DIR1991-00006 DATE: 7/9/1991
CODE SECTIONS: 18.64.030.A.2
[TOPIC: Retail Sales square footage allocation: C -P Zone (l ,
* City Attorney's Office Interpretation
INTERPRETATION: The Commercial - Professional District includes as a permitted use "retail sales ", provided
they do not exceed 20% of the entire square footage within the development complex.
Tigard Development Code Section 18.64.030.A.2.m.iii. You asked me whether an
applicant may request a variance to this code provision in order to permit a development
complex with retail uses exceeding 20% of the entire square footage. The answer is "no"
because this would constitute a use variance and the Tigard Development Code does not
permit the granting of use variances.
The 20% standard in the Commercial - Professional District is a standard which defines a
permitted use in that district. The Tigard Development Code allows variances provided
that "[the use proposed will be the same as permitted under this title." TDC
18.134.050.A.3. This section effectively prohibits use variances. Granting a variance to
the 20% standard would have the effect of allowing a use not permitted under that zoning
district. See «Hall v. Marion County Board of Commissioners », 12 Or App 242, 506
P2d 519 (1973) (granting variance to zoning district to allow use not otherwise permitted is
a use variance).
O'DONNELL, R.AMIS, CREW & CORRIGAN
ATTORNEYS AT LAW
BALLOW & WRIGHT BUILDING
1727 N.W. Hoyt Street
Portland, Oregon 97209
TELEPHONE: (503) 222 -4402
FAX: (503) 243 -2944
DATE: July 9, 1991
TO: Dick Bewersdorff, Senior Planner
FROM: Michael C. Robinson, City Attorney's Office
RE: Question Regarding Variance in Commercial - Professional
Zoning District
The Commercial- Professional District includes as a permitted use
" retail sales ", provided they do not exceed 20% of the entire
square footage within the development complex. Tigard Development
Code § 18.64.030A.2.m.iii. You asked me whether an applicant may
request a variance to this code provision in order to permit a
development complex with retail uses exceeding 20% of the entire
square footage. The answer is "no" because this would constitute
a use variance and the Tigard Development Code does not permit the
granting of use variances.
The 20% standard in the Commercial- Professional District is a
standard which defines a permitted use in that district. The
Tigard Development Code allows variances provided that "[t]he use
proposed will be the same as permitted under this title."
§ 18.134.050A.3. This section effectively prohibits use variances.
Granting a variance to the 20% standard would have the effect of
allowing a use not permitted under that zoning district. See Hill
v. Marion County Board of Commissioners, 12 Or App 242, 506 P2d 519
(1973) (granting variance to zoning district to allow use not
otherwise permitted is a use variance).
The applicant has two options to achieve his goal. First, he could
petition the Tigard City Council to amend the Commercial -
Professional District to change the 20% standard. Secondly, he
could petition the City Council to amend the Comprehensive Plan
and zoning ordinance designation for this parcel.
If you have any questions, please do not hesitate to call me. I
would be happy to discuss my conclusion with the applicant's
attorney.
MCR /bjd
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