Loading...
DIR1991-00003 DATE: 4/1/1991 CODE SECTIONS: 18.160.050 `i I - 3' 1,- TQPIC1 Subdivision: Phased Development Plat Recording Timelines * City Attorney's Office Interpretation INTERPRETATION: Regarding TMC 18.160.050, you have asked me to respond to the questions of what time limits, if any, exist for filing of the final plat for Phase III, what does the applicant need to do to record the final plat, and what arrangements can be made for the required security deposit for public improvements if the applicant is not the owner of the project at the time the final plat is filed? The Tigard code contains no specific provisions which determine the answer to the question concerning the time of filing the final plat. The appropriate thing for the hearings officer to have done in attaching the condition concerning the phased development, was to include as a part of that condition, a time schedule for developing the subdivision in phases. In the absence of such time schedule, my suggestion is that you look to other relevant provisions of the code relating to the time period required for filing a final plat and make a reasonable interpretation as applied to this set of facts. One such interpretation is as follows: TMC 18.160.040(a)(1) requires that a final plat be filed within one year and six months of the date of the preliminary plat approval or that preliminary plat approval will lapse. TMC 18.160.140, however, requires that the final plat be filed within one year of the date of the preliminary plat approval. These sections directly conflict, both indicate that the sections were amended by Ordinance 89 -06, and I find nothing in the code to direct how this conflict should be reconciled. Using either the one year or one and one -half year requirement and starting with the preliminary approval date of May of 1987, you could "stack" the time limits for the filing of the preliminary plat of each phase, allowing the maximum time allowed by the referenced code sections. Using that approach, the final plat for Phase I would need to have been filed, using the year and one -half requirement, by November of 1988. The final plat for Phase II would need to have been filed by May of 1990. The final plat for Phase III would need to have been filed by November of 1991. Using a one (1) year period, the final plat for Phase I would need to have been filed by May of 1988, Phase II, May of 1989, and Phase III, May of 1990. An alternative approach to allowing the maximum time allowed by the code, would be to run the filing periods from the date of the filing of the final plat of the preceding phase. I do not have the final plat filing dates for Phases I and II, so I cannot project the specific dates. However, assuming that the final plat for Phase I was filed on January 1, 1988, the filing of the final plat for Phase II would occur either one, or one and one -half years later. The filing date for the final plat filing for Phase III would occur either one, or one and one - half years from the actual date of filing of the final plat for Phase II. TMC 18.32.250(0(3) requires that a condition of approval which contains no time limit for completion must be fulfilled within one year of the date of approval. The approach outlined above is consistent with that requirement if the phasing requirement is deemed satisfied by the filing of the final plat for the first phase. During our discussion on the phone, you suggested an alternative approach which would require the filing of the final plats for all phases to have occurred simultaneously. That is a possible interpretation of the language of the code and is perhaps as reasonable as what I have set forth above. One thought came to mind after our discussion which may impact your choice of approaches and concerns the requirement of the posting of security for public improvements prior to the filing of the final plat. If one of the purposes of phasing a development is to spread out the financial commitment of the applicant over a period of time allowing for the development and the sale of lots in phases, then an interpretation which required the posting of security for public improvements of all phases at one time and required all construction to be completed within two years, pursuant to TMC 18.160.050, would seem to run counter to one of the primary purposes of phasing a development. The sequential interpretation which I have suggested above is consistent with the financial impact objective of phasing developments. I suggest that you review the referenced sections of the code and make an interpretation, in writing, which takes into account the various sections of the code plus the condition of approval, and reconciles those provisions in a rational manner. If you determined that the time period for filing the final plat for Phase III has passed, I would suggest that you look at the possibility of having the developer file for an extension of that time period pursuant to TMC 18.160.040(b), although that remedy may not be available due to the lapsing of the preliminary approval. Your second question concerns what requirements need to be met in order to file the final plat for Phase III. TMC 18.160.140, .150, .160, .170, .190, and .200 provide the procedural requirements for the filing of a final plat. The applicant will need to follow the procedures and meet the requirements of those sections. If the person with whom you are dealing on this matter is not the record owner of the property, that person must present in writing the authorization of the record owner for the person to act as the agent of the owner in the filing of the final plat. TMC 18.160.030(a). The last question concerns the filing of security in conjunction with the filing of the final plat. The applicant has requested that the City accept, as security, retaining physical possession of the permits allowing development until after the City is provided with a satisfactory set aside letter or bonding after the final plat has been filed. The City code requires the posting of security prior to the City signing off its approval of the final plat, which is a prerequisite before filing. If the City chooses to, it may, but is not required to, enter into an agreement with the developer containing the following characteristics; 1) The City would sign the final plat indicating its approval, 2) The City would hold development permits until after appropriate security has been posted, 3) The City would receive the actual security documents, executed by the appropriate parties, and hold them essentially in escrow until authorization from the surety indicating that the forms have become effective, and 4) The City would receive from the applicant an executed application for vacation of the plat to be filed only in the case of the failure of the applicant to complete its obligations regarding the posting of security in conjunction with this subdivision. If the City chooses to follow this approach, would be glad to work with you on the form that would be appropriate. O'DONNELL, RAMIS, 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: April 1, 1991 TO: Jerry Offer, Tigard Community Development City of Tigard FROM: James M. ColemaQ, City Attorney's Office RE: Morning HilKSubdivision Procedural Ouestion This memo is a follow -up to the phone conversation we had on March 29, concerning the processing of the request for filing of a final plat for Phase III of the referenced subdivision. You informed me that in May of 1987, the Morning Hill Subdivision received preliminary plat approval with a condition of approval specifically authorizing phased develop ' ent pur ant_to._TMC- 111- 16D,_()_50 . The condition of atrov , by e' t in a time schedule_ s__ a_ree 1U x'ed__ L.y th,�t a r ten_. Phase I of e sub ' v was S .. commenced within one year of the approval. Phase II was commenced at some later period of time and the request now is for the filing of the final plat of Phase III. You have informed me that Keith Liden has given the applicant the opinion that the final plat for Phase III must be filed by May 11, 1991. That opinion was based upon Keith's inter re ation of the two year construction limit language in TM- 18.160.05 . have aske m- to respond to the_questions of what • emits, if any, exist for the f i 1 i ng_oL the final plat for Phase III, what t does the plic 4pant need_to..do to record the final plat, and what arrangements can be made for the required security deposit for public improvements if the applicant is not the owner of the project at the time the final plat is filed. The Tigard code contains no specific provisions which determine the answer to ,the question concerning the time of filing the final plat. The appropriate thing for the hearings officer to have done in attaching the condition concerning the phase development, was to include as a part of that condition a time schedule for developing the subdivision in phases. In the absence of such time schedule, my suggestion is that you look to other relevant provisions of the code relating to the time period required for filing a final plat and make a reasonable interpretation as applied to this set of facts. O'DONNELL, RAMIS, CREW & CORRIGAN Memo re: Morning Hill Subdivision Procedural Questions April 1, 1991 Page 2 One such interpretation is as follows: TMC 18.160.040(a)(1) requires that a final plat be filed within one year and six months of the date of the preliminary plat approval or that preliminary plat approval will lapse. TMC 18.160.140, however, requires that the final plat be filed within one year of the date of the preliminary plat approval. These sections directly conflict, both indicate that the sections were amended by Ordinance 89 -06 and I find nothing in the code to direct how this conflict should be reconciled. Using either the one year or one and one -half year requirement and starting with the preliminary approval date of May of 1987, you could "stack" the time limits for the filing of the preliminary plat of each phase, allowing the maximum time allowed by the referenced code sections. Using that approach, the final plat for Phase I would need to have been filed, using the year and one -half requirement, by November of 1988. The final plat for Phase II would need to have been filed by May of 1990. The final plat for Phase III would need to have been filed by November of 1991. Using a one (1) year period, the final plat for Phase I would need to have been filed by May of 1988, Phase II, May of 1989, and Phase III, May of 1990. An alternative approach to allowing the maximum time allowed by code would be to run the filing periods from the date of the filing of the final plat of the preceding phase. I do not have the final plat filing dates for Phases I and II so I cannot project the specific dates. However, assuming that the final plat for Phase I was filed on January 1, 1988, the filing of the final plat for Phase II would occur either one or one and one -half years later. The filing date for the final plat filing for Phase III would occur either one or one and one -half years from the actual date of filing of the final plat for Phase II. TMC 18.32.250(f)(3) requires that a condition of approval which contains no time limit for completion must be fulfilled within one year of the date of the approval. The approach outlined above is consistent with that requirement if the phasing requirement is deemed satisfied by the filing of the final plat for the first phase. During our discussion on the phone, you suggested an alternative approach which would require the filing of the final plats for all phases to have occurred simultaneously. That is a possible interpretation of the language of the code and is perhaps as `O'DOk ELL, RAMIS, CREW & CORRIGAN Memo re: Morning Hill Subdivision Procedural Questions April 1, 1991 Page 3 reasonable as what I have set forth above. One thought came to mind after our discussion which may impact your choice of approaches and concerns the requirement of the posting of security for public improvements prior to the filing of the final plat. If one of the purposes of phasing a development is to spread out the financial commitment of the applicant over a period of time allowing for the development and the sale of lots in phases, then an interpretation which required the posting of security for public improvements of all phases at one time and required all construction to be completed within two years, pursuant to TMC 18.160.050, would seem to run counter to one of the primary purposes of phasing a development. The sequential interpretation which I have suggested above is consistent with the financial impact objective of phasing developments. I suggest that you review the referenced sections of the code and make an interpretation, in writing, which takes into account the various sections of the code plus the condition of approval, and reconciles those provisions in a rational manner. If you determined that the time period for filing the final plat for Phase III has passed, I would suggest that you look at the possibility of having the developer file for an extension of that time period pursuant to TMC 18.160.040(b), although that remedy may not be available due to the lapsing of the preliminary approval. Your second question concerns what requirements need to be met in order to file the final plat for Phase III. TMC 18.160.140, .150, .160, .170, .190, and .200 provide the procedural requirements for the filing of a final plat. The applicant will need to follow'the procedures and meet the requirements of those sections. If the person with whom you are dealing on this matter is not the record owner of the property, that person must present in writing the authorization of the record owner for the person to act as the agent of the owner in the filing of the final plat. TMC 18.160.030 (a) . The last question concerns the filing of security in conjunction with the filing of the final plat. The applicant has requested that the City accept, as security, retaining physical possession of the permits allowing development until after the City is provided with a satisfactory set aside letter or bonding after the final plat has been filed. The City code requires the posting of security prior to the City signing off its approval of the final plat, which is a prerequisite before filing. 'O'DONNELL, RAMIS, CREW & CORRIGAN Memo re: Morning Hill Subdivision Procedural Questions April 1, 1991 Page 4 If the City chooses to it may, but is not required to, enter into aN agreement with the developer containing the following characteristics: 1) The City would sign the final plat indicating its approval, 2) The City would hold development permits until after appropriate security has been posted, 3) The City would receive the actual security documents, executed by the appropriate parties, and hold them essentially in escrow until authorization from the surety indicating that the forms have become effective, and 4) The City would receive from the applicant an executed application for vacation of the plat to be filed only in the case of the failure of the applicant to complete its obligations regarding the posting of security in conjunction with this subdivision. If the City chooses to follow this approach, I would be glad to work with you on the form that would be appropriate. If you have any questions concerning this memo, please give me a call. Original Memorandum to: Jerry Offer, Tigard Community Development Copy to: City of Tigard /Community Development File JMC:dd 4/1/91 jmc \tigard\900244