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Resolution No. 03-27 Attachment 2 CITY OF TIGARD,OREGON RESOLUTION NO. 03 Q 71— 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 l: 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 .r ay of 2003. ay r-(City igar l ATTEST: 'Ity RESOLUTION NO.03 - a Page i 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. 11. 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 18.780.140A 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 41 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. 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 be appealed to the-City Council pursuant to TMC 18.340.020.E and F. qrt ,nom es .F: e Oryx,Cir muni " el p � t C I ctor DATE: S ///, 0 :3 gage-t ut V