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DIR1999-00003 V DIRECTOR'S INTERPRETATION CDC 18.340, 18.390, 18.620, 18.760 & 18.810 CITY OF TIGARD I. INTRODUCTION OREGON This interpretation is intended to clarify certain provisions of the Community Development Code regarding public improvement standards, finality of decisions, alteration of non - conforming situations, and building location requirements. II. INTERPRETATIONS RELATING TO PUBLIC IMPROVEMENTS A. General Principles Relating to Public Improvements Several provisions of the Community Development Code may be ambiguous as to whether they an applicant to build a required public improvement or simply state an approval standard requiring that certain minimum public improvements and services be available. Some provisions may appear to require the applicant to dedicate property for public use and /or to build a public improvement. The following general principles apply to all provisions in the CDC relating to public improvements: 1. If a provision is ambiguous as to whether it (a) requires the applicant to dedicate property and build a public improvement or (b) imposes a standard requiring that the public improvement to be in place, the ambiguity is to be resolved in favor of the interpretation that the provision is a development standard but does not impose an automatic obligation to build the public improvement on the applicant, the City, or any other person or entity. 2. If a code provision expressly requires the applicant to dedicate property and /or to build public improvements that would benefit property other than the property being developed, that provision is to be interpreted in light of Nollan v. California Coastal Comm'n, 483 US 825 (1987) and Dolan v. City of Tigard, 512 US 374 (1994) and other applicable case law. All requirements to dedicate property or to build a public improvement are imposed only to the extent that the City can demonstrate a direct relationship (essential nexus) between the exaction and the development's impact on a public interest and that the exaction is roughly proportional to the impact. The City may require applicants to dedicate property or to build public improvements when it can demonstrate the Nollan /Dolan essential nexus and rough proportionality test is met. 3. If a code standard or criterion is not met or complied with, the City has the o p tion.. denying the application or approving it subject to conditions that result in satisfaction of the standard or criterion. In some cases, such a condition will require construction of an improvement to the extent . Dolan allows it In other cases, the condition will relate to timing, allowing the project to proceed only after someone builds the improvement needed to satisfy the approval criteria. The general principles may allow more than one option in some situations. For example, if a proposed development adjoins and has access to a street that is not built to City standards and the code requires that adjacent streets meet City standards, the City could have three options for dealing with an application that did not propose improvement of the street to City standards. First, it could deny the application for failure to comply with the code Second, if the City could demonstrate that the impact of the development on the transportation system is roughly proportional to the improvements needed to bring the street to standards (including the value of any necessary dedication), the City could approve the application with the condition that the applicant improve the street to applicable standards. Third, the City could approve the application subject to a condition that the street must meet City standards before occupancy is allowed. This last option could require the condition to be met before the building permit, final inspection, or occupancy stage. As a practical matter, if the City or some third party is going to build the improvements, the City could allow the building permits to be issued when a definite commitment for street improvements is in place, with the final occupancy being tied to completion of the street improvements. _ 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639 -4171 TDD (503) 684 -2772 Page 1 of 8 B. Interpretation of Specific de Provisions 1. CDC 18.810.020A a. Code Language CDC 18.810.020A provides: ,AJnless otherwise provided, the standard specifications for construction, reconstruction or repair of streets, sidewalks, curbs, and other public improvements shall occur in accordance with the standards of this title. No development may occur unless the public facilities related to development comply with the public facility requirements established in this section. b. Interpretation This provision requires the listed public facilities to be in place and to meet the standards of CDC Title 18.810. It does not require the applicant to dedicate property for or to build the facilities. c. Discussion If the public facilities are not in place and the applicant has not proposed to build the required public improvements, the City has two primary options. The first option is to deny the application because the required public facilities are not in place. The second option is to approve the application subject to a condition that the required public improvements must be in place before some specified event (the issuance of building permits, final inspection, or the issuance of occupancy permits) can occur. By doing so, the City is not requiring the applicant to construct the public improvements. The public improvements may be, constructed by the City or by some third party. This alternative would allow the applicant to construct the public improvements should the applicant choose to do so. A third option is possible. If the City can justify requiring the applicant to provide the public improvement under the Nollan /Dolan standard, the City may approve the application subject to a condition that the applicant provide the required public improvement. This option should be avoided unless the applicant agrees to the condition or the City can clearly demonstrate that the exaction is justified under the /Nollan /Dolan standard. 2. CDC 18.810.030A.1 a. Code Language CDC 18.810.030A.1 provides: Streets within a development and streets adjacent shall be improved in accordance with this title. b. Interpretation This provision imposes a development standard which must be met for an applicant to be approved. It does not necessarily require an applicant to dedicate land or build public improvements, but it does provide authority for the City to impose such conditions of approval if the standards are not otherwise met and the nexus and rough proportionality tests are met. S c. Discussion If the streets within or adjacent to a development do not meet the applicable standards and the applicant has not proposed improvements to meet the standard, the application should either be denied or approved subject to a condition that the development can proceed only when the required public improvements (the streets) are in place and meet the standards. The City could choose to impose street dedication and improvement requirements for streets internal to a subdivision and meet the Nollan /Dolan standard in most cases. Internal streets within a subdivision normally are needed to allow the subdivision to develop and the need for the streets is created by the subdivision. Because the need for the internal streets is created by the development, the impact of the development is roughly proportional to the cost of dedication and construction of the internal streets. Therefore, for internal streets, the City may require the applicant to dedicate and improve the streets to applicable standards based on a showing that the Nollan /Dolan standard is met. . Page 2 of 8 CDC 18.810.030A.1 shot. also be applied in light of CD( ;8.810.030A.5 which allows for variances from any standards under appropriate situations. While variances from standards for internal streets should rarely be granted, variances for standards for adjoining streets should take into account the extent to which the proposed development would affect the street in question, whether the development will have adequate access by another route that meets applicable standards, and the extent to which development of the street in question is immediately needed. These standards will also assist the determination whether dedication of right -of -way and improvement of the street can be required under the Nollan -Dolan standard. The term "streets adjacent" in CDC 18.810.030A.1 is also ambiguous in light of the traditional requirement that developers be responsible only for half- street improvements for streets adjoining the property to be developed. The requirement that an adjoining street be improved to full standards may overly restrict the possibility of development and prevent development based on the refusal of the property owner on the other side of the road to dedicate property. This term is to be interpreted in context of all the other provisions of CDC 18.810.030. While is some cases full street improvements may be a necessary prerequisite, the term "streets adjacent" may, in appropriate situations, be interpreted as applying only to the half - street adjacent to the development. 3. CDC 18.810.030A.2 a. Code Language Any new street or additional street planned as a portion of an existing street shall be dedicated and improved in accordance with this rule. b. Interpretation This provision required dedication and improvement by the applicant to the extent that the dedication and improvement is justified under the Nollan /Dolan standard. c. Discussion All requirements to dedicate property must meet the Nollan /Dolan standard. Similarly, if the applicant is required to construct the improvements, the requirement to construct improvements is an exaction that must meet the direct relationship /rough proportionality standard. 4. CDC 18.810.030A.4 a. Code Language CDC 18.810.030A.4 provides: The City Engineer may accept a future improvement guarantee in lieu of street improvements if [certain] conditions exist. b. Interpretation This provision does not by itself require either the street improvements or a future improvements guarantee, but only provides that future improvement guarantees may be accepted under _`:.certain conditions. ': c. Discussion • This provision should not be interpreted as assuming that developers can be required to provide street improvements if such a requirement is inconsistent with the Nollan /Dolan standard. Rather, it should be interpreted as allowing the City to accept a future improvement guarantee when all applicable street standards are not met and one or more of the specified criteria exist. It should be interpreted as applying only to those situations in which the City can require the developer to dedicate property or build public improvements under the Nollan /Dolan standard,. Page 3of8 5. , CDC 18.810.030A.5 a. Code Language CDC 18.810.030A.5 provides: improvements to streets shall be made according to adopted City standards, unless the approval authority determines that the standards will result in an unacceptable adverse impact on existing development or on the proposed development or on natural features such as wetlands, steep slopes or existing mature trees. 4n approving an exception to the standards, the approval authority shall determine that the potential adverse impacts exceed the public benefits or the standards. In evaluating the public benefits, the approval authority shall consider the criteria listed in Section 18.810.03E.1. b. Interpretation The term "unacceptable" is interpreted as imposing an objective standard, not a subjective standard. An adverse impact on an existing or proposed development is unacceptable if application of the standard would result in an uncompensated taking of private property in violation of the applicable constitutional standards. In no case can exceptions to the standards be approved if the resulting public improvements would not be adequate to assure public safety. c. Discussion This provision allows an exception to the standards of ORS Chapter 18.180 based on.a balancing of the public interest in the transportation system with other interests, including the interests of the proposed development. The interpretation is needed to clarify that an exception may be allowed only when the adverse impact on existing or proposed development is objectively unacceptable. It is not sufficient that a developer may claim that the impact is unacceptable. The standard is whether the impact of compliance with the standards is so severe as to prevent economically beneficial use of the property or to thwart reasonable investment- backed expectations. An applicant cannot seek an exemption by designing a project in such a way that the project cannot comply with CDC Chapter 18.810. Rather, the applicant must attempt to design a project that can comply with CDC Chapter 18.810 and can seek an exception if a reasonable development that complies with the chapter is not possible. Any development approved pursuant to an exception under CDC 18.810.030A.5 must comply with all other approval criteria. 6. CDC 18.810.110A a. Code Language CDC 18.810.110A provides: Bikeway extension. Developments adjoining proposed bikeways identified on the City's adopted pedestrian /bikeway plan shall include provisions for the future extension of such bikeways through the dedications of easements or rights -of -way. b. Interpretation Dedications of easements or rights -of -way for future extension of bikeways are required for developments adjoining proposed bikeways identified in the adopted pedestrian /bikeway plan but only when the dedication requirement is directly related to and roughly proportional to the impact on the transportation system. c. Discussion This provision must be read in light of Nollan and Dolan. For the dedication of a bikeway to be directly related to a development, the City must either show an impact on the bicycle transportation system or show that the development will have an impact on the motor vehicle transportation system and that the provision of a bikeway will have a positive benefit on the motor vehicle transportation system by reducino motor vehicle use or by increasing street capacity for motor vehicles by removing bicycles from the road system shared by motor vehicles and bicycles. Any requirement to dedicate property must be roughly proportional to the impact. 1 0r on existing development or natural features. Page 4 of E . 7. , CDC 18.620.0108 a. Code Language - CDC 18.620.010B provides in part: in addition to meeting the design standards described below and other development standards required by the Development and Building Codes, developments will be required to dedicate and improve public streets, connect to public facilities such as sanitary sewer, water and storm drainage, and participate in funding future transportation and public improvement projects within the Tigard Triangle. b. Interpretation The requirement to dedicate and improve public streets is a requirement to dedicate and improve public streets in an amount that is roughly proportional to the impact of the development on the transportation system. The requirement to articipate in funding future transportation and . public improvement projects, if imposed on an individual basis rather than as part of a uniform broad -based scheme of fees or taxes, must also meet the direct relationship /rough proportionality standard. c. Discussion This provision must be interpreted to be consistent with Nollan and Dolan. Therefore, a requirement to dedicate and improve public streets can only be imposed as a condition of approval if the . establishes that the dedication and improvement is directly related to and roughly proportional to an impact of the development. Similarly, a commitment to pay for public improvement projects is subject to the same analysis in not imposed pursuant to a uniform broad -based scheme for imposing fees or taxes. 0 8. Other Provisions of CDC Chapter 18.620 a. Applicable Provisions This interpretation applies to CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070. b. Interpretation CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070 are design standards and do not require dedication or construction of public improvements. c. Design Standards These standards imposed by these provisions apply to new development and redevelopment. Nothing in the language of any of these provisions requires dedication of public property or building of a public improvement. However, these provisions do impose standards that must be complied with. III. PROVISIONS RELATING TO EFFECTIVE DATE OF DECISIONS A. General Rule The City has 'historically taken the position that final 'decisions of the City are effective even if appealed to LUBA. The recent changes to the CDC were not intended to change that position. All decisions that are final decisions of the City shall be effective no later than the date the appeal period for appealing to LUBA runs, even if an appeal is filed. B. Interpretation of Specific Provisions 1. CDC 18.340.020G and CDC 18.390.050G a. Code Language CDC 18.340.020G provides: Final decision /effective date. The decision of the City Council on an appeal of a Director Interpretation shall be final when it is mailed to the applicant. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision remains effective unless or until it is modified by the Land Use Board of Appeals or a court of competent jurisdiction. Page 5 of f CDC 18.390.050G provide , Final decision and effective date. The decision of the Review Authority on any Type II appeal or any Type III appeal is final for purposes of appeal on the date it is mailed. The decision of the Review Authority is effective on the day after the appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is resolved. b. Interpretation For both these provisions, the term "the day after the appeal period expires" is interpreted as meaning "the day after the appeal period expires, regardless of whether an appeal is filed." c. Discussion • The last sentence of CDC I8.340.020G confirms that the intent of this provision is to have decisions be effective even if appealed. Because both CDC 18.340.020G and 18.390.050E use similar language to determine the effective date, both provisions should be interpreted in the same way. So long as the deadline for a LUBA appeal is 21 days after notice of the decision is mailed, the decisions in each situation are effective 22 days after notice of the decision is mailed, whether or not an appeal is filed. IV. PROVISION RELATING TO NONCONFORMING DEVELOPMENT A. General Rule Although the City recognizes that validly established nonconforming uses and structures may be continued, the goal of the city is to increase compliance with all code provisions. Therefore any change in a nonconforming structure should be permitted only if the change brings the structure closer to compliance with existing standards. B. Interpretation of Specific Provision 1. CDC 18.760.040C a. Code Language CDC 18.760.040C provides in part: 1. Where a lawful structure exists at the effective date of adoption or amendment of this title that could not be built under the terms of this title by reason of restrictions on lot area, lot coverage, height, yard, equipment, its location on the lot or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. No such nonconforming structure may be enlarged or altered in any way which increases its nonconformity but any structure or portion thereof may be enlarged or altered in a way that satisfies the requirements of this title or will decrease its nonconformity. b. Interpretation Any enlargement or alteration of a nonconforming structure must either bring the structure into full compliance with current standards or substantially decrease the nonconformity. Alterations which neither increase nor decrease nonconformity are not allowed. A minimal change does not constitute a decrease in nonconformity. c. Discussion The plain language of CDC 18.760.040C.1.a allows alteration or enlargement of a nonconforming structure only if the nonconformity is decreased. Nothing in this provision allows alteration or enlargement of a nonconforming structure if the nonconformity remains unchanged. For example, if a nonconforming structure is 40 feet from a property boundary and the current code has a maximum setback of 20 feet, an expansion or alteration of the building in a direction other than towards the property boundary that leaves the building 40 feet from the property boundary is not a decrease in the nonconformity and may not be permitted under CDC 18.760.0406.1. Page 6 of 8 The intent of this provisi is to allow enlargement or alter. ,n that results in an appreciable decrease in the nonconformity. A de,minimis decrease intended to circumvent this provision should not be permitted. For example, if an existing building exceeds the maximum height for a zone by 10 feet and the alteration includes a roof replacement with slightly thinner roof material so that the building's height is decreased by less than an inch, this should not be considered a decrease in the nonconformity. • V. BUILDING LOCATION REQUIREMENTS IN THE TIGARD TRIANGLE 'A. General Rule The design standards for the Tigard Triangle area are intended to promote a more dense and urban environment, with buildings fronting on streets and with most of the street frontage occupied by buildings. B. Interpretation of Specific Provisions 1. CDC 18.620.030A.2 a. Code Language - CDC 18.620.030A.2 provides: Building setback - The minimum building setback from public street rights -of -way or dedicated wetlands /buffers and other environmental features shall be 0 feet; the maximum building setback shall be 10 feet. b. Interpretation The 10 foot maximum building setback in CDC 18.620.030A.2 applies only to setbacks from public street rights -of -way, not from dedicated wetland /buffers and other environmental features. All structures on a property that is subject to this provision must have one side of the structure within 10 feet of the property boundary with the public street right -of -way. c. Discussion One purpose of the code is to preserve wetlands and other natural features. The 10 foot maximum setback does not apply to wetlands and other environmental features. Structures may be sited any distance from wetland/buffers and other environmental features so long as they do not encroach on those features. The minimum building setback from public street rights -of -way requires buildings to be built adjacent (within 10 feet of) one or more public streets that border or run through a property. Placing a structure within 10 feet of an interior driveway or private street does not satisfy the standard. 2. CDC 18.620.030A.1 a. Code Language Building placement on Major and Minor Arterials - Buildings shall occupy a minimum of 50 percent of all street frontages along Major and Minor Arterial Streets. Buildings shall be located at public street intersections on Major and Minor Arterial Streets. b. Interpretation In areas subject to this provision, buildings are to be primarily oriented and built to major and minor arterials rather than to local streets. "Occupying a street frontage" means having a wall of a building within 10 feet of the property line along the right -of -way. c. Discussion This provision is intended to orient buildings to arterials rather than to local streets. It must bE interpreted in conjunction with CDC 18.620.030A.2, which requires a 0 to 10 foot setback alone rights -of -way. The building frontage requirement can be satisfied by more than one building, so long a: buildings occupy 50 percent of the total frontage on an arterial. If a property has frontage on more thar one arterial, it must satisfy the requirement at least as to one arterial and must satisfy the standard as to al arterials along which structures are placed. Page 7of£ VI. APPLICATION OF THIS INTERPRETATION This interpretation is intended to apply in all situations in which the code provisions discussed in this . interpretation are applicable. Any statement in this interpretation that a code provision. "should" "shall" or "must" be interpreted in a certain fashion is an interpretation of the code stating the correct interpretation. This interpretation is also applicable to parallel or similar provisions in the former Community Development Code. • VII. FINALITY AND EFFECTIVENESS OF DECISION Because the applicant for this decision is the Community Development Director and no other person has requested notice of this decision, this decision is final when signed. (ALTERNATIVE LANGUAGE -- This decision is final when signed and notice of the decision is mailed to those who have requested notice.) This decision may be appealed to the City Council by filing a notice of appeal with the Community Development Director within 14 days of the date this decision is final. If not appealed, this decision will be effective on the 15 day after it is made final. James N.P. Hendryx, Communi Development Director DATE: - 4..6 ) 47 7 • C: \rccb \TI GARD \interp.wpd • is \curpin \dick \Director's Interpretation for Chapters 18.340, 18.390, 18.620, 18.760, 18.810.doc 3- Jun -99 • • Page 8 of f MAY 17 '99 08 :11AM RAMIS CREW CORRIGAN P.2 DIRECTOR'S INTERPRETATION CDC 18.340, 18.390, 18.620, 18.760 and 18.810 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding public improvement standards, finality of decisions, alteration of non - conforming situations, and building location requirements. II, INTERPRETATIONS RELATING TO PUBLIC IMPROVEMENTS A. General Principles Relating to Public Improvements Several provisions of the Community Development Code may be ambiguous as to whether they require an applicant to build a required public improvement or simply state an approval standard requiring that certain:minimum public improvements and services be available. Some provisions may appear to require the applicant to dedicate property for public use and/or to build a public improvement. The following general principles apply to all provisions in the CDC relating to public improvements: 1, If a provision is ambiguous as to whether it (a) requires the applicant to dedicate property and build a public improvement or (b) imposes a standard requiring tt the public improvement to be in place, the ambiguity is to be resolved in favor of the interpretation that the provision is a development standard but does not impose an automatic obligation to build the public improvement on the applicant, the City, or any other person or entity. 2. If a code provision expressly requires the applicant to dedicate property and /or to build public improvements that would benefit property other than the property being developed, that provision is to be interpreted in light of Nollan v. California Coastal Comm 'n, 483 US 825 (1987) and Dolan v. City of Tigard, 512 US 374 (1994) and other applicable case law. All requirements to dedicate property or to build a public improvement are imposed only to the extent that the City can demonstrate a direct relationship (essential nexus) between the exaction and the development's `impact on a public interest and that the exaction is roughly proportional to the impact. The City may require applicants to dedicate property or to build public improvements when it can demonstrate the Nollan/Dolan essential nexus and rough proportionality test is met. 3. If a code standard or criterion is not met or complied with, the City has the option of denying the application or approving it subject to conditions that result in satisfaction of the standard or criterion. In some cases, such a condition will require construction of an improvement to the extent Dolan allows it. In other MAY 17 '99 08:12AM RAMIE CREW CORRIGAN P.3 " Director's Interpretation Page 2 cases, the condition will relate to timing, allowing the project to proceed only after . someone builds the improvement needed to satisfy the approval criteria. The general principles may allow more than one option in some situations. For example, if a proposed development adjoins and has access to a street that is not built to City standards and the code requires that adjacent streets meet City standards, the City could have three options for dealing with an application that did not propose improvement of the street to City standards. First, it could deny the application for failure to comply with the code. Second, if the City could demonstrate that the impact of the development on the transportation system is roughly proportional to the improvements needed to bring the street to standards (including the value of any necessary dedication), the City could approve the application with the condition that the applicant improve the street to applicable standards. Third, the City could approve the application subject to a condition that the 'street must meet City standards before occupancy is allowed. This last option could require the condition to be met before the building permit, final inspection, or occupancy stage, As a practical matter, if the City or some third party is going to build the improvements, the City could'allow the building permits to be issued when a definite commitment for street improvements is in place, with the final occupancy being tied to completion of the street improvements. B. Interpretation of Specific Code Provisions 1. CDC 18.810.0Z0A a. Code Language CDC 18.810.020A provides: Unless otherwise provided, the standard specifications for construction, reconstruction or repair of streets, sidewalks, curbs, and other public improvements shall occur in accordance with the standards of this title. No development may occur unless the public facilities related to development comply with the public facility requirements established in this section. b. Interpretation This provision requires the listed public facilities to be in place and to meet the standards of CDC Title 18.810. It does' not require the applicant to dedicate property for or to build the facilities. MAY 17 '99 08:12AM RAMIS CREW CORRIGAN P.4 • Director's Interpretation Page 3 c. Discussion If the public facilities are not in place and the applicant has not proposed to build the required public improvements,, the City has two primary options. The first option is to deny the application because the required public facilities are not in place. The second option is to approve the application subject to a condition that the required public improvements must be in place before some specified event (the issuance of building permits, final inspection, or the issuance of occupancy permits) can occur. By doing so, the City is not requiring the applicant to construct the public improvements. The public improvements may be constructed by the City or by some third party. This alternative would allow the applicant to construct the public improvements should the applicant choose to do so. A third option is possible. If the City can justify requiring the applicant to provide the public improvement under the Nollan/Dolan standard, the City may approve the application subject to a condition that the 'applicant provide the required public improvement. This option should be avoided unless the applicant agrees to the condition or the City can clearly demonstrate that the exaction is justified under the Nollan/Dolan standard. 2. CDC 18.810.030A 1 a. Code Language CDC 18,810.030A.1 provides: Streets within a development and streets adjacent shall be improved in accordance with this title. b. Interpretation This provision imposes a development standard which must be met for an applicant to be approved. It does not necessarily require an applicant to dedicate land or build public improvements, but it does provide authority for the City to impose such conditions of approval if the standards are not otherwise met and the nexus and rough proportionality tests are met. c. Discussion If the streets within or adjacent to a development do not meet the applicable standards and the applicant has not proposed improvements to meet the standard, the application should either be denied or approved subject to a condition that the development can proceed only when the required public improvements'(the streets) are in place and meet the standards. • MAY 17 '99 08:13AM RAMIS CREW CORRIGAN P.5 • Director's Interpretation Page 4 The City could choose :to impose street dedication and improvement requirements for streets internal to a subdivision and meet the Nollan/Dolan standard in most cases. Internal streets within a subdivision normally are needed to allow the subdivision to develop and the need for the streets is created by the subdivision. Because the need for the internal streets is created by the development, the impact of the development is roughly proportional to the cost of dedication and construction of the internal streets. Therefore, for internal streets, the City may require the applicant to dedicate and improve the streets to applicable standards based on a showing that the Nollan/Dolan standard is met., CDC 18,810.030A.1 should also be applied in light of CDC 18.810.030A.5 which allows ' for variances from any standards under appropriate situations. While variances from standards for internal streets should rarely be granted, variances for standards for adjoining streets should take into account the extent to which the proposed development would affect the street in question, whether the development will have adequate access by another route that meets applicable standards, and the extent to which development of the street in question is immediately needed. These standards will also assist the determination whether dedication of right -of -way and improvement of the street can he required under the Nollan-Dolan standard, The term "streets adjacent" in CDC 18.810.030A.1 is also ambiguous in light of the traditional requirement that developers be responsible only for half - street improvements for streets adjoining the property to be developed. The requirement that an adjoining street be improved to full standards may overly restrict the possibility of development and prevent development based on the refusal of the property owner on the other side of the road to dedicate , property. This term is to be interpreted in context of all the other provisions of CDC 18.810.030, While is some cases full streetimprovements may be a necessary . prerequisite, the term "streets adjacent" may, in appropriate‘situations, be interpreted as applying only to the half - street adjacent to the development. 3. CDC 18.81o.0.OA.2 a. Code La anguage Any new street or additional street planned as a portion of an existing street shall be dedicated and improved in accordance with this rule. b. Interpretation This provision required dedication and improvement by the applicant to the extent that the dedication and improvement is justified under the Nollan/Dolan standard. • , MAY 17 '99 08:13AM RAMIS CREW CORRIGAN P.6 Director's Interpretation Page 5 c. Discussion • All requirements to dedicate property must meet the Nollan/Dolan standard. 'Similarly, if the applicant is required to construct the improvements, the requirement to construct improvements is an exaction that must meet the direct relationship /rough proportionality standard, 4. CDC 18.810.030A.4 a. Code Language CDC 18.810.030A.4 provides: The City Engineer may accept a future improvement guarantee in lieu of street improvements if [certain] conditions exist. b. Interpretation This provision does not by itself require either the street improvements or a future improvements guarantee, but only provides that future improvement guarantees may be accepted under certain conditions. c. Discussion This provision should not be interpreted as assuming that developers can be required to provide street improvements if such a requirement is inconsistent with the Nollan/Dolan standard. Rather, it should be interpreted as allowing the City to accept a future improvement guarantee when all applicable street standards are not met and one or more of the specified criteria exist, It should be interpreted as applying only to those situations in which the City can require the developer to dedicate property or build public improvements under the Nollan/Dolan standard. 5. CDC 18.810.0OA. S a. Code Language CDC 18.810.030A.5 provides: Improvements to streets shall be made according to adopted City standards, unless the approval authority determines that the standards will result in an unacceptable adverse impact on existing development or on the proposed development or on natural features such as wetlands, steep slopes or existing mature trees. In approving an exception to the standards, the approval authority shall determine that the potential adverse impacts exceed the public benefits or the standards. In f i MAY 17 '99 08 :14AM RAMIS CREW CORRIGAN P.7 Director's Interpretation • Page 6 evaluating the public benefits, the approval authority shall consider the criteria listed in Section 18.810.03E.1. b. Interpretation The term "unacceptable" is interpreted as imposing an objective standard, not a subjective standard. An adverse impact on an existing or proposed development is unacceptable if application of the standard would result in an uncompensated taking of private property in violation of the applicable constitutional standards, In no case can exceptions to the standards be approved if the resulting public improvements would not be adequate to assure public safety. c, Discussion This provision allows an exception to the standards of ORS Chapter 18,180 based on a balancing of the public interest in the transportation system with other interests, including the interests of the proposed development. The interpretation is needed to clarify that an exception may be allowed only when the adverse impact on existing or proposed development' is objectively unacceptable. It is not sufficient that a developer may claim that the impact is unacceptable. The standard is whether the impact of compliance with the standards is so severe as to prevent economically beneficial use ofthe property or to thwart reasonable investment - backed expectations. An applicant cannot seek an exemption by designing a project in such a way that the project cannot comply with CDC Chapter 18.810. Rather, the applicant must attempt to design a project that can comply with CDC Chapter 18.810 and can seek an exception if a reasonable development that complies with the chapter is not possible. Any development approved pursuant to an exception under CDC 18.810.030A.5 must comply with all other approval criteria. • 6. CDC 18,810.110A a, Code Language CDC 18.810.110A provides: Bikeway extension. Developments adjoining proposed bikeways identified on the City's adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the dedications of easements or rights -of -way. 'Or on existing development or natural features. • MAY 17 '99 08 :14AM RAMIS CREW CORRIGAN P.8 • Director's Interpretation Page 7 b. Interpretation • Dedications of easements or rights -of -way for future extension of bikeways are required for developments adjoining proposed bikeways identified in the adopted pedestrian/bikeway plan but only when the dedication requirement is directly related to and roughly proportional to the impact on the transportation system. c, Discussion This provision must be read in light of/Vol/an and Dolan. For the dedication of a bikeway to be directly related to a development, the City must either show an impact on the bicycle transportation system or show that the development will have an impact on the motor vehicle transportation system i.nd that the provision of a bikeway will have a positive benefit on the motor vehicle transportation system by reducing motor vehicle use or by increasing street capacity for motor vehicles by, removing bicycles from the road system shared by motor vehicles and bicycles. Any requirement to dedicate property must be roughly proportional to the impact. 7. CDC 18.620.010B a, Code Language CDC 18.620.010B provides in part: In addition to meeting the design standards described below and other development standards required by the Development and Building Codes, developments will be required to dedicate and improve public streets, connect to public facilities such as sanitary sewer, water and storm drainage, and participate in funding future transportation and public improvement projects within the Tigard Triangle. b. Interpretation The requirement to dedicate and improve public streets is a requirement to dedicate and improve public streets in an amount that is roughly proportional to the impact of the development . on the transportation system. The requirement to participate in funding future transportation and public improvement projects, if imposed on an individual basis rather than as part of a uniform broad -based scheme of fees or taxes, must also meet the direct relationship /rough proportionality standard. MAY 17 '99 08 :15AM RAMIE CREW CORRIGAN P.9 . Director's Interpretation Page 8 c. Discussion • This provision must be interpreted to be consistent with Nollan and Dolan. Therefore, a requirement to dedicate and improve public streets can only be imposed as a condition of approval if the City establishes that the dedication and improvement is directly related to and roughly proportional to an impact of the development. Similarly, a commitment to pay for public improvement projects is subject to the same analysis in not imposed pursuant to a uniform broad - based scheme for imposing fees or taxes. 8. Other Provisions of CDC Chapter 18.620 a. Applicable Provisions This interpretation applies to CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070. b. Interpretation CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070 are design standards and do not require dedication or construction of public improvements, c. Design Standards These standards imposed by these provisions apply to new development and redevelopment. Nothing in the language of any of these provisions require s dedication of public property or building of a public improvement. However, these provisions do impose standards that must be complied with, III. PROVISIONS RELATING TO EFFECTIVE DATE OF DECISIONS A. General Rule The City has historically taken the position that final decisions of the City are effective even if appealed to LUBA. The recent changes to the CDC were not intended to change that position. All decisions that are final decisions of the City shall be effective no later than the date the appeal period for appealing to LUBA runs, even if an appeal is filed. . MAY 17 '99 08 :15AM RAMIS CREW CORRIGAN P.10 Director's Interpretation Page 9 B. Interpretation of Specific Provisions 1. CDC 18.340.020G and CDC 18.390.05OG a. Code Language CDC 18,340.020G provides: • Final decision/effective, date. The decision of the City Council on an appeal of a Director Interpretation shall be final when it is mailed to the applicant. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision remains effective unless or until it is modified by the Land Use Board of Appeals or a court of competent jurisdiction. CDC 18.390.050G provides: Finats and effeCtivestate. The decision of the Review Authority on any Type II appeal or any Type II appeal is final for purposes of appeal on the date it is mailed. The decision of the Review Authority is effective on the day after the appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is resolved. b. Interpretation For both these provisions, the term "the day after the appeal period expires" is interpreted . as meaning "the day after the appeal period expires, regardless of whether an appeal is filed." c. Discussion The last sentence of CDC 18.340.02OG confirms that the intent of this provision is to have decisions be effective even if appealed. Because both CDC 18.340.020G and 18.390.05OG use similar language to deterniine the effective date, both provisions should be interpreted in the same way. So long as the deadline for a LUBA appeal is 21 days after notice of the decision is mailed, the decisions in each situation are effective 22 days after notice of the decision is mailed, whether or not an appeal is filed, IV. PROVISION RELATING TO NONCONFORMING DEVELOPMENT A. General Rule Although the City recognizes that validly established nonconforming uses and structures may be continued, the goal of the city is to increase compliance with all code provisions. MAY 17 '99 08:16AM RAMIS CREW CORRIGAN P.11 Director's Interpretation Page 10 Therefore any change in a nonconforming structure should be permitted only if the change brings the structure closer to compliance with existing standards. B. Interpretation of Specific Provision 1. CDC 18.760.0400 a. Code Language CDC 18.760.040C provides in part: 1, Where a lawful structure exists at the effective date of adoption or amendment of this title that could not be built under the terms of this title by reason of restrictions on lot area, lot coverage, height, yard, equipment, its location on • the lot or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. No such nonconforming structure may be enlarged or altered in any way which increases its nonconformity but any structure or portion thereof may be enlarged or altered in a way that satisfies the requirements of this title or will decrease its nonconformity. b. Interpretation ' Any enlargement or alteration of a nonconforming structure must either bring the structure into full compliance with current standards or substantially decrease the nonconformity. Alterations which neither increase nor decrease nonconformity are not allowed. A minimal change does not constitute a decrease in nonconformity. c. Discussion The plain language of CDC 18.760.040C. l .a allows alteration or enlargement of a nonconforming structure only if the nonconformity is decreased. Nothing in this provision allows alteration or enlargement of a nonconforming structure if the nonconformity remains unchanged. For example, if a nonconforming structure is 40 feet from a property boundary and the current code has a maximum setback of 20 feet, an expansion or alteration of the building in a direction other than towards the property boundary that leaves the building 40 feet from the property MAY 17 '99 08 :16AM RAMIS CREW CORRIGAN P.12 Director's Interpretation Page 11 boundary is not a decrease in the nonconformity and may not be permitted under CDC 18.760.040C,1. The intent of this provision is to allow enlargement or alteration that results in an appreciable decrease in the nonconformity. A de minimis decrease intended to circumvent this provision should not be permitted. For example, if an existing building exceeds the maximum height for a zone by 10 feet and the alteration includes a roof replacement with slightly thinner roof material so that the building's height is decreased by less than an inch, this should not be , considered a decrease hi the nonconformity. V. BUILDING LOCATION REQUIREMENTS IN THE TIGARD TRIANGLE • A. General Rule The design standards for the Tigard Triangle area are intended to promote a more dense and urban environment, with buildings fronting on streets and with most of the street frontage occupied by buildings. B. Interpretation of Specific Provisions 1. CDC 18 . 620. 0304.2 a. Code Language CDC 18.620,030A.2 provides: Building setback - The'minimum building setback from public street rights -of -way • or dedicated wetlands/buffers and other environmental features shall be 0 feet; the maximum building setback shall be 10 feet. b. Interpretation The 10 foot maximum building setback in CDC 18.620.030A.2 applies only to setbacks from public street rights -of -way, not from dedicated wetland/buffers and other environmental features, All structures on a property that is subject to this provision must have one side of the structure within 10 feet of the property boundary with the public street right -of -way. c. Discussion One purpose of the code is to preserve wetlands and other natural features. The 10 foot maximum setback does not apply to wetlands and other environmental features. Structures may MAY 17 '99 08 :17AM RAMIS CREW CORRIGAN P.13 Director's Interpretation Page 12 I ' be sited any distance from wetland/buffers and other environmental features so long as they do not encroach on those features. The minimum building -setback from public street rights -of -way requires buildings to be built adjacent (within 10 feet of) one or more public streets that border or run through a property. Placing a structure within 10 feet of an interior driveway or private street does not satisfy the , standard. 2. CDC 18.620.O4OA.1 a. Code Language Building placement on Major and Minor Arterials - Buildings shall occupy a minimum of 50 percent of all street frontages along Major and Minor Arterial Streets. Buildings shall be located at public street intersections on Major and Minor Arterial Streets,: b. Interpretation In areas subject to this provision, buildings are to be primarily oriented and built to major and minor arterials rather thanyto local streets. "Occupying a street frontage" means having a wall of a building within 10 feet of the property line along the right -of -way. c. Discussion This provision is intended to orient buildings to arterials rather than to local streets. It must be interpreted in conjunction with CDC 18,620.030A.2, which requires a 0 to 10 foot setback along rights -of -way. the building frontage requirement can be satisfied by more than one, building, so long as buildings occupy 50 percent of the total frontage on an arterial. If a property has frontage on more than one arterial, it must satisfy the requirement at least as to one arterial and must satisfy the standard as to all arterials along which structures are placed. VI.. APPLICATION OF THIS INTERPRETATION This interpretation is intended to apply in all situations in which the code provisions discussed in this interpretation "are applicable. Any statement in this interpretation that.a code provision "should" "shall" or "must" be interpreted in a certain fashion is an interpretation of the code stating the correct interpretation. This interpretation is also applicable to parallel or similar provisions in the former Community Development Code. • MAY 17 '99 08 :17AM RAMIS CREW CORRIGAN P.14 Director's Interpretation Page 13 • VII. FINALITY AND EFFECTIVENESS OF DECISION Because the applicant for this decision is the Community Development Director and no 1 other person has requested notice of this decision, this decision is final when signed. (ALTERNATIVE LANGUAGE -- This decision is final when signed and notice of the decision is mailed to those who have requested notice.) This decision maybe appealed to the City Council by filing a notice of appeal with the Community Development Director within 14 days of the date this decision is final. If not appealed, this decision will be effective on the 15* day after it is made final. DATE: Jim Hendryx, Community Development Director c:\o vriciorAinte .wpd • • • i m t - k A,„ CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD TO: Tim Ramis FROM: Jim Hend x ` / DATE: December 15, 1998 SUBJECT: Street Improvement Requirements in the Tigard Triangle On November 20, 1998, representatives of the Planning and Engineering Departments met to discuss how to ensure consistency in street improvement requirements related to development approvals. What I need is to have you review this outline and indicate that this approach is acceptable and will withhold legal challenge. Consistency is also critical to our decision making process. I want to make sure that we are applying our standards consistently. Local Streets Local streets must be improved at the time of development unless the development meets the criteria for a right to remonstrate, or fee or some other . written agreement to guarantee future improvement (Development Code Section 18.810.030.A.4). Unless the applicant agrees to this standard, staff will recommend denial. At issue with this condition is consistency and fairness. Consistency is an issue from the standpoint of where and how this standard is applied. Staff has required interior lots to be responsible for improving their street frontage. This is a reasonable requirement. Corner lots are required to improve both street frontages. In some cases this amounts to 150 — 180 ft of street improvements. Local street improvements cost around $150 - $200 per running foot. In instances where a corner lot abuts a "paper street ", improvements are required to the "improved street" and dedication is required for the unimproved "paper street" frontage. Improvements are not required since the "paper street" is not designed. It does not appear fair to require one developer to make major improvements in one instance and not the other. This standard is being applied without consideration to the Dolan analysis of rough proportionality. Is that the correct assumption? Staff only applies the Dolan analysis to improvements along collectors and arterial streets. Should this test be applied to local improvements? q/A igq (6046i■e i. Council Consideration: Resolution No. 99 -53 Motion by Councilor Scheckla, seconded by Councilor Patton, to adopt Resolution No.99- . 53. • Ms. Wheatley noted a correction in the fourth "whereas" clause. It should read "annexed by Ordinance 99 -19," not by Resolution 99 -19. The City Recorder read the number and title of the resolution. RESOLUTION NO. 99 -53, A RESOLUTION ESTABLISHING SANITARY SEWER REIMBURSEMENT DISTRICT NO. 14. Motion was approved by unanimous voice vote of the Council present. (Mayor Nicoli, Councilors Hunt, Patton and Scheckla voted "yes. ") 8: ADOPTION OF A DIRECTOR'S INTERPRETATION OF PROVISIONS OF THE DEVELOPMENT CODE Mr. Hendryx explained that, since the Dolan decision, attorneys throughout the country have generally agreed that the requirement of the rough proportionality test extended to all public facilities improvement requirements. He said that, because of the confusion in how to apply the Dolan decision, he and the City Attorney met to discuss Code provisions and the interpretations needed to insure consistency with the Dolan decision. He noted the Planning Director's Interpretations document drafted by the City Attorney and signed by himself. Mr. Hendryx explained that staff wanted the Council to adopt this document because the courts gave deference to a City Council's interpretations. Mr. Coleman commented that this document would provide not only consistency with Dolan but also internal consistency from application to application as staff turned over. He said that the document memorialized what the Code provisions meant from the Council's perspective. Motion by Councilor Patton, seconded by Councilor Hunt, to adopt Resolution No. 99 -54. The City Recorder read the number and title of the resolution. RESOLUTION NO. 99-54, A RESOLUTION ADOPTING DIRECTOR'S INTERPRETATION CONCERNING DEDICATION, PUBLIC FACILITIES, FINAL DECISIONS, NON - CONFORMING SITUATIONS, AND BUILDING LOCATIONS IN THE TIGARD TRIANGLE. Motion was approved by unanimous voice vote of the Council present. (Mayor Nicoli, Councilors Hunt, Patton and Scheckla voted "yes. ") 9. • SIDER REQUEST FOR PACIFIC RIDGE TO USE T PERTY FOR PRIVA • ANDS MITIGATION Mr. Hendryx stated that Pac - -1 . nd Specht Company submitted a joint request to use City park land to miti:. - or e wetlands impa c .e Autumn Crest subdivision in the Triangle. He explai I - : at the applicants proposed to do the mi on .74 acres located in the Fanno C - - 'ark just behind City Hall. He used an aerial photograph to m strate the exact ocation of the mitigation. CITY COUNCIL MEETING MINUTES - JULY 13, 1999 — PAGE 15 DATE: 6/6/1999 CODE SECTIONS: 18.340 18.390 - 18.620 1 c( �t 18.760 18.810 [TOPIC: To clarify certain provisions of the Community Development Code regarding public improvement standards, finality of decisions, alteration of non - conforming situations, and building location requirements *This is an Interpretation by the City Attorney's Office, Adopted by the City Council 8/24/99 via Resolution No. 99 -54. INTERPRETATION: I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding public improvement standards, finality of decisions, alteration of non- conforming situations, and building location requirements. II. INTERPRETATIONS RELATING TO PUBLIC IMPROVEMENTS A. General Principles Relating to Public Improvements Several provisions of the Community Development Code may be ambiguous as to whether they require an applicant to build a required public improvement or simply state an approval standard requiring that certain minimum public improvements and services be available. Some provisions may appear to require the applicant to dedicate property for public use and /or to build a public improvement. The following general principles apply to all provisions in the CDC relating to public improvements: 1. If a provision is ambiguous as to whether it (a) requires the applicant to dedicate property and build a public improvement or (b) imposes a standard requiring that the public improvement to be in place, the ambiguity is to be resolved in favor of the interpretation that the provision is a development standard but does not impose an automatic obligation to build the public improvement on the applicant, the City, or any other person or entity. 2. If a code provision expressly requires the applicant to dedicate property and /or to build public improvements that would benefit property other than the property being developed, that provision is to be interpreted in light of Nollan v. California Coastal Commission, 483 US 825 (1987) and Dolan v. City of Tigard, 512 US 374 (1994) and other applicable case law. All requirements to dedicate property or to build a public improvement are imposed only to the extent that the City can demonstrate a direct relationship (essential nexus) between the exaction and the development's impact on a public interest and that the exaction is roughly proportional to the impact. The City may require applicants to dedicate property or to build public improvements when it can demonstrate the Nollan /Dolan essential nexus and rough proportionality test is met. 3. If a code standard or criterion is not met or complied with, the City has the option of denying the application or approving it subject to conditions that result in satisfaction of the standard or criterion. In some cases, such a condition will require construction of an improvement to the extent Dolan allows it. In other cases, the condition will relate to timing, allowing the project to proceed only after someone builds the improvement needed to satisfy the approval criteria. The general principles may allow more than one option in some situations. For example, if a proposed development adjoins and has access to a street that is not built to City standards and the code requires that adjacent streets meet City standards, the City could have three options for dealing with an application that did not propose improvement of the street to City standards. First, it could deny the application for failure to comply with the code. Second, if the City could demonstrate that the impact of the development on the transportation system is roughly proportional to the improvements needed to bring the street to standards (including the value of any necessary dedication), the City could approve the application with the condition that the applicant improve the street to applicable standards. Third, the City could approve the application subject to a condition that the street must meet City standards before occupancy is allowed. This last option could require the condition to be met before the building permit, final inspection, or occupancy stage. As a practical matter, if the City or some third party is going to build the improvements, the City could allow the building permits to be issued when a definite commitment for street improvements is in place, with the final occupancy being tied to completion of the street improvements. B. Interpretation of Specific Code Provisions 1. CDC 18.810.020A a. Code Language CDC 18.810.020A provides: Unless otherwise provided, the standard specifications for construction, reconstruction or repair of streets, sidewalks, curbs, and other public improvements shall occur in accordance with the standards of this title. No development may occur unless the public facilities related to development comply with the public facility requirements established in this section. b. Interpretation This provision requires the listed public facilities to be in place and to meet the standards of CDC Title 18.810. It does not require the applicant to dedicate property for or to build the facilities. c. Discussion If the public facilities are not in place and the applicant has not proposed to build the required public improvements, the City has two primary options. The first option is to deny the application because the required public facilities are not in place. The second option is to approve the application subject to a condition that the required public improvements must be in place before some specified event (the issuance of building permits, final inspection, or the issuance of occupancy permits) can occur. By doing so, the City is not requiring the applicant to construct the public improvements. The public improvements may be constructed by the City or by some third party. This alternative would allow the applicant to construct the public improvements should the applicant choose to do so. A third option is possible. If the City can justify requiring the applicant to provide the public improvement under the Nollan /Dolan standard, the City may approve the application subject to a condition that the applicant provide the required public improvement. This option should be avoided unless the applicant agrees to the condition or the City can clearly demonstrate that the exaction is justified under the Nollan /Dolan standard. 2. CDC 18.810.030A.1 a. Code Language CDC 18.810.030A.1 provides: Streets within a development and streets adjacent shall be improved in accordance with this title. b. Interpretation This provision imposes a development standard which must be met for an applicant to be approved. It does not necessarily require an applicant to dedicate land or build public improvements, but it does provide authority for the City to impose such conditions of approval if the standards are not otherwise met and the nexus and rough proportionality tests are met. c. Discussion If the streets within or adjacent to a development do not meet the applicable standards and the applicant has not proposed improvements to meet the standard, the application should either be denied or approved subject to a condition that the development can proceed only when the required public improvements (the streets) are in place and meet the standards. The City could choose to impose street dedication and improvement requirements for streets internal to a subdivision and meet the NoIlan /Dolan standard in most cases. Internal streets within a subdivision normally are needed to allow the subdivision to develop and the need for the streets is created by the subdivision. Because the need for the internal streets is created by the development, the impact of the development is roughly proportional to the cost of dedication and construction of the internal streets. Therefore, for internal streets, the City may require the applicant to dedicate and improve the streets to applicable standards based on a showing that the NoIlan /Dolan standard is met. CDC 18.810.030A.1 should also be applied in light of CDC 18.810.030A.5 which allows for variances from any standards under appropriate situations. While variances from standards for internal streets should rarely be granted, variances for standards for adjoining streets should take into account the extent to which the proposed development would affect the street in question, whether the development will have adequate access by another route that meets applicable standards, and the extent to which development of the street in question is immediately needed. These standards will also assist the determination whether dedication of right -of -way and improvement of the street can be required under the Nollan -Dolan standard. The term "streets adjacent" in CDC 18.810.030A.1 is also ambiguous in light of the traditional requirement that developers be responsible only for half- street improvements for streets adjoining the property to be developed. The requirement that an adjoining street be improved to full standards may overly restrict the possibility of development and prevent development based on the refusal of the property owner on the other side of the road to dedicate property. This term is to be interpreted in context of all the other provisions of CDC 18.810.030. While is some cases full street improvements may be a necessary prerequisite, the term "streets adjacent" may, in appropriate situations, be interpreted as applying only to the half- street adjacent to the development. 3. CDC 18.810.030A.2 a. Code Language CDC 18.810.030A.2 provides: Any new street or additional street planned as a portion of an existing street shall be dedicated and improved in accordance with this rule. b. Interpretation This provision required dedication and improvement by the applicant to the extent that the dedication and improvement is justified under the Nollan /Dolan standard. c. Discussion All requirements to dedicate property must meet the Nollan /Dolan standard. Similarly, if the applicant is required to construct the improvements, the requirement to construct improvements is an exaction that must meet the direct relationship /rough proportionality standard. 4. CDC 18.810.030A.4 a. Code Language CDC 18.810.030A.4 provides: The City Engineer may accept a future improvement guarantee in lieu of street improvements if [certain] conditions exist. b. Interpretation This provision does not by itself require either the street improvements or a future improvements guarantee, but only provides that future improvement guarantees may be accepted under certain conditions. c. Discussion This provision should not be interpreted as assuming that developers can be required to provide street improvements if such a requirement is inconsistent with the Nollan /Dolan standard. Rather, it should be interpreted as allowing the City to accept a future improvement guarantee when all applicable street standards are not met and one or more of the specified criteria exist. It should be interpreted as applying only to those situations in which the City can require the developer to dedicate property or build public improvements under the NoIlan /Dolan standard. 5. CDC 18.810.030A.5 a. Code Language CDC 18.810.030A.5 provides: Improvements to streets shall be made according to adopted City standards, unless the approval authority determines that the standards will result in an unacceptable adverse impact on existing development or on the proposed development or on natural features such as wetlands, steep slopes or existing mature trees. In approving an exception to the standards, the approval authority shall determine that the potential adverse impacts exceed the public benefits or the standards. In evaluating the public benefits, the approval authority shall consider the criteria listed in Section 18.810.03E.1. b. Interpretation The term "unacceptable" is interpreted as imposing an objective standard, not a subjective standard. An adverse impact on an existing or proposed development is unacceptable if application of the standard would result in an uncompensated taking of private property in violation of the applicable constitutional standards. In no case can exceptions to the standards be approved if the resulting public improvements would not be adequate to assure public safety. c. Discussion This provision allows an exception to the standards of ORS Chapter 18.180 based on a balancing of the public interest in the transportation system with other interests, including the interests of the proposed development. The interpretation is needed to clarify that an exception may be allowed only when the adverse impact on existing or proposed development (see footnote) is objectively unacceptable. It is not sufficient that a developer may claim that the impact is unacceptable. The standard is whether the impact of compliance with the standards is so severe as to prevent economically beneficial use of the property or to thwart reasonable investment - backed expectations. An applicant cannot seek an exemption by designing a project in such a way that the project cannot comply with CDC Chapter 18.810. Rather, the applicant must attempt to design a project that can comply with CDC Chapter 18.810 and can seek an exception if a reasonable development that complies with the chapter is not possible. Any development approved pursuant to an exception under CDC 18.810.030A.5 must comply with all other approval criteria. 6. CDC 18.810.110A a. Code Language CDC 18.810.110A provides: Bikeway extension. Developments adjoining proposed bikeways identified on the City's adopted pedestrian /bikeway plan shall include provisions for the future extension of such bikeways through the dedications of easements or rights -of -way. b. Interpretation Dedications of easements or rights -of -way for future extension of bikeways are required for developments adjoining proposed bikeways identified in the adopted pedestrian /bikeway plan but only when the dedication requirement is directly related to and roughly proportional to the impact on the transportation system. c. Discussion This provision must be read in light of NoIlan and Dolan. For the dedication of a bikeway to be directly related to a development, the City must either show an impact on the bicycle transportation system or show that the development will have an impact on the motor vehicle transportation system and that the provision of a bikeway will have a positive benefit on the motor vehicle transportation system by reducing motor vehicle use or by increasing street capacity for motor vehicles by removing bicycles from the road system shared by motor vehicles and bicycles. Any requirement to dedicate property must be roughly proportional to the impact. 7. CDC 18.620.010B a. Code Language CDC 18.620.010B provides in part: In addition to meeting the design standards described below and other development standards required by the Development and Building Codes, developments will be required to dedicate and improve public streets, connect to public facilities such as sanitary sewer, water and storm drainage, and participate in funding future transportation and public improvement projects within the Tigard Triangle. b. Interpretation The requirement to dedicate and improve public streets is a requirement to dedicate and improve public streets in an amount that is roughly proportional to the impact of the development on the transportation system. The requirement to participate in funding future transportation and public improvement projects, if imposed on an individual basis rather than as part of a uniform broad -based scheme of fees or taxes, must also meet the direct relationship /rough proportionality standard. c. Discussion This provision must be interpreted to be consistent with NoIlan and Dolan. Therefore, a requirement to dedicate and improve public streets can only be imposed as a condition of approval if the City establishes that the dedication and improvement is directly related to and roughly proportional to an impact of the development. Similarly, a commitment to pay for public improvement projects is subject to the same analysis in not imposed pursuant to a uniform broad -based scheme for imposing fees or taxes. 8. Other Provisions of CDC Chapter 18.620 a. Applicable Provisions This interpretation applies to CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070. b. Interpretation CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070 are design standards and do not require dedication or construction of public improvements. c. Design Standards These standards imposed by these provisions apply to new development and redevelopment. Nothing in the language of any of these provisions requires dedication of public property or building of a public improvement. However, these provisions do impose standards that must be complied with. III. PROVISIONS RELATING TO EFFECTIVE DATE OF DECISIONS A. General Rule The City has historically taken the position that final decisions of the City are effective even if appealed to LUBA. The recent changes to the CDC were not intended to change that position. All decisions that are final decisions of the City shall be effective no later than the date the appeal period for appealing to LUBA runs, even if an appeal is filed. B. Interpretation of Specific Provisions 1. CDC 18.340.020G and CDC 18.390.050G a. Code Language CDC 18.340.020G provides: Final decision /effective date. The decision of the City Council on an appeal of a Director Interpretation shall be final when it is mailed to the applicant. The decision is effective on the day after the appeal period expires. If an appeal is filed, the decision remains effective unless or until it is modified by the Land Use Board of Appeals or a court of competent jurisdiction. CDC 18.390.050G provides: Final decision and effective date. The decision of the Review Authority on any Type II appeal or any Type III appeal is final for purposes of appeal on the date it is mailed. The decision of the Review Authority is effective on the day after the appeal period expires. If an appeal is filed, the decision becomes effective on the day after the appeal is resolved. b. Interpretation For both these provisions, the term "the day after the appeal period expires" is interpreted as meaning "the day after the appeal period expires, regardless of whether an appeal is filed." c. Discussion The last sentence of CDC 18.340.020G confirms that the intent of this provision is to have decisions be effective even if appealed. Because both CDC 18.340.020G and 18.390.050G use similar language to determine the effective date, both provisions should be interpreted in the same way. So long as the deadline for a LUBA appeal is 21 days after notice of the decision is mailed, the decisions in each situation are effective 22 days after notice of the decision is mailed, whether or not an appeal is filed. IV. PROVISION RELATING TO NONCONFORMING DEVELOPMENT A. General Rule Although the City recognizes that validly established nonconforming uses and structures may be continued, the goal of the city is to increase compliance with all code provisions. Therefore any change in a nonconforming structure should be permitted only if the change brings the structure closer to compliance with existing standards. B. Interpretation of Specific Provision 1. CDC 18.760.040C a. Code Language CDC 18.760.040C provides in part: 1. Where a lawful structure exists at the effective date of adoption or amendment of this title that could not be built under the terms of this title by reason of restrictions on lot area, lot coverage, height, yard, equipment, its location on the lot or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. No such nonconforming structure may be enlarged or altered in any way which increases its nonconformity but any structure or portion thereof may be enlarged or altered in a way that satisfies the requirements of this title or will decrease its nonconformity. b. Interpretation Any enlargement or alteration of a nonconforming structure must either bring the structure into full compliance with current standards or substantially decrease the nonconformity. Alterations which neither increase nor decrease nonconformity are not allowed. A minimal change does not constitute a decrease in nonconformity. c. Discussion The plain language of CDC 18.760.040C.1.a allows alteration or enlargement of a nonconforming structure only if the nonconformity is decreased. Nothing in this provision allows alteration or enlargement of a nonconforming structure if the nonconformity remains unchanged. For example, if a nonconforming structure is 40 feet from a property boundary and the current code has a maximum setback of 20 feet, an expansion or alteration of the building in a direction other than towards the property boundary that leaves the building 40 feet from the property boundary is not a decrease in the nonconformity and may not be permitted under CDC 18.760.040C.1. The intent of this provision is to allow enlargement or alteration that results in an appreciable decrease in the nonconformity. A de minimis decrease intended to circumvent this provision should not be permitted. For example, if an existing building exceeds the maximum height for a zone by 10 feet and the alteration includes a roof replacement with slightly thinner roof material so that the building's height is decreased by less than an inch, this should not be considered a decrease in the nonconformity. V. BUILDING LOCATION REQUIREMENTS IN THE TIGARD TRIANGLE A. General Rule The design standards for the Tigard Triangle area are intended to promote a more dense and urban environment, with buildings fronting on streets and with most of the street frontage occupied by buildings. B. Interpretation of Specific Provisions 1. CDC 18.620.030A.2 a. Code Language CDC 18.620.030A.2 provides: Building setback - The minimum building setback from public street rights -of -way or dedicated wetlands /buffers and other environmental features shall be 0 feet; the maximum building setback shall be 10 feet. b. Interpretation The 10 foot maximum building setback in CDC 18.620.030A.2 applies only to setbacks from public street rights -of -way, not from dedicated wetland /buffers and other environmental features. All structures on a property that is subject to this provision must have one side of the structure within 10 feet of the property boundary with the public street right -of -way. c. Discussion One purpose of the code is to preserve wetlands and other natural features. The 10 foot maximum setback does not apply to wetlands and other environmental features. Structures may be sited any distance from wetland /buffers and other environmental features so long as they do not encroach on those features. The minimum building setback from public street rights -of -way requires buildings to be built adjacent (within 10 feet of) one or more public streets that border or run through a property. Placing a structure within 10 feet of an interior driveway or private street does not satisfy the standard. 2. CDC 18.620.030A.1 a. Code Language Building placement on Major and Minor Arterials - Buildings shall occupy a minimum of 50 percent of all street frontages along Major and Minor Arterial Streets. Buildings shall be located at public street intersections on Major and Minor Arterial Streets. b. Interpretation In areas subject to this provision, buildings are to be primarily oriented and built to major and minor arterials rather than to local streets. "Occupying a street frontage" means having a wall of a building within 10 feet of the property line along the right -of -way. c. Discussion This provision is intended to orient buildings to arterials rather than to local streets. It must be interpreted in conjunction with CDC 18.620.030A.2, which requires a 0 to 10 foot setback along rights -of -way. The building frontage requirement can be satisfied by more than one building, so long as buildings occupy 50 percent of the total frontage on an arterial. If a property has frontage on more than one arterial, it must satisfy the requirement at least as to one arterial and must satisfy the standard as to all arterials along which structures are placed. VI. APPLICATION OF THIS INTERPRETATION This interpretation is intended to apply in all situations in which the code provisions discussed in this interpretation are applicable. Any statement in this interpretation that a code provision "should" "shall" or "must" be interpreted in a certain fashion is an interpretation of the code stating the correct interpretation. This interpretation is also applicable to parallel or similar provisions in the former Community Development Code. VII. FINALITY AND EFFECTIVENESS OF DECISION Because the applicant for this decision is the Community Development Director and no other person has requested notice of this decision, this decision is final when signed. (ALTERNATIVE LANGUAGE -- This decision is final when signed and notice of the decision is mailed to those who have requested notice.) This decision may be appealed to the City Council by filing a notice of appeal with the Community Development Director within 14 days of the date this decision is final. If not appealed, this decision will be effective on the 15th day after it is made final. Footnote: Or on existing development or natural features.