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DIR1998-00006 NOV 23 '98 03 :35PM 0' DON' '' .L, RAMIS /17 _ P. 2 6e i ' R e .® O,DONNEL4L p®"._r , "A. 4 t,• RAMIS CREW CORRIGAN & BACHRACH, LLP ATTORNEYS AT LAW • 1727 N.W. Hoyt Street . MEMORANDUM Portland, Oregon 97209 (503) 222-4402 TO: Bill Monahan, City Manager Jim Hendryx, Community Development Director ; City of Tigard f 1 FROM: Timothy V. Rarnis James M. Coleman Gary Firestone DATE: November 23, 1998 RE: Implementation of Measure 56 Ballot Measure 56, which was approved in the November election and becomes effective December 3, 1998, requires local governments to provide notice to landowners of comprehensive plan and zoning changes that will affect the uses of their property. For cities, Ballot Measure 56 adds a new section to ORS 227.160 to 227,185. This memorandum explains the situations in which notice must be provided and discusses the procedural/technical requirements for the notices. Sample notices are attached. A. aefinitionsiDiemnkte Notice is required when an amendment would lead to or would cause a "rezoning" of a property owner's property. Ballot Measure 56 Text §§ 3(3), (4) and (6). The term rezoning is not limited to a change in the base or overlay zone, but includes any change that "limits or prohibits land uses previously allowed in the affected zone." Section 3(9)(b). Therefore, any change to a provision . allowing, conditionally allowing, or prohibiting a primary or accessory use in a zone requires a notice to all property owners within that zone. For example, if a multi - family residence was previously an allowed use in a zone and is being changed to a conditionally allowed use, notice to land owners within that zone is required. Furthermore, any other limitation or restriction on a use requires notice. For example, a change in the definition of "multi- family dwelling" that in any way limits or restricts NOV 23 '98 03 :35PM O'DOt' - I_L, RAMIS P.3 • • • Memorandum re: Implementation of Measure 56 November 23, 1998 Page 2 the types of structures that are included in the definition would require notice to all owners of i property in zones in which "multi- family dwelling" is an allowed or conditional use. This memorandum uses the term "rezone" as it is used in the text of Measure 56. B. Situations in Which Notices Must Be Provided Cities must provide notices to affected property owners for (1) proposed comprehensive plan amendments that would require rezoning of the property, (2) ordinances that rezone the property, and (3) proposals to rezone arising in the course of periodic review. In addition, the City must also provide notice to property owners when advised by DLCD of legislative or regulatory changes that will limit or prohibit otherwise permissible land use. Each situation is discussed separately: Comprehensive Plan Change, Section 3(3) provides: • G (3) Except as provided in subsection (6) of this section, at least 20 days but not more than 40 days before the date of the first hearing on an ordinance that proposes to ° r amend an existing comprehensive plan or any element thereof, or to adopt a new comprehensive plan, a city shall cause a written individual notice of a land use change to be mailed to each owner whose property would have to rezoned in order to comply with the amended or new comprehensive plan if the ordinance becomes effective. For comprehensive plan amendments that require rezoning, the notice must be mailed to all affected property owners at least 20 but not more than 40 days before the first hearing. Because the City's procedure requires Planning Commission as the first step of the process, the notice should be provided for the first Planning Commission hearing. The notice should be in the form of the attached Exhibit •1. The language at the top of the notice is required and must be in bold -faced type. The exception is for amendments developed in the course of periodic review, for which notice is still required, but with a different schedule and different format. NOV 23 '98 03:36PM O'DOP" - '_L, RAMIS P.4 Memorandum re: Implementation of Measure 56 November 23, 1998 Page 3 Section 3(4) provides: (4) At least 20 days but not more than 40 days before the date of the first hearing on an ordinance that proposes to rezone property, a city shall cause a written individual notice of a land use change to be mailed to the owner of each lot or parcel of property that the ordinance proposes to rezone. Therefore any amendments to the Community Development Code that result in rezoning require notice to be sent to affected property owners at least 20 and not more than 40 days before the first Planning Commission hearing.. The notice should be in the same form as the notice for a comprehensive plan amendment. See Exhibit 1. Periodic Review Notice Section 3(6) provides: (6) At least 30 days prior to the adoption or amendment of a comprehensive plan or land use regulation by a city pursuant to a requirement of periodic review of the comprehensive plan under ORS 197.628 to 197.636, the city shall cause a written individual notice of the land use change to be mailed to the owner of each lot or parcel that will be rezoned as a result of the adoption or enactment. The notice shall describe in detail how the ordinance or plan amendment will affect the use of the property. Therefore, for changes required as a result of the periodic review process, notice must be sent at least 30 days before the adoption or amendment of the comprehensive plan provision or land use regulation. Unlike the other notices, the deadline is triggered by not by the first hearing. The notice should be in the form of the attached Exhibit 2. _. ! l !_ 1_ &.. _i_a _ t!_. DLCD must prepare a notice of all legislative and regulatory changes that affects uses of property and provide that notice to local governments at least 50 days prior to the effective date. Section 5(1). Local governments receiving the notice must mail a copy to affected landowners (those whose property will be rezoned) at least 30 days before the effective date.. Section 5(4). DLCD is required to reimburse the local governments for the cost of providing notice. Section 5(5). NOV 23 '98 03:37PM O'DON " - LL, RAMIS P.S Memorandum re: Implementation of Measure 56 November 23, 1998 Page 4 C. Means of Providing Notice Notices may be included with tax statements. Section 3(7). Notices may also be sent at any other time, but must be sent either by first class mail or by bulk mail to all persons who are entitled to notice. Section 3(8). D. Persona Bntit1_td to Notices The notices must be sent to the owners of all property that is to be "rezoned." The owner is "the owner of the title to real property or the contract purchaser of real property, of record as shown on the last available complete tax assessment roll." Section 3(1). Because notice is required to be sent only to land owners whose property is affected by the rezoning, a change that applies only to one zone need not be sent to owners of property in other zones. However, some changes will affect many or all zones. For example, a change in flag lot regulations would probably require notice to all property owners in all zones. E. aw MatLy Notices ..Are Requker_d In many cases, a process will involve more than one event that requires notice. Theoretically, a notice could be required of a legislative change, a change in the state regulation, an amendment to the comprehensive plan, and a zone change for one single change in the law. Measure 56 recognizes this and limits some, but not all, duplicative notice requirements. Section 3(10) provides that the notice requirement does not apply to acts by the local government implementing statutes and regulations for which notice was provided. Therefore, once notice is provided of a statutory or regulatory change, no notice of the local action implementing the change is required. Furthermore, if a comprehensive plan change is performed in the course of periodic review, only the periodic review notice, not the comprehensive plan amendment notice is required. Section 3(3). However, the same exception does not apply to zoning changes, so two notices may be required. However, it may be possible to use a single notice that meets the time frames for both the periodic review notice and the zoning notice that includes the required language for each. If the comprehensive plan is amended and the Community Development Code is also amended, a notice is required for each amendment. If the amendments occur at the same time, especially if both are amended in the same ordinance, the notices may be combined in a single notice. However if the comprehensive plan amendment precedes the zoning amendment by more than 20 days, one notice would not meet both time frames, so separate notices would be required. NOV 23 '98 03:37PM o'Dor RAMIS 'P.6 Memorandum re: Implementation of Measure 56 November 23, 1998 Page 5 If a property owner owns more than one affected property, only one notice is required. Section 3(11), • F. Cost Issues Although the City will be reimbursed for the cost of providing notices regarding statutory and regulatory changes, it will bear the cost of providing notice for changes it proposes and for changes required in the course of periodic review. The City should consider factoring the costs of these notices into its fee schedule. • • NOV 23 '98 03 :37PM O'DOP" ^I_L, RAMIS P.7 • • EXHIBIT 1 This is to notify you that the City of Tigard has proposed a land use regulation that will affect the permissible uses of your land, On (date of public hearing) at (time) at (location), the City of Tigard Planni Commission will hold a public hearing regarding the adoption of an ordinance (Describe ordinance). The City of Tigard has determined that adoption of this ordinance will affect the permissible uses of your property and may reduce the value of your property. (DESCRIBE IN DETAIL HOW THE CHANGE WILL AFFECT USES OF PROPERTY) The proposed ordinance is available for inspection at the Tigard City Hall located at 13125 SW Hall Boulevard. A copy of the proposed ordinance also is available for purchase at a cost of For additional information concerning the proposed ordinance, you may call the Planning Department at 639 -4171. NOV 23 '98 03 :38PM O'DO' - LL, RAMIS P.8 EXHIBIT 2 This is to notify you that the City of Tigard has proposed a land use,'regulation . that will affect the permissible uses of your land. As a result of an order of the Land Conservation and Development Commission, the City of Tigard has proposed an ordinance (describe ordinance). The City of Tigard has determined that the '. adoption of this ordinance will affect the permissible uses of your property and may reduce the value of your property. (DESCRIBE IN DETAIL HOW THE CHANGE WILL AFFECT USES OF PROPERTY) The City anticipates that the proposed ordinance will become effective on (date), but the actual effective date may. change. The proposed ordinance is available for inspection at the Tigard City Hall located at 13125 SW Hall Boulevard. A copy of the proposed ordinance also is available for purchase at a cost of , For additional information concerning the proposed ordinance, you may call the (city) Planning Department at 638 - 4171, C. V vccblv00241nu stsunc56.mc l .apd DATE: 11/23/1998 CODE SECTIONS: Ballot Measure 56 TOPIC: Measure 56 Implementation *This is an Interpretation by the City Attorneys Office INTERPRETATION: Ballot Measure 56, which was approved in the November election and becomes effective December 3, 1998, requires local governments to provide notice to landowners of comprehensive plan and zoning changes that will affect the uses of their property. For cities, Ballot Measure 56 adds a new section to ORS 227.160 to 227.185. This memorandum explains the situations in which notice must be provided and discusses the procedural /technical requirements for the notices. A. DEFINITION OF "REZONING" Notice is required when an amendment would lead to or would cause a "rezoning" of a property owner's property. Ballot Measure 56 Text 3(3), (4) and (6). The term rezoning is not limited to a change in the base or overlay zone, but includes any change that "limits or prohibits land uses previously allowed in the affected zone." Section 3(9)(b). Therefore, any change to a provision allowing, conditionally allowing, or prohibiting a primary or accessory use in a zone requires a notice to all property owners within that zone. For example, if a multi - family residence was previously an allowed use in a zone and is being changed to a conditionally allowed use, notice to land owners within that zone is required. Furthermore, any other limitation or restriction on a use requires notice. For example, a change in the definition of "multi- family dwelling" that in any way limits or restricts the types of structures that are included in the definition would require notice to all owners of property in zones in which "multi- family dwelling" is an allowed or conditional use. This memorandum uses the term "rezone" as it is used in the text of Measure 56. B. SITUATIONS IN WHICH NOTICES MUST BE PROVIDED Cities must provide notices to affected property owners for (1) proposed comprehensive plan amendments that would require rezoning of the property, (2) ordinances that rezone the property, and (3) proposals to rezone arising in the course of periodic review. In addition, the City must also provide notice to property owners when advised by DLCD of legislative or regulatory changes that will limit or prohibit otherwise permissible land use. Each situation is discussed separately: Comprehensive Plan Changes Section 3(3) provides: (3) Except as provided in subsection (6) of this section at least 20 days but not more than 40 days before the date of the first hearing on an ordinance that proposes to amend an existing comprehensive plan, a city shall cause a written individual notice of a land use change to be mailed to each owner whose property would have to be rezoned in order to comply with the amended or new comprehensive plan if the ordinance becomes effective. For comprehensive plan amendments that require rezoning, the notice must be mailed to all affected property owners at least 20 but not more than 40 days before the first hearing. Because the City's procedure requires Planning Commission evaluation as the first step of the process, the notice should be provide for the first Planning Commission hearing. - The notice should be in the form of the attached EXHIBIT 1. The language at the top of the notice is required and must be in bold -faced type. (See Planning Secretary for exhibits) - The exception is for amendments developed in the course of periodic review, for which notice is still required, but with a different schedule and different format. (SEE PLANNING SECRETARY FOR ALL EXHIBITS RELATED TO THIS INTERPRETATION) Community Development Code Amendments Section 3(4) provides: (4) At least 20 days but not more than 40 days before the date of the first hearing on an ordinance that proposes to rezone property, a city shall cause as written individual notice of a land use change to be mailed to the owner of each lot or parcel of property that the ordinance proposes to rezone. Therefore, any amendments to the Community Development Code that result in rezoning require notice to be sent to affected property owners at least 20 and not more than 40 days before the first Planning Commission hearing. The notice should be in the same form as the notice for a comprehensive plan amendment. See EXHIBIT 1. Periodic Review Notice Section 3(6) provides: (6) At least 30 days prior to the adoption or amendment of a comprehensive plan or land use regulation by a city pursuant to a requirement of periodic review of the comprehensive plan under ORS 197.628 to 197.636, the city shall cause a written individual notice of the land use change to be mailed to the owner of each lot or parcel that will be rezoned as a result of the adoption or enactment. The notice shall describe in detail how the ordinance or plan amendment will affect the use of the property. Therefore, for changes required as a result of the periodic review process, notice must be sent at least 30 days before the adoption or amendment of the comprehensive plan provision or land use regulation. Unlike the other notices, the deadline is triggered by adoption, not by the first hearing. The notice should be in the form of the attached EXHIBIT 2. Statutory or Regulatory Rezoning DLCD must prepare a notice of all legislative and regulatory changes that affects uses of property and provide that notice to local governments at least 50 days prior to the effective date. Section 5(1). Local governments receiving the notice must mail a copy to affected landowners (those whose property will be rezoned) at least 30 days before the effective date. Section 5(4). DLCD is required to reimburse the local governments for the cost of providing notice. Section 5(5). C. Means of Providing Notice Notices may be included with tax statements. Section 3(7). Notices may also be sent at any other time, but must be sent either by first class mail or by bulk mail to all persons who are entitled to notice. Section 3(8). D. Persons Entitled to Notice The notices must be sent to the owners of all property that is to be "rezoned." The owner is "the owner of the title to real property or the contract purchaser of real property, of record as shown on the last available complete tax assessment roll." Section 3(1). Because notice is required to be sent only to land owners whose property is affected by the rezoning, a change that applies only to one zone need not be sent to owners of property in other zones. However, some changes will affect many or all zones. For example, a change in flag lot regulations would probably require notice to all property owners in all zones. E. How Many Notices Are Required In many cases, a process will involve more than one event that requires notice. Theoretically, a notice could be required of a legislative change, a change in the state regulation, an amendment to the comprehensive plan, and a zone change for one single change in the law. Measure 56 recognizes this and limits some, but not all, duplicative notice requirements. Section 3(10) provides that the notice requirement does not apply to acts by the local government implementing statutes and regulations for which notice was provided. Therefore, once notice is provided of a statutory or regulatory change, no notice of the local action implementing the change is required. Furthermore, if a comprehensive plan change is performed in the course of periodic review, only the periodic review notice, not the comprehensive plan amendment notice is required. Section 3(3). However, the same exception does not apply to zoning changes, so two notices may be required. However, it may be possible to use a single notice that meets the time frames for both the periodic review notice and the zoning notice that includes the required language for each. If the comprehensive plan is amended and the Community Development Code is also amended, a notice is required for each amendment. If the amendments occur at the same time, especially if both are amended in the same ordinance, the notices may be combined in a single notice. However if the comprehensive plan amendment precedes the zoning amendment by more than 20 days, one notice would not meet both time frames, so separate notices would be required. If a property owner owns more than one affected property, only one notice is required. Section 3(11). F. Cost Issues Although the City will be reimbursed for the cost of providing notices regarding statutory and regulatory changes, it will bear the cost of providing notice for changes it proposes and for changes required in the course of periodic review. The City should consider factoring the costs of these notices into its fee schedule.