUCTURES
1. WHAT IS A NONCONFORMING STRUCTURE?
Nonconforming structures were originally constructed legally, but do not meet current Code standards
because either the Code has changed or the property has annexed into the City.The structure could be
nonconforming to one or many Code standards, including, but not limited to: setbacks, height, building
design, lot coverage, and floor area.
2. CAN I KEEP MY NONCONFORMING STRUCTURE?
Yes,the nonconforming portions of a structure can be kept in their current state so long as they are not
removed and rebuilt or expanded in a manner that increases the degree of nonconformity. Removal of
any nonconforming portion of the building by an intentional act (see Section 3, below) will result in the
loss of nonconforming status and any rebuilding will have to fully conform to current Code standards.
3. THE DIFFERENCE BETWEEN "ACT OF NATURE"AND"INTENTIONAL" DEMOLITIONS
If a nonconforming single-family(attached or detached) or duplex dwelling or accessory structure is
damaged by any cause other than an intentional act, and no part of the structure is located in the flood
management area, reconstruction is exempt from the Code provisions to the extent the damaged
structure was nonconforming.Voluntary reconstruction or remodeling is considered "intentional
demolition"; nonconformity is lost when the nonconforming portion of the structure is removed.
4. CAN I REMODEL OR ADD ON TO A NONCONFORMING STRUCTURE?
Yes, as long as the remodeling does not require removal of or rebuilding of any nonconforming portion
that you want to retain (see Sections 2 and 3, above). Additions to nonconforming structures must fully
conform to current Code standards.
Can I reinforce an existing nonconforming structure?
Yes, provided the reinforcement does not require the removal and replacement of any
nonconforming aspect of the structure. For example,sections of a nonconforming wall located
within a required setback cannot be removed and replaced with more structurally robust wall
sections; however, reinforcements can be added to the existing wall.
PP 22-0002 ATTACHMENT C/PAGE 1 OF 4
Can windows be added or expanded in a wall that is nonconforming to setbacks?
Yes, provided the wall surrounding the window is not removed, and the window addition and/or
expansion can be adequately supported without the removal and replacement of the
nonconforming wall.
What if the structure is nonconforming to lot coverage?
All structures, or portions thereof, over 30 inches in height are counted in lot coverage,
excluding up to two feet of eaves. If a structure is nonconforming to lot coverage, in order to
maintain that nonconformity, the footprint of the structure over 30 inches in height must be
retained and cannot be removed and rebuilt in place or elsewhere on the site.
EXAMPLE 1: an existing covered porch may be enclosed underneath the existing porch
roof, provided the roof is kept and all other standards are met (setbacks, floor area,
etc.); however,the entire porch cover cannot be removed and rebuilt in order to
construct the enclosure.
EXAMPLE 2: a second story can be added over the existing footprint of a structure,
provided all other standards are met (setbacks, floor area, setback planes, etc.) if the
vertical and horizontal shell of the existing structure's first story, including the top plate,
is retained (reinforcement is allowed as long as the reinforcement does not require
removal and/or replacement of the shell).
If you plan to work on a nonconforming structure and want to retain nonconforming portions, staff
strongly recommends that you work with a structural engineer to review the feasibility of your project,
particularly if it is an older structure. If you encounter dry rot or structural deficiencies on
nonconforming portions of a structure during construction, and these portions need to be removed and
replaced,you will either need to obtain a variance or redesign the development to comply with current
code.This may result in delays and additional costs to your project.
Special Inspection:A special field inspection for"remodeling/altering" a nonconforming residential
structure will be required.The purpose is to ensure the remaining nonconforming wall(s) can be
retained "as is" or would only require the addition of structural members to ensure sufficient or added
capacity (see Section 5, below).The inspection will take place after removal of all portions of the
structure to be remodeled/altered, but prior to any new construction.The inspection will require the
presence of both a building inspector and a city planner.
PP 22-0002 ATTACHMENT C/PAGE 2 OF 4
5. WHAT IF I NEED TO PERFORM MAINTENANCE ON A NONCONFORMING STRUCTURE
Maintenance may be performed on nonconforming structures, but excludes any structural alteration. See table, below.
ALLOWED REPAIR/MAINTENANCE STRUCTURAL ALTERATION: NOT MAINTENANCE
Maintenance is "upkeep or repair of any structure or site feature Structural alterations are changes to the supporting members(see
necessary to keep the structure or site feature in good and safe list on next page) of a structure. Changes can include removal of a
condition. Maintenance does not include structural alteration. " [LOC supporting member(including replacement), relocation, expansion,
50.03.002.3]. Repair/maintenance is allowed on nonconforming and/or cutting of studs or sheathing.
structures by adding supporting members to increase structural
capacity or integrity.
Examples of allowed repair/maintenance activities include: Structural alterations that are not allowed on nonconforming
structures include:
✓ Adding to, such as installing reinforcing studs in a nonconforming
wall or adding interior structural walls as long as the ® Relocation, expansion, or addition of wall openings (impacting
reinforcements do not require structural alterations to existing framing, studs, and/or exterior sheathing)for windows and doors.
nonconforming walls.Adding studs to an existing nonconforming ® Horizontal and/or vertical expansions of nonconforming walls
lower story wall to add a conforming upper story. No horizontal (could be separately permissible with a variance).
or vertical nonconforming wall expansions are allowed. B Horizontal and/or vertical expansions of nonconforming roof
✓ Replacement of windows, doors, including their framing forms (could be separately permissible as a "change in roof
components like headers, cripples, and sills, within existing pitch"; see next page).
nonconforming wall openings (no opening expansion). ® Above-grade foundation removal
✓ Removal of a door or window and its associated opening, and ® Full replacement of supporting members.
adding studs and sheathing to "patch"the nonconforming wall.
This includes complete removal or partial removal (for example,
reducing an opening to change a garage door to a "man" door).
✓ Foundation patching without expansion of the footprint.
✓ Change/expansion of foundation footings (below grade) or
addition of internal post and beams to increase the horizontal
and/or vertical capacity of a structure.
PP 22-0002 ATTACHMENT C/PAGE 3 OF 4
NOT SUPPORTING MEMBERS(ALLOWED UNDER MAINTENANCE) SUPPORTING MEMBERS(STRUCTURAL ALTERATION)
exterior non-structural sidingHorizontal:Joists, Beams, Girders, Floor/Top Plate
Sheetrock, (of any kind), roof Vertical: Studs, Wall Framing, Exterior Structural Sheathing
tiles/shingles, windows, doors, headers, cripples, and sills
(including T1-11 siding and diagonal tongue and grove)
Foundation: Foundation Walls, Footings, Post and Beam
Roof:Trusses, Beams, Girders, Sheathing
CHANGES TO NONCONFORMING STRUCTURE ROOF PITCH CHANGES TO ROOF PITCH OF A NONCONFORMING STRUCTURE
WHICH ARE NOT ALLOWED
Roof pitch changes are allowed within the nonconforming portion of IS Any increase to structural capacity cannot be to allow a load
a structure, except as noted to the right. Changes in roof pitch need increase on one bearing wall alone (i.e.: going from a flat or
to meet all of the following requirements: pitched roof form in which the walls share the load to a shed
roof form in which one wall bears the primary load).
✓ The structure is a residential structure; and, B Removal and reconstruction of supporting members, e.g.,
✓ The new roof form height complies with all height requirements bearing walls and studs, of the structure below the top plate in
of the zone; and, the area of nonconformity in order to support the modified
✓ Does not increase the roof height by more than six feet; and, roof pitch.
✓ The change does not increase any nonconforming wall plane
either horizontally or vertically. All changes are limited to above
the existing top plate.
V Increasing structural capacity by adding studs within the
nonconforming wall is allowed. (See exception at right).
PARAPETS: Adding a low parapet wall around the perimeter of a
new flat roof form is not technically a "change in roof pitch", but it
would be allowed and not considered a "wall expansion", provided
the parapet is functionally necessary for the roof for the purposes of
drainage.
PP 22-0002 ATTACHMENT C/PAGE 4 OF 4
SUMMARY CODE OF OTHER CITIES' CODES
CITY PROCESS FEES OVERVIEW OF STANDARDS NOTES DEFINITIONS
Tigard No special procedures N/A Similar standards to LO: Normal maintenance is allowed, but Tigard uses the same language as LO stating that nothing in Addition. A modification to an existing building or structure that
for Nonconforming structural alterations are not.The nonconforming structure may this chapter prevents the strengthening or restoring to a increases its height, square footage, or lot coverage.A structure is
development. not be enlarged or altered in a way that increases its safe condition of any building or part thereof declared to considered an addition only when it shares a common wall and is
nonconformity. be unsafe by any official charged with protecting the public structurally dependent on the primary structure. See also
safety, upon order of such official. "accessory structure" and "common wall."
The above provision is problematic for LO because it Demolish.To raze, destroy, dismantle, deface, or in any other
conflicts with our maintenance restrictions for manner cause partial or total ruin of a building or structure.
nonconforming structures, which prohibits any
maintenance activities that involve structural alterations, Remodel.An internal or external modification to an existing
but if the structure is allowed to deteriorate to the extent building or structure that does not increase the lot coverage.
it is declared unsafe by the Building Official (BO),then full
replacement is allowed.This also burdens the BO with Repairs/Maintenance: normal repairs, or replacement of roofs,
making these determinations. non-bearing walls, fixtures, wiring, or plumbing may be performed.
If nonconforming structure is destroyed by any means by
more than 60%of current value as assessed by County,
reconstruction must conform.
Several of the cities, below, use a similar valuation
criterion. LO used to have this type of provision as a
threshold for the destruction of a NC dwelling; however,
this threshold proved to be subjective and difficult to
administer and so was removed. Staff does not
recommend using a valuation threshold approach.
Tualatin No procedure for N/A A nonconforming development may be continued, but not There is no definition of"aesthetic changes", although this Demolition. Raze, destroy, dismantle, or in any other manner
reviewing the altered or enlarged, except: likely means non-structural. Ordinary repairs and cause significant partial or total destruction of a building,
exceptions to (i) Aesthetic(not defined) changes to the external dimensions of maintenance are allowed, except as discussed in the structure, or landmark.
nonconforming the building Nonconforming Development Standards.This is likely
development (ii) A development conforming as to use but nonconforming as related to structural alteration. Similarly, alteration and Structural Alteration.Any change to the supporting members of a
alterations. to setback or yard requirements may be altered or enlarged, expansion to nonconforming structures are allowed, so building or structure, including foundations, bearing walls,
providing the alteration or enlargement does not result in a long as they do not violate the change to setback or yard partitions, columns, beams, girders, or roof or other supports.
violation of the change to setback or yard requirements. (There requirements.This seems to allow structural alterations, so
is no clarification for what this means.) long as it does not increase the nonconformity.
If a nonconforming development is destroyed or damaged
by any cause to an extent requiring the discontinuance of
the development for more than six months while making
repairs. Termination of the nonconforming development
is effective upon the date of the damage or destruction.
PP 22-0002 Attachment D/Page 1 of 4 Revised: 02/17/2022
SUMMARY CODE OF OTHER CITIES' CODES
Hillsboro A structure non- $1,785 (NCU Criteria for NCU Application: 1. Non-conforming structures outside specific districts may Alteration. Any change, addition or modification of an existing
conforming as to height, Application) 1.The nonconforming situation was not created unlawfully. be enlarged or expanded up to 10% in land area, or up to structure.
setback, or coverage 2. With mitigation measures,the expanded situation will have 20% in floor area where structures are involved. Such
may be altered (even fewer or reduced detrimental impacts on the surrounding area. enlargements or expansions shall not increase the number Repair and Maintenance.Activities intended to preserve and care
structurally), providing Detrimental impacts in this context include the following: of dwelling units above the maximum density permitted in for a structure, landscaping, or other improvements (including the
the alteration does not a. Extended hours of operation; the applicable base zone. continued maintenance of adjacent native vegetation for
increase the deviation b. Vehicle trips to or from the site and impacts on Except as provided in specific Plan District standards, non- prevention of fire hazard)to such an extent that they remain safe,
from the standards of surrounding on-street parking; conforming Uses or structures may be enlarged or presentable and carry out the purpose for which they were
this Ordinance. c. Noise, vibration, dust, odor,fumes, glare, and expanded only upon approval of a Non-Conforming Use initiated, installed, constructed or required, without expanding the
Alterations which do not smoke; and application. existing development or activity.
enlarge or expand a d. Increased amount, location, and nature of any
non-conforming outside displays, storage or activities. If a non-conforming structure or a structure containing a Demolition.Any intentional defacement, destruction, and/or
structure are not subject non-conforming Use is destroyed by any cause to an other action which would cause partial or total destruction of the
to land use review. 3. If changes are proposed to the site,the appearance of the extent exceeding 80%of the value of the structure as structural elements of a structure.
expanded non-conforming use or structure will not adversely determined by a Building Official, a future structure or
Enlargement or affect the residential character of the area,taking into account use on the property shall comply with the provisions fora Nonconforming Situation.A use and/or structure which was
expansion of a non- all of the following factors: conforming use and structure in the zone. (Note:there is legally compliant prior to a change in the provisions of an
conforming structure is a. Building scale, location, and façade; an exception if a single family structure is not deliberately applicable zone or development standard, but which does not
subject to a non- b. Parking area location; destroyed by the owner). meet 1 or more requirements under the changed zone or
conforming use c. Buffering and the potential loss of privacy to abutting standard.The application process and standards for expansions of
application, a quasi- residential uses; and non-conforming uses are cited in Section 12.30.800.
judicial Type III requires d. Lighting and signage.
a public hearing.This
will allow an
enlargement of up to
10%in land area and
20%of floor area.
West Linn Quasi-judicial, subject to $1,000 for Non-conforming Status application:The Planning Director makes West Linn provides one process for alteration or expansion Alteration,structural.Any change or repair which would tend to
public notice and alteration of a determination regarding non-conforming status without giving of a nonconforming portion of a single-family structure, so prolong the life of the supporting members of a building or structure,
Planning Director enlargement notice (during plan review).The decision of a non-conforming long as it doesn't expand the non-conformity and meets all such as alteration of girders. In addition, any change in the external
Approval. of non- status is subject to appeal. other provisions.This requires a public notice and dimensions of the building shall be considered a structural alteration.
conforming administrative approval.
structure (SF Expansion Application: Remodeling.The alteration of the physical condition of more than
residential) Criteria for enlarging or altering non-conforming structures If a nonconforming structure is destroyed by any means 50 percent of the floor area of an existing structure. Remodeling
which will not meet the code must meet the following more than 50%of current replacement cost, the does not include normal maintenance or repair.
requirements: reconstruction must conform. Routine repair and maintenance.Activities directed at preserving an
1.The enlargement or alteration will not change the non- existing allowed use or facility, without expanding the
conformity; and development footprint or site use.
2. All other applicable ordinance provisions will be met.
PP 22-0002 Attachment D/Page 2 of 4 Revised: 02/17/2022
SUMMARY CODE OF OTHER CITIES' CODES
Atherton,CA In low-density SF res, $2,730 A. Additions to nonconforming main buildings in the lower density Alterations or additions to legal nonconforming main "Special structures permit" means a planning permit that provides
additions to (R-1A) residential zone may: buildings maybe permitted so long as no more than a process for the review of special and specific buildings and
nonconforming 1. Maintain the building's existing setback lines, provided the fifty percent of the existing floor area(does not structures to ensure compatibility with surrounding areas and
structures are reviewed building does not encroach by more than twenty percent into the specify nonconforming)and no more than fifty uses.
with the building current R-1A setbacks; and percent of nonconforming exterior walls are rebuilt,
permit, subject to 2. Maintain the existing building height, provided no portion of the either as a single project or cumulatively over five "Floor area" means the sum of the gross horizontal areas of the
limitations (See A) building is taller than thirty feet. years or less. several planes of the building at each floor level measured from
Applicant must highlight in a site plan and elevations the outside perimeter of the exterior walls or roof in the case of
In the "downtown" B.The special structure permit must meet the following criteria: the nonconforming building portions and what open structures. In instances where the roof line creates the
area, additions to 1.The proposal will not negatively impact neighboring properties portions will remain or be modified as part of a exterior wall of a floor, such as in an attic, the floor area shall be
nonconforming with respect to privacy and view; building permit. Walls which will remain must keep measured to the interior wall (see figure 17.60.020-3 (Floor Area
structures inside 2.The proposal complies with other development standards, entire structure to be considered remaining, it cannot for Second Floor/Attic Spaces)). Floor area shall also include those
setbacks are allowed restrictions, or limitations for the proposed building or structure, be stripped down to studs or footing. If a structure is portions of overhangs exceeding four feet on the main building
through a Special considered stripped down to the studs/footing, the and those portions of overhangs exceeding one foot on accessory
such as height and landscaping screening; and
Structures Permit, which wall will be considered removed.Aesthetic alterations structures. Floor area shall not include pools, tennis courts, drives
3.The proposal is consistent with the objectives of the general plan
is reviewed quasi- are allowed(new paint, siding, etc), as long as the and other paved surfaces, or basements (except as otherwise
and code.
judicially(Planning wall remains. required by this title). In areas with an open height of sixteen feet
Commission Review). or greater at any point, the floor area for that portion of the
(See B) Tiered demolition fees are applied to partial building shall be multiplied by two.
demolitions and demolitions for accessory structures.
"Footprint" means the plan view projection to ground level of the
Alterations or additions of more than fifty percent are perimeter of a building to the outside perimeter of the exterior
required to meet current zoning and building code walls. Open or partially covered flat work such as decks and patios
requirements. This standard does not apply to interior not more than six inches in height are excluded from the footprint.
alterations.
PP 22-0002 Attachment D/Page 3 of 4 Revised: 02/17/2022
SUMMARY CODE OF OTHER CITIES' CODES
Woodside, Alterations that do not Not Exceptions to permit an addition to a nonconforming main residence Alterations and additions are treated differently. Alteration.Any change or addition to a structure or building for
CA significantly modify the listed/varies to encroach into a setback may be granted by the Planning Director. Alterations are allowed, including complete which a building permit is required.
exterior or expand There are separate review criteria for primary dwelling buildings and rebuilding, as long as they do not increase or create
nonconforming structures besides primary dwelling buildings, and separate additional nonconformities. When an alteration Maintenance. Repair work or general upkeep on a structure,
attributes are allowed exceptions to relocate portions of the footprint of a nonconforming significantly modifies (not defined)the exterior of a including painting, carpentry, glazing, and the reinforcement or
through a building main residence which exceeds the maximum floor area. structure,the style and other aspects require an replacement of defective parts, including roofs,foundations,
permit, including Architectural review (this is a staff decision if less than structural members, and plant material irrigation and replacement,
complete rebuilding of Criteria for an addition to a nonconforming residence to encroach 2,000 sf and less than 30%total floor area and but shall not include an addition to or the enlargement of
such structures. into setbacks: consistent with Residential Design Guidelines). the structure.
(a)The total floor area of the encroaching portion of the addition The footprint and plate heights of the
Significant exterior shall not exceed 10%of the maximum house size allowed for the lot; nonconforming portions of the structure shall not Structural Alteration. Any change in supporting members of
alterations require (b)The total area of the residence after the addition shall not be increased; with the exception that a building, including, but not limited to, bearing walls, columns,
architectural review exceed 95%of the maximum house size allowed for the lot; the plate height of an accessory dwelling beams, girders, floor or ceiling joists, roof rafters, foundations, piles,
(staff decision). (c) No part of the proposed additions(s)shall encroach into the unit constructed above an existing, retaining walls, or similar building components, and shall also
nonconforming garage, may be increased to a include any change in the roof or exterior lines.
setback to a greater extent than the furthest encroachment of the maximum of 11 feet. Additionally, the overall
Additions to nonconforming main residence prior to the addition, or so as to height of the nonconforming portions shall not be
nonconforming main create a side setback of less than ten feet or a rear setback of less increased above a maximum height of 17 feet;
residences that already than 17 feet.
encroach on the setback (d)The addition that extends into the setback shall not exceed a 17- Additions to a nonconforming residential structure to
are allowed, subject to foot overall height maximum as measured from natural or finished encroach into the setback or relocate exceeded floor
Planning Director grade, whichever is lower; area must meet criteria listed in left side column.
Approval. (e)The addition conforms to all applicable ordinances and
regulations except those relating to setback;
(f)The existing setback encroachment was not created through a
variance;
(g) In the R-1 zoning district, new encroachments of an addition are
limited to the front setback area.
PP 22-0002 Attachment D/Page 4 of 4 Revised: 02/17/2022