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Child Care, Inc.
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Child Care, Inc.
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7/10/2014 1:42:44 PM
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understandably, and perhaps admirably, proposes to use a parking <br /> facility that is probably under - utilized during much of the time <br /> when it would be needed for the day care use. The desirability of <br /> that plan does not constitute a hardship nor does the fact that <br /> such a plan would make the development of a non - profit child care <br /> center more financially feasible. Whether that is good or bad is <br /> not the issue except in the context as to whether or not the <br /> variance criteria should be changed, at least with regard to shared <br /> parking situations. <br /> E.C. 9.740(b). There are exceptional or extraordinary <br /> circumstances or conditions applicable to the property <br /> involved or to the intended use of the property which do <br /> not apply generally to other properties classified in the <br /> same zoning district. <br /> This standard also is a typical variance criterion which has been <br /> repeatedly interpreted in a restrictive manner. Decisions hold <br /> that the requisite extraordinary or unique circumstances must arise <br /> out of the conditions inherent in the land that do not apply <br /> generally to other property located in the same area. Lovell v. <br /> Independence Planning Commission, 37 Or App 3, 6, 586 P2d. 99 <br /> (1978), Erickson v. City of Portland, supra, Moore v. Board of <br /> Clackamas County Commissioners, supra, Hill v. Marion County Board <br /> of Commissioners, 12 Or App 242, 248 -249, 506 P2d. 519 (1973). <br /> The circumstances may not be conditions that would cause only <br /> inconvenience or expense to the property owner. A finding that <br /> without the variance the applicant will incur an expense does not <br /> satisfy the "special circumstances or conditions" criterion, <br /> particularly when there is nothing about the property that makes <br /> compliance with the standards impossible. The desire to maximize <br /> the allowable uses or to accommodate a land owner's particular <br /> development desires is not a basis for finding that the <br /> exceptional, extraordinary circumstances criterion has been met. <br /> Wentland v. City of Portland, 22 Or LUBA 15, 26 (1991). A variance <br /> is not warranted simply because the property owner wishes to pursue <br /> a development that requires a variance even though the property can <br /> be developed without the need for a variance. Wentland v. City of <br /> Portland, supra. The fact is that not only could use be made of <br /> the parcel as permitted in the RA district but even a day care <br /> facility could be located on the parcel but it would be a much <br /> smaller facility if parking is accommodated on -site. There is <br /> nothing unique about that situation. The sort of extraordinary <br /> circumstances contemplated are not the beneficial opportunity of a <br /> parking lot next door that could be used but a negative aspect of <br /> the site that sets it apart from others in the neighborhood. The <br /> criterion is not satisfied here. <br /> 5 - FINDINGS OF HEARINGS OFFICIAL (CU 95 -8) <br /> C: \FINDINGS \DEC.95 \CU -95 -8 (JWS:cjm) <br />
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