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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 mer \tigard\Bewmadort.Me2