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DIR1991-00001 DATE: 1/8/1991 CODE SECTIONS: 18.120.050 I.TOPIC I School Capacity and Public Facilities - Tigard Code & Comp. Plan Policies * City Attorney's Office Interpretation INTERPRETATION: School capacity in the context of decision making criteria requires that there be adequate public facilities for the different types of approvals, but that requirement is phrased in a slightly different manner for each type of approval. For a phased development, the requirement is that public facilities be constructed in conjunction with or prior to each phase. Tigard Municipal Code (TMC) 18.120.050, p. 301. The code does not define the scope of the term "Public Facilities ". For conditional uses, it is necessary that "required" public facilities have adequate capacity to serve the proposal. The term "required" is not defined. TMC 18.130.040, p. 318. For planned developments, there is a reference to the approval criteria for land divisions found in TMC 18.162. TMC 18.80.120.A.1, p. 160. TMC 18.162 is in fact the approval criteria for partitions and it requires that there be adequate public facilities to serve the proposal. TMC 18.162.040.A.3, p. 402. The April 25 memo discusses the requirements for subdivisions which are found in TMC 18.160.020 and it specifies that certain enumerated facilities are required, but does not include school facilities in that list. There is a requirement at TMC 18.160.060 that a preliminary plat must comply with a comp. plan, zoning ordinance, and other applicable ordinances and regulations. That requirement is general and does not reference any specific facilities requirements. The final plat approval criteria adds no additional requirements for public facilities. TMC 18.160.150. For annexations, it is required that all services and facilities are available and have sufficient capacity. TMC 18.136.030, p. 352. There is no specific mention of school facilities in that section. In looking at the comp plan requirements, the public facilities section is found at Chapter 7 on p. 11-41. The most directly related policies are found at Policy 7.1.1(b) which requires the City to work with service districts to provide a coordinated system for providing services, Policy (c) which requires the City to provide urban services in accordance with the comp. plan to the extent of the City's financial resources, subsection (d), which requires the City to use the capital improvements program as a means for providing orderly growth and efficient use of land, and subsection (e) which requires the development of the comp. plan with consideration being given to the level of capacity of existing services. Policy 7.1.2 states the City shall require as a precondition to development approval that development coincide with the availability of adequate service capacity including water, sewer, and storm drainage. Schools are omitted from this policy. In the implementation strategies for these policies, there is nothing that specifically links school capacity to development approvals. Policy 7.8 deals specifically with schools and the only requirement on the City is that it shall "work closely with school districts to assure maximum community use of the school facilities for Tigard residents through locational criteria and provisions of urban services." Implementation of Strategy 1 for that policy requires that the City monitor school capacity by requiring requests for development proposals and permits to be reviewed by the applicable school district for effects on school capacity. Neither the implementation strategies nor the policies themselves take the next step of requiring that adequate capacity be available at the time of the development approval or at the time that the developments are completed. These policies make a differentiation between the services directly provided by the City and services provided by a separate district. It would be difficult to argue that Policy 7.1.1 clearly requires the City to insure that adequate school capacity is a precondition to approval in the development process. Reading the comp. plan and policies together, a good argument can be made that there is no requirement in the Tigard Comprehensive Plan for the actual availability of school capacity at the time of the development approval. However, if this is the policy position of the City, it could unquestionably be made more clear. Amendments to the plan could be drafted to clearly state the apparent policy on school capacity which is a requirement for coordination between the City and the school districts. The only direct requirement in the comp. plan related to the provision of public facilities and services at the time of the development approval, is found at Plan Policy 7.1.2 on p. 11-42, which does not include school capacity. Regardless of the school district capacity question, it would probably be advisable to unify and standardize the approval criteria related to public facilities and services for each of the different types of developments and actions addressed by the development code. I suggest that one way of doing this would be to, through definitions in the development code, identify public facilities and services which are required to be available at the time of the development approval, and through separate definition, other public facilities and services. Once those definitions were developed, the approval criteria in the development code for the various types of decisions could be amended through the use of these new definitions to clarify what types of public facilities and services need to be considered within the context of each quasi - judicial application hearing. The findings which accompany these code changes would need to contain an interpretation of the plan policies which supported the conclusion that school capacity is not a precondition to a development approval. That discussion would follow the lead from DLCD in categorizing some services as necessarily responsive to development pressure. CEIVED 19b r O'DONNELL, RAMIS, CREW & CORRIGAN 2 2 r - 'MUN TY DEVELOPMENT ATTORNEYS AT LAW JEFF H. BACHRACH BALLOW & WRIGHT BUILDING CLACKAMAS COUNTY OFFICE CHARLES E. CORRIGAN 1727 N.W. Hoyt Street 181 N. Grant, Suite 202 STEPHEN F. CREW Portland, Oregon 97209 Canby, Oregon 97013 CHARLES M. GREEFF (503) 266 -1149 WILLIAM A. MONAHAN TELEPHONE: (503) 222 -4402 NANCY B. MURRAY FAX: (503) 243 -2944 MARK P. O'DONNELL JAMES M. COLEMAN DENNIS M. PATERSON III PLEASE REPLY TO PORTLAND OFFICE KENNETH M. ELLIOTT TIMOTHY V. RAMIS GARY M. GEORGEFF* SHEILA C. RIDGWAY* ROBERT J. McGAUGHEY* WILLIAM J. STALNAKER January 18, 1991 Special Counsel *Also Admitted to Practice in State of Washington Mr. Ed Murphy, Director Community Development City of Tigard P. O. Box 23397 13125 SW Hall Boulevard Tigard, OR 97223 Re: Tigard Code and Comp Plan Policies Relating to School Capacity Dear Ed: Enclosed please find a copy of Jim Coleman's memorandum on this issue. Very truly yours, T1 y V. Ramis TVR/ if $ � Enclosure tvr'tigatd\murphy.hl -- - rry t ✓ T V2►J -0D [I--- ,o JA IN— • . MEMORANDUM DATE: January 8, 1991 TO: TVR FROM: JMC RE: Tigard Code and Comp Plan Policies Relating to School Capacity As a follow -up to our lunch meeting with Pat Riley on December 14, 1990, you asked that I review the City of Tigard comp plan and development code provisions relating to schools. The review is a preliminary step in the formulation of a strategy for dealing with the necessity for consideration of school capacity as a criteria in decision making on quasi judicial land use applications in the City of Tigard. I had Will review the plan and code and pull out for me all references to school capacity in the context of decision making criteria. In the process of that review, he also found an April 25, 1990 memo concerning school service requirements for subdivision approvals. I have attached a copy of that memo and I think its conclusions are accurate, but do not provide a complete answer to the questions which you have raised. When looking at the approval criteria within the development code, one finds a requirement that there be adequate public facilities for the different types of approvals, but that requirement is phrased in a slightly different manner for each type of approval. I For a phased development, the requirement is that public facilities be constructed in conjunction with or prior to each phase. TMC 18.120.050, p. 301. The code does not define the scope of the term "'ubli cilities." For conditional uses, it is necessary that "required' public fa have adequate capacity to serssx® - - - ;.--7,:..k-f=7 .- -The term required" is not defined. TMC 18.130.040, 318. For planne opments, there is a reference to the approval criteria for land divisions found in TMC 18.162. TMC 18.80.120 A.1., p. 160. TMC 18.162 is in fact the approval criteria for partitions and it requires that there be adequate public facilities to serve the proposal. TMC 18.162.040 A.3., p. 402. The April 25 memo discusses the requirements for subdivisions which are found in TMC 18.1 and it pacifies that certain enumer.a -facilities are required,__ but—does, not include school facilities in that list. There is _a requirement at TMC - 1137r 13 0-0 t�iaa . _a r preliminary plat must comply with a comp plain, zoning ordinance and other applicable ordinances and . ,4 e . requirement is general and does not referenc • Memorandum to TVR Re Tigard Code and Comp Plan Policies Relating to School Capacity January 8, 1991 Page 2 any specific facilities requirements. The final plat approval criteria adds no additional requirements for public facilities. TMC 18.160.150. For annexations, it is required that all services and facilities are available and have sufficient capacity. TMC 18.136.030, p. 352. There is no specific mention of school facilities in that section. In looking at the comp plan requirements, the public facilities section is found at Chapter 7 on p. II -41. The most directly related policies are found at Policy 7.1.1(b) which requires the City to work with service districts to provide a coordinated system for providing services, Policy (c) which requires the City to provide urban services in accordance with the comp plan to the extent of the City's financial resources, subsection (d) which requires the City to use the capital improvements program as a means for providing orderly growth and efficient use - o 'land i and Subsection (e) which requires the development of the comp plan with consideration being given to the level of capacity of existing services. Policy 7.1.2 states the City shall require as a precondition to development approval that development coincide with the availability of adequate service capacity including water, sewer, and storm drainage. Schools are omitted from this policy. In the implementation strategies for these policies, there is nothing that specifically links school_ capacity to development approvals. --" - - Policy 7.8 deals specifically with schools and the only requirement on the City is that it shall "work closely with school districts to assure maximum community use of the school facilities for `'Irigard - residents` "through Vlocational criteria and provisions of:at services:" - Ii - strategy 1" for that policy requires that The City monitor school capacity by requiring requests for development proposals and permits to be reviewed by the applicable school district for affects on school capacity. Neither the implementation strategies nor the policies themselves take the next step of requiring that adequate capacity be available at the time of the development approval or at the time that the developments are completed. These policies make a differentiation between the services directly provided by the City and services provided by a separate district. . • Memorandum to TVR Re Tigard Code and Comp Plan Policies Relating to School Capacity January 8, 1991 Page 3 It would be difficult to argue that Policy 7.1.1 clearly requires the City to insure that adequate school capacity is a precondition to approval in the development process. Reading the comp plan and policies together, a good argument can be made that there is no requirement in the Tigard Comprehensive Plan for the actual availability of school capacity at the time of the development approval. However, if this is the policy position of the City, it could unquestionably be made more clear. Amendments to the plan could be drafted to clearly state the apparent policy on school capacity which is a requirement for coordination between the City and school districts. The only direct requirement in the comp plan related to the provision of public facilities and services at the time of the development approval, is found at Plan Policy 7.1.2 on p. II -42, which does not include school capacity. K-ceilly r t�' Regardless of the school district capacity question, it would probably be advisable to unify and standardize the approval criteria related to public facilities and services for each of the different types of developments and actions addressed by the development code. I suggest that one way. of_ doing_ this would be to, through definitions V elopment code, identify public facilities services which_ _ are_required to,_ be available at the time of the development approval, and through separate definition,, other public'facilitie an services. Once those definitions were developed, approval criteria in the development code for the various types of decisions could be amended through the use of these new definitions to clarify what types of public facilities and services need to be considered within the context of each quasi judicial application hearing. -- The Findings- which accompany these code changes would need to contain an interpretation of the plan policies which supported the conclusion that school capacity is not a precondition to a development approval. That discussion would follow the lead from DLCD in categorizing some services as necessarily responsive to development pressure. JMC:dd 1/8/91 jmAtigaracomplaatvr