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HomeMy WebLinkAbout1989-39 Initiate Hearings on an Amendment to the Land Use Ordinance RESOLUTION NO. 89-39 RESOLUTION OF INTENTION, INITIATING HEARINGS ON AN AMENDMENT TO THE LAND USE ORDINANCE. WHEREAS, the city Council has considered the subject of requiring owners of property to waive their rights to rernonstrate when they request a building permit and/or other pla.nning action and when the property is located on a street not fully improved. NOW THEREFORE BE IT RESOLVED AS FOLLOWS: SECTION 1. Pursuant to section 18.108.090 of the Municipal Code, the City Council hereby adopts this Resolution of Intention, initiating a Type 3 amendment process for the changes recommended on 1:he attached memorandum from the City Attorney and designated Exhibit "A" hereto. The foregoing Resolution was READ and DULY ADOPTED at a regular meeting of the City Council of the City of Ashland on thE= 3rd day of October, 1989. ~ L:;{~ Nan E. Franklin City Recorder SIGNED and APPROVED this ~~ day of Lt1~ , 1989. ~~l~ Catherine M. Golden Mayor RONALD L. SALTER ATTORNEY AT LAW 94 THIRD STREET ASHLAND, OREGON 97520 (503) 482.4215 September 27, 1989 MEMORANDUM TO: Mayor and Members of the Common Council FROM: Ronald L. Salter, City Attorney SUBJECT: Street Improvements and Waiver of Right to Remonstrate At their last meeting, the Council requested that I prepare the necessary paperwork to amend the Ashland Municipal Code. The purpose is to provide that new construction on streets not fully improved will involve a requirement that the consent to participate in the costs of full street improvements, including paving, curbs, gutter and sidewalks, will be required from anyone requesting a building permit on streets not fully improved. This raises the question as to the validity of such a requirement. This question has been discussed in legal circles for a number of years. The most recent statement on this subject is found in the Continuing Legal Education works on Land Use in section 22.10 and which was written in 1988. The commentator states that the question has been answered in favor of the cities in other states but has not yet been addressed by the Oregon Courts. Thus, it is reasonable to proceed on the basis that such waivers are valid. However, that question is subject to future litigation in Oregon and the result is, of course, not known at this time. The wording of the proposed new ordinance would be as follows: 18.68.150 Waiver of.Right to Remonstrate and Consent to Participate in the Costs of Improvements. Whenever a request is made for a building permit which involves new construction of over 300 square feet, the applicant is required to legally agree to participate in the costs and to waive the rights of the owner of the subject property to remonstrate both with respect to the owners agreeing to participate in the costs of full street improvements and to not remonstrate to the formation of a local improvement district to cover such improvements and costs thereof. Full street improvements shall include paving, curb, gutter, sidewalks and the undergrounding of utilities. This requirement is a condition precedent to the issuance of a building permit and the if the owner declines to so agree, then the building permit shall be denied. The forgoing requirement is on the theory that an increase in the size of the dwelling or any other new construction will increase the burden upon the adjacent road way and the one who causes that increase in burden should participate in the costs of the solution. To so amend the code will require publip hearings before both the Planning Commission and the City Council. To start that process, delivered herewith is a "Resolution of Intention, Initiating Hearings on an Amendment to the Land Use Ordinance." Passage of this resolution will present the question to the Planning Commission. After writing the above, it occurs to me that it would be very appropriate for the code to contain a more comprehensive requirement concerning the waiver of the right to remonstrate. For quite a while, Planning, and thus the City has required people to sign in favor of street improvements and to waiver their rights to remonstrate in certain planning action situations. I suggest that the study and direction to the Planning Commission be broadened to involve an amendment to the zoning ordinance to more comprehensively cover this situation. John Fregonese agrees with this suggestion. If that is the will of the Council, it would be appropriate for it to direct staff to at the next meeting bring back a resolution and revised proposed amendment to the zoning ordinance. 4Z:U~ ~NALD L. SALTER City Attorney RLS/gmf Enclosure ~