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MIS2018-00006 1-4 CPN CD ).-11 1_,,AX 0° O © © O G1 NOTICE OF TYPE I DECISION NONCONFORMING USE DETERMINATIONill 19 MIS2018-00006 KING TIGARD 120 DAYS = December 18, 2018 SECTION I. APPLICATION SUMMARY FILE NAME: King CASE NO.: Nonconforming Use Determination (MIS) MIS2018-00006 PROPOSAL: The applicant requests a nonconforming use determination for a residential use (household living in a detached,single-family dwelling)at 10080 SW Katherine Street (WCTM 2S102BB,Tax Lot 300),in order to continue the use at this location. APPLICANT: Jeffrey L.Kleinman,Attorney at Law 1207 SW Sixth Avenue Portland,OR 97204 OWNER: Susan E.King,Trustee c/o Jeffrey L. Kleinman,Attorney at Law 1207 SW Sixth Avenue Portland,OR 97204 LOCATION: 10080 SW Katherine Street WCTM 2S102BB,Tax Lot 300 ZONING DESIGNATION: I-P: Industrial Park Zone. The I-P zone provides appropriate locations for combining light manufacturing, office and small-scale commercial uses, e.g., restaurants, personal services and fitness centers, in a campus-like setting. Only those light industrial uses with no off-site impacts, e.g., noise, glare, odor, vibration, are permitted in the I-P zone. In addition to mandatory site development review,design and development standards in the I-P zone have been adopted to ensure that developments will be well-integrated, attractively landscaped,and pedestrian-friendly. APPLICABLE REVIEW CRITERIA: Community Development Code Chapter 18.50.030 SECTION II. DECISION Notice is hereby given that the City of Tigard Community Development Director's designee has APPROVED the legal status of a nonconforming use,subject to the findings and conclusions on which the determination is based,noted in Section IV of this decision. MIS2018-00006 King 1 SECTION III. BACKGROUND INFORMATION Site Information: The subject property is located at 10080 SW Katherine Street,on the south side of SW Katherine Street, east of SW Tiedeman Avenue,and southwest of SW Tigard Street.The property is currently occupied by an existing detached, single-family dwelling that is approximately 950 square feet in size. The site also contains an approximately 240-square-foot carport, paved driveway, and associated landscaping. According to the Washington County Assessment and Taxation Report, the existing dwelling was built in 1946. The subject property is zoned Industrial Park (I-P). Adjacent properties to the north and west are zoned Low-Density Residential (R-4.5),and adjacent properties to the south and east are zoned I-P. SECTION IV. APPLICABLE REVIEW CRITERIA AND FINDINGS 18.50 Nonconforming Circumstances: 18.50.030 Determination of Nonconforming Use Status A. Director's determination. A determination regarding the legal status of a nonconforming use shall be processed through a Type I procedure, as provided in Section 18.710.050, using the following criteria: 1. Proof that the use was permitted by this title at the time it was established,by any of the following: a. Copies of issued development permits or land use approvals granted at the time the use was established; b. Copies of zoning ordinances or maps; c. Demonstration that the use was established before the first development code for the City of Tigard was adopted. The first development code for the City of Tigard was adopted in 1968, as the city's first subdivision ordinance(Ordinance No.68-48).According to the Washington County Assessment and Taxation Report, the existing detached, single-family dwelling located on the property was built in 1946. Accordingly, the existing residential use was established before the adoption of the city's first development code. This criterion is met. 2. Proof that the use has been maintained over time. This includes copies of one or more of the following evidence for every other year from the time the use was established until the current year.Standard evidence that the use has been maintained over time includes: a. Utility bills; b. Income tax records; c. Business licenses; d. Listings in telephone,business and other related directories; e. Advertisements in dated publications,e.g.,trade magazines;or f. Land use approvals or development permits. The existing detached, single-family dwelling located on the property was built in 1946, and the current owner purchased the property in 2005. The applicant's narrative states that the owner has maintained a record of utility bills to demonstrate that the existing dwelling has been maintained as a residential use since 2005.As additional evidence,the applicant cites a 2010 Notice of Violation from the City of Tigard for a code violation that makes express reference to a commercial business "operating from residential property." The owner has not altered the residential building since she acquired the property. This criterion is met. MIS2018-00006 King 2 CONCLUSION: The existing residential use (household living in a detached, single-family dwelling)at 10080 SW Katherine Street(WCTM 2S102BB,Tax Lot 300)is a legal, nonconforming use that has been maintained over time. SECTION V. PROCEDURE AND APPEAL INFORMATION Notice: Notice was provided to: X The applicant and owner Final Decision: A Nonconforming Use Determination is a Type I procedure.As such,the Director's decision is final for purposes of appeal on the date it is mailed or otherwise provided to the applicant,whichever occurs first. The Director's decision is not appealable locally,and is the final decision of the City. THIS DECISION IS FINAL ON AUGUST 22, 2018, AND BECOMES EFFECTIVE ON AUGUST 23, 2018. Questions: If you have any questions,please contact Lina Smith at (503) 718-2438 or LinaCS@tigard-or.gov. 11WL '�'`-� v August 22,2018 APPROVED BY: Lina Smith,Assistant Planner Community Development Director's Designee MIS2018-00006 King 3 Il-i � n 9�Ils.20/8 - 0OtXte JEFFREY L. KLEINMAN ATTORNEY AT LAW THE AMBASSADOR 1207 S.W. SIXTH AVENUE PORTLAND, OREGON 97204 R E C E I VV E D TELEPHONE (503) 248-0808 AUG 16 2018 FAX (503) 228-4529 EMAIL I'leinmanJL@aol.com CITY OF TIGARD August 15, 2018 PLANNING/EN nEE7:RING Via Email and First Class Mail Tom McGuire Assistant Community Development Director City of Tigard 13125 SW Hall Boulevard Tigard, Oregon 97223 Re: Determination of Nonconforming Use Status 10080 SW Katherine Street Property ID: 2S102BB00300 Owner: Susan E. King, Trustee Dear Mr. McGuire: I represent Susan E. King, who owns the above property as surviving trustee of the Jeffrey H. King and Susan E. King Revocable Trust. On behalf of Ms. King and pursuant to Tigard Municipal Code Section 18.50.030, I hereby request a determination of nonconforming use status for residential use (including home office use) of said property. The following information is submitted in support of this determination under TMC 18.50.040B. First, the home on the subject property was built in 1946, before adoption of the first development code for the City of Tigard. Secondly, residential (including at times home office) use of the property has been continuously maintained over time. The applicant has utility bills supporting such continuing use since she and her late husband acquired the property in 2005. The nonconforming use has not been enlarged, increased or extended to occupy a greater area of land or space than was occupied at the effective date of Title 18 of the Tigard Municipal Code. It has not been moved to a different location on the lot, in whole or in part, and has not been discontinued for any reason for a period of more than six months. Proof of the use of the home for home office purposes is set out in the city's Notice of Violation dated February 18, 2010, a copy of which is enclosed. Torn McGuire Assistant Community Development Director City of Tigard August 15, 2018 Page 2 Should you have any questions regarding this request, kindly let me know. Thank you for your courtesies. Very truly yours effr- . Kleinman JLK:cme Enclosure cc: Shelby Rihala, Esq. (via email and first class mail) client NOTICE OF VIOLATION PROPERTY OWNER/OCCUPANT l ETAL: MHT Business Services, LLC, PROPERTY ID:251028800300 Jeffrey H. and Susan E. King, and all others CASE#:CEO2010-00009 LOCATION OF VIOLATION: 10080 SW Katherine Street, Tigard, Or 97223 COMPLIANCE DATE:03-08-10 MAILING ADDRESS: 10080 SW Katherine Street, Tigard,-Oregon 97223 AND 4712 SW Flower Court, Portland, Oregon 97221 VIOLATION(S): Commercial business operating from residential property contrary to code standards, without City approval,and without mandatory permits. Includes but not limited to tax preparation/consulting/review/assistance/filing,all sales,solicitation,services,equipment and supplies thereof,employees related to,and the business known as MHT Business Services,LLC. REMEDY(S): Immediately stop all business activity. Remove any and all exterior business materials and supplies. This includes but is not limited to signs,business vehicles,employee vehicles,etc. Do not have Diy employees or customers come to the home for any reason. Do not bring any work vehicles or other business related items to the home. THE CITY HOME OCCUPATION REGULATIONS ARE IN ADDITION TO STATE REGULATIONS AND CITY BUSINESS TAX REGULATIONS. **Contact the City at 503-639-4171 x 2421 regarding home occupation permit regulations. In order to run any type of business from the home,you must apply for and meet all code-mandated criteria. Business includes but is not limited to any sales,solicitations,services,operations,etc. Continued business operations without City approval will result in court citations for all responsible parties as defined by Code. Responsible parties include the operator and agents of the business,and the owners of the property. Failure to comply with all regulations will result in court citation without further notification.Potential penalties are$250.00 per day,per violation,beginning no later than the issuance date of this notification. Tigard Municipal Codes: 18.230.020 Violation of Title Prohibited A.Violation of title prohibited.No person shall erect,construct,alter,maintain or use any building or structure or shall use,divide or transfer any land in violation of this title or any amendment thereto. 18.742.020A.Compliance with this chapter. No person shall carry on a home occupation,or permit such use to occur on property which that person owns or is in lawful control of,contrary to the provisions of this chapter. x18.742.030 C.Violations.Home occupations without City or County approval ... shall be considered in violation of this chapter and shall cease until the appropriate approvals have been granted. 18.742.040 General Approval Criteria and Standards A.General criteria.All home occupations... shall observe the following criteria in addition to the standards established for Type I and Type II Uses described in Section 18.745.050 of this chapter. 1.Home occupations may be undertaken only by the principal occupant(s)of a residential property; 2.There shall be no more than three deliveries per week to the residence by suppliers... 8.No home occupation shall require any on or off-street parking other than that normally required for a residence; 10.There shall be no exterior storage of vehicles of any kind used for the business... 18.742.050 Type I and Type II Home Occupations Defined A. ...Home occupations shall be administered as either Type I or Type II uses....In addition to the general criteria outlined in Section 18.742.040,home occupations shall observe the following additional standards: 1.Type I Home Occupations:The following characteristics of a Type I home occupation shall be prohibited: a.Outside volunteers or employees to be engaged in the business activity other than the persons principally residing on the premises; b.Exterior signs which identifies the property as a business location; c.Clients or customers to visit the premises for any reason; d.Exterior storage of materials. 5.04.050 One Act Constitutes Doing Business.For the purpose of this chapter,any persons shall be deemed to be engaging in business or engaging in nonprofit enterprise,and thus subject to the requirements of Section 5.04.040,when undertaking one of the following acts:1.Selling any goods or service;2.Soliciting business or offering goods or services for sale or hire;3.Acquiring or using any vehicle or any premises in the City for business purposes. 18.230.030 Penalty A.Class 1 penalty.A violation of this title shall constitute a Class 1 civil infraction....B.Each violation of a separate provision of this title shall constitute a separate infraction,and each day that a violation of this title is committed or permitted to continue shall constitute a separate infraction.C.Abatement of violation required.A finding of a violation of this title shall not relieve the responsible party of the duty to abate the violation.The penalties imposed by this section are in addition to and not in lieu of any remedies available to the City.D."Responsible party"means the person responsible for curing or remedying a violation,which includes: 1.The owner of the property,or the owner's manager or agent or other person in control of the property on behalf of the owner;2.The person occupying the property,including bailee,lessee, tenant or other person having possession; 3.The person who is alleged to have committed the acts or omissions,created or allowed the condition to exist,or placed the object or allowed the object to exist on the property. 1.16.410 Penalty-- Assessment.1. For Class 1 infractions,an amount not to exceed two hundred fifty dollars;(per violation per day)... Date:02-1$•10 Community Development THE CITY OF TIGARD FINDS THAT THE NOTED VIOLATION(S)EXIST ON THE Officer: Darnell ` _ Department PROPERTY IDENTIFIED ABOVE. FAILURE TO CORRECT THE VIOLATION(5)MAY 13125 SW Hall Boulevard, RESULT IN THE ISSUANCE OF A FORMAL CITATION WITHOUT FURTHER t1GARD NOTIFICATION.A COMPLAINT AND SUMMONS WITH A COURT DATE WILL BE Tigard,Oregon 97223 SENT TO YOU. THE COURT MAY THEN IMPOSE PENALTIES UPON YOU. O l J tt FEE WAIVER AND RELEASE AGREEMENT This Fee Waiver and Release Agreement ("Agreement") is hereby entered into between Susan King ("King") and City of Tigard (the "City"), who are each a "Party" and together the "Parties" to this Agreement. Recitals WHEREAS, A. King own the real property located at 10080 SW Katherine St. in Tigard, Oregon(the "Property"). B. King wishes to submit to the City a nonconforming use determination for the Property regarding the ongoing residential use of the Property located in the IP zone. C. The City agrees to waive King's application fee for the nonconforming use determination. Agreement NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: 1. Nonconforming Use Determination. King is responsible for preparing the nonconforming use determination application and submitting to the City. The City will promptly process the application, consistent with the standards and procedures in state statute and the Tigard Community Development Code. 2. Fee Waiver. The City agrees to waive King's $794 application fee for the nonconforming use determination. 3. Release. In consideration of the terms contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby release, acquit, and forever discharge one another and their respective officers, directors, agents, servants, consultants, sureties, insurers, successors, and assigns (collectively, the "Released Parties")from any and all known or unknown claims on account of or in any way arising or resulting from or in any way connected to the acts or omissions of the City or King in any way associated with this Agreement or the events giving rise to it. 4. Covenant. The parties hereby covenant and agree not to bring any suit, charge, complaint, administrative proceeding or any other form of action or claim against one another or any of the Released Parties relating in any way to any matters contained in this Agreement or the events giving rise to it. King agrees not to request or indirectly cause any governmental agency or other person to commence any investigation or bring any action against the City or any of the Released Parties, and hereby waives any remedy or recovery in any action that may be brought on FEE WAIVER AND RELEASE AGREEMENT Page 1 of 2 the behalf of King by any governmental agency or other person. The Parties intend that the release contained in this Agreement and the covenant in this section be as broad and comprehensive as possible, such that neither the City nor King nor any of the Released Parties shall ever be liable, directly or indirectly to one another, to any beneficiaries, executors, administrators, personal representatives, heirs, successors, or assigns, or to any person, firm, or corporation claiming by, through, under, or on behalf of the City or King or any of the Released Parties, or to any person who asserts a claim. 5. Effective Date. This Agreement is effective as of the date of the last dated signature below. Notwithstanding said Effective Date, the Release and Covenant in Sections 3 and 4 of this Agreement become effective upon the City's approval of the requested nonconforming use determination and the expiration of any relevant appeal period without the filing of any appeal or, in the event of such an appeal, the final resolution of said appeal in King's favor with the City to have taken responsibility for responding to said appeal. 6. Access to Counsel. King understands and acknowledges that there is no requirement to enter into this Agreement, but King knowingly, intelligently, and voluntarily chooses to do so. King acknowledges that she has had an opportunity to review this document with her own legal counsel. 7. Severability. In the event any provision of this Agreement is determined to be invalid, illegal or unenforceable, that provision will be severed from the rest of the Agreement, and the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired. 8. Counterparts. A facsimile copy of this Agreement is binding on the parties, and this Agreement may be signed in counterparts without affecting its validity or enforceability. SUSAN KING , /CITY 6:4 TIGARD B By: 1 Its L,,�1�1V i 2.�-c�t �('►r�-v..i� �'�:�cc�rW Date: kr41 Date: .z ( $' FEE WAIVER AND RELEASE AGREEMENT Page 2 of 2