Resolution No. 99-54 CITY OF TIGARD,OREGON
RESOLUTION NO.99-_5L(
RESOLUTION ADOPTING DIRECTOR'S INTERPRETATION CONCERNING DEDICATION,
PUBLIC PACiii T1ES, TINT raDECISIONS,NON-CONFORMING SITUATIONS, AND BUILDING
LOCATIONS ii1 THE TIGARD TRIANGLE.
WHEREAS,the City Development Code occasionally needs further definition of requirements;and
WHEREAS,the Community Development Director is authorized to interpret the Development Code;and
WHEREAS, City Council interpretations of the Development Code are given deference through court
decisions;and
WHEREAS, the Development Code has requirements for public facilities, dedications, final decisions,
non-conforming situations and building locations in the Tig rd Triangle that require further definition.
NGW,iIAE REF ORE,BE lT RESOLVED by the Tigard City Council that:
Section 1: The Tigard City Council hereby adopts the attached Director's Interpretation.
PASSED: This In day of4ji— 1999
Mayor- of Tigard
ATTEST:
City Recorder-City of Tigard
i
j
ji:curpin\dick\dirintpfres
06/07/99 7:48 AM
RESOLUTION NO.99-
Page 1
DIRECTOR'S INTERPRETATION
CDC 18.340,18.390, 18.620, 18.750&18.8-10
C� OF 'IiGA AW-
I. INTRODUCTION OREGON
This interpretation is intended to clarify certain provisions of the Community
Development Code regarding public improvement standards,finality of decisions,
alteration of non-conforming situations,and building location requirements.
II. INTERPRETATIONS RELATING TO PUBLIC IMPROV_A11ENTS
A. General Principles Relating to Public Improvements
Several provisions of the Community Development Code may be ambiguous as to whether
® they require an applicant to build a required public improvement or simply state an approval standard
requiring that certain minimum public improvements and services be available. Some provisions may
appear to require the applicant to dedicate property for public use and/or to build a public
improvement. The following general principles apply to all provisions in the CDC relating to public
improvements:
1. If a provision is ambiguous as to whether it (a) requires the applicant to dedicate
property and build a public improvement or (b) imposes a standard requiring that the public
improvement to be in place, the ambiguity is to be resolved in favor of the interpretation that the
rovision is a development standard but does not impose an automatic obligation to build the public
provement on the applicant,the City,or any other person or entity.
2. If a code provision expressly requires the applicant to dedicate property and/or to build
public improvements that would benefit pproperty other bran the property being developed, that
provision is to be interpreted in light of Nollan v. California Coastal Comm n, ^83 US 825 (1987) and
Dolan v. City of Tigard, 512 US 374 (1994) and other applicable case taw. All requirements to
dedicate property or to build a public improvement are imposed only to the extent that the City can
demonstrate a direct relationship (essential nexus) between the exaction and the development's
impact on a public interest and that the exaction is roughly proportionsl to the impact. The City may
require applicants to dedicate property or to build public improvements when it can demonstrate the
Nollan/Dolan essential nexus and rough proportionality test is met.
3. If a code standard or criterion is not met or complied with, the City has the option of
denying the application or approving it subject to conditions that result in satisfaction of the standard
or criterion. In some cases, such a condition will require construction of an improvement to the extent
Dolan allows it. In other cases,the condition will relate to timing, allowing the project to proceed only
after someone builds the improvement needed to satisfy the approval criteria.
i
The general principles may allow more than one option in some situations. For example, if a
proposed development adjoins and has access to a street that is not built to City standards and the
j code requires that adjacent streets meet City standards, the City could have three options for dealing
with an application that did not propose improvement of the street to City standards. First, it could
deny the application for failure tocomp with the code. Second, If the City could demonstrate that
the impact of the development on the transportation systemis roughly proportional to the
Improvements needed to bring the street to standards (including the value of ary necessary
dedication), the City could approve the application with the condition that the applicant improve the
street to applicable standards. Third, the City could approve the application subject to a condition
hat the street must meet City standards before occupancy is allowed: This last option could require
e condition to be met before the building permit,final inspection,or occupancy stage. As a practical
atter, if the City or some third party is going to build the improvements, the City could allow 'ne
building permits to be issued when a definite commitment for street improvements is in place,with the
final occuuancy being tied to completion of the street improvements.
13125 SW Hall Blvd.,Tigard,OR 97223(503)639-4171 TDD(503)684-2772 -
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B. Interpretation of Specific Code ProviseGna
1. CDC 18.810.020A
a. Code Language
® CDC_ 18.810.020A provides:
Unless otherwise provided, the standard specifications for construction, reconstruction or repair of streets,
sidewalks, curbs, and other public improvements shall occur in accordance with the standards of this title.
No development may occur unless the public facilities related to development comply with the public facility
requirements established in this section.
b. Interpretation
This provision requires the listed public facilities to be in place and to meet the standards of CDC
Title 18.810. It does not require the applicant to dedicate property for or to build the facilities.
C. Discussion
If the public facilities are not in place and the applicant has not proposed to build the required public
improvements, the City has two primary options. The first option is to deny the application because the
required public facilities are not in place. The second option is to approve the application subject to a
condition that the required public improvements must be in place before some specified event (the
issuance of building permits, final inspection, or the issuance of occupancy permits)can occur. By doing
so, the City is not requiring the applicant to constrict the public improvements. The public improvements
may be constructed by the City or by some third party. This alternative would allow the applicant to
construct the public improvements should the applicant choose to do so.
A third option is possible. If the City can justify requiring the applicant to provide the public
improvement under the Nollan/Dolan standard, the City may approve the application subject to a condition
that the applicant provide the require.: public improvement. This option should be avoided unless the
AlMlicant agrees to the condition or the City can clearly demonstrate that the exaction is justified under the
lan/Dolan standard.
2. CDC 18.810.030A.I
a. Code Language
CDC 18.810.030A.1 provides:
Streets within a development and streets adjacent shall be improved in accordance with this title.
b. Interpretation
This provision imposes a development standard which must be met for an applicant to be approved.
It does not necessarily require an applicant to dedicate land or build public improvements, but it does
provide authority for the City to impose such conditions of approval if the standards are not otherwise met
and the nexus and rough proportionality tests are met.
C. Discussion
If the streets within or adjacent to a development do not meet the applicable standards and the
applicant has not proposed improvements to meet the standard,the application should either be denied or
approved subject to a condition that the development can proceed only when the required public
a improvements(the streets)are in place and meet the standards.
a
The City could choose to impose street dedication and improvement requirements for streets
internal to a subdivision and meet the Nollan!Do!an standard in most cases. Internal streets within a
amakdivision normally are needed to allow the subdivision to develop and the need for the streets is created
he subdivision. Because the need for the internal streets is created by
the development, the impact of the development is roughly proportional to the cost of dedication and
construction of the internal streets. Therefore, for internal streets, tiie City may require the applicant to
dedicate and improve the streets to applicable standards based on a showing that the Nollan/Dolan
standard is met.
Page 2 of 8
CDC 18.810.O3OA.1 should also be applied in light of CDC 18.810.O30A.5 which allows for
variances from any standards under appropriate situations. While variances from standards for internal
streets should rarely be granted,variances for standards for adjoining streets should take into account the
extent to which the proposed development would affect the street in question, whether the development
will have adequate access by another route that meets applicable standards, and the extent to which
elopment of the street in question is immediately needed. These standards will also assist the
r^,,nation whether dedicati—of right-of-way and improvement of the street can be required under the
Nollan-Dolan standard.
The term "streets adjacent' in CDC 18.81O.03OA.1 is also ambiguous in light of the traditional
requirement that developers be responsible orlt• far half-street improvements for streets adjoining the
property to be developed. The requirement the an adjoining street be unproved to full standards may
overly restrict the possibility of development and prevent development based on the refusal of the property
owner on the other side of the road to dedicate property. This term is to he interpreted in context of all the
other provisions of CDC 18.810.030. While is some cases full street improvements may be a necessary
prerequisite, the term "streets adjacent' may, in appropriate situations, be interpreted as applying only to
the half-street adjacent to the development.
3. CDC 18.81O.O30A.2
a. Code Language
Any new street or additional street planned as a portion of an existing street shall be dedicated and
improved in accordance with this rule.
b. Interpretation
This provision required dedication and improvement by the applicant to the extent that the
dedication and improvement is lusti`ied under the Nollan/Dolan standard.
C. Discussion
Adsh.WAll requirements to dedicate property must meet the Nollan/Dolan standard. Similarly, if the
licant is required to construct the improvements, the requirement to construct improvements is an
ction that must meet the direct relationship/rough proportionality standard.
4. CDC 18.81O.O30A.4
a. Code Language
CDC 18.810.03OA.4 provides:
The City Engineer may accept a future improvement guarantee in lieu of street improvements if[certain]
conditions exist.
b. Interpretation
This provision does not by itself require either the street improvements or a future improvements
a guarantee, but only provides that future improvement guarantees may be accepted under certain
conditions.
H
C. Discussion
H
This provision shou!d not be interpreted as assuming that developers can be required to provide
street improvements if such a requirement is inconsistent with the Nollan/De!an standard. Rather,it should
o be interpreted as allowing the City to accept a future improvement guarantee when all apolicable street
7 standards are not met and one or more of ti,.: specified criteria exist. It should be interpreted as a plying
a only to those situations in which the City can require the developer to dedicate property or builrpublic
improvements under the Nol/ap./Dolan standard.
Page 3 of 8
5. CDC 18.810.030A.5
a. Code Language
CDC 18.810.030A.5 provides:
Wrovemnts to streets shall be made according io adut-tcd City standards, unless the approval authority
determines that the standards will result in an unacce table adverse impact on existing development or on
features such as wetlands,steep slopes or existing the proposed development ur or.na��ra. g nature trees.
In approving an exception to the standards, the approval authority shall determine that the potential
adverse impacts exceed the public benefits or the standards. In evaluating the public benefits, the
approval authority shall consider the criteria listed in Section 18.810.03E.1.
b. Interpretation
The term"unacceptable"is interpreted as imposing an objective standard, not a subjective standard.
An adverse impact on an existing or proposed development is unacceptable if application of the standard
would result in an uncompensated taking of private property in violation of the applicable constitutional
standards. In no case can exceptions to the standards be approved if the resulting public improvements
would not be adequate to assure public safety.
C. Discussion
This provision allows an exception to the standards of ORS Chapter 18.180 based on a balancing of
the public interest in the transportation system with other interests,including the interests of the proposed
development. The interpretation is needed to clarify that an exception may be allowed only when the
adverse impact on existing or proposed development) is objectively unacceptable. It is not sufficient that a
developer may claim that the impact is unacceptable. The standard is whetter the impact of compliance
with the standards is so severe as to prevent economically beneficial use of the property or to thwart
reasonable investment-backed expectations. An applicant cannot seek ar exemption by designing a
project in such away that the project cannot comply with CDC Chapter 18.810. Rather,the applicant must
Mlompt to design a project that can comply with CDC Chapter 18.810 and can seek an exception if a
sonable development that complies with the chapter is not possible. Any development approved
pursuant to an exception under CDC 18.810.030A.5 must comply with all other approval criteria.
6. CDC 18.810.110A
a. Code Language
CDC 18.810.11 OA provides:
Bikeway extension. Developments adjoining proposed bikeways identified on the City's adopted
pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the
dedications of easements or rights-of-way.
b. Interpretation
Dedications of easements or rights-of-way for future extension of bikeways are required for
developments adjoining proposed bikeways identified In the adopted pedestrian/bikeway plan but only
when the dedication requirement is directly related to and roughly proportional to the impact on the
transportation system.
'
C. Discussion
This provision must be read in light of Nollan and Dolan. For the dedication of a bikeway to be
directly related to a development,the City must either show an impact on the bicycle transportation system
or show that the development will have an impact on the motor vehicle transportation system and that the
provision of a bikeway will have a positive benefit on the motor vehicle transportation system by reducing
—`or vehicle use or bv increasing street capacity.for motor vehicles by removing bicycles from the road
or
em shared by motvehicles and bicycles. Any requirement to dedicate property must be roughly
priL�aortional to the impact.
t Or on existing development or natural features.
"`
Pace 4 of 8
7. CDC 18.620.010B
a. Code Language
CDC 18.620.0103 provides in part:
Asa
In addition to meeting the design standards described below and other development standards required by
the Development and Building Cowes, developments Vali be required to dedicate and improve public
streets, connect to public facilities such as sanitary sewer, water and storm drainage, and participate in
funding future transportation and public improvement projects within the Tigard Triangle.
b. Interpretation
The requirement to dedicate and improve public streets is a requirement to dedicate and improve
public streets in an amount that is roughly proportional to the impact of the development on the
transportation system. The requirement to participate in funding future transportation and public
improvement projects, if imposed on an individual basis rather than as part of a uniform broad-based
scheme of fees or taxes,must also meet the direct relationship/rough proportionality standard.
C. Discussion
This provision must be interpreted to be consistent with Nollan and Dolan. Therefore,a requirement
to dedicate and improve public streets can only be imposed as a condition of approval if the City
establishes that the dedication arid impiuvement is directly related to and roughly proportional to an impact
of the development. Similarly,a commitment to pay for public improvement projects is subject to the sa^a
analysis in not imposed pursuant to a uniform broad-based scheme for imposing fees or taxes.
8. Other Provisions of CDC Chapter 18.620
a. Applicable Provisions
This interpretation applies to CDC 18.620.030,18.620.040, 18.620.050. 18.620.060 and 18.620.070.
b. Interpretation
CDC 18.620.030, 18.620.040, 18.620.050. 18.620.060 and 18.620.070 are design standards and do
not require dedication or construction of public improvements.
C. Design Standards
These standards imposed by these provisions apply to new development and redevelopment.
Nothing in the language of any of these provisions requires dedication of public property or building of a
public improvement. However,these provisions do impose standards that must be complied with.
Ili. PROVISIONS RELATING TO EFFECTIVE DATE OF DECISIONS
A. General Rule
The City has historically taken the position that final decisions of the City are effective even if
appealed to LUBA. The recent changes to the CDC were not intended to change that position. All
decisions that are final decisions�f the City shall be effective no later than the date the appeal period for
appealing to LUBA runs,even if an appeal is filed.
B. interpretation of Specific Provisions
j 1. CDC 18.340.020G and CDC 18.390.05OG
a. Code Language
CDC 18.3 40.02043 provide.
Final decision/effective date. The decision of the City Council on an appeal of a Directe. 'nterpretation
shall be final when it is mailed to the applicant. The decision is effective on the day after the appeal period
expires. If an appeal is filed the decision remains effective unless or until it is modified by the Land Use
Boafd of Appe-alc or a r_.ourt filed,
jt iriceiirtinn_
Page 5 of 8
CDC 18.390.050G provides:
Final decision and effective loft-_ The decision of the Review Authority on any Type It appeal or any Type
III appeal is final for purposes of appea,'on the date it is mailed. The decision ofi the Review Authority is
effective on the day after the appeal period expires. If an appeal is filed,the decision become-,effective on
Mbday after the appeal is resolved.
b. Interpretation
e
For both these provisions, the term "the day after the apppeal period expires" is interpreted as I
meaning "the day after the appeal period expires, regardless of whethe. art appeal is filed.
C. Discussion
The last sentence of CDC 18.340.020G confirms that the intent of this provision is to have decisions
be effective even if appealed. Because both CDC 18.340.020G and 18.390.050G use similar language to
determine the effective date, both provisions should be interpreted in the same way. So long as the
deadline for a LUBA appeal is.21 days after notice of the decision is mailed,the decisions in each situation
are effective 22 days after notice of the decision is mailed,whether or not an appeal is filed.
IV. PROVISION RELATING TO NONCGNFORMING DEVELOPMENT
A. General Rule
Although the City recognizes that validly established nonconforming uses and structures may be
continued, the goal of the city is to increase compliance with all code provi-ions. Therefore any change in
a nonconforming structure should be permitted only if the change brings the structure closer to compliance
with existing standards.
B. Interpretation of Specific Provision
1. CDC 18.760.040C
a. Code Language
CDC 18.760.040C provides in part:
1. Where a lawful structure exists at the effective date of
adoption or amendment of this title that could not be built under the
terms of this title by reason of restrictions on lot area, lot coverage,
height, yard, equipment, its location on the lot or other requirements
concerning the structure, such structure may be continued so long as it
remains otherwise lawful,subject to the following provisions:
a. No such nonconforming structure may be
enlarged or altered in any way which increases its nonconformity
but any structure or portion thereof may be enlarged or altered in
y a way that satisfies the requirements of this title or will decrease
4 its nonconformity.
N
b. Interpretation
Any enlargerne..or alteration of a nonconforming structure must either bring the structure into full
compliance with current standards or substantially decrease the nonconformity. Alterations which neither
increase nor decrease nonconformity are not allowed. A minimal change does not constitute a decrease in
5 nonconformity.
C. Discussion
The plain language of CDC 13.760.040C.1.a allows alteration or enlargement of a nonconforming
dM— cture orifi if the nonconforrnit"is decreased. Nothing in this provision allows alteration or a +lartgement
With nonconforming structure if tie nonconformity rerra'ms unchanged. For example, if a non ons'rming
structure is 40 feet from a property boundary and the current code has a maximum setback of 20 feet, an
expansion or alteration of the building in a direction other than towards the property boundary that leaves
the building 40 feet from the property boundary is not a decrease in the nonconformity and may not be
permitted under CDC 18.760.u400.i.
Page 6 of 8
The intent of this provision is to allow enlargement or alteration that results in an appreciable
decrease in the nonconformity. A de minimis decrease intended to circumvent this provision should not be
permitted. For example, if an existing building exceeds the maximum height for a zone by 10 feet and the
alteration includes a roof replacement with slightly thinner roof material so that the building's height is
decreased by less than an inch,this should not be considered a decrease in the nonconformity.
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A. General Rule
The design standards for the Tigard Triangle area are intended to promote a more dense and urban
environment,with buildings fronting on streets and with most of the street frontage occupied by buildings.
B. Interpretation of Specific Provisions
1. CDC 18.620.030A.2
a. Code Language
CDC 18.620.030A.2 provides:
Building setback - The minimum building setback from public street rights-of-way or dedicated
® wetlanos/buffers and other environmental features shall be 0 feet; the maximum building setback shall be
10 feet.
b. Interpretation
The 10 foot maximum building setback in CDC 18.620.030A.2 applies only to setbacks from public
street rights-of-way, not from dedicated wetland/buffers and other environmental features. All structures on
a property that 1s subject to this provision must have one side of i ie structure within 10 feet of the property
oeundary with the public street right-of-way.
C. Discussion
One purpose of the code is to preserve wetlands and other natural features. The 10 foot maximum
setback does not apply to wetlands and other environmental features. Structures may be sited any
distance from wetland/buffers and other environmental features so long as they do not encroach on those
features.
The minimum building setback from public street rights-of-way requires buildings to be built adjacent
(within 10 feet of) one or more public streets that border or run through a property. Placing a structure
within 10 feet of an interior driveway or private street does not satisfy the standard.
2. CDC 18.620.030A.1
a. Code Language
a Building placement on Maior and Minor Arterials - Buildings shall occupy a minimum of 50 percent of ail
street frontages along Major and Minor Arterial Streets. Buildings shall be located at public street
intersections on Major and Minor Arterial Streets.
b. Interpretation
i
In areas subject to this provision, buildings are to be primarily oriented and built to major and minor
arterials rather than to local streets. "Occupying a street frontage"means having a wall of a building within
10 feet of iiie property line along the right-of-way.
C. Discussion
This provision is intended to orient buildings to arterials rather than to local streets. It must be
rpreted in conjunction with CDC 18.620.03uA.2, which requires a 0 to 10 foot setback along
is-of-way. The building frontage requirement can be satisfied by more than one building, so long as
buildinnc nr.cupy 50 percent of the total frontage on an arterial. If a prope has frontage on more than
® one arterial,it must satisfy.the requirement at least as to one arterial and mus satisfy the standard as to all
hie structures a
o�.ar gals along which h s ..ra placed.
Page 7 of 8
VI. APPLICATION OF THIS INTERPRETATION
This interpretation is intended to apply in all situations in which the code provisions discussed in this
interpretation are applicable. Any statement in this interpretation that a code provision "should" "shall" or
g,�uust be interpreted in a certain fashion is an interpretation of the code stating the correct interpretation.
FIs interpretation is also applicable to parallel or similar provisions in the former Community Development
® rode,
VII. FINALITY AND EFFECTIVENESS OF DECISION
Because the applicant for this decision is the Community Development Director and no other person
has requested notice of this decision, this decision is final when signed. (ALTERNATIVE LANGUAGE —
This decision is final when signed and notice of the decision is mailed to those who have requested notice.)
This decision may be appealed to the City Council by filing a notice of appeal with the Community
Development Dire x within 14 days of the date this decision is final. If not appealed, this decision will be
effective on the 15 day after it is made final.
/J��amesN.P.CHVendryx,Communij Di6velopment Director
DATE: J()n.V
C:V-b\TIGARD\interp.wpd
is\curpin\dick\Director's Interpretation for Chapters 18.340,18.390,18.820,18.780,18.810.dw
3-Jun-99
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