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MIS2003-00022 • ... CITY OF TIGARD ®REG®N July 23, 2003 John Fitzmaurice Media Art, Inc. 1923 Broadway St. Vancouver, WA 98663 Re: Denial of Permits BUP2003-00160 BUP2003-00181 BUP2003-00182 BUP2003-00183 BUP2003-00184 The permits for the above referenced permit for the freeway signs have been denied based on the following provisions of the State of Oregon Structural Specialty Code, 1998 edition. Section 106.3.3.1 information on plans and specifications states, "Plans and specification shall be drawn to scale on substantial paper or cloth and shall be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that it will conform to the provisions of this code and all relevant laws, ordinances, rules and regulations." This section requires the submittal documents to clearly show conformance to all relevant laws, ordinances, rules and regulations. They do not show that the proposed sign will meet the standards of Section 18.780.090(E) of the Tigard Development Code. Section 106.4 Issuance states, "The application, plans, specifications, computations and other data filed by the applicant for a permit shall be reviewed by the building official. Such plans may be reviewed by other departments of this jurisdiction to verify compliance with any applicable laws under their jurisdiction. If the building official finds that the work described in an application for a permit and the plans, specifications and other data filed therewith conform to the requirements of this code and other pertinent laws and ordinances, and that the fees specified in Section 107 have been paid, the building official shall issue a permit therefore to the applicant." 13125 SW Hall Blvd., Tigard, OR 97223 (503)639-4171 TDD(503)684-2772 • • This section requires conformance to other pertinent laws and ordinances prior to issuance of such permits. It also has a provision that other departments of the jurisdiction review submitted plans to verify compliance with any applicable laws under their jurisdiction. The plans have been reviewed by the City's planning staff, which has determined that the submitted plans do not comply with the standards of Section 18.780.090(E) of the Tigard Development Code. Therefore, the Building Division has denied your request for permits for the freeway signs identified by the above building permit application numbers. In denying these permits, I adopt the recommended findings proposed by Brad Kilby of the Planning Department. A copy of the adopted findings is enclosed. Sincerely, Gary Lampella Building Official c. Brad Kilby, Associate Planner Gary Firestone, City Attorney Jim Hendryx, Director of Community Development Dick Bewersdorff, Planning Manager Steven W. Abel, Timothy L. McMahan, Michelle Rudd, Stoel Rives, LLP 6ZZL6 NO aNrnl2JOd lS£# 9-Si 311f S OAl8 ANVH138 MN 888P Olt `V1a3W 1SVOa 1S3M 31I12lbfa.SI IHO 0 1® m cn H 13 m a 0 0 in y QEEh 6E90 h000 0E02 2002 i '71 VIN 031J11030 3Nn O9.LL00 LV O1Od'SS3HOOV NHnl3H 3H1 dO LHOIH 3Hl OL 3d013AN3 dO d01 LV H3)I9LLS 30V1d />>fc°0 a • NO 'Nall 'H MS SZ1.£II !Ala 6ulplln8 aefi!1 io ' !a SENDER: COMPLETE THIS SECTION • Complete items 1,2,and 3.Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return,the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Cris Cr�r�l.LC, y S k S35y Pc f , n0 o 92.9- 7 COMPLETE THIS SECTION ON DELIVERY A. Signature X B. Received by(Printed Name) ❑Agent ❑Addressee C. Date of Delivery ' D. Is delivery address different from item 1? ❑Yes If YES,enter delivery address below: ❑No 3. Servic rtified Mail ❑Registered ❑Insured Mail ❑Express Mail ❑Return Receipt for Merchandise ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number (Transfer from service label) 7002 2030 0004 0839 4338 PS Form 3811,August 2001 Domestic Return Receipt 102595-02-M-1540 • • . CITY OF TIGARD July 23, 2003 OREGON Chris Carlile West Coast Media, LLC 4888 NW Bethany Blvd.,Suite K-5 #354 Portland, OR 97229 Re: Denial of Permits BUP2003-00151 BUP2003-00152 The permits for the above referenced permit for the freeway signs have been denied based on the following provisions of the State of Oregon Structural Specialty Code, 1998 edition. Section 106.3.3.1 information on plans and specifications states, "Plans and specification shall be drawn to scale on substantial paper or cloth and shall be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that it will conform to the provisions of this code and all relevant laws, ordinances, rules and regulations." This section requires the submittal documents to clearly show conformance to all relevant laws, ordinances, rules and regulations. They do not show that the proposed sign will meet the standards of Section 18.780.090(E) of the Tigard Development Code. Section 106.4 Issuance states, "The application, plans, specifications, computations and other data filed by the applicant for a permit shall be reviewed by the building official. Such plans may be reviewed by other departments of this jurisdiction to verify compliance with any applicable laws under their jurisdiction. If the building official finds that the work described in an application for a permit and the plans, specifications and other data filed therewith conform to the requirements of this code and other pertinent laws and ordinances, and that the fees specified in Section 107 have been paid, the building official shall issue a permit therefore to the applicant." 13125 SW Hall Blvd., Tigard, OR 97223 (503)639-4171 TDD (503)684-2772 This section requires conformance to other pertinent laws and ordinances prior to issuance of such permits. It also has a provision that other departments of the jurisdiction review submitted plans to verify compliance with any applicable laws under their jurisdiction. The plans have been reviewed by the City's planning staff, which has determined that the submitted plans do not comply with the standards of Section 18.780.090(E) of the Tigard Development Code. Therefore, the Building Division has denied your request for permits for the freeway signs identified by the above building permit application numbers. In denying these permits, I adopt the recommended findings proposed by Brad Kilby of the Planning Department. A copy of the adopted findings is enclosed. Sincerely, Gary Lampella Building Official c. Brad Kilby, Associate Planner Gary Firestone, City Attorney Jim Hendryx, Director of Community Development Dick Bewersdorff, Planning Manager Brain D. Chenoweth, Rycewicz & Chenoweth, LLP 1 ihritv CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD • TO: Gary Lampella, Building Official FROM: Brad Kilby, Associate Planner QK DATE: July 21, 2003 SUBJECT: West Coast Media, LLC request for building permits (BUP2003-00151 and 00152) At your request, I have reviewed the building permits that are listed above for compliance with the Tigard Development Code (TDC). These signs cannot be approved as requested. The signs that were applied for exceed the maximum allowable height and size requirements to qualify as a "freestanding freeway oriented sign" under TDC Section 18.780.090(E). I recommend that you adopt the following findings of fact, and deny the permits as proposed. Free-standing freeway-oriented signs are allowed pursuant to meeting the approval criteria of TDC Section 18.780.090(E)(1-10). Although it is possible for the applicant to meet many of the approval criteria, they clearly do not comply with criteria 1, 5, and 6. Criterion #1 states that, "anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act need not seek separate approval from the City of Tigard;" 4 FINDING: The applicant has not provided the necessary permits to gain approval of their building permits. Without theses permits, the applicant would need to seek a sign permit from the City of Tigard. Criterion #5 states that, "the maximum height of a free-way oriented sign shall not exceed 35 feet from the ground level at its base;" FINDINGS: Both signs that were applied for exceeded the maximum height of 35 feet from the ground level at its base. • BUP2003-00151- a request for a 55 foot high freeway oriented sign. • BUP2003-00152- a request for a 55 foot high freeway oriented sign. - 1 - Criterion #6 states that, "for freestanding signs a total maximum sign area of 160 feet per face (320 Square feet total) shall be allowed. If the sign is a billboard then the provisions of Subsection 18.780.090 shall apply." Jim Hendryx, the Community Development Director, has interpreted the latter portion of this criterion to mean that compliance with the approval criterion in the first sentence of this section applies to all freeway oriented signs. On July 8t 2003, the Tigard City Council upheld the Director's Interpretation. Resolution 03-27 upholding and adopting the • interpretation is enclosed along with the Interpretation as adopted by the City Council. (Exhibit A). Under the City's sign code, as interpreted by the City Council, freeway oriented signs of the size proposed by applicant are prohibited. FINDINGS: Both building permits that were requested exceeded the maximum allowable square footage by 352 square feet per face, or a total of 704 square feet and exceed the maximum size allowed, even with adjustments. • BUP2003-00151- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00152- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. 4 -2- - Attachment 2 Fly CITY OF TIGARD, OREGON 0 RES LUT[ N O O NO. 03 1 A RESOLUTION TO AFFIRM THE COMMUNITY DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING BILLBOARD SIGNS IN THE CITY OF TIGARD MUNICIPAL CODE CHAPTER 18.780. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by past Planning Commission and City Council actions to expressly prohibit billboards in Tigard; and WHEREAS, the Tigard City Council passed Ordinance 93-12 to expressly prohibit billboards in the City of Tigard; and 1 WHEREAS, the Tigard City Council held a public hearing on the matter on June 10, 2003, NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the.interpretation (Exhibit A) made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tigard sign regulations of the Tigard Municipal Code Chapter 18.780. SECTION 2: This resolution is effective immediately upon passage. 1 PASSED: This day of 2003. g.. M ay.r-Ci pr egard ATTEST: ity Recorder-City of Tiga • RESOLUTION NO.03 - a 7 Page 1 Exhibit A DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1 and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure" means the structural face which supports a billboard. TMC 18.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet 4 Page 1 of 4 i B. TMC 18.780.090.E.1 • Code Language TMC 18.780.090.E.1: Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The "separate approval" provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued for the location in question. This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what "qualifying for a permit" means. The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in an avoidance of the City process in cases in which the state denies the OMIA permit. This is clearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA. A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval" from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 18.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approval") if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the ORS 337.723 affidavit indicating compliance, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 • If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1. The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the issuance of a building permit for billboards. C. TMC 18.780.090.E.6 Code Provision TMC 18.780.090.E.6: For freestanding signs, a total maximum sign area of 160 square feet per fact (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.780.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to ' include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard -a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Page 3 of 4 his interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E_6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of"billboard" discussed in Section A above, the structure of a smaller sign would not be a "billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E_6 and TMC 18.780.070.M because TMC 18.780.090.E_6 does not allow any billboards prohibited by TMC 18.780.070.M. III. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS • This decision is final and effective upon mailing. It may be appealed to the City Council pursuant to TMC 18.340.020.E and F. • ames I .P. He •ryx, Community %e opment Director DATE:P 5//b/0 5 • I Paae 4 of 4 'I , • • AFFIDAVIT OF MAILING ` ''I' CITY OF TIOARD Community Development Shaping Better Community I, cPatricia L. Lunford, being first duly sworn/affirm, on oath depose and say that I am a Senior Administrative Specialist for the City ofTigard, 'Washington County, Oregon and that I served the following: (check Appropriate Box(s)aekm) © NOTICE OF FINAL ORDER FOR: MIS2003-00022 - BILLBOARD SIGNS APPEAL AMENDED NOTICE (File No./Name Reference) HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer ❑ Tigard Planning Commission ® Tigard City Council (June 10, 2003 and July 8, 2003) A copy of the said notice being hereto attached, marked Exhibit"A",and by reference made a part hereof, was mailed to each named person(s) at the address(s) shown on the attached list(s), marked Exhibit'B",and by reference made a part hereof, on July 15,2003 and deposited in the United States Mail on July 15,2003, postage prepaid. /.1 . '' alibly .. ,-■/9° .-/ . _ / Err (Person that .--d No Ice) / STATE OAF O(1ZGON ) County o ff Washington )ss. City of Tgard ) Subscribed and sworn/affirmed before me on the '7- day ST 4/fp& , 2003. .:-!:. OFFICIAL SEAL GASTON NOTE Aeuc-0ABQON COMMISSION COMMISSION EXPIRES OCT 10,2009 r°- 7- t FiciALSEAL �" �� :r3�9FtA0A 3.s' '.71 Mt 4 921908 M Y My Commission Expires: /D -/D 1.x,3 T, • • EXHIBIT A. CITY OF TIGARD Community Development Shaping A Better Community CITY OF TIGARD Washington County, Oregon NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Name: APPEAL OF THE DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING BILLBOARD SIGNS IN THE CITY OF TIGARD (CHAPTER 18.780) Case Numbers: MISCELLANEOUS (MIS) 2003-00021 MISCELLANEOUS (MIS) 2003-00022 Appellant's Name: Media Art, Inc. Appellant's Address: 1923 Broadway Street Vancouver, WA 98663 Address of Property: Citywide Tax Map/Lot Nos.: N/A A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS DENYING MEDIA ARTS APPEAL AND AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR'S INTERPRETATION OF CHAPTER 18.780(RESOLUTION NO.03-27). THE CITY OF TIGARD CITY COUNCIL HAS REVIEWED THE APPELLANTS APPEAL MATERIALS AND THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPEAL DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE CITY COUNCIL HELD A PUBLIC HEARING ON JUNE 10, 2003 AND JULY 8, 2003 TO RECEIVE TESTIMONY REGARDING THIS APPEAL. THIS DECISION HAS BEEN BASED ON THE FACTS,FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER. Item on Appeal: On April 13, 1993, the Tigard City Council, by majority vote, agreed to prohibit billboard signs in the Tigard city limits, and to remove the approval criteria for billboard signs from the Special Condition Signs section of then TDC Section 18.114.090. Earlier this year, West Coast Media, LLC, and later Media Arts, Inc. applied for building permit approval to construct "freeway oriented" signs under the premise that if they received approval from ODOT and pursuant to the Oregon Motorists Information Act (OMIA) they would not be subject to separate review from the City of Tigard. City planning staff recommended to the Building Official that the building permits for the signs be denied after finding that the signs that were applied for exceeded the maximum allowable size and height for"freeway oriented" signs, and that in fact, the signs that were applied for appeared to be billboards. The Building Official denied approval of the permits, and the two companies filed appeals with the Oregon Land Use Board of Appeals. The appeals were based on language in Tigard Development Code, Chapter 18.780. Staff requested that the language be clarified by the Community Development Director. On May 16, 2003, the Community Development Director issued his interpretation, and the City Manager appealed the decision to Council seeking affirmation. A separate appeal was filed on behalf of Media Arts, Inc. by Michelle Rudd of Stoel Rives LLP. The Director's decision is partly based on Ordinance 93-12 that was passed by the City Council in April of 1993 to prohibit Billboards in the City of Tigard. Action: > Affirmed the Community Development Director's Interpretation & Denied Media Art, Inc.'s Appeal. Notice: Notice was published in the newspaper and mailed to the Appellants and their Attorneys. Final Decision: THIS IS THE FINAL DECISION OF THE CITY AND BECOMES EFFECTIVE ON JULY 8, 2003. I The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Division, Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA)according to their procedures. Questions: If you have any questions, please call the City of Tigard Planning Division at(503) 639-4171. • • If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1 The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the issuance of a building permit for billboards. C. TMC 18.780.090.E.6 Code Provision TMC 18.780.090.E.6 For freestanding signs, a total maximum sign area of 160 square feet per fact(320 square feet total)shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.780.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard -a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Page 3 of 4 • • B. TMC 18.780.090.E. Code Lancivage TMC 18.780.090.E.1 Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The "separate approval" provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met,the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued for the location in question: This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what"qualifying for a permit" means. The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in an avoidance of the City process in cases in which the state denies the OMIA permit. This is clearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA. A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval"from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 18.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approval") if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the ORS 337.723 affidavit indicating compliance, the person has not "qualifie[d]for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the,City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 • • Exhibit A DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1 and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure" means the structural face which supports a billboard TMC 18.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Page 1 of 4 • • Attachment 2 CITY OF TIGARD,OREGON RESOLUTION NO. 03 aZ A RESOLUTION TO AFFIRM THE COMMUNITY DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING BILLBOARD SIGNS IN THE CITY OF TIGARD MUNICIPAL CODE CHAFFER 18.780. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by past Planning Commission and City Council actions to expressly prohibit billboards in Tigard; and WHEREAS, the Tigard City Council passed Ordinance 93-12 to expressly prohibit billboards in the City of Tigard;and WHEREAS,the Tigard City Council held a public hearing on the matter on June 10,2003, NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the.interpretation(Exhibit A) made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tigard sign regulations of the Tigard Municipal Code Chapter 18.780. SECTION 2: This resolution is effective immediately upon passage. PASSED: This 0 day of +K 2003. a .r.-Ci ► - 'rgard ATTEST: r • try Recorder-City ofTig. • RESOLUTION NO.03 - a Page 1 • • This interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E_6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of`billboard" discussed in Section A above, the structure of a smaller sign would not be a"billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E.6 and TMC 18.780.070.M because TMC 18.780.090.E_6 does not allow any billboards prohibited by TMC 18.780.070.M. Ill. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS This decision is final and effective upon mailing. It may appealed to the-City Council pursuant to TMC 18.340.020.E and F. :_ ' aeries : e ' t ; Community t rirrierit•Direetor DATE:(7 S /6/o 3 Page 4 of 4 • • EXHIBIT 4,L. Media Art, Inc. /14,6,2003-CIODA Attn: John Fitzmaurice I:\curpin\setup\labels\billboard interpretation appeal for 6-10-03 CC public hearing.doc 1923 Broadway Street "NOTICE OF FINAL ORDER BY THE CITY COUNCIL" Vancouver, WA 98663 Steven W. Abel, Timothy L. McMahan and Michelle Rudd Stoel Rives, LLP 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204-1268 • • • • • U.S. Postal ServlcelM ru CERTIFIED MAIL. RECEIPT Iti (Domestic Mail Only;No Insurance Coverage Provided) For delivery informati•. ' ' . .- 'te at www.usps.corrta —D ATTN: Patty/Planning g� FILE: MIS2003-00022 USE D -- • P- Postage $��r, i ‘V., Pi D 'Certified Fee , J Return Reciept Fee h°° ° I, . Postmark D (Endorsement Required) k(,;-,1%. _ a) 4r v Here D Restricted Delivery Fee e;;2./CJ ,-R (Endorsement Required) jc.p G -s' RI Total Postage&Fees D Sent To;Steven W.Abel, Timothy L. McMahan and D Michelle Rudd r,- $treat,A or PO Bc Stoel Rives, LLP City,star 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204-1268 EM • -- I SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • G.,mplete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. X ❑Agent r Print your name and address on the reverse ❑Addressee 1`• so that we can return the card to you. B. Received by(Printed Name) C. Date of Delivery • Attach this card to the back of the mailpiece, t or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No Steven W Abel, Timothy L. McMahan and • ? MichelletRudd Stoel Rives, LLP J 3. Service Type I, 900 SW Fifth Avenue, Suite 2600 21..Certified Mail ❑Express Mail Portland, OR 97204-1268 ❑ Registered ❑Retum Receipt for Merchandise ❑ Insured Mail ❑C.O.D. i 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7002 2410 0003 7046. 0712 l (Transfer from service/abeq l PS Form 3811,August 2001 Domestic Return Receipt 102595-02-M-1540 1 1 t , r ' ' • • U.S. Postal ServiceTM Er CERTIFIED MAILTM RECEIPT N (Domestic Mail Only;No Insurance Coverage Provided) 0 For delivery information visit our website at www.usps.coma -13 ATTN: Patty/Planning FILE: MIS2003-00022 L. USE O P- Postage MOM Rl O Certified Fee 0 Return Recfept Fee Postmark O (Endorsement Required); Here O Restricted Delivery Fee r-1 (Endorsement Required), ru MIME" Total Postage&Fees RJ -. o Sent To 0 ■ Media Art, Inc. r` b`treet,Apt.No.; Attn: John Fitzmaurice or P0 Box No. 1923 Broadway Street City,State,Z/P+4 Vancouver, WA 98663 PS Form 3800,June 2002 See Reverse for Instructions • SENDER: COMPLETE THIS SECTION COMPLETE THIS Sfr:TIGN ON')ELIVERY • Complete items 1,2,and 3.Also complete A Sig' �i �,r item 4 if Restricted Delivery is desired. x /A;/ii�b:l ; Agent • Print your name and address on the reverse C]Addressee so that we can return the card to you. B. Received ( to Na e C. Dale of457 • Attach this card to the back of the mailpiece, —t((gyp-(� or on the front if space permits. AP i � D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No )t1 r --- Media Art, Inc. Attn: John Fitzmaurice i 1923 Broadway Street 3. Service Type Vancouver, WA 98663 INI Certified Mail ❑Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number (Transfer from service label° 7002 2410 0003 7046 0729 PS Form 3811,August 2001 Domestic Return Receipt 102595-02-M-1540 • e • • • A, �I NNE-'Ii,l. AA W CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD TO: Gary Lampella, Building Official FROM: Brad Kilby, Associate Planne \c )) DATE: July 21, 2003 SUBJECT: Media Art, Inc. request for building permits (BUP2003-00160, 00181, 00182, 00183, and 00184) At your request, I have reviewed the building permits that are listed above for compliance with the Tigard Development Code (TDC). These signs cannot be approved as requested. The signs that were applied for exceed the maximum allowable height and size requirements to qualify as a "freestanding freeway oriented sign" under TDC Section 18.780.090(E). I recommend that you adopt the following findings of fact, and deny the permits as proposed. Free-standing freeway-oriented signs are allowed pursuant to meeting the approval criteria of TDC Section 18.780.090(E)(1-10). Although it is possible for the applicant to meet many of the approval criteria, they clearly do not comply with criteria 1, 5, and 6. Criterion #1 states that, "anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act need not seek separate approval from the City of Tigard;" FINDING: The applicant provided a letter from ODOT stating that Media Art, Inc. does have a relocation credit available, but did not provide the necessary permit for the requested location to gain approval of their building permits. Without this permit, the applicant would need to seek a sign permit from the City of Tigard. Criterion #5 states that, "the maximum height of a free-way oriented sign shall not exceed 35 feet from the ground level at its base;" FINDINGS: Every sign that was applied for exceeded the maximum height of 35 feet from the ground level at its base. • BUP2003-00160- a request for a 77 foot high freeway oriented sign. • BUP2003-00181- a request for a 77 foot high freeway oriented sign. • BUP2003-00182- a request for a 45 foot high freeway oriented sign. • BUP2003-00183- a request for a 45 foot high freeway oriented sign • BUP2003-00184- a request for a 45 foot high freeway oriented sign. - 1 - • • • • Criterion #6 states that, "for freestanding signs a total maximum sign area of 160 feet per face (320 Square feet total) shall be allowed. If the sign is a billboard then the provisions of Subsection 18.780.090 shall apply." Jim Hendryx, the Community Development Director, has interpreted the latter portion of this criterion to mean that compliance with the approval criterion in the first sentence of this section applies to all freeway oriented signs. On July 8t 2003, the Tigard City Council upheld the Director's Interpretation. Resolution 03-27 upholding and adopting the interpretation is enclosed along with the Interpretation as adopted by the City Council. (Exhibit A). Under the City's sign code, as interpreted by the City Council, freeway oriented signs of the size proposed by applicant are prohibited. FINDINGS: Every sign that was requested exceeded the maximum allowable square footage by 352 square feet per face, or a total of 704 square feet and exceed the maximum size allowed, even with adjustments. . • BUP2003-00160- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00181- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00182- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00183- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00184- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. -2- 411/ 410 ST O E L 900 S.W.Fifth Avenue.Suite 2600 RIVES Portland,Oregon 97204 main 503.224.3380 S L L P fax 503.220.2480 www.stoel.com ATTORNEYS AT LAW MICHELLE RUDD Direct(503)294-9390 July 8, 2003 mrudd @stoel.com City Council City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Re: Appeal of Director's Interpretation Dear City Councilors: Thank you for providing us with a copy of staff's letter responding to our comments to the Planning Director's interpretation. We disagree with the staff's conclusions and submit the following for your consideration. The city attorney states that it is clear that the legislative intent of the predecessor council was to prohibit all billboards. The legislative history is not clear and is at least equally amenable to an interpretation that the council intended to allow OMIA signs. As indicated in our previous letter, the legislative history of the enactment of the "billboard prohibition"makes no mention of OMIA signs. The decision of the council to retain the OMIA exemption evidences the intent to continue to allow these signs. This result is consistent with the public interest. OMIA regulation of billboards restricts these signs to areas along state highways. These are high traffic areas on commercially and industrially zoned lands and the OMIA restriction of the signs to these low impact areas furthers the public interest. Yamhill County is an example of another jurisdiction which handles this issue in this manner. (A copy of Yamhill County's Sign Ordinance is provided.) The city attorney asserts that TDC 18.780.090 contains a provision limiting the maximum size of all signs. This is incorrect. The code's definition of billboard does not include any mention of • size and the OMIA provision pulls OMIA signs out of the size restrictions that are set forth in , TDC 18.780.090E6. The city attorney states that there is no need to cross reference the billboard prohibition in 18.780.090E(6) because the prohibition applies generally. Our point, however, is that rather than referring to the billboard prohibition, the code references the portion of the code providing the OMIA exception. This indicates that billboards are allowed in some cases. Oregon Washington California Utah• Portlndl-2143829.1 0053401-00003 I d a h o City Council July 8, 2003 Page 2 The interpretation's argument that billboards are allowed if they are within the dimensions set forth in TDC 18.780.090E6 is incompatible with the position that a sign is a billboard if it exceeds the sign dimensions in 18.780.090E6. The only construction of TDC 18.780.090E6 that yields a reasonable result is that OMIA billboards are allowed without local size restriction. Considering the text of the ordinance as a whole, the most reasonable construction is that the size limitation does not apply to OMIA signs. When the rules of statutory interpretation are applied, making all the language applicable and ignoring no language, it is clear that OMIA signs are not subject to the size restrictions in the ordinance but rather are subject to the size restrictions in the OMIA itself. While the Brad Kilby memo is not dispositive on the issue of interpretation, it does show that the city previously interpreted its ordinance in the way put forth by Media Art. The code does not require that an OMIA permit must be submitted to show that an applicant qualifies for an OMIA permit. This is inconsistent with the plain meaning of the word "qualifies." An ODOT letter explaining that Media Art has a relocation permit and"qualifies" for a permit to erect a billboard complying with regulations has been submitted. If the City is unhappy with its code it should amend the code in the future, not change its application and meaning informally by way of a Director's interpretation. The failure of the City to find that the sign meets the local code does not mean that the local code isn't met. One qualifies for a permit if the sign is not prohibited by a governmental unit. ORS 377.740. The signs proposed by Media Art are consistent with Tigard's Development Code and Media Art qualifies for a permit. The state requires the city affidavit before issuance of a state permit. ORS 377.723. A city affidavit is not a prerequisite to qualification for a permit. The constitutional infirmities of Tigard's sign ordinance are discussed in greater detail in the June 10th letter submitted. The constitutional restrictions violated are found in the state and federal constitutions as follows: Free Expression—Article 1, § 8 Oregon Constitution Freedom of Speech— 1st Amendment US Constitution Privileges and Immunities Clause, Oregon Constitution Art. I, § 20 Equal Protection Clause— 14th Amendment US Constitution. Portlnd 1-2143829.1 0053401-00003 - • • City Council July 8, 2003 Page 3 Due Process Clause of US Constitution 14th Amendment US Constitution. The sign ordinance is, for example, vague in violation of First Amendment of the US Constitution and Article 1, section 8 of Oregon's constitution. The law is clear that extreme, unwieldy interpretations such as that proposed by the Planning Director cannot cure vagueness. Stenberg v. Carha, 530 US 914 (2000);Frisby v. Shultz, 487 US 474, 483 (1988). Further, great risk of unequal treatment exists because billboard applicants and owners such as Media Art will not be subject to the code as written. Our reading of the code is not convoluted. Rather it is the result of applying the definitions as written in the code. Our interpretation is also exactly the same as the City's previous interpretation and application of the Code. The nonlegislative amendment created by the Director's interpretation restricts Media Art's signs while other"billboard" signs are not so restricted. The language the city relies upon is not in the ordinance adopted and cannot be inserted by interpretation now. As explained in previous letter, this interpretation goes too far and requires breaching rules of statutory interpretation. For the foregoing reasons and the reasons set forth in our June 10, 2003 letter, we request that the city council reject the Planning Director's interpretation and direct staff to issue the requested building permits. We also ask that the record be kept open in this case. We have attached copies of correspondence concerning a public records request made by this office on June 19, 2003. This afternoon I received a letter from Gary Firestone explaining the basis for the city's decision not to produce certain documents. ORS 192.502(1) provides that the exemption for preliminary communications only applies if the public body shows that in the particular instance, the public interest in encouraging frank communications between officials and employees clearly outweighs the public interest in disclosure. There is no indication here that the preliminary drafts and related communications furthered frank communication between officials and staff. Rather the letter states that staff needed to be able to discuss issues and ideas. We believe that these internal documents are necessary to a full and fair hearing of the issues in this case and the identification of additional evidence supporting our interpretation of the code. We ask that the record remain open so that we can continue our efforts to obtain this information and present it to the council. Portlnd 1-2143 829.1 0053401-00003 • • City Council July 8, 2003 Page 4 Very truly yours, •e Michelle Rudd cc: Chris Daugherty Steven W. Abel Tim McMahan Portlnd 1-2143829.1 0053401-00003 UL-08-2003 TUE 10: 16 AM Media Ariinc 2. 906 0442 P. 002i011 1006. SIGNS. 1006.01 Standards and Requirements. A. Permits. Sign permit applications shall be accompanied by drawings indicating dimensions, . - location and engineering in sufficient detail to determine compliance with this ordinance and applicatlle Building Codes. Permits shall be required for: 1. Electrical or illuminated signs. 2. Free-standing signs greater than two square feet in surface area; 3. Roof-mounted or wail-mounted signs-greater than two square feet in area. 4. Business Identification signs not under State permit. 5. Outdoor portable or sandwich board-type signs greater than two square feet in area. B. Signs Not Subject to Regulation. The following signs are not subject to the provisions of this ordinance: 1•. Signs not more than two (2) square feet in area and bearing only property numbers, postal box numbers, names of occupants of premises or other identification of premises, or traffic directional signs, provided such signs do not . have commercial connotations. 2. • Flags and insignia of any government, except when displayed In connection with commercial promotion. 3. Legal notices or identification, informational or directional signs erected or required by governmental bodies. • 4. Integral decorative or architectural features of buildings, except letters, trademarks, moving parts_or-moving lights; and sculpture and other work of fine art created for appreciation rather than advertising. 5. Signs directing and guiding traffic and parking on private property, but bearing no advertising matter. •Y2 8. Temporary decorations or displays clearly incidental and commonly associated with local national or religious holiday or other celebration. 7. Any sign not visible from public right-of-way, or from any other property not under the same ownership as the property upon which the sign Is located. 8. Temporary window displays or signs and temporary real estate "for rent/sale" signs--not exceeding-12 square feet in area: - ......-..__.._._.__......_...__..._.._.._._._.._..._.:_ ..._............. Yamhill County Zoning Ordinance 1006-1 UI,-08-2003 TUE 10: 16 AM Media ArS^c I. 906 0442 P. 003/011 C. State Permits. All business identification signs within State highway right-of-way, whether sited on- premise or off-premise are subjectrto permits from the Oregon State Highway Division. D. Political Signs. Temporary political signs advertising candidates or issues may be erected on private property, with consent of the property owners, during an election campaign. Such signs shall conform to the requirements of the State, and shall be removed within one.week after the election. E. Setbacks. All signs shall be situated so as not to adversely affect safety, corner vision or other similar conditions,_and_shall_satisfy the following: _ _ 1. Sign clearances shall be in accordance with Section 225 of the National Electric Code. 2. Free-standing signs shall be set back from property lines one foot for each ten square feet of sign area to a maximum setback of twenty feet. 3. Signs shall conform to clear-vision requirements at street intersections, 4. Free-standing signs shall conform to rear and side-yard setback requirements. • 5. Projecting signs including canopy and awning mounted signs shall not extend more than six feet from the face of the building to which they are attached, Projecting signs shall have a maximum area of twenty-four square feet per face, and minimum ground clearance of eight feet, F. Blanketing. No sign shall be situated in a manner which results in the blanketing of an existing sign. G_ Mural Signs. On wall mural signs, only that portion of the sign considered advertising shall be calculated in determining maximum area allowance. H. NonConforming Signs/Removal. Signs and sign structures not conforming to the requirements of this ordinance shall be subject to the following amortization provisions: • 1. Any legally constructed/installed sign or sign structure not conforming to this ordinance shall be recognized as a nonconforming use and discontinued within 6 years from the date of a nonconformity and amortization notice given to the sign owner by the County. Yamhill County Zoning Ordinance 1006--2 0L-08-2003 TUE 10: 17 AM Media Arc to 906 0442 P. 004/011 2. Any sign not legally constructed/installed shall be recognized as a zoning ordinance violation and shall be removed immediately. • 3. A nonconforming and amortization notice requiring removal of a nonconforming sign shall be given by the county at such time as the following findings are made: a. It has been determined that the sign is non-conforming. The nonconformity has been discussed with the owner. c. The Director has determined that the sign cannot or will not become a conforming use. 4. All flashing or moving signs shall be made so that such flashing or movement is discontinued-within-thirty-days-of a zoning-ordinance violation-notice.---. --- 1006.02 On-Premise Signs in the F-40, EF-40, AF-20, AF-10, and MRDistricts. In the F-40, EF-40, AF-20, AF-10, and MR Districts on-premise signs shall be permitted as follows: A. The following on-premise signs may be allowed subject to permit approval: 1. A single sign denoting the name of the owner or the name or address of the property, provided that such sign shall not exceed twenty-four square feet. 2. A single sign advertising the sale or rental of the property, provided that such sign shall not exceed twelve square feet. 3. Other signs associated with a permitted or conditional use, provided that such signs shall not exceed twelve square feet. 4. A single sign describing activities conducted by a business or by an agricultural • or forestry enterprise allowed as a permitted or conditional use on the parcel or lands under the same ownership; provided such sign shall not exceed twenty-four square feet. 5. A single sign denoting a home occupation or small business, provided that such sign shall not exceed twelve square feet. 6. No sign shall be located within any road right-of-way, except'as provided in Subsection 1006.06, - - C. Signs advertising the sale of seasonal produce grown on the property, or on other lands under the same ownership, shall be permitted only during the season in which the produce is harvested and made available for sale. ' D. Properties with double frontage shall be allowed two signs, one on each frontage, subject to the above requirements, or a single sign twice the area of the above standards. Yarrmhill County Zoning Ordinance 1006-3 UL-08-2003 TUE 10: 17 AM Media Arline Ze 906 04.42 P. 005/011 1006.03 On-Premise Signs in the VLDR and LDR Districts, In the VLDR and LDR Districts, on-premise signs shall be permitted as follows: A. The following on-premise signs may be allowed subject to permit approval: 1. Those denoting the name of the owner or the name and address of the property. • 2. Those advertising the sale or rental of the property. 3. Warning or safety signs associated with a permitted on conditional use. 4. Those advertising the sale of agricultural or forest products grown on the same parcel. _ _ 5. Those.denoting_a_hame_occupation_o.r.small_.business. 6. Those describing activities allowed as a conditional use on the parcel. B. Not more than two signs shall be permitted on any parcel, the total square footage of which shall not exceed twelve square feet, except six square feet is the maximum allowable on a parcel of less than one acre in size. C. No sign shall be located within any road right-of-way except as provided in subsection 1006.06. 0. Signs advertising the sale of seasonal-produce grown on the property shall be permitter only during the season in which the produce is harvested and made available for sale. E. Properties with double frontage shall be allowed two signs, one on each frontage, subject to the above requirements, or a single sign twice the area of the above standards. 1006.04 On-Premise Signs in the RC, NC, HC, RI, LI, and HI Zoning Districts. A. In addition to the signs permitted In Subsection 1006.03, on-premise signs in the RC, NC, • HC, RI, LI and HI Districts shall be permitted as follows: 1. The total sign area on the parcel shall not exceed either 400 square feet, or the smaller of one square foot for each foot of parcel frontage or 46 square feet for each business; except that a minimum of one hundred square feet of sign area shall be permitted for any single parcel. .y 2. A single face of any one sign shall not exceed one-half of the total permitted sign area or one hundred square feet, whichever is least. 3, Free-standing signs on the same property shall not be closer than 100 feet from one another. 4. The area of flush-mounted roof or wall signs without backing shall be calculated at half of the measured area in determining maximum area allowance. Area of signs with backing shall be calculated at the full measured area of the backinc Yamhill County Zoning Ordinance 1006-4 UL-08-2003 TUE 10: 17 AM Media Ar enc Zi 906 0442 P. 006/011 5. If two or more businesses share a common business space and/or parking area, the total sign area allowed shall be proportionately allocated'between or among such businesses, and shall not exceed the total sign area allowed as set out by • this subsection. B. • On-premises signs may be erected or maintained on the property upon which the advertised use is located, or upon any adjacent property, under the same ownership, or leased and/or used for the same purposes as the advertised use, and which is utilized for storage, parking or business-related purposes. C. Any free-standing sign or sign attached to or placed upon a building shall not extend more than twenty-four feel above the highway grade, D. Service signs shall be exempt from the square footage requirements unless they are primarily used to attract customers to the premise. Service_signs_Include,-but are-not _. - - limited to, the 1. Signs attached to or part of vending machines, public telephones or other devices furnishing public services not related to the business conducted on the premises. 2. Signs displayed for direction'or instruction (restrooin, freight entrance, parking, etc.). 3. Signs required by law or designed solely in the interest of public safety. 4. Signs located directly on and not extending beyond the component parts of display stands, as long as they do not exceed fifty square feet of sign area for all such devices on the property, 1006.05 Electrical and Illuminated Signs in All Zoning Districts. A. Electrical equipment used in connection with electrical or illuminated signs .shall be installed by permit and in accordance with the National,Electric Code. B. Signs incorporating electrical components shall be constructed of noncombustible materials, other than plastics, as approved by the National Electrical Code. The enclosed shell of electric signs shall be water-tight except that service holes fitted with . tight covers shall be provided Into each compartment of such signs. C. Every sign containing electrical components or illumination devices shall bear an underwriter's label, or approved testing laboratory label, and th• ;name of the sign erector and the date of installation. Such name and date shall be placed and maintained at a readily legible location on the sign structure. D. No electrical or illuminated sign shall exceed fifty square feet In surface area. E, Electrical service to free-standing signs shall be underground. F. Artificially illuminated signs, or lights used to indirectly Illuminate signs shall be placed, shielded or deflected so as not to shine into dwelling units or to create excessive glare ... Yamhill County Zoning Ordinance 1006-5 UL-08-2003 TUE 10: 17 AM Media Ar1nc tiii 906 0442 P. 007/011 along adjacent roads. The light intensity of an illuminated sign shall not exceed the accepted standards of the sign industry, as provided by the Oregon Electric Sign Association. • 1006.06 Off-Premise/Business Identification Signs. Off-premise business identification (OPBI) signs are allowed in any zone subject to permit approval, and shall be regulated by the State Department of Transportation along State Highways, and by the Yamhill County Department of Planning and Development along county • roads and local public access roads,subject to the following: A. Such signs along State highways shall be governed entirely and installed by the State Highway Division. B. The County Public 1Norks Department_is authorized to construct and Install such signs along .county roads and local public access roads upon Planning Department permit approval. C. OPBI signs along county roads and local public access roads shall be the same or of similar size and material as those provided by the State for signs along State Highways. D. Costs for construction, installation and replacement of OPBI signs on county roads or local public access roads shall be determined by and paid to the Department of Public Works. 1006.07 Sign Construction and Maintenance. A. Construction. All signs shall be constructed at the expense of the sign or business owner, and shall be erected in conformance with this ordinance and all county-administered Sign, Electrical and Building Code requirements. Except as specified in Subsection 1006.01, all signs shall be required to obtain sign permit approval prior to construction or installation, B. Maintenance and Removal. • Every sign, Including those specifically exempt from permits required by this ordinance, shall be maintained in good structural condition at all times, All signs shall be kept neatly painted, including all metal parts and supports, The Director may inspebt, and shall have the authority to order the painting, repair, alteration or removal of a sign which may constitute a hazard to safety, health or public welfare by reason of inadequate main- tenance, dilapidation or obsolescence. 1006,08 Temporary Signs for Nonprofit Organizations. Temporary signs for nonprofit organizations may be allowed to advertise various nonprofit, charitable activities. Signs may be placed upon private property, upon consent of the property owner, but shall not precede the advertised event more than one week. All such-signs shall be removed by the sponsoring organization not later than five days following the event. Such signs shall conform to the requirements of the underlying district. Yamhill County Zoning Ordinance 1006-6 4-08-2003 TUE 10: 17 AM Media Art c 21906 0442 P. 008/011 1006.09 Abandonment and Removal. Any sign which does not contain legibly printed matter on the display surface, or which by,Its nature has become obsolete for a period of three (3) months, shall be deemed to have been abandoned by the owner thereof and shall Abe subject to removal by the County Roadmaster or his designate. 1006.10 Prohibited Signs. The following signs are prohibited in all zone districts: A. Moving or flashing signs or other signs that may likely cause motorists distraction or be hazardous to public safety. B. Banners, pennants, festoons, or searchlights, except that upon receipt of a temporary use permit, such may be.allowed for special events, grand openings or similar celebrations. Such signs may be erected 15 days prior to the event/celebration, and shall be removed within 15 days thereafter. C. Signs imitating or resembling official traffic or government signs. D. Temporary posters or signs attached to trees, electrical or telephone poles, or other public property. E. Signs attached to a building and exceeding the highest part of the roof. F. Off-premise advertising signs and billboards except as approved by the State Highway Division. Yamhill County Zoning Ordinance 1006-7 o � o� • ri. I czp OUTDOOR ADVERTISING BUSINESS LICENSE Department of Transportation 355 Capitol St NE Rm 408 Salem OR 97301-3871 Media Art Inc License No: M921 , 1923 Broadway • Vancouver OR 98663 Issue Date: April 1,2003 • This is to certify the!above name is licensed to engage in the business of outdoor advertising in the Slate of Oregon 0 F State of Oregon by and through its Department of Transportation ! . J?: `;z By a id'fTfL Out•f• Advertising Program Technician ycb. Expires June 30, 2003 • � CTJ m - O _ - I UL-08-2P03 TUE 10: 18 AM Media Arlinc Iii 906 0442 P. 010/011 :I ; ) Oregon , �' Department of Transportation Right tatio n Ri it of Way Section «• Theodore K.Kulongonlcl,Governor 355 Capitol Street NE Salem, Oregon 97301-3871. Telephone (503) 986-3600 FAX (503) 986-3625 April 2, 2002 Pile Code: Media Art, Inc. 1923 Broadway Vancouver, WA 98663 Attn: Chris Daugherty Media Art, Inc., currently holds an Oregon preexisting sign permit (known as a relocation credit), that can be used to erect a billboard, visible to a state highway, in the place of one that was removed. The relocation credit was issued pursuant to ORS 377.700 to 377.840 and ORS 377.992, known as the Oregon Motorist Information Act (OMIA). The sign can be relocated no more than 100 miles from the site of the removed sign. The removed sign was located adjacent to Route ORE 8, at or near mile point 6.93. A printout of the information for the removed sign is attached. The relocation credit qualifies Media Art to apply for and obtain a permit to erect a billboard that complies with state and local regulations, 4Ammd-{1. (974,13fr`- Jimmy L. Odom Outdoor Advertising Program Technician . RIOHT OP WAY,PROJI ADMINISTRATION.OUTDOOR J LO ADVBRTISINO PROGRAM rIrotrn (509)986.366 Peo,t ntIa (503)980-3623 • Pam 736-2837(1-03) • • RAMIS CREW CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW I 727 NW HOYT STREET PORTLAND,OREGON 97209 TELEPHONE(503)222-4402 Gary Firestone FAX(503)243-2944 g�vf()rccb.coi n W W W.RCCB.COM July 2, 2003 Michelle Rudd Stoel Rives 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204 Re: Public Records Request Dear Ms. Rudd: This firm acts as City attorney for the City of Tigard and we are responding to your public records request dated June 19, 2003. Enclosed are various documents, Bates numbered T0003 to T0104 in response to your public records request. There have been several communications between this firm and the City related to signs and those documents are exempt from disclosure under ORS 192.501(1) (threatened litigation) and ORS 192.502(9) (confidential and privileged documents and information). Also, one document has been redacted to delete material that discloses the contents of an attorney-client communication. Additionally, several documents are exempt as communications within a public body that are preliminary to a final agency action under ORS 192.502(1). The City has started working on drafting decision documents in the various sign cases and you are not entitled to drafts of the decision documents at this time or to communications relating to the drafts. Apart from the attorney-client communications and the documents relating to the draft decisions, the City is providing all documents it has been able to locate to date. If you have any questions, please call me on my direct line at 503-306-0258. Sincerely, •v 11W Ga'a irestone cc: Matt Fletcher JimHendryx RECEIVED . .JUL 03 2003. _ G:4numiTigardlruddlet070203.wpd • • ST O E L 900 S.W.Fifth Avenue.Suite 2600 Portland.Oregon 97204 RIVESmain 503.224.3380 S L L P fax 503.220.2480 www.stoel.com ATTORNEYS AT LAW MICHELLE RUDD Direct(503)294-9390 July 7, 2003 mrudd @stoel.com VIA U.S.MAIL AND FACSIMILE Mr. Gary Firestone Ramis Crew Corrigan& Bachrach LLP 1727 NW Hoyt Street Portland, OR 97209 Re: Request for Documents Relating to Tigard Sign Ordinance Dear Mr. Firestone: Thank you for your response to our Public Records Request. You have indicated that certain communications between the firm and the City are exempt from disclosure under ORS 192.501(1) and ORS 192.502(9). ORS 192.501(1) (threatened litigation) applies only if the public interest does not require disclosure in the particular instance. It is difficult to determine if the public interest requires disclosure without additional information. If any documents are withheld pursuant only to.ORS 192.501(1), please provide information on the public interest against disclosure. You have also indicated that internal documents are being withheld under ORS 192.502(1). ORS 192.502(1) provides that communications within a public body are exempt to the extent that they cover other than purely factual material and are preliminary to any final agency determination of policy or action. "This exception shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between official and employees of public bodies clearly outweighs the public interest in disclosure." ORS 192.502(1). The City has not made the requisite showing in this case. Please indicate how the public interest in disclosure is outweighed in this case. Oregon Washington California _ Utah Portlndl-2143582.1 0099999-00001 I d a h o • • Mr. Gary Firestone July 7, 2003 Page 2 Please respond to this letter as soon as possible. As you know, a city council hearing of the appeal of the Director's Interpretation is set for July 8, 2003. Very truly yours, + Michelle Rudd MR:cle cc: Chris Daugherty Steve Abel Tim McMahan • Portlnd 1-21435 82.1 0099999-00001 • • • C 1 J 900 S.W.Fifth Avenue,Suite 2600 S T O E L Portland,Oregon 97204 main 503.224.3380 RIVESfax 503.220.2480 L L P wwwstoel.com ATTORNEYS AT LAW MICHELLE RUDD Direct(503)294-9390 mrudd @stoel.com June 19, 2003 VIA FACSIMILE AND U.S. MAIL City of Tigard • Attention Public Records Officer 13125 SW Hall Blvd. Tigard, OR 97223 Re: Public Records Request Dear Public Records Officer: This is a request pursuant to the Oregon Public Records Law, ORS chapter 192, subchapter 400. We are requesting the following public records believed to be in your custody or control: (1) All documents from January 2002 to the present, including emails and transcripts of voicemail messages related to any interpretation of Chapter 18.780 of the Tigard Development, including but not limited to any interpretations made by any city employee; and (2) Any and all documents from January 2002 to present,including emails and transcripts of voice mail messages,related to amendment of Chapter 18.780 of the Tigard Development Code. For any and all information withheld or redacted, please provide a log indicating the location of the material withheld and the reasons for withholding it. • Oregon Washington California Utah Idaho Port lnd1-2142283.1 0053401-00003 • • City of Tigard June 19, 2003 Page 2 We are willing to pay your reasonable costs for locating and copying the information. Please contact the undersigned for authorization of a specific amount of costs once you have estimated those costs. Please also let me know if you have any questions. Very truly yours, Michelle Rudd MR:cle cc: Chris Daugherty Steve Abel Tim McMahan Portlnd 1-2142283.1 0053401-00003 UL.08-2003 TUE 10: 18 AM Media Aranc I906 0442 P. 011/011 4ti :'• e ,., '"`";,, ;�;."+1 •`� r gory Department of Transportation °• R Right of Way Section Theodore R.Kulongoski,Governor 355 Capitol Street NE Salem, Oregon 97301.-3871 Telephone (503)986-3600 April 1, 2003 FAX (503)986-362.5 Pile Code: Chris Daugerty Media Art, Inc, VIA FACSIMILE — (360) 906-0442 Re: Proposed Billboard— Washington County Route-ORE 217-Hwy 144,-East Side Mile Point 5.10-Tigard, at Ash Creek Bridge Chris: • You recently submitted a request for me to check to see If a proposed relocated billboard at the referenced location complies with state regulations. The sign and site complies with state regulations provided the following is true: )➢ You have use a qualifying relocation credit to erect this proposed billboard, > The established location of the relocation credit is no more than 100 miles from the proposed site, > The relocation credit that will be used has a total area of at least 250 square feet. • The sign and site complies with the City of Tigard's regulations, rules, ordinances, plans and other requirements of the City. If you have question regarding this matter, please contact this office. qtoti-_,-)?. . 6-4.&„- Jimmy L. Odom Outdoor Advertising Program Technician RIGHT OP WAY,PROJECT ADMINISTRATION,OUTDOOR J LO ADVERTISING PROGRAM Plwne: (503)01163656 Attachments Fncaimilh: (503)986.362? • Form 794-2657(1•09) LtitiY 07/08/2003 14: 11 503306029 RAMIS CREW • PAGE 81 • • RAMIS FACSIMILE TRANSMISSION COVER SHEET CREW CORRIG,AN BACHRACH, MP ATTORNEYS AT LAW 1727 N.W.Hoyt street THIS COMMUNICATION MAY CONSIST OF ATTORNEY PRIVILEGED AND CONFIDENTIAL Portland,Oregon 97209 INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED BELOW. (503)222-4402 IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT,OR THE EMPLOYEE OR Fax:(503)243-2944 AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION iS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR,PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. DATE: July 8, 2003 CLIENT NO.: 90025-107 TO: Michelle Rudd FAX NO.: (503)220-2480 TELEPHONE NUMBER: (503) 294-9390 FROM: Gary Firestone DESCRIPTION OF DOCUMENT TRANSMITTED:My letter to you dated July 8, 2003. COMMENTS: 1 PAGE(S) TO FOLLOW,EXCLUDING COVER SHEET. IF YOU DO NOT RECEIVE ALL OF THE PAGES,PLEASE CALL THE UNDERSIGNED AT(503)222-4402 IMMEDIATELY. THANK YOU. SIGNED: Ginny Leiker,Legal Assistant [ l AN ORIGINAL IS BEING MAILED l XX l AN ORIGINAL IS AVAILABLE UPON REQUEST • f ,07/08/2003 14: 11 50330602 RAMIS CREW • PAGE 02 RAMIS CREW CORRIGAN & BACHRACH. LLP ATTORNEYS AT LAW 1727 NW HOYT STREET PORTLAND,OREGON 97209 TELEPHONE(503)222-4402 Y done FAX(503)243-2944 WWW.RCCB.COM IIMAg _!.com July 8, 2003 Michelle Rudd Stoel Rives 900 SW Fifth Avenue, Suite 2600 • Portland, OR 97204 Re: Public Records Request Regarding Tigard Sign Ordinance Dear Ms.Rudd: I write in response to your letter dated July 7, 2003. The first point you made in that letter was that if documents were withheld pursuant only to ORS 192.501(1), the City would have to provide information regarding the public interest against disclosure. The documents for which an exemption was claimed under ORS 192.501(1) are also all exempt under ORS 192.502(9), which provides an absolute exemption. There are no documents claimed to be exempt solely under ORS 192.501(1). The second point related to ORS 192,502(1),which covers preliminary communications prior to final determination of policy or action. In this situation, where legal action is threatened and in which numerous documents have been appealed as final decisions, the City needs the ability to communicate frankly in-house without fear that a non-final communication or draft decision will be misinterpreted as official policy or appealed as a final decision. The City also needs to provide a forum within the City where staff can honestly and fully discuss the issues and exchange ideas. When a City is in the process of making a decision, there is little public interest in having preliminary drafts of decisions made public. The public interest in maintaining confidentiality of early drafts is high — the public has an interest in the efficient functioning of government, and a decision-maker cannot function efficiently if every redraft or edit is made available. A local government needs to have the ability to review decision documents internally before making them publicly available. The documents withheld 'under this claimed exemption are preliminary drafts and communications regarding preliminary drafts of decisions relating to the Media Art and West Coast Media applications. No final decision has been made on those applications and no final decision will be made until the City Council interprets the applicable code provisions. It would be premature and not in the public interest to make public draft decision documents that are still subject to change. Sincerely, irestone GFF/gl • • 3.4 Authorize the Mayor to Sign an Agreement Accepting $51,486 in Federal Recreational Trail Program (RTP) Funds 3.5 Local Contract Review Board a. Award Contract to Wystan Brown Excavating for the Construction of Derry Dell Creek Sanitary Sewer Realignment b. Award Contract to the Lowest Responsive Bidder for the Construction of Hall Boulevard Improvements (Name of lowest bidder will not be known until after 6/30/03; therefore, supplemental packet material will be available and also forwarded to the City Council on July 1, 2003.) c. Award Contract to Pavement Maintenance Company for Street Sweeping d. Award Contract to Cascade Phillips to Service Portable Restrooms • Consent Agenda - Items Removed for Separate Discussion: Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council has voted on those items which do not need discussion. 4. UPDATE ON THE NEW TIGARD LIBRARY • Staff Report: Library Staff 5. UPDATE ON TRANSPORTATION FINANCING STRATEGIES TASK FORCE'S PROGRESS ON REVIEW OF A PROPOSED STREET MAINTENANCE FEE • Staff Report: Engineering Staff 6. CONTINUATION FROM JUNE 10, 2003 - PUBLIC HEARING (QUASI- JUDICIAL) — APPEAL OF A DIRECTOR'S INTERPRETATION REGARDING BILLBOARD SIGNS; COMMUNITY DEVELOPMENT CODE 18.780 a. Continue Public Hearing from June 10, 2003 b. Declarations or Challenges - c. Staff Report: Community Development Department d. Public Testimony Proponents Opponents Rebuttal e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Resolution No. 03 - COUNCIL AGENDA — JULY 8, 2003 page 3 • • 7. QUASI-JUDICIAL PUBLIC HEARING — CONSIDER THE APPEAL OF THE BRETTON WOODS SUBDIVISION (SUB2003-00001/PDR200300001/ VAR2003-00006NAR2003-00007) ITEM ON APPEAL: On May 28, 2003, the Planning Commission approved a request for a 10-lot Subdivision and Planned Development on 2.34 acres. The lots are to be developed with detached single-family homes. Lot sizes within the development are between 5,500 and 6,879 square feet. The applicant also requested approval for an Adjustment to the 200-foot cul-de-sac length standard, and an Adjustment to the street improvement requirements of the Tigard Development Code Chapter 18.810. The Adjustment would allow the applicant to construct a curb-tight sidewalk as opposed to a sidewalk separated by a planter strip along SW 108t Avenue. On June 11, 2003 an appeal was filed pertaining to issues raised related to tree safety and water run-off through adjacent property caused by the development. LOCATION: 16455 SW 108th Avenue; WCTM 2S 115AA, Tax Lots 1301 and 1400. ZONE: R-4.5: Low-Density Residential District. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.350, 18.390, 18.430, 18.790 and 18.810.100. a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony e. Staff Recommendation f. Council-Questions - g. Close Public Hearing h. Council Consideration: Consider Whether to Uphold or Deny the Planning Commission's Decision — Resolution No. 03- 8. COUNCIL LIAISON REPORTS 9. NON AGENDA ITEMS COUNCIL AGENDA — JULY 8, 2003 page 4 • • Attachment 2 C n CITY OF TIGARD, OREGON V RESOLUTION NO. 03 al A RESOLUTION TO AFFIRM THE CON MUNITY DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING BILLBOARD SIGNS IN THE CITY OF TIGARD MUNICIPAL CODE CHAPTER 18.780. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by past Planning Commission and City Council actions to expressly prohibit billboards in Tigard; and WHEREAS, the Tigard City Council passed Ordinance 93-12 to expressly prohibit billboards in the City of Tigard;and WHEREAS, the Tigard City Council held a public hearing on the matter on June 10, 2003, NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the interpretation (Exhibit A) made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tigard sign regulations of the Tigard Municipal Code Chapter 18380. SECTION 2: This resolution is effective immediately upon passage. - �1 i PASSED: This day of 2003. ��,/.SAM ay.r-Ci I/'igard ATTEST: ity Recorder-City of Tigars RESOLUTION NO. 03 - a 7 Page 1 • • Exhibit A DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1 and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure" means the structural face which supports a billboard. TMC 18.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per.side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Page 1 of 4 • B. TMC 18.780.090.E.1 • • Code Language TMC 18.780.090.E.1: Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The "separate approval" provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued for the location in question. This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what "qualifying for a permit" means. The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in an avoidance of the City process in cases in which the state denies the OMIA permit. This is clearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA. A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval" from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 18.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approval") if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the ORS 337.723 affidavit indicating compliance, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 • • If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1. The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the issuance of a building permit for billboards. C. TMC 18.780.090.E.6 Code Provision TMC 18.780.090.E.6: For freestanding signs, a total maximum sign area of 160 square feet per fact (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.780.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard -a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Page 3 of 4 • • This interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E_6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of"billboard" discussed in Section A above, the structure of a smaller sign would not be a "billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E_6 and TMC 18.780.070.M because TMC 18.780.090_E.6 does not allow any billboards prohibited by TMC 18.780.070.M. III. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS This decision is final and effective upon mailing. It may be appealed to the City Council pursuant to TMC 18.340.020.E and F. a. P. He •ryx, Community g -pment Director DATE: 5//b/0 3 Paae 4 of 4 • //H/ ,�//.!�! l CITY OF TIGARD FACT SHEET 13125 SW Hall Boulevard Tigard, OR 97223 Contact: Dick Bewersdorff, (503) 639-4171 AGENDA: July 8, 2003 TOPIC: Appeal of Community Director's Interpretation regarding Billboard signs. BACKGROUND: On June 10, 2003, the City Council opened a public hearing on a West Coast Media and Media Arts appeal. The appeal was directed at the Director's interpretation of Community Development Code language concerning billboards. The hearing was continued until July 8, 2003 to allow the City Attorney's Office to respond to a letter submitted by Media Arts on June 10, 2003. The Council will continue deliberation at the July 8, 2003. COST: $250.00 appeal fee • • •f ' , .. • AGENDA ITEM# FOR AGENDA OF July 8,2003 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Appeal of a Director's Interpretation Regarding Billboard Signs PREPARED BY: Dick Bewersdorff DEPT HEAD OK A /.A,k/%," ITY MGR OK ISSUE BEFORE THE •UNCIL Should the City Council approve a resolution affirming a Director's Interpretation of language in the Tigard Community Development Code, Chapter 18.780, regarding prohibition of`Billboard signs"within the Tigard City limits. STAFF RECOMMENDATION Approve the attached resolution affirming the Director's Interpretation. INFORMATION SUMMARY On June 10, 2003, the City Council opened a public hearing on a West Coast Media and Media Arts appeal. The appeal was directed at the Community Development Director's interpretation of Tigard Community Development Code language concerning billboard signs. The hearing was continued until July 8, 2003 to allow the City Attorney's Office to respond to a letter submitted by Media Arts on June 10, 2003. The City Attorney's response is attached (Attachment 1). Council previously received all packets materials and the letter submitted by Media Arts in their June 10, 2003 packet and therefore, it is not included in this packet. Staff has again attached a copy of the resolution (Attachment 2) affirming the Director's interpretation which includes the attached interpretation (Exhibit A). OTHER ALTERNATIVES CONSIDERED Amend the Director's Interpretation VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Not Applicable ATTACHMENT LIST Attachment 1: City Attorney's response dated June 25, 2003 to Media Arts letter of June 10, 2003. Attachment 2: Resolution affirming Director's Interpretation. Exhibit A: Directors Interpretation Attachment 3: Letter from Christopher W. Rich of Rycewicz & Chenoweth, LLP dated June 10, 2003, received by City Administration June 11, 2003. FISCAL NOTES NA JUN 25 '03 04:33PM RAMIS " EW CORRIGAN ATTACHMENT I RAMIS CREW CORRIG N & IACHRACH, ATTORNEYS AT LAW 1727 N.W.Hoyt Street Portland,Oregon 97209 MEMORANDUM (503)222-4402 Fax:(503)243-2944 TO: City Council • City of Tigard • FROM: Timothy V. Ramis and Gary F. Firestone City Attorney's Office DATE: June 25, 2003 RE: Billboard Interpretation Response to Letter from Steve Abel Dated June 10, 2003 This memorandum addresses issues raised by Media Art's.legal counsel in his letter of June 10, • 2003, relating to the Director's Interpretation regarding the City's sign regulations. None of the arguments made in the letter prevent the City Council from approving the Interpretation. The City ' Council may choose to modify the Interpretation,but the letter has not provided any reason compelling the Council to change the basic conclusion reached in the Interpretation, which is that signs over the ' maximum size allowed are prohibited. A. The Director correctly interpreted the code as prohibiting all signs in excess or the maximum allowed size. The first argument contained in theletter is that the Interpretation is wrong. The letter argues that the code and legislative history do not evidence the intent to prohibit billboards. Our review of the code and legislative history indicates that these documents do exhibit a clear intent to prohibit all excessively large signs. Given the clarity of the record regarding the Council and Planning Commission's intent to • prohibit billboards, the Director's Interpretation appears to be supported by the record. - The letter next argues that although TMC 18.780,080(M)prohibits billboards,the remainder of the code makes it clear that billboards are allowed in some circumstances. The premise of the argument is that TMC 18.780.090E.6 provides that if a freestanding sign is a billboard,TMC 18.780.090 applies. However, TMC 18,780.090 contains a provision limiting the maximum size of all signs. The letter , • • JUN 25 '03 04:33PM RAMIlipCREW CORRI6AN • P.3 • Memorandum re: Billboard Interpretation Response to Letter from Steve Abel Dated June 10, 2003 June 25, 2003 Page 2 . states that"the most reasonable interpretation of the code is that it allows signs that meet the definition of permitted sign, even if they might be characterized as billboards as well." This interpretation does not appear to achieve the result that Media Art is seeking because a sign in excess of the maximum permitted size is not a permitted sign. • • • Media Art then argues that TMC 18.780.09013.6 does not cross reference TMC 18.780.070M, which prohibits billboards. It does not need to. The prohibition in TMC 18.780.070M applies to all signs in all zones it does not need to be cross-referenced. The reference in TMC 18.780.09013.6 is • better understood as an affirmation that any sign must comply with the regulations of TMC 18.780.070E, • including the dimensional requirements. Next, the letter states that the only interpretation of the code that does not require omitting standards is one that concludes that the rest of TMC 18.780.090E does not apply where•an OMIA permit exists. It further claims that the code should be read so that subsections E.2 through E.10 do not apply to OMIA signs. TMC 18.780.070,however, does not provide separate standards for OMIA signs but merely provides that a sign that has received an OMIA permit (which can be obtained only after certification of compliance with applicable City standards)does not need a separate City permit. It does not exempt OMIA signs from compliance with size and other requirements of the City code. Media Art finally argues that the City previously interpreted its code-as stating that the City's land use regulations do not apply to freeway oriented signs,and has included a memorandum from Brad Kilby dated January 14.2003. Mr.Kilby also wrote a letter to Media Art,dated April 22,2003 in which • he describes the code sections that do apply to freeway oriented•signs,such as billboards..If ambiguity • has been created by these communications, the Planning Director and the Council should resolve the . question. The memorandums justify taking interpretive action. They do not preclude the Planning Director or Council from interpreting the code. . . B. The Director correctly Interpreted TMC 18.780.090E.1. Media Art tries to make a substantive argument out of the fact that, when quoting the code language, the Director's Interpretation adjusted the tense of a verb to make it fit with the rest of the sentence. As is clear from the rest of the interpretation,the Director was addressing the question of who • "qualifies" for an OMIA permit. The statement that evidence of a permit is needed is simply a • description of the evidence an applicant must provide to establish compliance with the standard. Since the City is not in a position to second-guess the state,it is reasonable for the City to require evidence of a permit for the site in question as the only way the City has of determining whether a person qualifies for an OMIA permit. ■ auM 25 „'03 04:33PM RAMI W CORRIGAN • P.4 Memorandum re: Billboard Interpretation • Response to Letter from•Steve Abel Dated June 10, 2003 • June 25, 2003 Page 3 . We note that although the explanation in the Interpretation made it clear that the permit must be - for the site in question,the Interpretation does not expressly so state_ We therefore recommended adding "for the location in question" after"the OMIA permit has been issued"at the end of the first paragraph of the Interpretation. • The Director's Interpretation correctly states that a person qualifies for an OMIA permit only if the person has met all requirements for an OMIA permit, including the compliance affidavit from the City. The letter has not addressed this part of the Interpretation and has provided no basis for any other interpretation. • C. The billboard prohibition is not unconstitutional. • • The letter argues that the prohibition on billboards is unconstitutionally vague. It cites to no case law for this argument and does not specify which constitutional provisions are at issue. While the word "vague" does not appear in either the federal or state constitutions, the state has recognized:that . vagueness may be an issue. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002). A vagueness challenge under the equal privileges and immunities clause applies only if there is a great risk of unequal , • treatment as a result of the vagueness.By adopting an interpretation,the Council will avoid any risk of - ' unequal treatment. The provision as written does not violate the equal privileges and immunities clause and the interpretation will prevent any possibility of unequal treatment on an "as applied"basis. • . The existence of an ambiguity does not make a law unconstitutional, especially when a formal • interpretation can reduce any uncertainty. Under the federal constitution,vagueness has been applied under the due process clause of the 14th Amendment. The courts recognize that a different standard applies to vagueness challenges to civil laws than to criminal laws. While a somewhat heightened standard may be applied to laws regulating speech,the law at issue here is not content based and is only a"time;place and manner"regulation that is not subject-to heightened scrutiny. Since the Interpretation resolves ambiguity, it addresses the vagueness issue and reduces the likelihood of a successful constitutional challenge based on this theory. The letter argues that, under the code, "all materials placed or constructed on a structure to convey a message or other display which can be viewed from a right of way,another property,or the air are prohibited." This is a forced and convoluted reading of the code. The code clearly permits many signs and their supporting structure. The prohibition on billboards is clearly intended as a prohibition on overlarge signs. The prohibition does not violate the equal protection clause. • The letter then argues that the prohibition on billboards is unconstitutional because it lacks • • JUN 25 '03 04:34PM RAMI REW CORRIGAN • F.5 9 • • Memorandum re: Billboard Interpretation Response to Letter from Steve Abel Dated June 10, 2003 • June 25, 2003 • Page 4 • narrow objective and definite standards to guide the licensing authority. As interpreted and as applied, it contains clear, objective and definite standards. The prohibitions on billboards is not an unreasonable time, place and manner restiiction. :The City does have the authority to regulate the size and location of signs. Media Art argues that the only rationale for the prohibition is that people do not like billboards. The rationale for the prohibition on billboards is that overly large signs create visual clutter and are detrimental to the appearance of the City. The City is not interfering with the content of speech,just limiting the maximum size of signs. The allowed size is sufficiently large to allow speech to be expressed. D. The Interpretation does not amend the code. The Interpretation is just that-an interpretation. It does not amend the code. It does not mcidify the code. It simply interprets it. Therefore,it is not a text amendment and therefore is not subject to the text amendment procedures of TMC 18.390.060G. It also does not violate Planning Goal 2 in that it • does not create new regulations and in any case allows for a public process,which is occurring with this appeal. Media Art claims that its federal due process rights were violated by the City's process from seeking Council direction on an issue of code interpretation. In our view, the City Manager had the - authority under the code to seek Council resolution•of an important interpretive issue. This authority was exercised in a manner that granted Media Art ample opportunity to present its arguments and to establish a record for appeal, if necessary. The facts do not appear to establish a due process violation. Conclusion The Council should review and consider the arguments advanced byMedia Art,as well as those presented by the Planning Director. The Council is free to adopt, reject or amend the proposed Interpretation. The arguments made by Media Art do not prevent the adoption of the Interpretation favored by the Planning Commission. • gfUtigard/tuba-medieart/CouncilMml(sib) • • • Attachment 2 CITY OF TIGARD, OREGON RESOLUTION NO. 03- A RESOLUTION TO AFFIRM THE COMMUNITY DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING BILLBOARD SIGNS IN THE CITY OF TIGARD MUNICIPAL CODE CHAPTER 18.780. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by past Planning Commission and City Council actions to expressly prohibit billboards in Tigard; and WHEREAS, the Tigard City Council passed Ordinance 93-12 to expressly prohibit billboards in the City of Tigard; and WHEREAS, the Tigard City Council held a public hearing on the matter on June 10, 2003, NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the interpretation (Exhibit A) made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tigard sign regulations of the Tigard Municipal Code Chapter 18.780. SECTION 2: This resolution is effective immediately upon passage. PASSED: This day of 2003. Mayor-City of Tigard ATTEST: City Recorder-City of Tigard RESOLUTION NO. 03 - Page 1 • EXHIBIT "A" DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1-and TMC 18.780.090.E_6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. IL INTERPRETATIONS A_ TMC 18.780.015.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure". means the structural face which supports a billboard. TMC 1.8.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign.area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC-18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet • • EXHIBIT "A" DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1.and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure means the structural face which supports a billboard. TMC 1.8.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E_6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet • . • B. TMC 18.780_090.E.1 Code Language TMC 18.780_090.E.1: Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The "separate approval" provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued. This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what "qualifying for a permit" means. • The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is Unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in an avoidance of the City process in cases in which the state denies the OMIA permit. This is dearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City-approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA. A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval"from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 1.8.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approval") if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the ORS 337.723 affidavit indicating.compliance, the person has not"qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 • • • This interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E.6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of"billboard" discussed in Section A above, the structure of a smaller sign would not be a "billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E.6 and TMC 18.780.070.M because TMC 18.780.090.E_6 does not allow any billboards prohibited by TMC 18.780.070.M. III. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS • This decision is final and effective upon mailing. It may be appealed to the City Council pursuant to TMC 18.340.020.E and F. / /' . James N.P. He •ryx, Community % : - opment Director DATE:0 5//6/0 3 Page 4 of 4 • • ' b If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1. The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the issuance of a building permit for billboards. C. TMC 18.780.090.E.6 • Code Provision TMC 18.780.090.E.6: For freestanding signs, a total maximum sign area of 160 square feet per fact (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.780.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard -a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Paae 3 of 4 JUN 25 '03 04:32PM RAMIIIREW CORRIGAN • P.1 • • RAMIS O EW FACSIMILE TRANSMISSION COVER SHEET CORRIGAN & BACHRACH J THIS COMMUNICATION MAY CONSIST OF ATTORNEY PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OFTHE INDIVIDUAL OR ENTITY NAMED BELOW. ATTORNEYS AT LAW IF THE READER OF THIS MESSAGE ISNOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE INTENDED RECIPIENT,YOU ARE HEREBY 1727Hoyt Street NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION Portland,N.W.. Hoyt Street IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. (503)222-4402 • Fax:(503)243-2944 • • DATE: . June 25,2003 CLIENT NO.: 90025-107 • TO: City Council (do Cathy Wheatley) City of Tigard FAX#: 684-7297 PHONE#: 639-4171 FROM: Timothy V. Ramis DESCRIPTION OF DOCUMENT TRANSMITTED: Memorandum dated today r: Billboard Interpretation ' in Media Art LUBA case. • COMMENTS: 4 PAGE(S)TO FOLLOW, EXCLUDING COVER SHEET. IF YOU DO NOT RECEIVE ALL OF THE PAGES,PLEASE CALL THE UNDERSIGNED AT(503)222-4402 IMMEDIATELY. THANK YOU. SIGNED: Sharon R. Beisley,Legal Assistant to Tim Ramis [ ] ' AN ORIGINAL IS BEING MAILED [ I AN ORIGINAL IS AVAILABLE UPON REQUEST • • • ' • • • Copies to: / Mayor/Council �V/ Other:1 City Manager V Council File JUN 25 '03 04:33PM RAMIOREW CORRIGAN • p.2 1 AMIS • CREW • CORRIGAN & BACBRACH ATTORNEYS AT LAW 1727 M.W.Hoyt Street • Portland,Oregon 97209 ' MEMORANDUM (503)222-4402 Fax:(503)243-2944 • TO: City Council City of Tigard • FROM: Timothy V.Ramis and Gary F. Firestone City Attorney's Office . DATE: June 25, 2003 RE: • Billboard Interpretation Response to Letter from Steve Abel Dated June 10,2003 This memorandum addresses issues raised by Media Art's.legal counsel in his letter of June 10, • 2003, relating to the Director's Interpretation regarding the City's sign regulations. None of the arguments made in the letter prevent the City Council from approving the Interpretation. The City Council may choose to modify the Interpretation,but the letter has not provided any reason compelling the Council to change the basic conclusion reached in the Interpretation, which is that signs over the maximum size allowed are prohibited. A. The Director correctly interpreted the code as prohibiting all signs in excess of, the maximum allowed size. The first argument contained in theletter is that the Interpretation is wrong. The letter argues that the code and legislative history do not evidence the intent to prohibit billboards.Our review of the code and legislative history indicates that these documents do exhibit a clear intent to prohibit all excessively • large signs. Given the clarity of the record regarding the Council and Planning Commission's intent to prohibit billboards, the Director's Interpretation appears to be supported by the record. • The letter next argues that although TMC 18.780.080(M)prohibits billboards,the remainder of the code makes it clear that billboards are allowed in some circumstances. The premise of the argument is that TMC 18.780.090E.6 provides that if a freestanding sign is a billboard,TMC 18.780.090 applies. However, TMC 18.780.090 contains a provision limiting the maximum size of all signs. The letter • • • " JUN 25 '03 04:33PM RAMI REW CORRIGAN P.3 ; Memorandum re: Billboard Interpretation Response to Letter from Steve Abel Dated June 10, 2003 June 25, 2003 Page 2 states that"the most reasonable interpretation of the code is that it allows signs that meet the definition of permitted sign,even if they might be characterized as billboards as well." This interpretation does not appear to achieve the result that Media Art is seeking because a sign in excess of the maximum permitted size is not a permitted sign. • Media Art then argues that TMC 18.780.090E.6 does not cross reference TMC 18.780.070M, which prohibits billboards. It does not need to. The prohibition in TMC 18.780.070M applies to all • signs in all zones it does not need to be cross-referenced. The reference in TMC 18.780.090E.6 is better understood as an affirmation that any sign must comply with the regulations of TMC 18.780.070E, including the dimensional requirements. Next, the letter states that the only interpretation of the code that does not require omitting standards is one that concludes that the rest of TMC 18.780.090E does not apply where'an OMIA permit exists. It further claims that the code should be read so that subsections E.2 through E.10 do not apply to OMIA signs. TMC 18.780.070,however, does not provide separate standards for OMIA signs but • merely provides that a sign that has received an OMIA permit (which can be obtained only after certification of compliance with applicable City standards)does not need a separate City permit. It does not exempt OMIA signs from compliance with size and other requirements of the City code. • Media Art finally argues that the City previously interpreted its code.as stating that the City's land use regulations do not apply to freeway oriented signs,and has included a memorandum from Brad . Kilby dated January 14.2003. Mr.Kilby also wrote a letter to Media Art,dated April 22,2003 in which he describes the code sections that do apply to freeway oriented signs,such as billboards..If ambiguity has been created by these communications, the Planning Director and the Council should resolve the question. The memorandums justify taking interpretive action. They do not preclude the Planning Director or Council from interpreting the code. . B. The Director correctly interpreted TMC 18.780.090E.1. • Media Art tries to make a substantive argument out of the fact that, when quoting the code language, the Director's Interpretation adjusted the tense of a verb to make it fit with the rest of the sentence. As is clear from the rest of the interpretation,the Director was addressing the question of who "qualifies" for an OMIA permit. The statement that evidence of a permit is needed is simply a description of the evidence an applicant must provide to establish compliance with the standard. Since the City is not in a position to second-guess the state,it is reasonable for the City to require evidence of a permit for the site in question as the only way the City has of determining whether a person qualifies • for an OMIA permit. JUN 25 '03 04:33PM RAMI EW CORRIGAN • P.4 Memorandum re: Billboard Interpretation Response to Letter from•Steve Abel Dated June 10, 2003 June 25,2003 Page 3 • • • We note that although the explanation in the Interpretation made it clear that the permit must be for the site in question,the Interpretation does not expressly so state_ We therefore recommended adding "for the location in question" after"the OMIA permit has been issued"at the end of the first paragraph • of the Interpretation. • The Director's Interpretation correctly states that a person qualifies for an OMIA permit only if the person has met all requirements for an OMIA permit, including the compliance affidavit from the City. The letter has not addressed this part of the Interpretation and has provided no basis for any other interpretation. • . C. The billboard prohibition is not unconstitutional. The letter argues that the prohibition on billboards is unconstitutionally vague. It cites to no case law for this argument and does not specify which constitutional provisions are at issue. While the word "vague" does not appear in either the federal or state constitutions, the state has recognized:that . vagueness may be an issue. Delgado v. Souders, 334 Or 122, 46 P3d 729 (2002). A vagueness challenge under the equal privileges and immunities clause applies only if there is a great risk of unequal • treatment as a result of the vagueness.By adopting an interpretation,the Council will avoid any risk of unequal treatment. The provision as written does not violate the equal privileges and immunities clause and the interpretation will prevent any possibility of unequal treatment on an "as applied"basis. . The existence of an ambiguity does not make a law unconstitutional,especially when a formal interpretation can reduce any uncertainty. Under the federal constitution, vagueness has been applied under the due process clause of the 14th Amendment. The courts recognize that a different standard applies to vagueness challenges to civil laws than to criminal laws. While a somewhat heightened standard may be applied to laws regulating speech,the law at issue here is not content based and is only • a"time,place and manner"regulation that is not subject to heightened scrutiny. Since the Interpretation resolves ambiguity, it addresses the vagueness issue and reduces the likelihood of a successful constitutional challenge based on this theory. The letter argues that, under the code, "all materials placed or constructed on a structure to convey a message or other display which can be viewed from a right of way,another property,or the air are prohibited." This is a forced and convoluted reading of the code. The code clearly permits many signs and their supporting structure. The prohibition on billboards is clearly intended as a prohibition on overlarge signs. The prohibition does not violate the equal protection clause. • The letter then argues that the prohibition on billboards is unconstitutional because it Tacks • • • JUN 25 '03 04:34PM RAMIREW CORRIGAN • P.5 . • • Memorandum re: Billboard Interpretation • Response to Letter from Steve Abel Dated June 10, 2003 • June 25,2003 Page 4 • narrow objective and definite standards to guide the licensing authority. As interpreted and as applied, it contains clear, objective and definite standards. The prohibitions on billboards is not an unreasonable time, place and manner restriction. ;The City does have the authority to regulate the size and location of signs. Media Art argues that the only rationale for the prohibition is that people do not like billboards. The rationale for the prohibition on billboards is that overly large signs create visual clutter and are detrimental to the appearance of the City. The City is not interfering with the content of speech,just limiting the maximum size of signs. The allowed size is sufficiently large to allow speech to be expressed. D. The Interpretation does not amend the code. • The Interpretation is just that—an interpretation. It does not amend the.code. It does not modify the code. It simply interprets it. Therefore,it is not a text amendment and therefore is not subject to the • • text amendment procedures of TMC 18.390.060G. It also does not violate Planning Goal 2 in that it • does not create new regulations and in any case allows for a public process,which is occurring with this appeal. Media Art claims that its federal due process rights were violated by the City's process from . seeking Council direction on an issue of code interpretation. In our view, the City Manager had the authority under the code to seek Council resolution of an important interpretive issue. This authority was exercised in a manner that granted Media Art ample opportunity to present its arguments and to establish a record for appeal,if necessary. The facts do not appear to establish a due process violation. Conclusion The Council should review and consider the arguments advanced by Media Art,as well as those • presented by the Planning Director. The Council is free to adopt, reject or amend the proposed Interpretation. The arguments made by Media Art do not prevent the adoption of the Interpretation favored by the Planning Commission. • • gffkigard/tuba-medieart/CouncilMml(srb) • • • 7 • • aPUI FR041- • • .T-555 P.02/03 F-177 0 E L 900 5 w rllu.&cr.., 5..a.2 poru,ne,organ 97214 4 " C _ .nam 503 2r4 33n6 (� �/ L fa,so3.uq 2+xo 16 uP .....w call ATTORNpYS Al LAN, MICUEUb RUDD - Dlrecr(503)294-9390 June 19,2003 mrudd@srocl.com VIA FACSIMILE AND U.S.MAIL City of Tigard - Attention Public Records Officer 13125 SW Hall Blvd. Tigard, OR 97223 Re: Public Records Request Dear Public Records Officer: This is a request pursuant to the Oregon Public Records Law, ORS chapter 192, subchapter 400. We are requesting the following public records believed to be in your custody or control: (1)All documents from January 2002 to the present,including emails and transcripts of voicemail messages related to any interpretation of Chapter 18.780 of the Tigard Development, including but not limited to any interpretations made by any city employee; and • (2)Any and all documents from January 2002 to present, including emails and transcripts of voice mail messages,related to amendment of Chapter 18.780 of the Tigard Development Code. • For any and all information withheld or redacted,please provide a log indicating the location of the material withheld and the reasons for withholding it. Oreb..n Ws3h .sglon Cal.r G I.i 1 3 • Ut.h 1 J a h v Pordn01-2142283.10053401- 003 i • • City of Tigard June 19, 2003 Page 2 We are willing to pay your reasonable costs for locating and copying the information. Please contact the undersigned for authorization of a specific amount of costs once you have estimated those costs. Please also let me know if you have any questions. Very truly yours, L/r4-6GL2 Qt2QC,CQ Michelle Rudd MR:cle cc: Chris Daugherty Steve Abel Tim McMahan Portlnd l-2142283.1 0053401-00003 06-18-03 10:25AM FROM- 111 T-537 P.01/02 F-161 • RECENED • S T O E L S.v ) nr lu,b RIVES 0 � �'� PCrtl7n4 ul.g.,, >, f•hoc><SU:3 29 11250 41.P �p I.0 SUS no'LVlw1 CAI'� �Ir �/i�471phe�111�® �r ,�u..u�n ATTORNEYS AT LAW PLANNING/ENGINEER pA1NING/ENGINEER n w' Name: Fax No. Company/Firm Phone No. TO: Brad Kelly (503) 598-1960 City of Tigard- Planning Dept. Name: Sender's Direct Dial: Sender's Direct Email: • FROM: Michelle Rudd (503) 294-9390 mrudd @stoel.com Client; Matter: Date: June 18, 2003 • No. of Pages (including this cover); • Originals Not Forwarded Unless Checked; Q First Class Mail Overnight Delivery Q Hand Delivery In case of error call Carla Edmon at(503)294-9528. This facsimile may contain confidential information that is protected by the attorney-client or work product privilege. If thr reader of this message is not the intended recipient or an employee responsible for delivering the facsimile, please do nor distribute this facsimile, notify us immediately by telephone. and return this facsimile by mall. Thank you. COMMENTS: Please include this letter in the appeal file for the Director's Billboard Ordinance Interpretation. Thank you. • • • Portlnd 1-21421$5.1 0099999-00001 • 06-18-03 10:25AM FROM- • T-537 P.02/02 F-161 CF Oregon Department of'Transportation'Transportation Right of Way Section `� 955 Capitol Street NE Theodore R,Kulongoekl,Gwen= r i Salon,Oregon 97301-3871 Telephone(508)986-3600 FAX(503)986-3625 April 2, 2002 File Cede: Media Art, lnv. • 1923 Broadway • Vancouver, WA 98663 Attn: Chris Daugherty Media Art, Inc. currently holds an Oregon preexisting sign permit (known as a relocation credit), that can be used to erect a billboard, visible to a state highway, in the place of one that was removed. The relocation credit was issued pursuant to ORS 377,700 to 377,840 and ORS 377.992, known as the Oregon Motorist Information Act (OMIA). The sign can be relocated no more than 100 miles from the site of the removed sign. The removed sign was located adjacent to Route ORE 8, at or near mile point 6,03. A printout of the information for the removed sign is attached. The relocation credit qualifies Media Art to apply for and obtain a permit to erect a billboard that complies with state and local regulations. C;19411-1-V. Jimmy L. Odom Outdoor Advertising Program Technician EMT OP WAY.PROF= AID IPAWIRATIO f,GVTDOO JLO ritOURAM AGaitmllg S2:110.3 Fonsi 734-2537(1413) .Y■ � 1 1 • • After discussion, Council approved a motion to table this item to the June 24, 2003, Council meeting to give residents more time to have their questions answered by staff. 11 . PUBLIC HEARING Project Engineer Greg Berry introduced this (INFORMATIONAL) TO agenda item. During the public testimony CONSIDER ESTABLISHING portion of the hearing, residents in the SANITARY SEWER District had questions about the cost of the REIMBURSEMENT DISTRICT NO. district and the return on the City's 29 - SW PARK STREET, SW DERRY investment. Council consensus was that this DELL COURT, SW COOK LANE item would be set over to the June 24, AND SW WATKINS AVENUE 2003, Council meeting. 12. CONSIDER AN ORDINANCE TO Finance Director,Prosser presented the staff AMEND SECTION 3.44.055(A) report. Council approved Ordinance No. OF THE TIGARD MUNICIPAL 03-05 to amend the Tigard Municipal CODE RELATING TO THE Code's definition of substandard DEFINITION OF SUBSTANDARD undeveloped property. UNDEVELOPED PROPERTY 13. PUBLIC HEARING (QUASI- Mayor Griffith opened the public hearing. JUDICIAL) - APPEAL OF A Community Development Director Hendryx DIRECTOR'S INTERPRETATION presented the staff report. Earlier this year REGARDING BILLBOARD SIGNS; building permits were requested for COMMUNITY DEVELOPMENT construction of freeway oriented signs. The CODE 18.780 permits were denied by Community Development Department staff after finding that the signs appeared to be billboards and would exceed the maximum allowable size and height for freeway oriented signs. The Community Development Director issued his interpretation and the City Manager appealed the decision to the Council seeking affirmation. A separate appeal was filed on behalf of Media Arts, Inc. During the public testimony portion of the hearing, Michelle Rudd, Attorney for Media Council Meeting Follow-Up Meeting of June 10, 2003- Page 5 • • Arts, Inc., testified that the Tigard staff interpretations are in error. A letter, accompanied by a packet of information, was distributed to the City Council to address the issues "raised by the May 15, 2003 Director's Interpretation of portions of the City's sign ordinance." Ms. Rudd advised that the interpretation was ambiguous, suffered from Constitutionality problems, the pending applications were being judged by a different standard, and there was a violation of due process. After discussion between Ms. Rudd and City Attorney Ramis, Council consensus was to set this hearing over to July 8 so the Council and City Attorney could review the materials submitted by Ms. Rudd. Attorney Rudd agreed to have any additional materials to be submitted to the Council for its review within one week. The staff report for the July 8 meeting will be available by July 1, 2003. I:\ADM\CATHY\MTG-DIST\ACTION LETTER\030610.DOC Council Meeting Follow-Up Meeting of June 10, 2003 - Page 6 • • 11. PUBLIC HEARING (INFORMATIONAL) TO CONSIDER ESTABLISHING SANITARY SEWER REIMBURSEMENT DISTRICT NO. 29 — SW PARK STREET, SW DERRY DELL COURT, SW COOK LANE AND SW WATKINS AVENUE a. Open Public Hearing b. Summation by Engineering Department c. Public Testimony d. Staff Recommendation e. Council Discussion f. Close Public Hearing g. Consideration by Council: Resolution No. 03 - 12. CONSIDER AN ORDINANCE TO AMENDMENT SECTION 3.44.055(A) OF THE TIGARD MUNICIPAL CODE RELATING TO THE DEFINITION OF SUBSTANDARD UNDEVELOPED PROPERTY a. Staff Report: Finance Staff b. Council Questions and Discussion c. Council Consideration: Ordinance No. 03- c 13. PUBLIC HEARING (QUASI-JUDICIAL) — APPEAL OF A DIRECTOR'S INTERPRETATION REGARDING BILLBOARD SIGNS; COMMUNITY DEVELOPMENT CODE 18.780 a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony - For all those wishing to testify, please be aware that failure to raise an issue accompanied by statements or evidence sufficient to afford the Council and parties an opportunity to respond to the issue will preclude an appeal to the Land Use Board of Appeals on this issue. Testimony and evidence must be directed toward the criteria described by staff or other criteria in the plan or land use regulation which you believe apply to the decision. - Proponents - Opponents - Rebuttal e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No. 03- COUNCIL AGENDA — JUNE 10, 2003 page 5 14. COUNCIL LIAISON REPORTS 15. NON AGENDA ITEMS 16. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(3), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 17. ADJOURNMENT I:\ADM\CAThMCCA\030610.DOC • COUNCIL AGENDA — JUNE 10, 2003 page 6 cm/117/Y17n.i i/:34 51132212182 RYCEW I CZ&CHENO TH PA • C• Jinn leAvityr e/vx RYCEWICZ & CHENOWETH , LP ATTORNEYS AT LAW 601 SW SECOND AvrNUE, SurrE 1940 — PORTLAND. OREGON 97204-3154 TELEPHONE: 503-22 I-7956 CNRISrOM/KR A. RYacvnaz FAcsIMILK: 603-221-2162 BRIAN D. CHENOWETH• VANCOUVER TELEPHONE; 360-D93-4107 CNRISTOPNKw W. RuoNt WWW.NORTHWEBTLAW.COM CARRIe A. DEAVOUw3 'ADMITTED IN OR AND WA fADNn r6D IN CO June 10, 2003 Via Fax(503) 684-7297 b��L • City of Tigard 6/j1N j L.0�. City Council j ZO Tigard, Blvd 'gQ ,?.n,�t 03 g d, OR 97223 rat/Q� Re: Appeal of Planning Director's Interpretation of Portions of the City of Tigard's Sign Ordinance. Dear City Councilors: West Coast Media,LLC ('West Coast Media"),wishes to join in the written comments provided by Media Art,LLC(via hand delivery on June 10, 2003) concerning the infirmities of the Planning Director's May 16, 2003 Interpretation of the City of Tigard's sign ordinance. For the reasons outlined therein,the City Council should reject the Planning Director's Interpretation. Very truly yours, RYCEWICZ&CHENOWETH, LLP t Christopher W. Rich Email: crich @northwestlaw.com cc: Client M:'LN TS18RIAN\West Coast Media\Tigard\Citycommatts.001•wpd • • • S T O E L 900 S.W.Fifth Avenue.Suite 2600 Portland.Oregon 97204 R I V E S main 503.224.3380 S L L P fax 503.220.2480 www.stoeLcom • ATTORNEYS AT LAW STEVEN W. ABEL Direct(503)294-9599 June 10, 2003 swabel @stoel.com VIA HAND DELIVERY City Council City of Tigard 13125 SW Hall Blvd. • Tigard, OR 97223 Re: Appeal of Director's Interpretation Dear City Councilors: This letter is submitted to address issues raised by the May 16, 2003 Director's Interpretation of portions of the City's sign ordinance. I. The Director erred in interpreting the code provisions TMC §§ 18.780.015.A.8,A:9, 18.780.070.M and 18.780.090.E.6. • In his decision dated May 16, 2003, the Director opined that: "As applied to freeway oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway oriented signs, TMC 18.780.070M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet." These interpretations are in error. Evaluating the interpretations requires review of several definitions found in city code, state law and a dictionary. Billboard is defined in the code as "a sign face supported by a billboard structure." TMC § 18.780.015(A)(8). Billboard structure is defined as the structural framework which supports a billboard. TMC § 18.780.015(A)(9). The definition of billboard in the code is circular since it includes the word"billboard" in its definition. The code provides that common dictionary definitions apply unless defined in the code or context requires otherwise. TMC § Oregon Washington California Utah Portlnd l-2141370.1 0053401-00003 I d a h o • • City Council June 10, 2003 Page 2 18.120.010.1 Billboard is defined in Webster's as "a flat surface (as of a panel, wall or fence) on which bills are posted; spec. a large panel designed to carry outdoor advertising." Webster's Ninth New Collegiate Dictionary. Outdoor advertising is not defined in Tigard's code but Tigard's sign ordinance adopts by reference the provisions of the Oregon Motorist Information Act(OMIA), ORS Ch. 377. While the Act does not define billboard it does define outdoor advertising as a"sign designed, intended or used to advertise, inform or attract the attention of the public as to: (a) Goods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located, (b) facilities not located on the premises on which the sign is located, or(c) activities not located on the premises on which the sign is located." ORS 377. 710(23). The maximum dimensions for an outdoor advertising sign are established in the Act. ORS 377.745. Sign is defined in the code as materials placed or constructed primarily to convey a message or other display and which can be viewed from a right of way, another property or from the air. TMC § 18.780.015(A)(48). Section 18.780.015(A)(23) of the TMC defines freeway oriented sign as "a sign primarily designed to be read by a motorist traveling on a highway designated by the Oregon State Highway Department as a freeway or expressway; specifically these shall be Interstate 5, and Oregon State Highway#217 and shall not include Highway 99W.i2 The TMC section 18.780.015A states that the definitions to be used in the sign ordinance are in addition to Chapter 18.110,Definitions. No definitions are provided in Ch. 18.110. 2 TMC section 18.780.090(E)provides that for free standing freeway oriented signs 1. Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act(OMIA)need not seek separate approval from the City of Tigard; 2. Freeway oriented signs shall be permitted only in the CG,I-P,IL and I-H zoning districts; 3. Freeway oriented signs shall be permitted to be located within 200 feet of Highway 217 and/or Interstate Freeway No. 5 rights of ways as shown in the Freeway Oriented Sign(FOS)overlay zone maps in Figure 1;(Figure 1 is on file in the City Recorder's office.); 4. One free standing freeway oriented sign shall be allowed per premises; 5. The maximum height of a freeway oriented sign shall not exceed 35 feet from the ground level at its base; 6. For free standing signs,a total maximum sign area of 160 square feet per face(320 square feet total)shall be allowed. If the sign is a billboard,then the provisions of Subsection 18.780.090 shall apply; Portlnd 1-2141370.1 0053401-00003 • • City Council June 10, 2003 Page 3 definition of billboard and free standing freeway oriented sign are,not inconsistent and may overlap. Given that TMC § 18.780.080(M) states that billboards are prohibited, the Director has concluded that"the Council's obvious intent as to freeway oriented signs was to prohibit certain signs while allowing others" and that "it appears that the Council intended the term `billboard' in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway oriented sign." As discussed below, adopting this interpretation requires ignoring other provisions in the code and constitutional issues. As discussed below, the billboard prohibition in TMC § 18.780.070.M. violates the state and federal constitutions and may not be enforced. Further, the code and legislative history does not evidence the alleged intent. The applicability of the prohibition on free standing freeway oriented OMIA signs was never raised in the legislative history. Properly interpreted, the code allows billboards which are freeway oriented signs, at dimensions set forth in the OMIA, where a party qualifies for an OMIA permit. Despite the fact that TMC § 18.780.080(M) states that billboards are prohibited, the remainder of the code makes it clear that billboards are in fact allowed in some circumstances. TMC § 18.780.090(E)(6) provides that if a freestanding freeway oriented sign is a billboard, TMC § 18.780.090, which permits freeway oriented signs, applies. Given that(1) the code expressly allows certain signs that would arguably be considered billboards, (2) TMC 18.780.090(E)(2) allows freeway oriented signs and (3) TMC 18.780.090(E)(6) expressly states that TMC § 18.780.090 applies to billboards, the most reasonable interpretation of the code is that it allows signs which meet the definition of a permitted sign, even if they might be characterized as billboards as well. 7. Freeway oriented signs shall be oriented to be viewed from the freeway; 8. In addition to a freeway oriented sign,each parcel,development complex or premises shall be allowed one freestanding sign provided all other provisions of this chapter can be met and both signs are located on separate frontages with different orientations; 9. Freeway oriented signs are not permitted as roof, tenant,temporary,balloon, wall and awning signs; 10. Freeway oriented signs shall be allowed only by administrative approval of a sign permit application or by approval of a sign code exception by the Commission. Portind 1-2141370.1 0053401-00003 • • • City Council June 10, 2003 Page 4 TMC § 18.780.090.E.6 provides that "[f]or free standing signs, a total maximum sign area of 160 square feet per face (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply." The Director interpreted TMC § 18.780.090.E.6. as follows: "The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustment allowed by code as discussed above) are not permitted." This section does not cross reference TMC § 18.780.070.M. which prohibits billboards. Rather, it cross references TMC § 18.780.090 which allows freestanding freeway oriented signs. This language supports an interpretation that TMC § 18.780.090(1)'s exemption for OMIA signs applies to billboards since it is part of TMC § 18.780.090. Since language will not be omitted when interpreting a statute, this language should not be considered surplusage. ORS § 174.010. Rather, this language supports a construction that the code intends to prohibit billboards in locations and of a type other than those allowed in .090 and .090 exclusively governs freeway oriented billboards. TMC § 18.780.090 delegates approval of OMIA signs to the state. Therefore, the billboard prohibition cannot be reasonably construed to apply to freeway oriented OMIA signs. TMC § 18.780.090(E)(10) directly contradicts the statement in TMC § 18.780.090(E)(1) that separate approval is not required. The rules of statutory interpretation provide that nothing will be omitted or inserted and that where there are several provisions "such construction is, if possible, to be adopted as will give effect to all." ORS 174.010. The only interpretation of the code that does not require omitting standards is one that concludes that the remainder of TMC § 18.780.090(E) does not apply where an OMIA permit exists. The code should therefore be read such that (E)(2) through(10) do not apply to OMIA signs. The portion of the code addressing the zoning regulations applicable to signs identifies special condition signs separate from freestanding freeway oriented signs, lending further support to the argument that freeway oriented signs may be subject to conditions other than those generally applicable to special condition signs and that the remainder of the section does not apply to OMIA signs. TMC § 18.780.130. Also, while TMC § 18.780.090(E)(2) states that freeway oriented signs are only permitted in the C-G, IP, IH and IL zoning districts, TMC § 18.780.130(C)(9) provides that freeway oriented signs are also permitted in the CBD zone. This contradicts an interpretation that E(2) is intended to apply to OMIA signs since if it does, the provision allowing freeway oriented signs in the CBD never comes into play. Given these Portlnd l-2141370.1 0053401-00003 • • City Council June 10, 2003 Page 5 considerations, an interpretation of the code that(E)(2) through(E)(10) do not apply to OMIA signs is the construction which is consistent with all the identified code provisions. If the City intended for the requirements of(2) through(10) to apply to OMIA signs, it would have expressly said so. Balloons are another"special condition sign" under Tigard's code. TMC § 18.780.090 provides that one inflatable, stationary balloon or one cluster of children's balloons firmly secured shall be allowed only if all of the"listed conditions" are met. The city clearly knows how to make all of a section applicable to a sign type and chose not to do so for OMIA signs. TMC § 18.780.090(E)(1) provides that for free standing freeway oriented signs, anyone who qualifies for a permit from the State of Oregon under the OMIA need not seek separate approval from the city. TMC § 18.780.090(E)(10)provides, however, that freeway oriented signs are only allowed by administrative approval of a sign permit application or by approval of a sign code exception by the Commission. As discussed above, sections (1) and (10) are in direct contradiction and given the code as a whole, the most reasonable interpretation of the code is that where section(1) applies, the remainder of§ 18.780.090(E) is not applicable. Attached is a copy of a memo previously issued by the city stating that no land use regulations apply to freeway oriented sign permits within the city of Tigard. This is the city's former and correct interpretation of its code. III. The Director's interpretation of TMC § 18.780.090.E1 is incorrect. The Director's interpretation states that: "The `separate approval' provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not `qualifie[d] for a permit from the state of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the Portlnd l-2141370.1 0053401-00003 • • City Council June 10, 2003 Page 6 • person must provide evidence the OMIA permit has been issued. (emphasis added.) "This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building codes, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards." The code specifically states that"all words used in the present tense include the future tense." TMC § 18.120.020(A). There is no provision for replacing the present tense "qualifies"with the past tense "qualified" as the Director has done. The Director's interpretation ignores the definition of the word qualifies. To qualify is to meet the required standard. Webster's Ninth New Collegiate Dictionary. A billboard meets the required standard if it is consistent with the OMIA. This could be shown by presenting an OMIA permit. It may also be shown, however, by establishing that the proposed site is along Highway 217 or 1-5 as required by the definition of freeway oriented sign and that the'applicant has a relocation permit. In reality, the Director has interpreted the code to say"Anyone who obtains a permit from the state of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard." While the city might choose to amend its code at some later date to address the Director's concerns about administering the current code, the city may not do so through an interpretation that ignores the plain meaning of the words chosen. The Director is simply incorrect in arguing that the only way for the City to determine if an applicant qualifies for an OMIA permit is by verifying whether a permit has been issued. An example of a letter that an applicant could submit as part of a package to show that he or she qualifies for OMIA permit is attached. IV. The billboard prohibition in the sign ordinance is unconstitutional as adopted, as interpreted and as applied under both the federal and state constitutions. No consideration should be given to the prohibition of billboards in TMC § 18.780.070.M. Given that the sign ordinance states at one point that billboards are prohibited and at another place that they are allowed pursuant to TMC § 18.780.090, the billboard prohibition is unconstitutionally vague in violation of both the state and federal constitutions. TMC §§ 18.780.090(E)(6), 18.780.070(M). An applicant cannot tell from the text what is prohibited, resulting in unreasonable government discretion in the enforcement of the regulations. Portlnd 1-2141370.1 0053401-00003 • • City Council June 10, 2003 Page 7 Accordingly the billboard prohibition is void in violation of both the state and federal constitutions. The billboard prohibition is also overbroad, regulating more speech than necessary to meet any legitimate government concern. Billboard is defined in the code as a sign face supported by a billboard structure." TMC § 18.780.015(A)(8). Billboards structure is a"sign face supported by a billboard structure." TMC § 18.780.015(A)(9). Sign is defined as materials placed or constructed primarily to convey a message or other display and which can be viewed from a right of way, another property or from the air. TMC § 18.780.015(A)(48). With these definitions, all materials placed or constructed on a structure to convey a message or other display which can be viewed from a right of way, another property or the air are prohibited. This is a prohibition of any and all signs external to a building or which can be seen through a building window. This is clearly an overbroad regulation of speech in violation of both the state and federal constitutions. Under this interpretation of the code, appellants are also denied equal protection and privileges and immunities guaranteed by the state and federal constitutions because they will be treated differently than other applicants whose signs fall within the plain meaning of the broad definition of sign in the code. Accordingly, the billboard prohibition is void in violation of both the state and federal constitutions. The billboard prohibition is also unconstitutional in violation of both the state and federal constitutions because it lacks narrow, objective and definite standards to guide the licensing authority. As the Director admits throughout the interpretation, the code is ambiguous. The billboard prohibition is an unconstitutional prior restraint on speech and unreasonable as a time, place and manner restriction in violation of both the state and federal constitutions. The billboard prohibition does not further a legitimate government interest and is therefore a constitutionally prohibited restriction on speech in violation of both the state and federal constitutions. The only rationale for the billboard prohibition in the enacting ordinance is that, allegedly, in 1993 people didn't like billboards. The ordinance is constitutionally defective in violation of both the state and federal constitutions because it does not identify a government interest sufficient to justify the restriction of free speech. The code interpretation violates appellant's constitutional rights in violation of both the state and federal constitutions and therefore its civil rights under 42 USC 1983. As indicated in the staff memo requesting the interpretation, the purpose of the Director's interpretation was to obtain a decision to be applied to pending LUBA cases. The purpose for the City Manager's immediate appeal of the Director's interpretation, without any challenge to the content of decision, was in order to get council approval of standards to be applied in pending Portlnd l-2141370.1 0053401-00003 • • City Council June 10, 2003 Page 8 LUBA cases as indicated in the staff memo requesting the interpretation. This process violates appellant's due process rights under the federal constitution by utilizing an "appeal"procedure where there is no challenge to the Director's interpretation in order to cloak the staff decision with deference. The appellant Media Art was not provided with a copy of the interpretation until it requested a copy on May 28, 2003. This was 12 days after the interpretation was made. Despite the fact that Media Art was clearly affected by the decision, staff did not provide a copy of the decision to Media Art until Media Art specifically requested copies of whatever was in the "appeal file" in order to understand what the mysterious public hearing notice received on May 23, 2003 concerned. This is not a true interpretation decision because it inserts terms into the code and ignores the plain meaning of words in the code. This is an attempt to amend the zoning code without complying with the substantive procedures for amendment of the zoning code, in violation of appellant's substantive and due process rights. V. Use of the Director's Interpretation process to revise the ordinance violates TMC § 18.380 and Statewide Land Use Planning Goal 2. Legislative zoning text amendments must be undertaken through a Type IV procedure as governed by TMC § 18.390.060G. As discussed above, the proposed interpretations are not consistent with the language of the code and in fact act as zoning text amendments. Accordingly, the city was required to use the zoning text amendment process set forth in its code and may not make any zoning text amendments adopted after appellants submitted their applications applicable to those applications. This form of zoning text amendment also violates Statewide Planning Goal 2 which requires a citizen involvement program that insures the opportunity for citizens to be involved in all phases of the land use planning process. VI. Conclusion For the foregoing reasons, the city council should reject the Director's Interpretation and reaffirm that interpretation formerly used by the city which provided that there are no applicable ordinances, plans, rules, or other requirements with the exception of building permits that would be imposed by the city of Tigard in regards to permits requested under the OMIA. Ve I ours, -ven W. • bel SWA/pjn Portlnd 1-2141370.1 0053401-00003 • • RECEIVED • APR 01 2003 CITY OF TIGARD CITY OF TIGARD Comm:mayDevelopment BUILDING DIVISION ShapingA BetterCommtatity MEMORANDUM CITY OF TIGARD TO: ODOT Permitting Agent FROM: Brad Kilby,Associate Planner 1,00,1:et DATE: January 14, 2003 • SUBJECT: Freeway-oriented signs Pursuant to the Tigard Development Code, Section 18.780.090(E)(1), "Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist information Act need not seek separate approval from the City of Tigard." Therefore, there are no applicable ordinances, plans, rules, or other requirements with the exception of building permits that would be imposed by the City of Tigard in regard to the permits being requested by West Coast Media under the OMIA. ti If you have any questions, call me at 503-639-4171 ext. 2434. • • 1044j l ei\ CITY OF TIGARD FACT SHEET 13125 SW Hall Boulevard Tigard, OR 97223 Contact: Brad Kilby (503) 639-4171 AGENDA: June 10, 2003 TOPIC: Community Development Director's Interpretation regarding Billboard Signs. BACKGROUND: On April 13, 1993,the Tigard City Council,by majority vote, agreed to prohibit billboard signs in the Tigard city limits, and to remove the approval criteria for billboard signs from the Special Condition Signs section of then TDC Section 18.114.090. Earlier this year, West Coast Media, LLC, and.later Media Arts, Inc. applied for building permit approval to construct "freeway Oriented" signs under the premise that if they received approval from ODOT and pursuant to the Oregon Motorists Information Act (OMIA) they would not be subject to separate review from the City of Tigard. City planning staff recommended to the Building Official that the building permits for the signs be denied after finding that the signs that were applied for exceeded the maximum allowable size and height for "freeway oriented" signs, and that in fact, the signs that were applied for appeared to be billboards. The Building official denied approval of the permits, and the two companies filed appeals with the Oregon Land Use Board of Appeals. The appeals were based on language in Tigard Development Code, Chapter 18.780. Staff requested that the language be clarified by the Community Development Director. On May 16, 2003, the Community Development Director issued his interpretation, and the City Manager appealed the decision to Council seeking affirmation. COST: 250.00 appeal fee • • AGENDA ITEM# FOR AGENDA OF June 10, 2003 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Appeal of a Director's Interpretation Regarding Billboard Signs PREPARED BY: Brad Kilby DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL Should Council approve a resolution affirming a Director's Interpretation of language in the Tigard Community Development Code,Chapter 18.780,regarding prohibition of"Billboard signs" within the Tigard city limits? STAFF RECOMMENDATION Staff recommends that the City Council approve the resolution affirming the Director's Interpretation of language in'the Tigard Community Development Code regarding prohibition of Billboard signs. INFORMATION SUMMARY On April 13, 1993, the Tigard City Council, by majority vote, agreed to prohibit billboard signs in the Tigard city limits, and to remove the approval criteria for billboard signs from the Special Condition Signs section of then TDC Section 18.114.090. Earlier this year, West Coast Media, LLC, and later Media Arts, Inc. applied for building permit approval to construct"freeway oriented"signs under the premise that if they received approval from ODOT and pursuant to the Oregon Motorists Information Act (OMIA) they would not be subject to separate review from the City of Tigard. City planning staff recommended to the Building Official that the building permits for the signs be denied after finding that the signs that were applied for exceeded the maximum allowable size and height for"freeway oriented" signs, and that in fact, the signs that were applied for appeared to be billboards. The Building Official denied approval of the permits, and the two companies filed appeals with the Oregon Land Use Board of Appeals. The appeals were based on language in Tigard Development Code, Chapter 18.780. Staff requested that the language be clarified by the Community Development Director. On May 16, 2003, the Community Development Director issued his interpretation, and the City Manager appealed the decision to Council seeking affirmation. A separate appeal was filed on behalf of Media Arts, Inc. by Michelle Rudd of Stoel Rives LLP. The Director's decision is partly based on Ordinance 93-12 that was passed by the City Council in April of 1993 to prohibit Billboards in the City of Tigard. OTHER ALTERNATIVES CONSIDERED The Council could disagree with the Director's Interpretation. • 0 VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Not Applicable ATTACHMENT LIST Attachment 1: Staff recommendation to the City Council Attachment 2: Resolution affirming the Directors Interpretation of Billboard signs in the City of Tigard. Exhibit A Director's Interpretation of language regarding billboards in the Tigard Municipal Code and Ordinance 93-12 Attachment 3: City Council Hearing Minutes for April 13, 1993 Attachment 4: Planning Commission Minutes for March 8, 1993 Attachment 5: City Ordinance 93-12 Attachment 6: Addendum to the staff recommendation to the City Council FISCAL NOTES The cost of the appeal is$250.00. • CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD • TO: Members of the Tigard City Council FROM: Brad Kilby, Associate Planner DATE: May 28, 2003 SUBJECT: Staff recommendation regarding the appeal of MIS2003-00021 The Tigard Municipal Code Chapter 18.340 affords the Community Director the discretion to interpret any terms or phrases within the Tigard Development Code that may be ambiguous or • subject to two or more reasonable meanings. In December of last year, I was approached by Chris Carlisle of West Coast Media, LLC to sign some zoning affidavits for several properties within the City of Tigard. He indicated that he was intending to apply for sign permits from ODOT under the Oregon Motorist Information Act. I wrote a memo to ODOT regarding Freeway Oriented signs, and indicated in my letter that as long as they received OM IA approval for the signs, the freeway-oriented signs would not need separate permits from the City. I indicated to Chris that he would still be required to attain building permits for the signs, and expressly stated to him as did the counter staff, that Billboards were prohibited in the City of Tigard. Earlier this year, West Coast Media, LLC and Media Arts, Inc.applied for building permits for signs that exceeded both the maximum allowable height and size of freeway oriented signs. At my direction, the Building Official denied the permits, and refunded the review fees for those permits that were not structurally reviewed. Both companies filed appeals to LUBA. As a result, I requested that the Community Development Director issue a formal Director's Interpretation regarding language that mentions Billboards in Tigard Municipal Code Chapter 18.780. On May 16,2003, the Community Development Director did issue a formal interpretation that substantiated my letters. The Director's decision is partly based on Ordinance 93-12 that was passed by the City Council in April of 1993 to prohibit Billboards in the City of Tigard. The City Manager appealed the interpretation to allow the City Council to review the interpretation to affirm that his interpretation is correct. Subsequently, the City Attorney's Office has withdrawn the decisions in order that we may reissue the decisions with findings. Staff review of the pertinent materials that are enclosed as part of your record, indicates that the intent was to expressly prohibit billboards within the Tigard City limits, and concurs with the Community Development Director's Interpretation. Staff recommends that the City Council affirm the Director's Interpretation. t • CITY OF TIGARD, OREGON RESOLUTION NO. 03- A RESOLUTION TO AFFIRM THE COMMUNITY DIRECTOR'S INTERPRETATION OF LANGUAGE REGARDING I3ILLBOARD SIGNS IN THE CITY OF TIGARD MUNICIPAL CODE CHAPTER 18.780. WHEREAS, the Community Development Director is charged with making interpretations based on the best available information for any ambiguities or words having multiple meaning in the Tigard Development Code; and WHEREAS, the Community Development Director's Interpretation is supported by past Planning Commission and City Council actions to expressly prohibit billboards in Tigard; and WHEREAS,the Tigard City Council passed Ordinance 93-12 to expressly prohibit billboards in the City of Tigard; and WHEREAS,the Tigard City Council held a public hearing on the matter on June 10, 2003, NOW,THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council hereby expresses its affirmation that the interpretation (Exhibit A) made by the Community Development Director is in keeping with the intention of the Tigard City Council and the purpose of the Tigard sign regulations of the Tigard Municipal Code Chapter 18.780. SECTION 2: This resolution is effective immediately upon passage. PASSED: This day of 2003. Mayor- City of Tigard ATTEST: City Recorder- City of Tigard RESOLUTION NO. 03- Page 1 • DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1 and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure" means the structural face which supports a billboard. TMC 18.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and"billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term"billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code a llows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with'any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Page 1 of 4 • B. TMC 18.780.090.E.1 Code Language TMC 18.780.090.E.1: Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The"separate approve provision of TMC 18.780.090.E.1 distinguishes the Citys sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not"qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued. This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what "qualifying for a permit' means. The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in a n avoidance of the City process in cases in which the state denies the OMIA permit. This is clearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA.A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval"from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 18.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approver') if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the.ORS 337.723 affidavit indicating compliance, the person has not"qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1. The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the.issuance of a building permit for billboards. C. TMC 18.780.090.E.6 Code Provision TMC 18.780.090.E.6: For freestanding signs, a total maximum sign area of 160 square feet per fact (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC f8.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.T80.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard-a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Page 3 of 4 This interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E.6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of"billboard" discussed in Section A above, the structure of a smaller sign would not be a"billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E.6 and TMC 18.780.070.M because TMC 18.780.090.E.6 does not allow any billboards prohibited by TMC 18.780.070.M. III. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS This decision is final and effective upon mailing. It may be appealed to the City Council pursuant to TMC 18.340.020.E and F. James N.P. Hendryx, Community Development Director DATE:___ _ _ _ _ Page 4 of 4 • ,�1S;+r:� vfiw F> R i1S�.1t::Si'G,ghf n .mt q . 'M f.; a {' • :tS CITY OF TIGARD, OREGON ORDIHT:ICE NO. 93- la AN ORDINANCE TO AMEND PROVISIONS OF THE COIMJNTTT DEVELOPMENT CODS ( SECTION 18.114.070 TO ADD SUBSECTION N. TO PROHIBIT BILLBOARDS AND TO REPEAL SECTION 18.114.090 A. SUBSECTIONS 1-4 WHICH PROVIDES ION BILLBOARDS. WHEREAS, The City of Tigard . ..yds it necessary to revise the Community Development Code periodical_ to improve the operation and implementation of the Code; and WHEREAS, The City of Tigard Planning Commission reviewed the Staff recommendation at a public hearing on March 8, 1993 and voted to recommend approval of the amendment to the City Council; and WHEREAS, The City of Tigard finds that the amendment does not affect City Comprehensive Plan Goals or State Planning Goals; and WHEREAS, The City of Tigard finds that there has been a public outcry concerning the proliferation, number, spacing and aesthetics of billboards; and WHEREAS, The City Council held a public hearing on April 13, 1993 to consider the amendment. THE CITY OF TIGARD ORDAINS AS FOLLOWS: • SECTION 1: The Community Development Code shall be amended as shown in Exhibit "A". Language to be added in y1Q,. Language to be deleted is shown in [BRACKETS]. This ordinance shall be effective 30 days after its passage by the Council, approval by the Mayor, and posting by the City Recorder. PASSED: By mCA4Uri4 vote of all Council members p�sit after be read by number and title only, this 3"• day of • t , 1993. // Ca rine Wheatley, City rder APPROVED: This I-4 �� day o f //ii . , 19 d`." �` • Yo lea r Approved s to form: City Attorney 4 Date ORDINANCE No. 93- fa Page 1 fua;a' . .:. •--° :::._ . .ter. ., .._. ..-.. :. .- - .. - :_ ..., .. - ,._........_.-...._ .__.,.. . • S • EXSIBIlf "a" 18.114.070 oettain gigs jtsd �.. Bill Q - . iiLLUALuLastaiaLssmatisizudgm ]l.. Special, .csonditioe..signis shall have special. or .unique dimensional, loaational, ill®iixa►tian,~maximum.number or Cher reguirmnts imposed upoan'thea is 'addition to the ,: regulatioi' contained 'in this Chapter: [1. i illboard: a. Billboart aigs regulations shall is as lollatis: (i) Zoneae.Fo mlittoed: (1) Billboard sign, shall..:be permitted -only in a .C-C commercial. sans.for I- • p,• 2 L and s,I-8 i` ndustrial *Ones. and then- only. within,, 660 feet rot- prove. Stetssy Bo. 217 and/or intarstate Freeway No. S right- •f- :mays;:: 1._ All Dalr.:propas :billboard aiga(a) :wit in 6160 feet of..:.tte:,public right-of-way of a state-hi_qty must obtain the necessary,: perait(s) from the State Highway Division:and-all billboard,sign(s) must be saintaln.d .to' vonfor.= with applioabls state. requirements .pertaining-to:billboards= 3:. gill ilgns,, together' With all of their- u , bracaes, •guya, :.a�tid :aa osrs Shall be. kept '-repair:and shall bi. . :fri,a safe:co�diticn:. a., All ,Signs_ and the situ upon which they are located'shall be maintained in ,-'neat, clean, and attractive conditioni b. Signs--shall be kept free from eirvsssivs rUst, corrosion, pealing paint,. or other surface •• deteriorations and c. ,.Ts display ,sarfaors .of all signs shill be kept qtly painted'or posted; 4. * bspt as ,.Otheniiie provided in this subsection, rr.• e :r a . , . .i +-. ..•-,' ::..>. ... -"...-,. '..-...... .rC.e.�M+Ae %+:,i�: L^.ranouti°", y,iy bi116oards flt1'icft AO fOt y: f to {t .: pr viniats: :of -this, title sha►11; be ttisiardsgi its • -nenoOnfOridsgi Signs, Ind`.sh l'1 bs .'sub j ect- •to Uwe pro+iicicns. o! Snb iaotitia .18,114,110.j• J..114.110 p''tra.,.� ..1b i e+roe c. c osericial Zones. 1. 0.. Silibcard :signs 1A-. •041: C-C sons- aaly, in atcOOrdstrci Mith: S.ctiaf 18,114_090.as l F. Industrial ZCnsa • 1. [s. Sillbobzd "Signs .in •accordance.: vith Section • • 18.114.090:A; j • < _ • Attachment l CoUndil.Agenda Its' 34 TX :GARD CITY COUNCIL =WOG, h., "'VIM - APRIL 13, 1993- . Meeting vas .called to order at 6:30 p.n. by Mayor-Edicards. X! 22141-CALL coUncil Present: Mayor . Jerry: Edwards;. Councilors Judy: Feebler, liendi Conover :Hawley,- 'Paul Hunt, :And John-tchsrartz. Staff Present: 'Patrick Reilly, CitY-''Edministratisr; Dick B.wersdorff, senior Planner: Ed,**pay, Cdsininity,Dknisl'opment. Director;.Liz Newton, cominani4 Relations Coordinator;llicbaal Robinson, ',Legit counsel; Catherine-Nheatlityi 'city Recorder; and Randy WpOI0Ye, city'Engine-or,: STUDY,',SESSION - .fias_ifinr- city Adainiatrator reported that there was gas leak, in the,serVide line to City Rail last. Week. A=tesPorary,rePair wag don.: hi will report to-Council on the proposed persanent..SOlUtiost. - Volunteer Dinner, - Reinder NeXt.':.mswsk on TIMIr6414. April -22. , - Goal -setting- sesaion, - tentatively ,set for May 15. (NOtes Changed,.pkt,.0-r in Week to tentative, date Of May 22.'), - litjareztagarijbasagigeijam City Mainietrator advised the Library 1,tas enbcosSittee. for future sirategid :planning. They said it. Would useful ifv!,,11 council person would attend t.hts, subconaittee meetings (4/26 and 5/3, 8-9:30 a.s.:),.- Mayor Idsiards adalsed.ba oOld -like to attend, -bUt.,COUld only ge, .ifthaY'hold the.ineting in the .evening.. )(Lan Street Councilor Fessler reported that no agreenent has been reached on .-a, project for the Plain Streit area..for the $50,000: available. There van brief discussion -onprioritlea of Spending - ciOnglnitleSantarSOIliiiikA-- Tentatively.wilrbe asked to *net With City-Council on 4/27 to -discuss *what-Alert* on CoankunitY Center idea. - CITY COUNCIIOGUITINQ MINUTES' APRIL 13, 1993 PAGE 1 • • • . .•this po aibi`lity of reducing,''tha O:c*Or,Of-',�Iist ' a!!*. >tcmth. After disc uss on,. <"was:"thait3`tbs s of ssotings ' Id tot=be avtc�itica1Iy_ rrducadC`�tei4.40.0 instead of three. aiaat;ings. t iil-`iMgs' sid,`that" "City Adsinietrator would awl^itor..split and isatiis to 900a before Council and sake "a dedssion on Whether a tnfid.: seetitig•is-"necessary. citizen I 9lvsmrt_Tsa aa, - Councilor Runt- noted that.ha and Councilor- Havlay`,attsnded asetin9 of NPO's 3, 7, and • S. Be-.sought clarification of 'irhstber. it-was :"COunail!_s- intantion to have a Counail::arndier be at sa 3h of- aeetinge.. `After discussion, _council--d.cidad.that"_th y would 'flat plan to attend a ,;CIT sting .as a regular assignssnt; howwuc, .it, a: Councilor iii- :n edrd for a particulat..issue, a-somber. would attend. There;was:soas'discussion on details of 'CIT- .structure and process• Councilor Hunt suggested d "a* staff parson be provided for akinute taking.. Cosaautity" Relations Coordinator . Newton► rill,;rssarch-"the coats of mailing agendas-a! CIT awatings on a aonthly bails through a bulk sailing .or..ifcorparatinq into Cityscape. • „Review • .Cot>sant -]I+genda►.. Its*, 4.6a. Councilor SChwarts questioned.the. **rite of aoncr is 'versus. asphalt With regard to tha bill _award' for '"the Dartmouth ,Street`,paving.: Be advisaid, he would 0100st that this itaa- .bi► pulled. fros the Consent Agenda for separate diScussiOn.- • Ths:following:.agenda its= are also _identified by Council •ataibsrs "ask "teas which will be .asked for clarification on "by, !staff: , ;Ites 4.4, 4..g,," and 7. 2. PROCL iTI0 8. .& SPECIAL itEco limos 2.1 PROCLAMATION: APRIL 1993 PAIR:H 8ING,.MOUTH " • »ayor Edwards Z. SPECIAL PEZENTATIOS - STATE .CtuAHpIONs - :TIED HIGH sc800L mop:. "GIR SOCCEit'"TEA1I.A BOTB`',BALearfB11LL-TE K • Xayor Edwards • } CITY COUNCIL - KnonB - :APRIL 13, . 1999• • PAGE 2 . . • 3. VISITOR'S Um& Zack Palma, '16000 S.W. 'Vaal* VictOria Zing City, OR .97224 requested.that Ccasent.Agandis.ltinle--.4.2b,and 4.3 be .plikliad from the Consent Agenda Ito*: to be discussed Karr-Link, 13050 b. ...1Nalritat Street, 'Tigard, Oregon.97223 testified that he and his,family were greatly impacted by the-:ordinaage approved by the City Council on March 23, 1993. This ordinance approved:.a.IpecifiC-.plan to_build a major collector through.their'property at'sone point,in th e ,fUture. • Mr: ,Link requested that.Conabil, Consider.directing-staff to begin negotiation. for the *troth, of hi. property. .Mayor atdVised that Cow "ii Would.dietamiethiai:irausi liter in the leietiedj widet..mmon...agsncia.10 4., colanakana Notion:by courkcixor''Fiiitaloopt„ :seconded.0t.CounciiOr -to remove Items 4:2 'b.. aid :4.3- for furt,her Aliscaresitsv. ,The motion- was approved by a unanimous vote of "Council' Present: 'Motion' by COuatilor,I3Chwartas seconded, by CoOngilot ressiler, to remove Its* 4.5 ..a. for fiu?ther diecussioir. The motif*,was akiwoved -by unaniMoue.:vote of .CounCil-present.-. .DiscussiOn: on I,teri 4.2b: tity. ;Administrator Reilly, advised that an annual review of the Solid..waste haulers' statlasate ,incose:and',eXPenditures.,-tinse coaducted. Thereto Of return experienced:by each of the haulers was sufficient as specified .-their agreements with:the CitY. No adjiatient to the solid, waste rate:,is :needed. However, if the Ntip loss .charged by metro is raisect,,, then the will have:to pass .through the increase at a -liter date. Discussion ch.-It-da'4.33 Councilor Tessler clarified- that the policy to „provide. -duplicate. tape„ -recording. ' of. Council *ratings- at the Library would be doriefOn Oasis. =After:brief discussion, Council consensus was to have staff'' keep: record* .of .tisS. *expended to prepare -tapes to determine the cost'to -city. Discuss Ion On Item :C.5aA Councilor EchWarts asked.. -City Engineer questions- on the merit*: of asphalt versus cement.. 'After discussion, city:Engineer was asked to...Frigate a report outlining fiscal iiqpa0t information relating to asphalt and cement. Also, Councilor SchWarti:nailed.several roads in other cities Which were constructed with concrete and-he suggested' thee* cities-be asked. WhyAhey decided to Use oendrets. _ . CITY COUNCIL MEETING'MINUTES -.APRLIL 13, 1993' - RAGE. 3. • • Motion by Councilor:Wit, sedonded by,Councilor mss, to rsaove Consent Agenda-4:6a. for-.consideration-at the'April 37,, 1993, Conncil nesting. The notion.was approved r by a unanimous vote of Counsil..prelent. Motion by councilor- Fes slr seconded by.,'Councilor Schwarts", to.:.approve the Consent:Age na1L e, leis Item 4.6a.. ''The motion was. approved by a-_unanisous vote:o. .Conartcil-"praeaint. 4.1 Approve .Council Minutes:. March 16 and 23, 1993 4.2 :Receive and tile: a. Council Calendar b. Solid. Waste:. Rate Review - .,March 25, 1993, • Memorandum frog Aating. Public Works -Director to City,.Aii inistrator:'; = c. Purchase Using =Forfeited, il ' -ssats - April 2,::199.3, Xsraorar duil- frois Chief of Police to-.Mayor and City Council 4.3 Approve;Policy Making Tap4:Recordings:.of council:Business Meetings Available in_the Tigard Public-Library on.a.Six- Month Trial-Bagis 4:4 Approve AgreeMent Accepting v.8:.. .Fiah and .-wildlife Fervic* Grant Funds (Administered. - through $Strd " -- Greenepaces Grant). and Authorizing the Mayor to Sign 4.5 Approve Resolution Recognizing_ Grant 'Revenue (Metro Greenspaces) and. Increase. Appropriations to Permit EXpenditura',of Grant Funds - Resolution No." 4..e Local ,Contract Review Boards. a. Bid Award.: Darta outh Street (Set over to 4/27/93) b. Bid Award Vehicle Purchase of Cab and Chassis to .Guaranty' Chevrolet. and Service Van Body to .Commercial Body Builders 5.. =MK ORD asupoixam, ioil 93 0002. ,BI3:iaQ8 !S (ALL WRVS) ,A prOpoai►l.•to:amend section. 18.114.070 and 14413.4490 -of the Cosmuni=ty.Developmecit'COde to.list;billboards=under:.the category" of siigns prohibited: :(18.114.Q_70.11) rind repeal provisions 'allowing Construction of billboards (18.114.09ta A.1). APPLICABLB;:.REFIBM CRI'1'3RIA;".. Statewide Planning Goals1 and.,2; Coapr.hsnaiv. Plan Policies AA .2:1.1.- and:-2.1.31 Coauunity,.Development:.Code chapters ,18.30 and .18414. a. Public hearing was. opened. b. Theire.were no declarations Or;challangss..: c. Senior Planner. BewursdorfVpresented the staff' report. The ,potential for additional billboards exists under currant Coda provisions. CITY COUNCIL MEETING MINUTES --:APRIL. '13, :1993. - PAGE 4` • • • ti d. Public-.testiaiany: • •D.M. Paul-.advised, he reprss need t .:Colony. .. •Neighborhood Association. Be. testified against the use of billboards noting objections to saaarinq'the 'landscape .with -billboards and advised they were .harmful"to.'t aesthetics and.attractiveness of the City.- •AdditiL. =11y, he cos entsd tbat.:bilj air • 40- not increase ..::sines but that, in fac,_ prl css -ars..raised because. of:their use.. The fres speech argument used to coxitiitue to utilise:billboards was argued .by ur.. Paul to be !1.galisit! and_ *legal, j aai rrgqOpn." As advised., that :billboards- vev a. a "blight" and-existingsigni Should be:'torn down. • .Ri'lliaa DOnE' Q, residstrt. :of- LsIGS: ;Oswego and. business owner at Highway "217''and Scholl* advised he agreed with Mr. Paul. He advised 'of his surprise that the Tigard- Code..allowed, billboards. Ha said that Tigard: bad an isag ` problss to • overcol a -and_ that billboards were one aore detraction. qtr. 'Denacka: coapared the:2 7 ''arena in Tigard unfavorably to- the :Krouse May :area 'in< Lake- Oswsgo. •. Chris Hartaan •of Ackarly_ Signs suggested that the Tigard Code.. .bsL changed tO *Cap and replace" language.. This would:mean. that the existing; number of ,signs would, be allowed to taint however., the signs,.could• bo -coved''to another-Tigard •location or altered. • • Brian.obi. :Obis-'Signs noted,his family:.business had existed for, aasny,,Years. Me advised. he, .has Worked.with.the City when objections-wars: raised on the orientation of :oz af. his age. ar.. Obie..said he Was trying to build.. credibility as; 'being cooperative With.. Tigard. . . Ss referred :,to the~ Federal governisent beautification:_act and .advised that::billboards signs aze.allowed in cs tain.,scntiss.. In, response"'to the .staff °report,- he-.said'ha did not see: :the ,potential -for `26 -additional' -signs in Tigard. Mr. Obis said that: there is _a Marge investment, hundreds of thousands'otrdollars, in the.:fiv.' "signs he has. :He said this-.represents significant:income to the -City as asesssid':on the. property tax rolls. Kr,. Obit .r iported that 90 PerCent of the businesses which use hie billboards.hays Tigard "addresaes'. :CITY COUNCIL MEETIMO MINIS APRIL. 13', 1993 • PAGE 5 • • E -advised. that hi s .�c p proposal sgested fro the ya k rtly rsp iaorI Bid reigtesOntatiwii. With. regard to thli caMosu city objection to billboards Rtgts, ltr.: Obis. said.there,`rs "Only taw", people prsa. +: to testify at thee Plaq. Commission atsa. •;vg,-. There- has: bass no great- community response of cofcar"l. kr. Obis said -he. was willing to coopatate with tbs City. a. Council coilents:` co:mailor; 'Yorssiair asked fo r`: olarittcattion o n the;,-plac�nt `(has oriented) .,, ..nuabar of signs .prisant in.tb.S City of Tigard., -" Mayor `=Edvarda objected to .the ooaeparison of Krvsol- W1ay'uand 117, in,.Tigard .advising .s"-was like c oaparing "apples"and oranges. Thai Mayor cited.Tigard's *conceit vitality.,in referee s to the eoaaant- during tustia ony about `the "17tag. "pr"oblem." He also advised that,he had received two tele ne calls concerning the billboard issue/ these call rs ±i d not," .ct :tea":billboards._ The Mayor questioned -hether the *ajorityy .of::resdents---bad any►'problem/1- or 'strong opiiifotis,:,vttb rrgaril'to .billboards. - .Councilor.PeasIar..,Ucat wad;C sri$icatiOan-,from Legal Counsel . Robinson On the., distinction 'b tweon:141 oarda.a d'tts ray.oriented signs. - .councilor Schwartz rsc ivid...confiraatian fmoat Senior Planner Baversdorft that about :18-30 billboard- peraits hairs b ":',issued: Two billboards;,:are- currently. under construction. Approval of the proposed ordinance would prohibit'-any :additional; signs. • •TnSri:vain' discussion:.oe .the. soap- and- replace - Pprsserited by-thhs sign company. ovZra. lanner ,.BowersdorfC advised t_his ooption, was 'riot,covered under .thew proposed ordin inao. This option, advised .Legal.. Counsel Robinson, •would need: -rocs study- should •the Council. decide to pursue. CITY COUNCIL *WPM 1lIN T. - .4PNIL -13, ,1993 FAGS 6" • f. staff -recoavended the :Deve los,sent. COda be:vended to repeal he provisio t:in ' ter 11.114.070 11.1-4 that allow billboards and-to..list:billboards Under Chapter,-.18.114.070 .N as .a sign prohibited. g.. Puiblic hearing was-clvsad. h. Counci. - nm d�ration: Cotmcilor. .RUnt advised ,,he would support the proposed ordinance ase t. 0. said he would be trilling to explore the +cap and replace"° proposal at -a later date. • Councilor Fegeler. also supported the proposed ordinancs;:aasndaant. She advised--alts has heard from a -nusber of citizens who objected to :,billboards-. Councilor, Pass sr said she Would be .willing to ,investigate-.th the and reP1ace" pr p'oaal as Well. •. councilor" Rawley; advised that -she would support the 'proposed-ordinance, ansnwt. She consented that it was not necessary to receive tastinOny fron a great nvaber of peopl* with regard to the representative`,:testimony given- by` c; Paul. Councilor-,Nafrlay:said:, in, addressing planning issues,Were being 111de and• Would be noticed over tiss: 'She referred to planning 'efforts in the Tigard.--Triaigle. arse With:regard,to design standards.. Nayor Edwards,Advised he. had inolro,bledie with the existing ordinance 00 noted concerns with,.spending-,too such tins accoaii dating and addressing'concerns °and:comnts re�ived fros, a minority, viewpoint in. the connunity. i. -43RDXNANCE: NO. 93-13 - AN ORDINANCE . TO AKEND: PROVISIONS'. :OF T118 comp XTY: DSVELO pube . CODE SECTION 18.114,.070.:TO ADD SUBSECTION N. TO PEONIBIT BIL RDB AND TO:-:REPEAL' ;SECTION `18.-114.090 spaggcTIoos 1-4:;-1 f PROVIDES:FOR' aILINOAR S., 3.. !Notion by.:Councilor Bohnertz,.. aecqnded.:by..Cauunailor Hunt, to approve:•Ordinancs The notion was approved-by a a.a j ority (4-1 j vote Of council pre t. (COuriallors Tessler, Hawley, Hunt, and -Schwartz voted "aye"_.--Mayor Edwards voted CITY COUNCIL RENTING MINUTES - ApRIL.13,- 1993 - PACE ,7 • - Attaahme6i4 . . TXCAP11.BLIMIN:1390 COMMIESIal .1*(MiLialiEETEN1 I, 1093 „ • 1. CALL TO:0001R: President,,Pyre Called the meeting to order at- 7:30 p.tc_ thi meeting was held in the Tigard Civic Center - TOWN MALL '144 Boulevard: 2. ROLL CALL: _ - - ,KtESENT: President-,Fyre; Committsioner;s130ozies ,Oaittilet -Holland; Mai*, and ABSENT: ,CatimiSsioners :Saporta; Sauttein, 2SChiab. STAFF: Senior. 'Planner Dick Beirersilbrlff; • Senior ..Planner -Carol . =Assistant- Planner Jerry; Offer, and Acting;Planning,CoMMissien Secretary biape .Velderkt-. - 3. APPROVE 033IMMS, CcalaisSiOner::Castile moved and Commissioner-BoOne seconded,to approve the Minutes. for February_ 22:14;-.-meeting as written. Motion :passed by -Majerity. vote of CCiatissioners present. colmissidner;Schieitznbstaine0., 4. 14.111011310 CCOMILTISTC41'4:01103112cArliwW1 There were no, coMmunicatioras .received for this meeting. 5. pORLIC:EraalawD: _ _ NPO',S)- A proposal to_amend sections'14..114:41,70•and;.14.114.040- of the teaittinitys'DvolOpment Code to fiat billboards under•the category of signs prohibited: (14.l1*:-07044) and repeal provisions .allOoping toniktruation of: billboards APPLICABLE. -REVIEW 'CRIVERIA:', Statewide Planning-•Goals 1 and 2; **probe:4/4e- Plan Policies 1.1.1s.a, 1.1.2, 2.1..1, and 2.1.3; Community Development Code Chapters 16.30'and 18.414. to Senior Planner Dick •Bewersdbrff reviewed staff's proposed amendment to the Development Cade which would prohibit further billboard Conatruction. in, the City, while leaving in .place those ,billbentdiAirimacii constructed: PLANNING COMMISSION MINUTES - March 8; 1993 Page S • :PUBLIC TESTIMONY •• Brian Cbie, .:2081.Musket, itgene, OR,574101, eStilained that. his cosspany constructed six bilibo rd:signs-along Highway 217. Be. felt the signs,.were of;:value to the community. -He stated that, this proposal is a► :result of an :article in the Tigard Times, and not necessarily .a concern-2of the business cc uni"ty and • citizens. 'He supported regulating billboard a igns but not • prohibiting -thew. ',He favored a moratorium on construction until regulation -for. spacing,, size, and, location:- could -.be proposed.. •• Will Denecke, .:2655 SW'GIen Eagles P4., Lake Oswego,, OM. 97034,. -works in the Trammel Crow office off Highway 217 and:travel's' travels' Highway. 217 ,regularly.- He> strongly supported staff's recommendation to prohibit'any.more''billboard *Signs:. He felt they were; a; horrendous. sight. .- stated.. tit: .other- lmriadictions such asLake{.Oswego and iiilsonville prohibit •billboard signs. le :felt billboard sign: detract fret the image of Tigard. He supported taking-action to have existing bill board signs reMoved. ;PUBLIC HEARING CLOSED • Commissioner :Moore stated that. he ,has :-.been approached by numerous .individuals. about the ugly.;billboard °signs going up- along _High iay 217.. -If.he,,would.have known they-wens-,permitted .by Code 'he .would.have done sometbing ,sOQner to prohibit- thee. • Comiis°sioner-Castile agreed, He;felt;that once the. billboard: companies found:out billboard signs'could.,go in,, they decided to stick it to Tigard. Now >we need _tn ;stop'construction then deal:.with the'one's'that naive :been constructed. • Commissioner Pyre' Holland, Boone, and:Schweitz..all>supported staff"s;"recomandation: * Commissioner Holland moved,and Commissioner .Boone seconded to forward Zone,Ordinance-Juiende nt-,ZOA::-93-0092�toy,City- Council supporting; Staff'srecosaeendatici. • „Further .discussion. followed regarding .:removal =of -existing hillboard. signs7. 5.Z R:H S _ -10O4aglifPE D I A staff initiated amendment package intended•:to address, State of-Oregon.mandates related to development standards related to transportation facilities. Proposed-amendments.;are._numee.z vs and .therefore ;Will not- be listed' iin detitil. Comprehensive_ P15n Volume I ,(Transportation_Inventory--Report) -is.proposes' e, PLANNING CONNrssION MINUTES --:Narrcl 1,. 1993 'Page 2 • • be''aMended..te alloW-.agreater variety of.imprOvement standards for. loCal -streets.. Amendments- are Also proposed, to the . .-following Co—unity DeVel.Oplait,'COde Chapters:' Chapter 18,98 (Building.-Heighr-LimitatiOnal EXceptions):;. Cha Pter 18,106' (Off-street Parking and Loading.Requirements); 'Chapter 18.108 (Access, Egress,. and tirculatiOn); ;Chapter 18120:. '(Site Development Review); and Chapter 18.464 (Street and Utility -Improveeent Standards) . ..additiert the„Planning- Divisiew staff-has proposed.several 'other-alenr‘ente;Within thee* affected Comprehensive Plan and .Community_Development Code- chapters. These other amendments • relate to.Minimuirparking space requirements for various Land . uses, parking space „dimenlional- standards, drive-Up '-service .window . stacking- reqUirmienti*, lOCal. street- improitimutt • standards, and horteekeepingMandmentir. The March.8,-.1993,- Planning,C.OmMission hearing is intended as the initial Planning Commission "hearing-. on the proposed amendments. At,...leaSt one additional 'Planning Commission hearing will be held prior to the Commission forwarding a recomamnded package: of:proposed.amendments.to-the City Council. for a hearing on,adoption of therimendments.. These additional hiarings. are ,n4 yt edheduled. . ilLpPLICABLE.REVIEN 'STANDARDS;, . ..Statewide'Planning-Goals 1, 2, and . 12'; Oregon ,Administrative Rules, .OAR 660-12 (Transportation Planning' Rule); Comprehensive Plan 8-..1,1, 82.2, 81-1 8 4.1, 9 -1 1, 9 -1 *2 and 9.1.3 • .Senfor.Planner.DiCk Bewersderff, revieeed,.portions of the Code: that. staff i.e. recommending:to amend. • Assistant 'Planner• Jerry Offer explained that there is. a -second hearing,seheduled.. fOr Ai;ril 5th and this Ia more of a work-study session:with pthUc teetieonY. PUBLIC;'TESTIMONY • Anthony.Bonforte, 14675 SW Osprey I 413, Beaverton, OR 97007,. explained that is -currently proposing a.-subdivision.:that has approximately-four acres of WetlandeLan'aPproxiMately fiVe, acres would be-'dedicated as open space. Re ..favored the new street- design standards.. They are flexible and would be helpful. in -designing:4ubdiVisions. withoUt, compromising, the quality of the subdivision. In addition they would decrease sUrfece.-ruti-off (imPerviors surface).. David_ Banta OTAN, 17355 Awn,* Ferry ;Road, Lake ...Oswego, .OR 97035, aSked for :stiff's. clarification- On different sections: PLANNING COMMISSION MINUTES- - March 8, 1993 Page 3 11111 o of Chapter 18.1.64-. .Nesnggeated that -10-7.1.64.060-C be removed,- Coin 1i:stoners agreed. • Diacussion followed regarding, different. street widths,' residential streets, sidewalks, planter strips, parking along the ,street, -end criteria-for Varian CeS. • Assistant Planner:.Jerry- Offer, explained how a design'standard manual would work in. conjunction with the Code. Discussion regarding processing the ',design standard manual along with Code revision„a:Kt-the 'difficUlties inVoliked -in dOing:'that. • DisenasiOn on hoW to -handle. COlUterignui.::0i..-the Coartission was that there needs to be .flexibility in the Code. Further discussion on street widths, hoe they work in conjunction with parking,- and the--.-eidth- of travel lanes: - Discussion on width et-Parking spaces,„asid layout of,the spaces. • Further discussion on hole, to handle. 'Senior Planner Carol LandsMan explained that the _ComprehensiVa purt--.1100thiesit Is scheduled to be -heard: before .City, Council on May ,3rd.: Consensus of the Coalmistion is that they need More tiee to ra*iew. 'COataigaionera are to review the proposed changes and return theirs:marked Wp'copitits.,to Senior planner-Carol Landaitan as soon as: 'Further: discussion regarding standard design, manual, variances, parking spaces changes proposed-:for specific Uses,. and ADA :requirements.; • - * .tfeating continiied.,tO'April 5th. 6. OMR $117$2111.58 • Planning Commission requested staff investigate what could be done about;.,getting existing"..billboard. removed. • Discussion on RV parking-article. In:the: Tigard„ Times,. • DisOuSsion regarding upOoeing annexation-. 1. 1■0400999666T 9:06 P.M. ,(,(VeAft :DUO&-14.'-401 ka Acting. Cosa ion 'Secretary „ •ATTES - I j • ;4,1 • asident • PLANNING COMMISSION MINUTES - !4arch 8, 1993 Page 4 . . • • „. . ''2 • '7'.1 Attathmeilt5:' : `L•, f:, -•*:4 '7•1? - • ' " CITY OP OP l*Ohiu),-,^onzadoi -ORDINPICE NO, 93- /a -AN ORDINANCE TO AMEND _PROVISIONS or THE OOSINVEITY -DEVELOptaare cahic SECTION .10.114.910 TO JkDD SUBSECTION N: TO PROHIBIT ,BILL.BOAFINI. AND TO RI SECTION 18.114.090- 4. -SIMSECTIONS 1-4 WHICH mom= raa BILLBOARDS. WHEREAS, The City- of Tigard . 'nee' it,necesiery te.-roViso-the Community.. Development Code periodical_ to- ImproVo the operatic:it, end, -iiplementation Of the-Code: and ISIEBEAH, The-, City, of Tigard ,Planning, comaiss.ion reviewed the staff recoimmandation at -a public -hearing:- on :'Narch 8, 1993 and voted. to recommiend epproyel„.or-the-aiiii, to the city-'co ' in;. and WHEREAS, The .City. of Tigarit,-finds. that tho- 'it does' effect City' ,Compreltensive;.Plarr'Goal!! -Plannirtg'Goalsr.'end' WHEREAS,. The City of -Tigard':finds that there hail been a, public -outcry concerning the proliferation,: spacing ' and aesthetics of billbastr,der.--and WHEREAS, The City -Council- held a .pUblic hearing on:-April 13, 1993 to consider thi.:aumendment. THE CITY PP .-TIOMtD ORDAINS AS. FOLL3WS-:: 1c SECTION 1: The--Community. DeVeiopment Code-shall.bie.aimandaid ast.shOwn _in Mdaibit “A"-. .,Langttage:. to be:-added in- mgazzignmi.... -Language to be delet..ed4e- ihOwn EBRACEES1,4 This Ordinance..shall.beef festive 30 days at A.t.,,paisage..:1*the Council, epproval.',by the moot; arid .poiting by the City'Recorder. PASSED: Ci.'"/.)t; 171621.4 By _ J. vote of all. -Cottricil.:Miabore .pream. .after be - read.--by.-nuiberand tit1-•-only„. this 4y of - ; 1993.. Chsrin e whoikti•y,-„city 1#ordSr • • APPROVED:. This - 'day .0410, Air _;97. (1,441F d.477:4 - Nayar Approved., to fori: PLC; City Attorney Date ORDINANCE No. 937 1° .11 1 WIMISW,W0 18.114.070 tartain gi Prohibited B/41..afurtia. • ' 411122BIALBE 111&124.22.1Stparlal4nnarjanjagpal Special. -,shall have speCial unique dinensionali niuciann number or zothai 'requirements.ispOsed,,uponbin in 'addition to. AregulatiOns;contained in this chapter. tl. Billboard a. Billboard aign, regulations shall be as f01.1Ove: (I) -ZonesPernitted: (1) ,:Billboard pernitted only in a .c.!1; corcial atOne or I- , -I-I. and.1f41 industrial sOnes. and 021y- WLU fl660 foist,,of. -Crogoini. State ibippreluinfag Na. 217. and/or Int-instate -Frinistay No. 5 right-Of- - vaysl 2. All new , .billboard Sign(*) 'within 060 feet Of tl public right-of,inty of a otatik 4:94111111y 1111P2St obtain the necessary peraiit(i) frets the Stet. Highway Division and all billboard ,sign(s) met be aaintalnsd to OonfOria with applicable• .state. reguirenalits pert4ning:t0,.:billbciardaf' 31 All 4i9nes, togetts' : with all of their: supports, braces, .guyit, and ispcbors Gbali be: kept 10 good *epair.,and shall-be..naintitined..40 a sass:condition: .a. All eigns, and 'the' site upon 'Watch they are logated'ehall be;,anintained in..a- neat,- clean, and attractive ccinditionf b. Sighs.'ball be kept .frse, tram incelutaittis rialto cO#Oition _peeling paint; or other. surface cistitiotetion; end c. h. display surfaces ..'of all signs shall- be 'kept neatly painted'or-posted; - 4. iteCept as otherlise provided in this subsection, • • ft - eft, i.:f••F.F.i Y• _ 'S;'' .. 3 pravis Joao. ,off this: title .b11. bs :as coq: sign acrd. .stroll ' ivb jsat' to tun fens:at Subsection'18,114,110..3 26:114.130- p'tr ct iatia • C. Co*sericia1. Eons, 1. [t. SillbOaird .sites. ;" ttis C-C uotS: only, is ac©ordat as wit , S.a tiof 18.114.090:At 3 F. Industrial Songs: 1. t.. sillboazd 'signs ,in accordance vita' Emotion-la:114.090.M3 • • • • CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD TO: Members of the Tigard City Council FROM: Brad Kilby, Associate Planner DATE: May 30, 2003 SUBJECT: Appeal of the Director's Interpretation regarding "Billboard" in the TMC Chapter 18.780 A second appeal has been filed in the matter that will come before you on June 10, 2003. The appeal was filed by Michelle Rudd, an attorney representing Media Arts, Inc. on their behalf. In a conversation with Mrs. Rudd this afternoon she agreed to have the Media Arts appeal heard at the same time as the appeal filed by the Tigard City Manager. Media Arts, Inc. has appealed the Community Development Director's interpretation on the basis of the following statement. "Disagreement with interpretation of sign ordinance issued by Community Development Director; Director's interpretation of the sign code is unconstitutional, violating State and Federal constitutional guarantees of freedom of speech,privileges and immunities and due process; Director's interpretation violates 42 USC§ 1983; City Manager does not have standing to appeal; other constitutional and procedural issues to be identified at hearing." The staff recommendation remains the same. Staff review of the pertinent materials that are part of your record, indicates that the intent was to expressly prohibit billboards within the Tigard City limits, and concurs with the Community Development Director's Interpretation. Staff recommends that the City Council affirm the Director's Interpretation. e • . _ _ . ua .- __ _____________.. ... - APPEAL FILING FORM . ,,,4i.,.` . F'OR..LAND USE DECISIONS - CITY OF TIGARD 12125 SW Hap Blvd_, Tigard.OR 97223(503)6394171 FAX:(563)684-7297 t,l i , , • .0)'IVY:,�f...;s . "C. . 'AN'. Y e The City of Tigard supports the citizen's right to participate In local government. Tigard's Land Use Code, therefore,sets out specific requirements for filing appeals on certain land use decisions: The following form has been developed to assist you In filing an appeal of a land use decision in proper form. To determine what filing fees will he required or to answer any questions you have regarding the appeal process,' please contact the Planning Division or the City Recorder at the phone/fax listed at the top of this form. • GENERAL INFORMATION FOR STAFF'USE ONLY ' ' Property Address/Location(s) and Name(s) of the Case No.(s): /I/-]5 Zoe3 -0o0-).."4- Application Being Appealed: Director's Interpretation Case Name(s): . Regarding Billboard TMC 18.780.015.A.8 and .9, TMC Receipt No.: '2-(Do3. 2-zG'1- 18.870.070M, TMC 18.780.090.E.1 and TMC 18.780.090E6 How Do You Qualify As A Party?:. Media Art, through its :attorney requested a copy of the Director's Application Accepted By: Interpretation and has standing under 18.340.020 D • Date:and E. . Approved As To Form By: - Appellants Address:_ Media Art c/o Michelle Rudd, Stoel . Date: Rives, '900 SW 5th Avenue, S• e 2600 • City/State: Portland, OR 97204 Denied As To Form By: Day Phone Where You Can Be Reached:: (503) 294-9390 Date: Scheduled Date Decision Is To Be Final: May 16, 2003 - Rey.15-Aug-02 rlsx,rpinYnaseaes1cevised1s0oest.doc Data Notice of Final Decision Was Given: May 28, 2003 - Specific Grounds For Appeal or Review: REQUIRED SUBMITTAL ELEMENTS Disagreement with interpretation of-sign ordinance 1 •/ Application Elements Submitted: . issued by Community Development Director; Director's ' interpretation of the sign code is unconstitutional, Appeal Filing Form(completed) violating State and Federal constitutional guarantees ) Filing Fee(based on criteria below) of freedom of speech, privi]eges and imm,miriha and s oitedora Opdsion to Rsrviing Coinnicikul S 250.00 due process; Director's interpretation violates >Expedited Review(deposit) a 3°0'00 42 USC i3 1983; City Manager does not have standing i no +ca 'soa��wc yCounca"$1,oo_ce ri to appeal; other constitutional and procedural issues i.Tpq to be identified at the hearing. Signature(s) of Appe lant(s): •• Media Art's mailing address is: Ii . .t ' -'- «—�1 1923 Broadway Street . Vancouver, WA 98663 Michelle Rudd, Stoel Rives. LIT on behalf of Media Art - ---- IOVER FORADDmONAL WRITING SPACES • • NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER: THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER. CITY OF TIGARD Community(Development Shaping_A Better Community PUBLIC NEARING NOTICE NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL,AT A MEETING ON TUESDAY, JUNE 10, 2003 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: FILE NO.: MISCELLANEOUS (MIS) 2003-00021 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION REGARDING BILLBOARD SIGNS APPELLANT: City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223 REQUEST: The City Council will review an appeal of the Community Development Director's interpretation of Sections 18.780.015, 18.780.070, and 18.780.090 of the Tigard Development Code. The appeal is specific to the language regarding billboards and freeway-oriented signs. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340 and 18.390. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684-2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. ANYONE WISHING TO PRESENT WRITTEN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM STAFF, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRITTEN TESTIMONY. THE CITY COUNCIL MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON THE APPLICATION. IF A PERSON SUBMITS EVIDENCE OR DOCUMENTS LESS THAN 7 DAYS PRIOR TO THE PUBLIC HEARING DATE, THE HEARINGS AUTHORITY MAY ALLOW A CONTINUANCE OF THE HEARING, SUBJECT TO ORS 215.428 OR 227.178. IF THERE IS NO CONTINUANCE GRANTED AT THE HEARING, ANY PARTICIPANT IN THE HEARING MAY REQUEST THAT THE RECORD REMAIN OPEN FOR AT LEAST SEVEN (7)DAYS AFTER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). • • INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL WILL BE BASED UPON THE CRITERIA LISTED OR OTHER CRITERIA IN THE COMPREHENSIVE PLAN OR DEVELOPMENT CODE WHICH THE PERSON BELIEVES TO APPLY TO THE DECISION. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA IN THE COMPREHENSIVE PLAN OR THE DEVELOPMENT CODE. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST, ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY AND ALL PARTIES TO RESPOND PRECLUDES AN APPEAL, AND FAILURE TO SPECIFY THE CRITERION FROM THE COMMUNITY DEVELOPMENT CODE OR COMPREHENSIVE PLAN AT WHICH A COMMENT IS DIRECTED PRECLUDES AN APPEAL TO THE LAND USE BOARD OF APPEALS BASED ON THAT ISSUE. ALL DOCUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (250 PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) DAYS PRIOR TO THE HEARING, A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECTION AT NO COST, OR A COPY CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER BRAD KILBY AT(503)639-4171,TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223. • • Chapter 18.210 GENERAL ADMINISTRATIVE PROVISIONS Sections: 18.210.010 Severability 18.210.020 Compliance and Scope 18.210.030 Consistency with Plan and Laws 18.210.040 Use of a Development 18.210.050 Pre-Existing Approvals 18.210.060 Certificate of Occupancy 18.210.070 Official Action 18.210.010 Severability A. Severability. The provisions of this title are severable. If any section, sentence, clause or phrase of this title is adjudged to be invalid by a court of competent jurisdiction, that decision shall not affect the validity of the remaining portion of this title. 18.210.020 Compliance and Scope A. Compliance with the provisions in this title.. Land and structures may be used or developed by construction, reconstruction, alteration, occupancy, use or otherwise, only as this title or any amendment thereto permits. No plat shall be recorded or no building permit shall be issued without compliance with the provisions of this title. B. Obligation by successor. The requirements of this title apply to the person undertaking the development or the use of the development and to the person's successor in interest. C. Most restrictive regulations apply. Where this title imposes greater restrictions than those imposed or required by other rules or regulations, the most restrictive or that imposing the higher standard shall govern. D. Variances and adjustments. No lot area, yard, other open space or off-street parking or loading area existing on or after the effective date of the ordinance codified in this title shall be reduced below the • minimum required for it by this title except as provided by Chapters 18.350 (Planned Developments) and 18.370(Variances and Adjustments). E. Transfer of development standards prohibited. No lot area, yard or other open space or off-street parking or loading area which is required by this title for one use shall be a required lot area, yard or other open space of off-street parking or loading area for another use, except as provided specifically by this title to the contrary. 18.210.030 Consistency With Plan and Laws A. Consistency with Comprehensive Plan and all laws. Each development and use application and other procedure initiated under this title shall be consistent with the adopted comprehensive plan of the City of Tigard as implemented by this title and with applicable state and federal laws and regulations. All provisions of this title shall be construed in conformity with the adopted comprehensive plan. General Administrative Provisions 18.210-1 11/26/98 • Dick Bewersdorff-Memo for Gary recoding denial and providing findings.doc - • Page 1 1 CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM • CITY OF TIGARD TO: Gary Lampella, Building Official FROM: Brad Kilby, Associate Planner DATE: June 3, 2003 SUBJECT: Media Art, Inc. request for building permits (BUP2003-00160, 00181, 00182, 00183, and 00184) At your request, I have reviewed the building permits that are listed above for compliance with the Tigard Development Code (TDC). These signs cannot be approved as requested. The signs that were applied for exceed the maximum allowable height and size requirements to qualify as a "freestanding freeway oriented sign" under TDC Section 18.780.090(E). I recommend that you adopt the following findings of fact, and deny the permits as proposed. Free-standing freeway-oriented signs are allowed pursuant to meeting the approval criteria of TDC Section 18;780.090(E)(1-10). Although it is possible for the applicant to meet many of the approval criteria, they clearly do not comply with criteria 1, 5, and 6. Criterion #1 states that, "anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act need not seek separate approval from the City of Tigard;" FINDING: The applicant provided a letter from ODOT stating that Media Art, Inc. does have a relocation credit available, but did not provide the necessary permit to gain approval of their building permits. Without this permit, the applicant would need to seek a sign permit from the City of Tigard. Criterion #5 states that, "the maximum height of a free-way oriented sign shall not exceed 35 feet from the ground level at its base;" FINDINGS: Every sign that was applied for exceeded the maximum height of 35 feet from the ground level at its base. • BUP2003-00160- a request for a 77 foot high freeway oriented sign. • BUP2003-00181- a request for a 77 foot high freeway oriented sign. • BUP2003-00182- a request for a 45 foot high freeway oriented sign. • • BUP2003-00183- a request for a 45 foot high freeway oriented sign • BUP2003-00184- a request for a 45 foot high freeway oriented sign. Dick Bewersdorff- Memo for Gary recomeding denial and providing findings.doc • Page-2. • r Criterion #6 states that, "for freestanding signs a total maximum sign area of 160 feet per face (320 Square feet total) shall be allowed. If the sign is a billboard then the provisions of Subsection 18.780.090 shall apply." Jim Hendryx, the Community Development Director, has interpreted the latter portion of this criterion to mean that compliance with the approval criterion in this section shall govern the approval of a request for a "billboard". 'FINDINGS: Every sign that was requested exceeded the maximum allowable square footage by 352 square feet per face, or a total of 704 square feet. • BUP2003-00160- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00181- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00182- a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00183-a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 square feet per face for a total of 1,344 square feet. • BUP2003-00184-a request for a two sided, 14' x 48' freeway oriented sign. The sign is 672 • square feet per face for a total of 1,344 square feet. • • June 2, 2003 Media Art, Inc. CIO Michelle Rudd CITY OF TIGARD Stoel Rives, LLP OREGON 900 SW 5th Avenue, Suite 2600 Portland, OR 97204 RE: Appeal (MIS2003-00022) of the City of Tigard Development Dire • Interpretation of language pertaining to "Billboards" in the Tigard Municipal Code. Dear Mrs. Rudd: Pursuant to our conversation on Friday, your appeal has been filed and scheduled for the same hearing as the appeal filed by the City Manager. Both matters have been scheduled to go before the Tigard City Council on Tuesday, June 10, 2003 at 7:30 PM. The location of the hearing is at the Tigard City Hall and located at 13125 SW Hall Blvd. in Tigard. I have included a copy of the materials that will go to Council, and a copy of the original public hearing notice that you have already received. If you have any questions, or need any additional items related to this record, contact me at (503) 639-4171 ext. 2434. Sincerely, Zi;e4f1 ,e14 Brad Kilby, AIC a y, Associate Planner C: File MIS2003-00022 • 13125 SW Hall Blvd., Tigard, OR 97223(503)639-4171 TDD (503)684-2772 • • • er U.S. Postal Service,. o CERTIFIED MAILTM RECEIPT It (Domestic Mail Only;No Insurance Coverage Provided) D For delivery information visit our website at www.usps.come F L SE Postage $ /. 2 9 �;�1D oR D Certified Fee 1 '2 Q0 Po e w �N p( �7 N Return Reciept Fee 5 D (Endorsement Required) / eR y D Restricted Delivery Fee rR (Endorsement Required) r tStis 04 f1J Total Postage&Fees $ 3 / VW ru I D Sent To Media Art, Inc. r` s4reet,Apt. vo.; do Michelle Rudd/Stoel Rives, LLP or PO Box No. I 900 SW 5th Avenue, Suite 2600 ciry,seare,zIP+a Portland, OR 97204 PS Form 3800,June 2002 See Reverse for Instructions SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. ❑Agent • Print your name and address on the reverse X ,-� ❑Addressee so that we can return the card to you. B. -eceived by(Printed Name) C Ott of liv�e I • Attach this card to the back of the mailpiece, -> 1-e j CIO(! or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No / Media Art, Inc. c/o Michelle Rudd/Stoel Rives, LLP 900 SW 5th Avenue, Suite 2600 3. Service Type Portland, OR 97204 VI Certified Mail ❑Express Mall ❑ Registered ❑Return Receipt for Merchandise ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7002 2410 0003 7046 0705 (Transfer from service lobe° PS Form 3811,August 2001 Domestic Return Receipt 102595-02-M-1540 • • NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER: THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER CITY OF TIGARD Community(Development Shaping Better Community PUBLIC NEARING NOTICE NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL,AT A MEETING ON TUESDAY, JUNE 10, 2003 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: FILE NO.: MISCELLANEOUS (MIS) 2003-00021 FILE TITLE: APPEAL OF A DIRECTOR'S INTERPRETATION REGARDING BILLBOARD SIGNS APPELLANT: City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223 REQUEST: The City Council will review an appeal of the Community Development Director's interpretation of Sections 18.780.015, 18.780.070, and 18.780.090 of the Tigard Development Code. The appeal is specific to the language regarding billboards and freeway-oriented signs. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.340 and 18.390. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684-2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. ANYONE WISHING TO PRESENT WRITTEN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM STAFF, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRITTEN TESTIMONY. THE CITY COUNCIL MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON THE APPLICATION. IF A PERSON SUBMITS EVIDENCE OR DOCUMENTS LESS THAN 7 DAYS PRIOR TO THE PUBLIC HEARING DATE, THE HEARINGS AUTHORITY MAY ALLOW A CONTINUANCE OF THE HEARING, SUBJECT TO ORS 215.428 OR 227.178. IF THERE IS NO CONTINUANCE GRANTED AT THE HEARING, ANY PARTICIPANT IN THE HEARING MAY REQUEST THAT THE RECORD REMAIN OPEN FOR AT LEAST SEVEN (7) DAYS AFTER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). • .1 F INCLUDED IN THIS NOTICE IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL WILL BE BASED UPON THE CRITERIA LISTED OR OTHER CRITERIA IN THE COMPREHENSIVE PLAN OR DEVELOPMENT CODE WHICH THE PERSON BELIEVES TO APPLY TO THE DECISION. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA IN THE COMPREHENSIVE PLAN OR THE DEVELOPMENT CODE. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST, ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY AND ALL PARTIES TO RESPOND PRECLUDES AN APPEAL, AND FAILURE TO SPECIFY THE CRITERION FROM THE COMMUNITY DEVELOPMENT CODE OR COMPREHENSIVE PLAN AT WHICH A COMMENT IS DIRECTED PRECLUDES AN APPEAL TO THE LAND USE BOARD OF APPEALS BASED ON THAT ISSUE. ALL DOCUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (250 PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) DAYS PRIOR TO THE HEARING, A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECTION AT NO COST, OR A COPY CAN BE OBTAINED FOR TWENTY-FIVE CENTS (250 PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER BRAD KILBY AT(503)639-4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223. ' r~ • •West Coast Media, LLC Attn: Chris Carlile I:\curpin\setup\labels\billboard interpretation appeal for 6-10-03 CC 4888 NW Bethany Blvd., Suite K-5 #354 public hearing.doc Portland, OR 97229 Media Art, Inc. Attn: John Fitzmaurice 1923 Broadway Street Vancouver, WA 98663 Steven W. Abel, Timothy L. McMahan and Michelle Rudd Stoel Rives, LLP 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204-1268 Brian D. Chenoweth Rycewicz & Chenoweth, LLP 601 SW Second Avenue, Suite 1940 Portland, OR 97204-3154 vt _ • • U.S. Postal Service?~, CERTIFIED MAILTM RECEIPT _n (Domestic Mail Only;No Insurance Coverage Provided) ° For delivery information visit our website at www.usps.come i o 7 F . P- Postage tilligi in D Certified Fee ° Return t Requrr e) Postmark ° (Endorsement n`t Required)' Here ° Restricted Delivery Fee \I U a (Endorsemerit Requlr dd . ,11 G- RI ESMANI Total Postage&Fees o sent To .,,, Steven A. Abel, Timothy L. McMahan an ° :-Michelle Rudd f`- weer,Apt,No.; or PO Box No. Stoel Rives, LLP City,State.ZIP+4 900 SW Fifth Avenue, Suite 2600 Portland OR 97204-1268 PS Form 3800,June 2002 See Reverse for Instructions SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY I • Complete items 1,2,and 3.Also complete A. - • - l item 4 if Restricted Delivery is desired. 4 ❑Agent • Print your name and address on the reverse ❑Addressee so that we can return the card to you. B. Received by/'�(Printed Name) C. Date of Delivery • Attach this card to the back of the mailpiece, 7k) `_23-a or on the front if space permits. D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No /Steven W. Abel, Timothy L. McMahan and Michelle Rudd Stoel Rives, LLP 3. Service Type Ii 900 SW Fifth Avenue, Suite 2600 ,Certified Mail ❑Express Mail I, Portland, OR 97204-1268 Registered ❑Return Receipt for Merchandise 'ri ❑ Insured Mail ❑C.O.D. I, 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number ((transfer from service label) 7002 2 41 0003- 7046 0 4 6 0668 6 6 8 I' i PS Form 3811,August 2001 Domestic Return Receipt 102595-02-M-1540 ' 1 •w • • U.S. Postal ServiceTM 'l-' CERTIFIED MAIL., RECEIPT (Domestic Mail Only;No Insurance Coverage Provided) For delivery information visit our website at www.usps.co, OFFOCOAL USE Postage MEM Certified F41111FRA Q Return Reciept Fee) Postmark (Endorsement Required), Here Q Restricted Delivery F,ee ,-4 (Endorsement Required),1‘ �, Total Postage&Fees $^� Iv ru Q Sent To ' Media Art, Inc. N Street,Apt.No.; Attn: John Fitzmaurice orPO Box te,2j No. 1923 Broadwa y Street City,State,ZIP+4 Vancouver, WA 98663 _,• PS Form 3800,June 2002 See Reverse for Instructions V 1 SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY • Complete items 1,2,and 3.Also complete 4 if Restricted Delivery is desired. '� Agent • Print your name and address on the reverse A • Addressee so that we can return the card to you. B. Received (Printed Name C. Date of Delivery • Attach this card to the back of the mailpiece, 5v7c “� or on the front if space permits. C.•� D. Is delivery address different from item 1? ❑Yes 1. Article Addressed to: If YES,enter delivery address below: ❑ No Media Art, Inc. Attn: John Fitzmaurice 1923 Broadway Street 3. ervice Type Vancouver, WA 98663 rted Mail 0 Express Mail ❑Registered ❑ Return Receipt for Merchandise — – — ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number ! (Transfer from serAcelabeq 7002 2410 0003 7046 0682 Domestic Return Receipt 102595-o2-M-154o PS Form 3811,August 2001 • • ...0,0010010,„\ CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD TO: Members of the Tigard City Council FROM: Brad Kilby, Associate Planner DATE: May 30, 2003 SUBJECT: Appeal of the Director's Interpretation regarding "Billboard" in the TMC Chapter 18.780 A second appeal has been filed in the matter that will come before you on June 10, 2003. The appeal was filed by Michelle Rudd, an attorney representing Media Arts, Inc. on their behalf. In a conversation with Mrs. Rudd this afternoon she agreed to have the Media Arts appeal heard at the same time as the appeal filed by the Tigard City Manager. Media Arts, Inc. has appealed the Community Development Director's interpretation on the basis of the following statement. "Disagreement with interpretation of sign ordinance issued by Community Development Director; Director's interpretation of the sign code is unconstitutional, violating State and Federal constitutional guarantees of freedom of speech, privileges and immunities and due process; Director's interpretation violates 42 USC § 1983; City Manager does not have standing to appeal; other constitutional and procedural issues to be identified at hearing." The staff recommendation remains the same. Staff review of the pertinent materials that are part of your record, indicates that the intent was to expressly prohibit billboards within the Tigard City limits, and concurs with the Community Development Director's Interpretation. Staff recommends that the City Council affirm the Director's Interpretation. 05/28/2003 15:46 FAX 5036847297 City of Tigard a001 • ********************* *** TX REPORT *** ********************* TRANSMISSION OK TX/RX NO 1594 CONNECTION TEL 5032202480 SUBADDRESS CONNECTION ID ST. TIME 05/28 15:45 USAGE T 00'31 PGS. SENT 2 RESULT OK Planning Division 13125 SW Hall Boulevard Tigard, OR 97223 (503) 639-4171 //�A��i \ � �� ���I�Iry�pip��J'I1 I - ice CITY OF TIGARD Fax To: Lincoln From: Brad Kilby,Associate Planner Fax: 503-220-2480 Pages: 2 including cover Phone: 503-294-9530 Date: 5/28/03 Re: Request for a Director's Interpretation CC: [Click here and type name] o Urgent ® For Review ❑Please Comment ❑Please Reply ® Please Recycle • Comments: Per your request 05/28/2003 15:46 FAX 5036847297 City or Tigard WAUUZ • • '• • 111111 • • „.,,. CITY OF TIGARD • Community Development Shaping A Better Community • MEMORANDUM CITY OF TIGARD TO: Jim Hendryx • FROM: Brad Kilby DATE: May 8, 2003 SUBJECT: Request for a Director's Interpretation Jim, If you have not heard, we have been appealed to LUBA for denying permits fo-i"What-I-have— determined to be Billboard signs for Media Arts, Inc. We anticipate that West Coast Media LLC will follow suit if they have not already. I have included a copy of the letter that I sent to Media Arts, Inc. with regard to the permits, and,a copy of the ordinance 93-12 that was passed by the Tigard . City Council in April of 1993. Would you please provide me with a formal interpretation for any and all language that makes reference to billboards in TMC Chapter 18.780. • • • • • • • ,Brady le Kilby_Sign Denials Page 1 From: "Gary Firestone" <garyf @rccb.com> To: <Bradley @ci.tigard.or.us> Date: 5/15/03 2:53PM Subject: Sign Denials Some additional thoughts concerning the decision on remand. We need to make sure there is only one decision for each applicant. The decision should be made by the building official on the building permit application. What I envision is a memorandum from you to the building official, with recommended findings and with a copy of the interpretation showing approval by the Council. The building official would then issue a decision adopting the recommended findings. The building official should also cite the authority to deny an application based on failure to comply with other(i.e. not building code)standards and note that as an expressly prohibited billboard, the sign cannot be approved. As I mentioned before, I will be out of the office until Wednesday (I am leaving within an hour). If something comes up and cannot wait until Wednesday and Tim is unavailable, you can contact my legal assistant, Ginny Leiker, who will know how to get ahold of me (although it may take some time) Gary • • Page 1of1 I will be out of the office on Friday(May 16), Monday and Tuesday(May 19-20). However, I don't think this will keep us from getting the necessary work done on the Media Art LUBA appeals. The LUBA appeals were filed May 6, and our office will take care of withdrawing the decisions for reconsideration. We have until May 27 to do that, and I expect to actually file the withdrawals with LUBA on or about May.23. Once the matter is withdrawn, we will have 90 days to issue a new decison. Assuming that the Council approves the interpretation on June 10, we can issue the new decision any time after that date. As I see it, the order of events/timeline goes something like this: 1. Finalize and issue the director's interpretation- Within a week or so. (City and RCCB) 2. Appeal the interpretation. Immediately after issuance. (City) 3. Prepare the agenda item/staff report and any other documentation needed for Council (Any time between now and the deadline for the June 10 agenda) (City, with RCCB review or assistance as needed) 4. File withdrawal of decisions with LUBA. By May 27. (RCCB) 5. City Council adoption of interpretation. June 10. 6. Finalize findings and draft final decision document(s). Betweeen now and June 10. (City and RCCB) 7. Issue new decision. Any time after June 10 and within 90 days of the withdrawal. Let me know if you have any questions, comments or suggestions. Also, we will need to continue to coordinate on most of these items. I look forward to seeing any additional comments on the draft interpretation and findings. Gary • file://C:\WINDOWS\TEMP\GW}00005.HTM 5/14/03 0 401 1-1.4.■e--- —i- 0 • ., , ...•,,... 04, 1--- V • 7.59.4 4.s■ • , LA____.e_sz . ..-1 • • ck_,..)__ eN.....t.,1 _., ....„.. , a. 0 0 I • — -....• • - 11 A _./O .. II 111 , It _ .............. .4 - °I 4b i___Y -' • 9 Li 9 • • • • n 0 I 0.,... • ‘'CDL1-..,,-.) ■ aA-24C2- -CZ=C-6h-44C -==--- ---s------.___ _ _____________ e 1M1.■ 0 .ab. i■ fl• . .■.- "El / • ••■ ..., A 1 HA C E-V D ui v ,.er e cw...ASD PLW-V_KC/ENGIKEEfllNC • • • j4JNJ'I J CITY OF TIGARD Community Development Shaping A Better Community MEMORANDUM CITY OF TIGARD TO: Jim Hendryx FROM: Brad Kilby DATE: May 8, 2003 SUBJECT: Request for a Director's Interpretation Jim, If you have not heard, we have been appealed to LUBA for denying permits for what I have determined to be Billboard signs for Media Arts, Inc. We anticipate that West Coast Media LLC will follow suit if they have not already. I have included a copy of the letter that I sent to Media Arts, Inc. with regard to the permits, and a copy of the ordinance 93-12 that was passed by the Tigard . City Council in April of 1993. Would you please provide me with a formal interpretation for any and all language that makes reference to billboards in TMC Chapter 18.780. i IA CITY OF TIGARD OREGON May 8, 2003 NABLO, LLC do Media Art, Inc. 1923 Broadway St. Vancouver, WA 98663 Attn: John Fitzmaurice Re: Permit No. BUP2003-00181, BUP2003-00182, BUP2003-00183,BUP2003-00184 Dear Mr. Fitzmaurice: We have canceled the above referenced permit(s) and enclose a refund for the following: Site Address: 9785 SW Shady Ln., 12000 Garden Pl., 6713 SW Bonita Rd., 12100 SW Garden Pl. Project Name: Media Art • Refund: Check#26374 in the amount of$1,662.36. Notes: Refund for building permits for 4 freeway signs not approved by the planning department due to height and size requirements. If you have any questions please contact me at (503) 639-4171, x2430. Sincerely, ,(4a$Vez Dianna Howse Permit Specialist Enc. 13125 SW HagbaotanQ, n4.°003)639-4171 TDD (503)684-2772 t t • • . May 6, 2003 et • City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223-8144 Re: Notice of Appeal(s)—Media Art,Inc. Sign Permit Applications Dear Clerk: On April 22, 2003, the City of Tigard issued the letter attached hereto as Exhibit A. On April 25, 2003,the City of Tigard issued the letter attached hereto as Exhibit B. We believe that the positions taken in these letters are incorrect and will be filing appeals with LUBA. I am filing this appeal as an authorized representative of the Applicant. Our review of Tigard's code indicates that a local appeal is not required in this case for the reasons set forth below. In an abundance of caution and to protect our rights to have the decision reviewed, however, we have decided to file this notice of appeal(s). As noted above, a local appeal is not required. A land use application was not submitted because Tigard's code provides that an applicant who qualifies for a sign permit under the Oregon Motorist Information Act need not seek separate approval from the City. TDC § 18.780.090(E)(1). Accordingly, only building permit applications were submitted. If, however, the building permit application is properly treated as a land use application, it is a Type I application. "Type I procedures apply to ministerial permits and actions containing clear and objective approval criteria. Type I actions are decided by the Director without public notice and without a public hearing." (TDC § 18.390.020(B)(1)). The denial of the building permits was not based upon clear and objective approval criteria but rather resulted from an interpretation of the city's code at odds with previous interpretations issued by the City. Of the types of land use decisions available, however, Type I is the most similar to the decisions here because the decisions are for signs and were made without notice or hearing. TDC § 18.390.020(B)(1). Under these circumstances, the City Code provides: "The Director's decision is final for purposes of the appeal on the date it is mailed or otherwise provided to the applicant, whichever occurs first. The Director's decision is not appeallable locally, and is the final decision of the City." TDC § 18.390.030(D). This is not a Type II decision because no public notice or opportunity for a hearing was given. TDC § 18.390.020(B)(2). This is not a Type III action because it was not decided by the Hearings Office or the Planning Commission. TDC § 18.390.020(B)(3). This is not a Type IV decision because it is not a legislative matter involving the creation, revision or large scale implementation of public policy and was not considered initially by the Planning Commission with final decision by the City Council. TDC § 18.390.020(B)(4). Portlnd 1-2137928.1 0053401-00003 e • • This letter contains the content required by the code for appeals. Assuming that these decisions are appealable to the City Council the Notice of Appeal should contain: • An identification of the decision being appealed including the date of the decision. o April 22,2003, `Billboard denial" letter attached as Exhibit A. o April 25,2003, "Freeway Oriented Signs" letter attached as Exhibit B. • A statement demonstrating that the party filing the Notice of Appeal has standing to appeal. o The appellant is the applicant for the denied building permits and therefore has standing. • A detailed statement of the specific issues raised on appeal. o The City's code provides that anyone who qualifies for permits under the Oregon Motorist Information Act is not required to seek separate approval from the city. The signs at issue qualify for permits under the Oregon Motorist Information Act. o The sign ordinance generally and as applied to applicants is an unreasonable time, place and manner restriction on freedom of speech under the state and federal constitutions. o The sign ordinance generally and as applied to applicants is unconstitutional under the state and federal constitutions because it is void for vagueness and overbroad. o The sign ordinance generally and as applied to applicants is an unconstitutional content based restriction on freedom of speech. o The City has denied applicant equal protection under state and federal law in that it has acted arbitrarily and treated applicant differently from other similarly situated persons. • A statement demonstrating that the specific issues raised on appeal were raised during the comment period, except when the appeal is filed by the applicant. o There was no comment period and the appeal is filed by the applicant. • Filing fee. o The amount of the filing fee shall be established by the Director. The maximum fee for an initial hearing shall be the cost to the local government for preparing and for conducting the hearing, or statutory maximum,whichever is less. • Portlnd 1-2137928.1 0053401-00003 • • This Notice of Appeal(s) is filed as a precautionary matter to protect applicant's rights. As noted above, appeals will be filed with LUBA. Filing fees in the amount of$500 are enclosed. Again, these appeals are being submitted in an abundance of caution. If you determine that only one appeal, or no local appeals are required, please return the appropriate funds. Very truly yours, Media Art, Inc., by Chris Daugherty cc: Steve Abel and Tim McMahan, Stoel Rives, LLP • Portind 1-2137928.1 0053401-00003 vvv v a ra. •. VUL/ vv..) April 22, 2003 Media Art, Inc. CI �� T1C�® 1923 Broadway St. • Vancouver, WA 98663 OREGON Re: Billboards in the City of Tigard • Gentlemen: it has come to my attention that you have made application to place billboards within the City of Tigard. Unfortunately, the City of Tigard expressly prohibits billboards within the City Limits. I have had several conversations with representatives of sign companies to place free-standing freeway oriented signs within the City. Free-standing freeway oriented signs are permitted within the City of Tigard, and while It Is true you do not need a separate sign permit for the sign when you have approval through the Oregon Motorist Information Act, you still must meet the standards of what constitutes a free-standing freeway oriented sign. The permits that you have requested exceed the maximum dimensional standards of free- standing freeway oriented signs. Under the regulations of the Tigard Development Code (TDC) section 18.780.090, the permits that you have applied for exceed the maximum height of 35 feet from the ground level at Its base, and the maximum sign area of 160 square feet per face. There has been some confusion in that the regulations state that, "if the sign Is a billboard, then. the provisions of subsection 18.780.090 shall apply." While it may appear that the code allows billboards, it does refer you to the section that specifically includes the maximum sq uare footage and heights for all free-standing freeway oriented signs. More Importantly though, i refer you to TDC section 18.780.070(M)which specifically prohibits billboards, and to TDC section 18.210.020(C)which states that, "where this title imposes greater restrictions than those Imposed or required by other rules or regulations, the most restrictive or that imposing the higher standard shall govern." As you may know, the Oregon Motorist Information Act does not preempt local regulation of signs along highways. Additionally, It Is clear that the Intent of the Tigard City Coun cii under Ordinance No. 93-12 was to specifically prohibit billboard signs, a copy of this ordinance has been enclosed for your review. At your request, the commercial plans examiner has reviewed the plans for structural compliance with the Uniform Building Codes, but compliance with those standards does not preclude you from meeting all applicable state and local regulations. It Is for these reasons that your building permits cannot be Issued and have been denied. If you have any further questions, contact me at(503)639-4171 ext. 2434, or stop by my office between the hours of SAM and 4PM Monday through Friday, Our office is located at 13125 SW Hall Blvd. in Tigard. Sincerely, Ie _ Brad Kilby, AICP Associate Planner 13125 SW Hail Blvd.,Tigard. OR 97223 (503) 639-4171 TDD (503) 684-2772 Exhibit A La a1 LJ vV VJ ' v VJ vJ .. u.v. • r ... . � ... •:cJ • • CITY OP TIGARD, OREGON ORDINANCE NO. 93- la AN ORDINANCE TO. AXRND PROVISIONS OF THE coMXUNXTY DEVELOPKENT CODE SEcTInF 18.114.070 TO ADD SUBSECTION N. TO PROHIBIT BILLBOARDS AND TO REPEAL SECTION 18.114.090 A. SUBSECTIONS 1-4 WHICH PROVIDES FOR BILLBOARDS. • SEAS, The City of Tigard finds it necessary to revise the Community Development Code periodically to improve the operation and implantation of the Code; and WHEREAS, The City of Tigard Planning Commission reviewed the staff recommendation at a public hearing on Karol: 8, 1993 and voted to recommend approval of the amendment to the City Council j and SAS, The City of Tigard finds that the amendment does not affect City Comprehensive Plan coals or State Planning Goals; and ' K8EREAS-,. The City of Tigard finds that there has bean a public outcry concerning the proliferation, number, spacing and aesthetics of billboards; and The City Council held a public hearing on April 13 , 1993 to • consider the amendment. THE CITY OP TIGARD ORDAINS AS POLWWS: SECTION 1: The Community Development Code shall be amended as shown in Exhibit f,AN. Language to be added. in UNDERLINED. Language to -be deleted is shown in tBRACRET8).• This ordinance shall be effective 30 days after its passage by the council, approval by the M)ayor, and posting by 'the City Recorder. PASSED: 8y m C' 1.)r/4 vote of all CoUnCil members p 1 sit altar bei read by number and title only, this 6'_" day of CIPIAI ,, 1993. �A ,a) C arise Wheatley. City *order APPROVED: This 1 day o - _._�, 1p • . • • - d : . '•ve ggd Mayor • Approved a to fora: City Attorney • . . . Date • ORDINANCE No. 93- la_ Page 1 . - • • Mat781'T "dl" 18 .114.070 tartain Bitana.,M,Proh bit5d • gym B3„cards • Dillboarde . !_pi'Bhf 1itad. )11.114.0 500 Special Conjlitio4 Bien • Aa. Spec? nib condition signs shall have special or u di+ eional, lcoational, illumination maxims ina r or ed Cher requirements impos upo i n them in addition to the , regulations contained in this chapter. • P1. Billboards • . . a.. Billboard sign regulations shall be as follows's (1) Zones Permitte s • (1) Billboard Aligns shall be permitted only in a C-C commercial sone or I- P, I-L and I-H industrial zones and then only within 6SD feet of En State ttrpressvay No. 217 end/or Interstate !reewmy So. 5 right-of- ways; 2. All new pcoposed billboard si9n(s) within 660 feat of the public right-of-way of a State highway e obtain the necessary permit(e) from the State • Highway Division and all billboard sign(s) rust be maintained to conform with applicable state • requirements pertaining to•billboardal 3. All signs, together with all of their supporrts • braces, guys, and anchors shall ba kept in repair and shall be maintained in a safe cons it on: a. Ail signs and the sits upon which they are Mad shall be maintained in a neat, clean, and attractive condition; • b. signs shal] be kept free from excessive rust, . corrosion, piling paint, or other surface deterioration; and 1 c. The display surfaces Of all signs shall be ( kept neatly painted or posted; 4, Zrcept. as otherwise a provided in this section, • ••■•. no • . 0) • •• IA • • , t 1. • existing billboards which do not conform to the provisions of this title shall be regarded • nonconforming signm and shall be subject to the provisions of Subsection 18,114,110. 3 • C. coneerioial Zones: 1. Cr. Billboard Signs in the C-G zone only in accordance with Section 18.114.090.7443 • • T. Industrial Zones: 1. Is. Billboard Signs in accordance vith section • 18.l14.090.A;] • • • • • • • • • • • • • • • • • • • • • • • ,• • • • • Ig. • ira-L� LUUJ !uj iu.uj nm MCU Id nt L III a&ou JUO Wf' L r, UUL/UUL • • • Alixiiii116.1.11\4 • CITY OF TIGARD OREGON .Apri125, 2003 • • John Fitzmaurice • Media Art,Inc. 1923 Broadway St. • Vancouver,WA 98663 • Re: Freeway Oriented Signs Dear Mr. Fitzmaurice: The City of Tigard Building Division has received applications for four (4) freeway oriented signs. Although they may meet design specifications in accordance with the State of Oregon Structural Specialty Code (OSSC),they are prohibited by the Tigard Municipal Code.(TMC) due to size and height restrictions. The Planning Division has determined these signs do not comply with the provisions of . the TIM and cannot be approved for construction. Therefore, the Building Division is refunding all fees that have been prepaid. The refund is being processed and you should • receive it within the next two weeks. If you have any questions,please call me at(503) 718-2448. • Sincerely, • Gary Lampella Building Official cc: Brad Trilby, Associate Planner Jim Hendryx,Director of Community Development Brian Blalock, Senior Plans Examiner • • 13125 SW Hall Blvd., Tigard, OR 97223 (503)639-4171 TDD (503) 684-2772 Exhibit t • • May 2,2003 ... '/'�� COY OF T1G John Fitzmaurice Media Art, Inc. OREGON 1923 Broadway St Vancouver, WA 98663 • RE:FREEWAY ORIENTED SIGN @ HWY 217 &SW 95th Project Information Building Permit: BUP2003-000160 Construction Type: VN Tenant Name: POLE SIGN . Occupancy Type: U2 Address: 217&95th • Occupant Load: NA Area: 77 Feet Height Stories: 1 The plan review was performed under the State of Oregon Structural Specialty Code(OSSC) 1998 edition. The submitted plans are approved subject to the following but cannot be issued at this time per the attached letter dated April 25, 2003. • Footings shall be inspected by City of Tigard Building Inspector prior to the placement of any concrete. Special Inspection shall not waive any city required inspection. Special Inspection: Special inspection is required for Drilled Pier Footings,Structural Welding . and High-strength Bolting. The special inspection agency of record shall furnish inspection reports to the Engineer of Record,Jefferey A. Chapman, the General Contractor, Obie Construction and the City of Tigard,Building Division, attention Hap Watkins.All discrepancies shall be brought to the immediate attention of the general contractor for correction. The special inspector shall submit a final signed report stating whether the work requiring special inspection was,to the best of the inspector's knowledge, in conformance with the approved plans and specifications and the applicable workmanship provisions of the code. 1701.3 OSSC Approved Plans: 1 set of approved plans, bearing the City of Tigard approval stamp, shall be maintained on the jobsite. The plans shall be available to the Building Division inspectors throughout all phases of construction. 106.4.2 OSSC When submitting revised drawings or additional information, please attach a copy of the enclosed City of Tigard,Letter of Transmittal.The letter of transmittal assists the City of Tigard in tracking and processing the documents. Respeci Bria :lal• Senior P1.. Examiner 13125 SW Hall Blvd., Tigard, OR 97223 (503)639-4171 TDD(503) 684-2772 • • Planning Division 13125 SW Hall Boulevard Tigard, OR 97223 (503) 639-4171 140 CITY OF TIGARD Fa)C To: Gary Firestone From: Brad Kilby,Associate Planner Fax: 503-243-2944 Pages: 5 including cover Phone: 503-306-0258 Date: 4/11/03 Re: Billboards and Signs CC: ❑ Urgent ® For Review ❑ Please Comment ❑ Please Reply ® Please Recycle • Comments: Gary, The ordinance references the old Chapter of the code. The section in question is 18.780.070(M), 18.780.090(E)(1-10). Their specific questions dealt with criteria 1 and 6. • • RAMIS CREW CORRIGAN &' BACHRACH, r.iP ATTORNEYS AT LAW 1727 N.W. Hoyt Street Portland, Oregon 97209 M E M O R A N D U M (503)222-4402 Fax: (503)243-2944 THIS MEMORANDUM CONSTITUTES AN ATTORNEY/CLIENT COMMUNICATION,AND AS SUCH IS A RECORD EXEMPT FROM PUBLIC INSPECTION PURSUANT TO ORS 192.502(9). TO THE EXTENT IT IS DISCUSSED DURING A PUBLIC MEETING, THAT DISCUSSION SHOULD OCCUR IN AN EXECUTIVE SESSION HELD PURSUANT TO ORS 192.660(1)(f). TO: Dick Bewersdorff, Brad Kilby, City of Tigard FROM: Gary Firestone, City Attorney's Office DATE: April 11, 2003 RE: Billboards Along State Highways ISSUES 1. May the City prohibit billboards along state highways? 2. Does the City prohibit billboards along state highways? ANSWER 1. Yes. The Oregon Motorist Information Act of 1971 does not preempt local regulation of signs along highways. 2. Yes. Although there is some ambiguity in the code, the intent of the Council to prohibit billboards throughout the City seems clear. We recommend revising the code to remove any ambiguity. • • Memorandum re: Billboards Along State Highways April 15, 2003 Page 2 • ANALYSIS 1. The OMIA Does Not Preempt Local Regulation The Oregon Motorist Information Act of 1971 (ORS 277.700 to 377.840 and 388.992)provides extensive regulation of signs along state highways. However, it specifically requires an affidavit from each city or county with jurisdiction that"the proposed sign would comply with all applicable ordinances, plans, rules and other requirements of the city or county." ORS 277.723. Therefore, the legislature expressed a clear intent that the OMIA not preempt local government sign regulations. The OMIA acts as an additional layer of regulation but does not preempt local regulation. 2. The City Has Prohibited Billboards CDC 18.780.070M provides:"Billboards are prohibited." This is a clear prohibition on billboards • throughout the City. CDC 18.210.020C provides that when both City regulations and other regulations - : ; apply, the more restrictive regulation applies. Therefore, the City's prohibition on billboards, which is more restrictive than the OMIA's regulation of billboards, applies. Although CDC 18.780.070M is clear, and the legislative history also indicates a clear intention to absolutely prohibit billboards(see Ordinance No. 93-12), some may argue that some provisions of the - CDC could be interpreted to allow billboards that receive an OMIA permit. Two provisions of CMC 18.780.090E create some ambiguity. First,CDC 18.780.090E.1 provides:"Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act need not seek a separate approval from the City of Tigard." This might appear at first glance to allow a sign developer to totally avoid the City. However, ORS 277.723 expressly requires certification from the City that a sign is permitted, and the City can prevent issuance of an OMIA permit by refusing to issue the certification for billboards or other signs that do not comply with CDC Chapter 18.780. Because a state permit can be obtained only after City certification that the sign is permitted,CDC 18.780.090E.1 is consistent with the application of City regulations. The regulations are applied at the time the certification is requested. Second, CDC 18.780.090E.6 provides: For freestanding signs, a total maximum sign area of 160 square feet per face(320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. • • • Memorandum re: Billboards Along State Highways April 15, 2003 Page 3 The second sentence of this paragraph is extremely confusing. No portion of 18.780.090 specifically applies to billboards. This language appears to be left over from the time that billboards were permitted along highways in certain zones. While it suggests that billboards may be permitted, it does refer to the provisions of Section 18.780.090, which include the maximum square footage for all freestanding signs. To clear up the confusion, the City could interpret the provision so that the maximum sign area set forth in the first sentence applies to the"billboards" listed in the second sentence. To avoid any future disputes, I recommend that various code sections be amended to clarify that the prohibition on billboards applies to freeway oriented signs. I recommend that CDC 18.780.090E.1 be revised to read: For signs requiring a permit under the Oregon Motorist Information Act, the City will . determine pursuant to a Type 1 process whether the sign meets all applicable City standards and provide that determination to any applicant for a state permit, consistent with ORS 377.723. I also recommend that the second sentence of CDC 18.780.090E.6 be deleted. . : _ In addition to these changes, some other provisions of Chapter 18.780 should be amended. Most importantly, the definition of"billboard" in CDC 18.780.015A.8 should be amended. "Billboard" is - defined as a sign on a billboard structure, and"billboard structure" is defined as the structure holding a billboard. Because these definitions are circular, there is no real code definition of billboard. The City therefore must interpret "billboard" using some other definition, which could be a definition based on common knowledge, usage in the trade, or a dictionary definition. One possible definition of billboard is "A freestanding sign exceeding square feet on any sign face." The City may want to omit "freestanding" from the definition. I also recommend deleting CDC 18.780.O10D, which adopts by reference the provisions of the OMIA. This provision seems unnecessary, and could lead some to argue that signs permitted under the OMIA are permissible, even if Tigard has stricter regulations. I also recommend deleting CDC 18.780.090E.10, which provides: "Freeway oriented signs shall be allowed only be administrative approval of a sign permit application or by approval of s sign code exception by the Commission." This appears to be the only mention of a sign code exception in the chapter. Other sign code requirements can be adjusted under CDC 18.780.140, and the adjustment standards and process seem more appropriate than an exception. G:\muni\Tigard\sign041103.wpd • • APPEALED TO THE LAND USE BOARD OF APPEALS (LUBA) SEE LUBA FILE NOS. 2003-068/069, 084, 085 & 112 • • AECIIIVED APPEAL FILING FORM _ `It's '� . FOR..LAND USE DECISIONS CITY OF TIGARD 13125 SW Hall Blvd, Tigard, OR 97223(503) 639-4171 FAX:(503) 684-7297 (Ai t ur i IL A iL) PLANNING/ENGINEERING . . • The City of Tigard supports the citizen's right to participate In local government. Tigard's Land Use Code, • therefore,sets out specific requirements for filing appeals on certain land use decisions. The following form has been developed to assist you In filing an appeal of a land use decision in proper form. To determine what filing fees will be required.or to answer any questions you have regarding the.appeal process,' please contact the Planning Division or the City Recorder at the phone/fax listed at the top of this form. GENERAL INFORMATION ' • FOR STAFF-USE ONLY Property Address/Location(s) and Name(s) of the Case•No.(s): /aJ5 Z.coQ3 ---Oooa-Z- Application Being Appealed: Director's Interpretation Case Name(s): --- ., - ' Regarding Billboard TMC 18.780.015.A.8 and .9, TMC 18.870.070M, TMC 18.780.090.E.1 and TMC 18.780.090E6 Receipt No.: Loo.3'- 2z to ')`. How Do You Qualify As A Party?:. Media Art, through its •attorney requested a copy of the Director's Application Accepted By: Interpretation and has standing under 18.340.020 D � and E. Date: .. Approved As To Form By: • •Appellant's Address:" Media Art c/o Michelle Rudd, Stoel Date: • Rives, •900 SW 5th Avenue, Suite 2600 City/State: Portland, OR gip' 97204 Denied As To Form By: Day Phone Where You Can Be Reached:: (503) 294-9390 Date: Scheduled Date Decision Is To Be Final: May 16, 2003 Rev.15-Aug-OZ t,lcurpin\mas ersysvised�aooeef.doc Date Notice of Final Decision Was Given: May 28, 2003 Specific Grounds For Appeal or Review: REQUIRED SUBMITTAL ELEMENTS Disagreement with interpretation of-sign ordinance issued by Community Development Director; Director's Application Elements Submitted: interpretation of the sign code is unconstitutional, V Appeal Filing Form (completed) violating State and Federal constitutional guarantees Er Filing Fee(based on criteria below) of freedom of speech, privileges and immunities and . Director's oedslonto Panning commtaslon $ 250.00 due process; Director's interpretation violates > expedited lieview(deposit) $ 300,00 42 USC § 1983; City Manager does not have standing y Planing Commission/Hearing's $ aoa.00 g Chy Comma' $1;79aA0 . to appeal; other constitutional and procedural issues . (.-rfariscript) to be identified at the hearing. -- ___ Signature(s) of Appellant(s): •. Media Art's mailing address is: II _ ,. ,iL% .4 1923 Broadway Street . Vancouver, WA 98663 Michelle' Rudd, Stoel Rises. LLP on behalf of Media Art • " "' - (OVER FOR ADOIfONAL WRITING SPACE' ______ _ A CITY OF TIGARD 6/2/2003 13125 SW Hall Blvd. 10:00:03AM Uyrtl, . Tigard,Oregon 97223 - 61.i.. (503) 63 9-4 17 1 . Receipt #: 27200300000000002262 Date: 06/02/2003 Line Items: Case No Tran Code Description Revenue Account No Amount Paid MIS2003-00022 [LANDUS]Code Interpretation 100-0000-438000 250.00 Line Item Total: $250.00 Payments: Method Payer User ID Acct./Check Approval No. How Received Amount Paid Check STOEL RIVES KJP 610222 In Person 250.00 Payment Total: $250.00 1 ' • • DIRECTOR'S INTERPRETATION REGARDING BILLBOARDS TMC 18.780.015.A.8 and .9, TMC 18.870.070.M TMC 18.780.090.E.1 and TMC 18.780.090.E.6 I. INTRODUCTION This interpretation is intended to clarify certain provisions of the Community Development Code regarding signs. II. INTERPRETATIONS A. TMC 18.780.015.A.8, 18.780.015.A.9 and 18.780.070.M Code Language TMC 18.780.015.A.8: "Billboard" means a sign face supported by a billboard structure. TMC 18.780.015.A.9: "Billboard structure" means the structural face which supports a billboard. TMC 18.780.070.M: "Billboards. Billboards are prohibited." Interpretation As applied to freeway-oriented signs, a billboard is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway-oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet Discussion The two definitions (of"billboard" and "billboard structure") are circular and provide little guidance as to what constitutes a billboard or a billboard structure. Dictionary definitions are not very helpful. For example, the most relevant definition in Webster's Ninth New Collegiate Dictionary is "a large panel designed to carry outdoor advertising." This definition does not provide much detail but is in accord with the common conception of a billboard as a very large sign. TMC 18.780.070.M prohibits billboards. Before billboards were prohibited, they were allowed only in certain zones and only if within 660 feet of Highway 217 or Interstate 5. (See Ordinance 93-12, Exhibit A). However, it is clear that when the Council prohibited billboards, it did not prohibit all freeway-oriented signs because freestanding freeway oriented signs are expressly permitted, subject to certain standards. TMC 18.780.090.E. Given the dictionary definition and common understanding of billboard as a very large sign and that the Council's obvious intent as to freeway-oriented signs was to prohibit certain signs while allowing others, it appears that the Council intended the term "billboard" in the context of freeway oriented signs to mean a sign that is larger than the maximum size allowed for a freeway-oriented sign. The normal maximum area for a freeway-oriented sign is 160 square feet per sign face and 320 square feet for a two-sided sign. TMC 18.780.090.E.6. However, provided an application can meet all of the applicable review criteria for an adjustment, the code allows adjustments of up to 25 percent in sign area. TMC 18.780.140.A, TMC 18.370.020.C.6. Therefore, a freeway-oriented sign that does not exceed 200 square feet per side and 400 square feet total may be approved through the adjustment process and would not be a billboard. In the context of freeway-oriented signs, a billboard therefore is a sign with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet. As applied to freeway- oriented signs, TMC 18.780.070.M prohibits signs with any one sign face greater than 200 square feet or with a total sign area greater than 400 square feet • Page 1 of 4 • B. TMC 18.780.090.E.1 • • Code Language TMC 18.780.090.E.1: Anyone who qualifies for a permit from the State of Oregon under the provisions of the Oregon Motorist Information Act (OMIA) need not seek separate approval from the City of Tigard. Interpretation The "separate approval" provision of TMC 18.780.090.E.1 distinguishes the City's sign permit process set out in Tigard Municipal Code Chapter 18 from the state permitting process, which includes a requirement to obtain an affidavit from the City. ORS 337.723. A person qualifies for an OMIA permit only if that person has obtained an affidavit from the City that the proposed sign complies with all applicable City regulations and the state determines that the other OMIA standards are satisfied. If a person has not obtained an ORS 337.723 affidavit that the City standards have been met, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." To demonstrate that a person has qualified for an OMIA permit, the person must provide evidence the OMIA permit has been issued. This section does not exempt a person from obtaining building permits, only from obtaining the sign permit required under Chapter 18.780. Under the building code, the building official is to deny permits for failure to meet building code standards or other applicable laws and ordinances. The City's prohibition on billboards is an applicable law or ordinance preventing issuance of building permits for billboards. Discussion This provision is ambiguous because it does not clearly define what "qualifying for a permit" means. The provision could be interpreted to mean that the City should make an independent evaluation in each case whether a person meets all the qualifications for a permit from the State under the Oregon Motorist Information Act. This interpretation is unacceptable and unreasonable because it would have the City make an independent evaluation of a decision that only the Oregon Department of Transportation has authority to make. See ORS 377.725. That interpretation could result in an avoidance of the City process in cases in which the state denies the OMIA permit. This is clearly not what the Council intended in passing this provision. It could also be interpreted as meaning that a person does not need to seek separate City approval if the person has obtained an OMIA permit for a location in the City. This is a reasonable and acceptable interpretation of the code provision. TMC 18.780.090.E.1 must be read in context of the OMIA. A person can qualify for an OMIA permit only if that person obtains an affidavit from the City that the sign is permitted under the City codes. ORS 337.723. The provision that a person need not obtain a "separate approval" from the City makes sense when interpreted in light of the provision in ORS 337.723, which includes the City as part of the OMIA process. If the City issues an affidavit certifying compliance under ORS 337.723, it will have verified that the applicant meets City standards, and a second City process would be superfluous. However, if no affidavit certifying compliance is issued, then the City would not have determined whether its code has been complied with and a separate City process is needed. The intent of the provision is to avoid two separate City processes for a single sign, while requiring at least one City process to determine whether a sign complies with City standards. Therefore, TMC 18.780.090.E.1 should be interpreted as meaning that a person may avoid obtaining a City permit (the "separate approval") if the person has obtained an affidavit from the City under ORS 337.723 stating that the proposed sign complies with all applicable City regulations. If a person has not obtained the ORS 337.723 affidavit indicating compliance, the person has not "qualifie[d] for a permit from the State of Oregon under the Oregon Motorist Information Act." If a person does obtain an affidavit from the City verifying compliance, the person could proceed with the billboard construction only if the person satisfies the state that all other OMIA permit requirements are met. The only way for the City to determine compliance with other OMIA standards is by verifying whether an OMIA permit has been issued. A person seeking to avoid the City permit process must provide evidence that the OMIA permit has been issued. Page 2 of 4 • • If a person has received an OMIA permit for another location, the person has not qualified for a permit for an OMIA permit for a location in the City until the person either obtains a City permit or an affidavit of compliance from the City under ORS 337.723. Furthermore, the only exemption provided for by this section is an exemption from the City's sign permit requirements in Chapter 18.780. A building permit, if otherwise required, still must be obtained. TMC 18.780.010.E.1 is in the context of the sign permit regulations in the Community Development Code. It is clear from the context that the "separate approval" refers to a sign permit, not a building permit. Indeed, the City does not have authority to state that a building permit is not required if state law requires a building permit, which it does for most sign structures. The building official cannot approve a building permit unless the application conforms to the requirements of the building code "and other pertinent laws or ordinances." OSSC (UBC) 106.4.1. The prohibition on billboards imposed by TMC 18.780.010.E.1 discussed in this interpretation is a "pertinent law" that prevents the issuance of a building permit for billboards. C. TMC 18.780.090.E.6 Code Provision TMC 18.780.090.E.6: For freestanding signs, a total maximum sign area of 160 square feet per fact (320 square feet total) shall be allowed. If the sign is a billboard, then the provisions of Subsection 18.780.090 shall apply. Interpretation The second sentence of TMC 18.780.090.E is interpreted to mean that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above) are not permitted. Discussion The first sentence of this section is clear and unambiguous. The second sentence is confusing and ambiguous. That sentence states that if a sign is a billboard, the provisions of subsection 18.780.090 apply. This statement is ambiguous for two reasons. Most importantly, any reference to standards being applicable to billboards is confusing, given the express prohibitions on billboards in TMC 18.780.070.M. Second, there may be some possible ambiguity as to whether the "provisions of Subsection 18.780.090" includes the first sentence of TMC 18.780.090.E.6. Dealing with the second possible area of ambiguity, the first sentence of TMC 18.780.090E.6 is one of the provisions of Subsection 18.780.090. There is no language in the second sentence that would exclude the first sentence of TMC 18.780.090.E.6 from being applicable. It would have been easy to include an express provision stating that the first sentence did not apply to billboards, or to add the word "but" between the two sentences. The Council in adopting the provision did not do that. To interpret the second sentence of TMC 18.780.090E.6 in a way that would make the first sentence not applicable to billboards would be to insert a provision that is not there. The second sentence of TMC 18.780.090.E.6 should therefore be interpreted as making the size limitation of the first sentence of that subsection applicable to billboards. In interpreting this provision, it should be noted that the code definition of billboard -a sign supported by a billboard structure- applies to this provision. The apparent intent was therefore that any sign that had a billboard structure could not exceed the other requirements of freeway-oriented signs, including the first sentence of TMC 18.780.090.E.6. The best interpretation of the second sentence of TMC 18.780.090.E is therefore that signs with billboard structures that are greater than the maximum allowed by the first sentence of TMC 18.780.090.E.6 (plus any adjustments allowed by code as discussed above), are not permitted. Page 3 of 4 • • • This interpretation also resolves the possible inconsistency with prohibition on all billboards in TMC 18.780.070.M. As properly interpreted, TMC 18.780.090.E.6 prohibits all signs greater than a certain size, including those that are supported by a billboard structure. Given the interpretation of"billboard" discussed in Section A above, the structure of a smaller sign would not be a "billboard structure" because it would be for a sign that is smaller than a billboard and the prohibition on billboards would not apply. Therefore, there is no inconsistency between TMC 18.780.090.E.6 and TMC 18.780.070.M because TMC 18.780.090.E.6 does not allow any billboards prohibited by TMC 18.780.070.M. III. APPLICATION OF THIS INTERPRETATION This interpretation applies in all situations in which the code sections discussed in this interpretation are applicable. Because this is an interpretation and not a regulation, it is to be applied by all City staff in all situations, even as to applications that have been filed. IV. FINALITY AND EFFECTIVENESS This decision is final and effective upon mailing. It may be appealed to the City Council pursuant to TMC 18.340.020.E and F. / ./I2/ / . / -7 / ' James N.P. He •ryx, Community•= ■ - opment Director DATE:0 V/6/0 3 Page 4 of 4 GOOD U t-1 i-t i--! - fit Lt • • CITY OF TIGARD, OREGON ORDINANCE NO. 93- /a r- AN ORDINANCE TO AMEND PROVISIONS OF THE COMMUNITY DEVELOPMENT CODE SECTION 18.114.070 TO ADD SUBSECTION N. TO PROHIBIT BILLBOARDS AND TO REPEAL SECTION 18.114.090 A. SUBSECTIONS 1-4 WHICH PROVIDES FOR BILLBOARDS. WHEREAS, The City of Tigard finds it necessary to revise the Community Development Code periodically to improve the operation and implementation of the Code; and WHEREAS, The City of Tigard Planning Commission reviewed the staff recommendation at a public hearing on March 8, 1993 and voted to recommend approval of the amendment to the City Council; and WHEREAS, The City of Tigard finds that the amendment does not affect City Comprehensive Plan Goals or State Planning Goals; and WHEREAS, The City of Tigard finds that there has been a public outcry concerning the proliferation, number, spacing and aesthetics of billboards; and WHEREAS, The City Council held a public hearing on April 13, 1993 to consider the amendment. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The Community Development Code shall be amended as shown in Exhibit ^AM. Language to be added in UNDERLINED., Language to be deleted is shown in (BRACI.ETS). This ordinance shall be effective 30 days after its passage by the Council, approval by the Mayor, and posting by the City Recorder. PASSED: By rYl 61,1 Ot I vote of all Council members present after boiiw read by number and title only, this day of Cf.09. i ( , 1993. Catherine Wheatley, City order APPROVED: This / lh day Ii1OP . , 199 . 4( e W wa 'ids' l a Y or Approved s to form: City Attorney { Date ORDINANCE No. 93- Page 1 �- -► hhr► n. nr1n nr-1n LiLi LI Li L4,JLi LI ...--- Ai • EXHIBIT "AN 1 X14-O O Cer Sian$ pro ibitcd IL. Bil asks Billb241:01. are_ Prohibited. ]ft.+14 O o SD®c U Condiro,ione Sions A. Special condition signs shall have special or unique dimensional, locational, illumination, maximum number or :/ther requirements imposed upon they in addition to the regulations contained in this chapter. ,[1. Billboard: I a. Billboard sign regulations shall be as follows: (i) zones Permitted: (1) Billboard signs shall be permitted only in a C-G commercial zone or I- P, I-L and I-H industrial zones and (:- then only within 660 feet of Oregon State Expressway No. 217 and/or Interstate Freeway No. 5 right-of- ways; III 2. All new proposed billboard sign(s) within 660 feet - of the public right-of-way of a state highway must obtain the necessary permit(s) frog the State Highway Division and all billboard signs) must be maintained to conform with applicable state fi requirements pertaining to billboards; ` 3. All signs, together with all of their supports, / braces, guys, and anchors shall be kept in good repair and shall be maintained in a safe condition: F: r a. All signs and the site upon which they are ;; located shall be maintained in a neat, clean, and attractive condition; b. Signs shall be kept free from excessive rust, corrosion, peeling paint, or other surface deterioration; and c. The display surfaces of all signs shall be kept neatly painted or posted; ,L r.� 4. Except as otherwise provided in this subsection, .....-_-� o..,•,� ...,n .. -t �..`,u.S,'^'.�.-',. Z �r- - ..... ... ... .. '.1 ►-► ►-� ►� ►'� n ►'► ►1n hn n ► \,- LI Li U Li Li L.I°1 ) LJ U L f existing billboards which do not conform to the provisions of this title shall be regarded as nonconforming signs and shall be subject to the provisions of Subsection 18,114,110.] 8.114.130 Zoning District Reaul tions C. Coamericial Zones: 1. [f. Billboard Signs in the C-G sone only in accordance with Section 18.114.090.A;] F. industrial Zones: - 1. [e. Billboard Signs in accordance with Section 18.114.090.A:] • If