Res 975 - Reverse Case 89-10
COUNCIL BILL NO. 1188
RESOLUTION NO. 975
A RESOLUTION REVERSING THE DECISION OF THE WOODBURN PLANNING COMMISSION
AND DENYING A VARIANCE IN CASE NO. 89-10.
WHEREAS, the Woodburn Planning Commission conducted a public
hearing and granted a variance in Case 89-10, and
WHEREAS, opponents appearing in Case 89-10 appealed the matter
to the Woodburn City Council, and
WHEREAS, the City Council noticed and held another public
hearing on the variance request, NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The Woodburn Planning Commission's decision to
grant a variance in Case 89-10 is hereby reversed by the Woodburn City
Council .
Section 2. This decision is based upon evidence in the record
before the Woodburn City Council and is justified by the Findings of
Denial which are attached hereto and are by this reference incorporated
herein.
Approved as to form:
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City Attorney Date
APPROVED:~~tsfy ,~~/cl' <)
Passed by the Council
January 22. 1990
Submitted to the Mayor
Approved by the Mayor
ATTEST: f!1a-l- E: ~
Ma ry E :::1enna~:'-::uty Recorder
City of Woodburn, Oregon
January 24, 1990
January 24, 1990
Page 1 - COUNCIL BILL NO. 1188
RESOLUTION NO. 975
FINDINGS OF DENIAL
I. NATURE OF PROCEEDINGS
Applicants Leonard and Betty Van Valkenberg requested a variance in Case
89-10. Applicants proposed to build a 16' x 36' camper port addition to an
existing 16' x 24' shop that would infringe upon a 5 foot side yard setback
by approximately 1 foot at the front and 2 feet at the rear. The Woodburn
Zoning Ordinance requires a 5 foot side yard setback unless a variance is
granted.
On October 26, 1989, the Woodburn Planning Commission granted Applicants'
variance request and adopted Findings and Conclusions supporting its decision.
On November 1, 1989, Opponents David and Kay Millican filed a notice of appeal
with the Woodburn City Recorder. The Woodburn City Council, on November 13,
1989 voted to notice and conduct a public hearing, which was held on November
27, 1989. At the conclusion of the November 27th public hearing, the Woodburn
City Council voted to direct staff to prepare proposed findings and conclusions
reversing the decision of the Woodburn Planning Commission and denying the
va ri ance.
II. FINDINGS OF FACT
A. Facts
1. The facts concerning the application are contained in the records
and files of the Planning Department, Planning Commission, and City Council
regarding this matter, together with the public testimony and exhibits introduced
at the public hearing, all of which is by this reference incorporated herein.
2. The affected property is located at 380 Jana Court, Woodburn,
Oregon, within the incorporated city limits of the City of Woodburn, Oregon.
Page 1 - FINDINGS OF DENIAL
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3. The variance request is to build a 16' x 36' camper port addition
to an existing 16' x 24' shop that would infringe upon the five foot side
yard setback requirement contained in the Woodburn Zoning Ordinance by approx-
imately one foot at the front and two feet at the rear.
B. Applicable Criteria
1. The City Council acknowledges the legal argument made by Opponents
that Section 3.080 of the Woodburn Zoning Ordinance precludes a variance request
from even being considered. However, the City Council relied upon the Memorandum
Opinion dated September 25, 1989, of its attorney interpreting the Woodburn
Zoning Ordinance to allow the City Council to hear the variance application.
Consistent with this, the City Council recognizes its authority to make a
reasonable interpretation of the Woodburn Zoning Ordinance based upon the
advise of its attorney.
2. Having found jurisdiction to hear the variance request, the City
Council finds that the decision to be made in this case is governed by Chapter
13 of the Woodburn Zoning Ordinance which addresses variance procedures.
Specifically, Section 13.020 of the Woodburn Zoning Ordinance specifies conditions
for granting a variance. The City Council finds that under the text of the
ordinance and Oregon state law a positive finding must be made addressing
each of the subsections of Section 13.020 for a variance to be legally justified.
3. The City Council finds that Section 13.020 reads as follows:
Section 13.020. Conditions of Granting a Variance. The Planning
Commission may permit and authorize a variance when it appears for
the application, or the facts presented at the public hearing, or
by investigation:
Page 2 - FINDINGS OF DENIAL
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(a) That there are unnecessary, unreasonable hardships or practical
difficulties which can be relieved only by modifying the literal
requirements of the Ordinance;
(b) That there are exceptional or extraordinary circumstances or
conditions applying to the land, buildings, or use referred
to in the application, which circumstances or conditions do
not apply generally to the land, buildings, or uses in the same
District; however, non-conforming land uses or structures in
the vicinity shall not in themselves constitute such circumstances
or conditions.
(c) That granting the application will not be materially detrimental
to the public welfare or be injurious to property or improvements
in the neighborhood of the premises;
(d) That such Variance is necessary for the preservation and enjoyment
of the substantial property right of the petitioner;
(e) That the granting of the application will not, under the circumstances
of the particular case, adversely affect the health or safety
of persons working or residing in the neighborhood of the property
of the applicant; and
(f) That the granting of the application will be in general harmony
with the intent and purpose of this Ordinance and will not adversely
affect any officially adopted Comprehensive Plan.
III. CONCLUSIONS OF LAW
Having found, as a matter of law, that each of the subsections of Section
13.020 of the Woodburn Zoning Ordinance must be separately addressed, the
City Council concludes as follows:
1. "Variance Criterion "A": That there are unnecessary unreasonable
hardships or practical difficulties which can be relieved only by modifying
the literal requirements of the Ordinance..."
The City Council concludes that Applicants' testimony that they would
have a very hard time getting their boat in and out of the storage area unless
a variance is granted and that they would have to change the structure considerably
unless a variance is granted does not rise to the level of an unnecessary
or unreasonable hardship as defined by the Woodburn Zoning Ordinance and Oregon
law. There is insufficient evidence in the record to support a positive finding
on this criterion.
Page 3 - FINDINGS OF DENIAL
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2. "Variance Criterion "B": That there are exceptional or extraordinary
circumstances or conditions applying to the land, buildings, or use referred
to in the application, which circumstances or conditions do not apply generally
to land, buildings, or uses in the same District; however, nonconforming land
uses or structures in the vicinity shall not in themselves constitute such
circumstances or conditions..."
The City Council concludes no exceptional or extraordinary circumstances
or conditions apply to the land, buildings, or use referred to in the application
and a positive finding cannot be made.
3. "Variance Criterion "C": That granting the application will not
be materially detrimental to the public welfare or be injurious to property
or improvements in the neighborhood of the premises..."
The City Council concludes that testimony in the record differs on this
criterion and that because of this a positive finding cannot be made.
4. "Variance Criterion "D": That such variance is necessary for preservation
and enjoyment of the substantial property right of the petitioner..."
The City Council concludes that the variance is not necessary for preservation
and enjoyment of Applicants' substantial property rights. Applicants' testimony
that they cannot use their property to the fullest extent is well taken but
is not the standard under Oregon law. The record shows that Applicants can
still make a profitable use of their land.
5. "Variance Criterion "E":
not, under the circumstances of the
health or safety of persons working
property of the applicant..."
That granting of the application will
particular case, adversely affect the
or residing in the neighborhood of the
The City Council concludes that the variance application will not adversely
affect the health or safety of persons working or residing in the neighborhood
of the property.
Page 4 - FINDINGS OF DENIAL
6. "Variance Criterion "F": That the granting of the application will
be in general harmony with the intent and purpose of this Ordinance and will
not adversely affect any officially adopted Comprehensive Plan."
The City Council concludes that the application is not in general harmony
with the intent and purpose of the Zoning Ordinance and Comprehensive Plan
since positive findings cannot be made upon all of the variance criteria and,
therefore, the granting of the variance would violate the ordinance and Oregon
state law.
Page 5 - FINDINGS OF DENIAL
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