Ord 1736COUNCIL BILL N0. 605
ORDINANCE N0. 1736
AN ORDINANCE RELATING TO THE PROTECTION OF SOLAR ACCESS.
THE PEOPLE OF THE CITY OF WOODBURN DO HEREBY ORDAIN:
Section 1. Findings:
The City of tnloodburn finds that it is in the public interest to
protect solar access in order to:
(a) Conserve nonrenewable energy resources,
(b) Increase our energy self sufficiency,
(c) Improve our local economy through investments in solar energy,
(d) Reduce the effects of energy shortages and increasing energy costs, and
(e) Complement state and federal government efforts to encourage the use of
solar energy.
Section 2. Authori ~ & Purpose:
(a) The City has concluded that there is significant potential for uses of
solar energy which are cost-effective and that incident solar radiation
necessary for solar collectors to function may be blocked by structures
or vegetation located on property under the control of others. Therefore,
the regulation of structures and vegetation on such property, pursuant
to ORS 92.044 and ORS 227.090, is necessary to ensure access to energy
from the sun.
(b) The purpose of this Ordinance is to protect installed and functioning
solar collectors from shading due to vegetation ar construction on
neighboring property which would significantly impair their performance
and to equalize the benefits and burdens of protecting solar access.
Section 3. Definitions:
As used in this Ordinance, the following definitions, and their deri-
vatives, shall apply:
(a) "City". The City of Woodburn, Oregon.
(b} "Collector surface". Any part of a solar collector that transmits in-
cident solar radiation for passive solar space heating or absorbs in-
cident solar radiation for use in the collector's energy transformation.
It does not include such items as frames, supports, and mounting hardware.
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ORDINANCE N0. 1736
(c} "Collector use period".
(1) Annual. Use of solar collector from 9 A. M. to 3 P.r1, com-
pensated standard time year round.
(2) Summer. Use of solar collector from 8 A.M. to 4 P.M. com-
pensated standard time each day from March 21st through
September 20th.
(3) Winter. Use of solar collector from 9 A.M. to 3 P.M, com-
pensated standard time each day from September 21st through
March 20th.
(4) In the case of any amendment to the collector use period, the
collector use period as defined on the date of issue of the
solar access recordation shall apply. A recorded owner may
apply for a new recordation granting the new period of pro-
tection if a longer collector use period is promulgated.
(d) "Cost-effective". A solar collector or energy conservation measure
is cost-effective when its net present value is greater than or equal
to zero.
(e) "Development permit". Any permit or authorization issued by the City
as prerequisite for undertaking any development. It includes permits
and authorizations customarily known as building permits, zoning or
rezoning permits, variances, special permits, plat approvals, or sub-
division or large-scale development permits.
(f) "Energy Audit". The on-site analysis, computation and written results
thereof for an existing structure to determine which solar or energy
conservation measures or both are applicable, their estimated instal-
lation cost, and estimated energy and cost savings if such measures
are installed,
(g) "Exemption". Existing and potential obstructions as shown on a sun
chart prepared as set forth in Section 6 are exempt from the effects
of solar access recordation as set forth in Section 10.
(h) "Incident solar radiation". Solar energy falling upon a given surface
area.
(i} "Minimum solar collector energy contribution standards". The minimum
for solar domestic or pool water heating shall be 50% and for solar
space heating 20% during the collector use period. The City Council
shall approve the minimums for other particular uses.
(j) "Passive solar space heating". Heating of the interior of a structure
by a direct, indirect or isolated gain. system consisting of glazing and
thermal mass which stares energy overnight and, releases energy within
the structure by radiation, conduction and natural convection.
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ORDINANCE N0. 1736
(k) "Recorded collector". A solar collector for which a solar access
recordation has been issued or for which a recordation application
is pending.
(1} "Recorded owner". The holder of a solar access recordation issued
under this Ordinance,
(m) "Registered lessee". Holder of a lease registered in the office of
the County Clerk.
(n) "Shaded". A solar collector is deemed shaded if vegetation or struc-
tures block the incident solar radiation that would otherwise reach
its collecting surface during the collector use period. Blockage
caused by obstructions exempted at time of solar access recordation
and such insubstantial shadows as those cast by utility poles, wires,
flagpoles, and slender antennas are not deemed to shade for the pur-
poses of this Ordinance. The City Council may rule on particular
cases to further define shading exempted from regulation.
(0) "Solar access recordation". A recordation issued under the procedures
set out in this Ordinance.
(p) "Solar collector". A device, or combination of devices, structures,
or part of a device or structure that uses incident solar radiation
for passive solar space heating or that transforms incident solar
radiation into thermal, mechanical, chemical, or electrical energy
and that provides sufficient energy to satisfy the applicable City
minimum standard.
(q) "Solar Data Handbook". A handbook prepared by the Planning Director
pursuant to this ordinance which contains:
(1) A solar access recordation application form and guidelines for
completing and filing the application.
(2) The City minimum solar collector energy contribution standards.
(3) Acceptable performance calculation methods for determining the
useful energy provided by a solar collector and the cost-effective-
ness of a solar collector or energy conservation measure.
(4) A sun chart and tables of hourly solar altitude, solar azimuth and
percent of available radiation by month for each month of the year
for the latitude of the City.
(5) Shadow length tables per foot of solar obstruction for various
times of the day and degree and orientation of slopes for the
Latitude of the City.
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ORDINANCE N0.1736
(b) Information on types of tree found in the City including
growth rate, effect of trimming on growth, blockage of
sunlight by bare branches of deciduous trees in winter,
and mature height, size and shape.
(7} All available weather data for the City.
(8) An explanation of how to use a sun chart, parcel map and
other available tools for documentation of solar access
for recordation or private easement.
(9) An explanation of how to prepare a solar envelope for a
deed covenant or to satisfy a building placement, height,
bulk and orientation solar performance standard.
(10) Information on current state and federal solar incentives
including tax credits and low interest loans as well as
the availability of energy conservation and solar audits.
(r) "Sun chart". A drawing plotting the position of the sun in the sky
using as coordinates solar altitude in ten degree increments and solar
azimuth measured to the east and west of true south in fifteen degree
increments. The sun chart shall display the path of the sun during
each hour of the day and each month of the year (seven curves: Dec. 21,
Jan. 21/Nov. 21, Feb. 21/Oct. 21, March 21/Sept. 21, April 21/August 21,
May 21/July 21, and June 21) for the latitude of the City.
Section 4. Applicability `of Ordinance.
(a) All land under the jurisdiction of the City shall be subject to this
Ordinance, except as provided in Sub-section (b).
(b) Agencies of the federal government may elect to enjoy the benefits of
solar access recordation under this Ordinance if they also consent to
be bound by its restrictions. An agency not having so consented may
neither apply for recordation nor object or contest the application of
another.
(c) All governmental units, except as provided in Subsection (b), shall be
subject to this Ordinance. Such governmental units may apply for re-
cordation under Section b and may object or contest any application far
a solar access recordation under Section 7 and 8.
(d) The provisions of this Ordinance are consistent with the City Compre-
hensive Plan. ~1hen the provisions of this Ordinance conflict with any
other laws ar regulations relating to land use, the most restrictive
requirements shall apply.
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ORDINANCE N0. 173b
Section 5. Land Use Regulations:
(a} The Planning Director is authorizQd and directed to:
(1) Review all City land development standards and recommend amendments
to such standards necessary to provide solar access to the south
walls of buildings from 9 A.M. to 3 P.M. on December 21st given the
constraints of latitude, topography, microclimate, existing develop-
ment pattern, and planned uses and densities.
(2) Prepare a map showing the exceptions given in Section 4 (a) and (b)
and update it as necessary thereafter.
(3) Prepare a solar data handbook and revise it as necessary thereafter.
(b) The Planning Commission is directed to make a recommendation on the amend-
ments to land development standards within six months following adoption
of this Ordinance. The amendments shall be submitted to the City Council
for review. Pending completion of this review, applications for solar
access: recordations shall not be accepted.
Section 6, Application for Recordation of Solar Access.
(:a) Any property owner or registered lessee, or agent of either, may apply
for a solar access recordation from the Planning Director.
(b} The application shall be in such form as the Planning Director may pre-
scribe in the Solar Data Handbook, but shall, at a minimum, include the
following;
(1) The fee established by the City Council. Sufficient to pay the
average cost of a solar access recordation including but not
limited to staff time, mailing expenses, and the fee to file the
recordation with the County Clerk.
(2} The applicant's name and address, and the owner's name, address,
and the legal description of the property where the collector is
located.
(3) A statement by the applicant that the collector is already installed
or that it will be installed on the property within one year following
the granting of the recordation.
(~4) The size and location of the collector aurface, its orientation with
respect to true south, and its slope from the horizontal, shown
clearly in drawing farm.
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ORDINANCE NO. 1736
(5) An explanation of how the applicant has done everything reason-
able, taking cost into account, in designing and locating the
collector surface in a manner to minimize the impact the solar
access recordation will have on the development of nearby pro-
perties.
(6) A sun chart showing the plotted skyline from the center of the
lower edge of the location of the collector surface during the
proposed collector use period, The skyline shown on the sun
chart shall outline hills and existing buildings, deciduous and
evergreen trees as well as potential development allowed by the
City Comprehensive Plan, Zoning Ordinance and development stand-
ards applicable at time of recordation. Such existing and po-
tential obstructions, as shown on the sun chart, shall be exempt
from the effects of solar access recordation as set forth in
Section 10.
(7) The ten or fewer adjacent properties within 200 feet southeast,
south and southwest (at the maximum solar azimuth of the pro-
posed collector use period) of the collector surface proposed
to be subject to the solar access recordation. A parcel map of
the owner's property and such adjacent properties with the loc-
ations of existing buildings and trees Hated thereon as shown
on the sun chart.
(8) An estimate of the monthly and annual quantity and percentage
of energy that the collector is expected to provide for its
particular use given best available weather data and existing
access during the proposed collector use period. An explan-
ation of how these figures were computed shall be included.
(9) Document that the solar collector will satisfy the City minimum
solar collector energy contribution standard for its particular
use during the proposed collector use period; that it is cost-
effective within its estimated useful life; and that all applic-
able energy conservation measures, as determined by an energy
audit, which are more cost-effective than the solar collector
for its particular use have been installed except that buildings
constructed after January 1, 1979, shall be exempt.
(10} A separately signed and dated statement that the recorded owner
agrees to submit to binding arbitration the value of the record-
ation and the damages to be paid if the City diminishes the rights
protected by the recordation following procedures in Section 11
of this Ordinance,
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ORDINANCE N0. 1736
Section 7, Application Review:
(a} The Planning Director shall review the application for solar access
recordation to determine if it satisfies the requirements o.f Section
6.
(1} If the application does not satisfy the requirements of Section
6, the Planning Director shall not accept the application and
shall return the application and fee to the applicant with an
explanation of which requirements were not met. The applicant
may resubmit the application and fee with modifications neces-
sary to satisfy the requirements of Section 6 or appeal, within
10 days, the action of the Planning Director to the Planning
Commission.
(2) If the application does satisfy the requirements of Section 6,
the Planning Director shall accept the application and notify
the applicant.
(b) Upon acceptance of an application, the Planning Director shall send
notice by certified letter, return receipt requested, to each owner
and registered lessee of praperty proposed to be subject to the solar
access recordation. The letter shall contain, at a minimum, the fol-
lowing information: the name and address of the applicant; that an
application for a solar access recordation has been filed; copies of
the collector location drawing, sun chart and parcel map submitted by
the applicant; that the recordation, if granted, may affect the rights
of other property owners to develop their property and may in addition
impose on them duties to trim some vegetation at their expense; the
advisability of obtaining photographic proof of the existence of trees
and Large shrubs; the times and places where the application may be
viewed; telephone number and address of a City department that will
provide further information; and that any affected person may object
to the issuance of the recordation by a stated time and date, and how
and where the objection must be made.
(c) If no objections are filed within 10 days following the date that all
certified letters have been mailed the Planning Director shall issue
the solar access recordation.
(d) If any affected person or governmental unit files a written objection
with the Planning Director within the specif ied time, and if the ob-
jections still exist after a preheating conference between the objector,
appropriate city staff, and the applicant, then a hearing date shall be
set and a public hearing held in accordance with the provisions of Section
8.
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Section 8. Hearing Procedure:
(a) The Planning Director shall send notice of the hearing on the solar access
recordation application to the applicant and to all persons who objected to
issuance of t?~.e recordation and give notice of the hearing consistent with
the procedures of the Zoning Ordinance. The hearing shall be held according
to the rules of the Planning Commission, shall be on the record, and open
to the public.
(b) In a hearing on an abjection to a solar access recordation, the Planning
Commission shall consider the requirements for applications set forth in
Section 6. The objector shall bear the burden of proof in showing that
such requirements have not been satisfied based on evidence submitted by
the objector to the Planning Director prior to the hearing. Based on such
evidence, the Planning Commission may affirm, reverse or modify the action
of the Planning Director in accepting the application.
(c} Notice of the action of the Planning Commission shall be sent to the applicant
and to each owner and registered lessee of property proposed to be subject
to the solar access recordation.
(.d} The action of the Planning Commission shall be appealable to the Common
Council of the City of L~raodburn by filing notice of appeal with the
Planning Director within 10 days of the date of the Planning Commission
action, An appeal may be taken by any party affected by the determination
of the Planning Commission. The Planning Director shall certify and transmit
to the Common Council the original application for solar access recordation
and copies of all other papers constituting the record upon which the action
appealed from was taken. The appeal shall be held before the Common Council
and in accordance with subsections (b) and (c) of Section 15.120 of the
Woodburn Zoning Ordinance.
Section 9, Entry of Recordation into Register:
(a) When a solar access recordation is granted, the Planning Director shall:
(_1) File the recordation with the County Clerk including the recorded owner's
name and address, and legal description of the property where the
recorded collector is located together with the legal description of
the adjacent properties subject to tree solar access recordation.
~2) Send a certified letter, return receipt requested, to the applicant and
to each owner and registered lessee of property subject to the solar
access recordation that such recordation has been granted.
(3) Enter this information in a register and plot the recorded collector
location on a map kept for this purpose. The application, copies of all
notices: and certified mail return receipts, staff reports, hearing records
and the final action taken by the City shall be kept on file.
(b} If a recordation becomes void under Section 10(i), or is repurchased under
Section 11, the Planning Director shall notify the County Clerk (to void
the recordation}, the recorded gwner and the owner and registered lessee
of property formerly subject to the recordation,
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ORDINANCE N0. 1?36
Section 10. Effect and Enforcement of a Solar Access Recordation:
(a) No City department shall issue any development permit purporting to allow
the erection of any structure that would shade a recorded collector or a
proposed collector site if a recordation application is pending or granted
but the collector is not yet installed, except to the extent that the ex-
emptions in the solar access recordation itself would allow. The Build-
ing Department shall consult the map showing issued solar access record-
ations and shall_ consult the Planning Director concerning any pending
applications before issuing development permits. ~~lhenever it appears
that granting a development permit might result in a structure that would
shade a recorded collector, the department concerned shal]_ give notice by
certified mail, return receipt requested, to the recorded collector owner.
Any development permit that would result in the shading of a recorded col-
lector is void except to the extent that it authorizes work that would not
shade the collector. The recorded owner may appeal the grant of a develop-
ment permit that purports to authorize a shading structure either by such
administrative means as are available or by the municipal court.
(b) Pending the resolution of the appeal, the recorded owner may request a
preliminary injunction to stop construction of such part of a structure
as may shade the retarded collector. The party proposing tb~build the
structure shall bear the burden of showing that the structure would not
shade. If the court finds that the structure would shade, the develop-
ment permit may be declared void to the extent the structure would shade.
If the structure has already been built to the extent that it shades the
recorded collector, the court may order removal of the shading part if
feasible or order the payment of damages using the measure of damages in
Section 11. The recorded owner shall be entitled to the payment of appro-
priate damages, plus court costs, plus reasonable attorney's fees, as
against either the City or the constructing party, or both.
(c) No one shall plant any vegetation that could shade a recorded collector
(or a recorded collector location if it is not yet installed) after re-
ceiv:i.ng notice of the pendency of a solar access recordation application
or after issuance of recordation. After receiving notice of a solar
access recordation or application, no one shall permit any vegetation on
his or her property to grow in such a manner as to shade a retarded col-
lector (or a recorded collector location if it is not yet installed),
unless the vegetation is specifically exempted in the recordation.
(d) If. vegetation is not trimmed as required or is planted contrary to Section
10(c), the recorded owner or the City on complaint by the recorded owner
shall give notice of the shading by certified mail, return receipt re-
quested, to the owner or registered lessee of the property where the shad-
ing vegetation is located. If the property owner or lessee fails to
remove the shading vegetation within 30 days after receiving this notice,
the recorded owner or the City may petition the Municipal Court for relief.
The court may order the property owner or lessee to trim the vegetation and
to pay damages, court costs, and reasonable attorney's fees to the com-
plainant.
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ORDINANCE N0. 1736
(e} If personal jurisdiction cannot be obtained over either the offending
property owner or registered lessee, the City shall have a notice
listing the property by owner, address, and legal description, pub-
lished once a week for four consecutive weeks in a newspaper of general
circulation within the City giving notice that vegetation located on
the property is in violation of this Ordinance and is subject to mand-
atory trimming. The City shall then have the power, pursuant to court
order, to enter the property, trim or cause to have trimmed the shad-
ing parts of the vegetation, and add the costs of the trimming, court
costs, and other related costs as a lien against that property.
(f) If the City is the property owner or registered lessee and has failed to
trim vegetation shading a recorded collector, the recorded owner must
notify the City Planning Department by certified mail, return receipt
requested, asking the City to trim the vegetation. Tf the City fails
to do so within 30 days after receiving this notice, the recorded owner
may bring suit for an injunction requiring trimming and may recover
damages, court costs, and reasonable attorney's fees from the City if
the City is found in violation.
(g} UJhere the property owner or registered lessee contends that particular
vegetation is exempt from trimming requirements, the burden of proof
shall be on the property owner or lessee to show that an exemption
applies to the particular vegetation.
(h) Notwithstanding any other provision of this Section, the owner of a
recorded collector may allow any person to build a structure otherwise
permitted by law or let any vegetation grow in a manner to shade a
recorded collector. A signed, notarized document setting out the extent
of the permitted shading shall be filed with the Planning Director and
recorded with the County Clerk and may be accepted as proof of consent
by the Building Department issuing a development permit that would other-
wise be unlawful under this section.
(i} A solar access recordation becomes void and shall be removed from the
register and map if:
(1) A functioning collector is not installed within one year after
issue of the recordation, or
(2) The collector is removed and not replaced, or not used, for one
year, excluding time spent on repairs or improvements, or
(3) An action under Subsection (h) allows shading to the extent that
the minimum solar collector energy contribution standard is no
longer satisfied, or
(4) The recorded owner causes or allows shade for one year or longer
to the extent that the minimum solar collector energy contribution
standard is no ..longer satisfied, or
(5) Upon request of the recorded owner.
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ORDINANCE N0. 1736
(j) The transfer of title to property subject to a solar access recorda-
tion shall not change the rights and duties provided for in this
Ordinance except that such recordation shall be void to the extent
that a solar access easement or deed covenant provides at least equal
solar access protection.
Section 11. Repurchase of Recordation:
(a) Any recordation issued pursuant to this Ordinance is subject to the
repurchase requirements of this Section. A recorded collector owner
may require the City to prove that the public interest is best served
by repurchase of the solar access recordation before a repurchase may
be made.
(b) Solar access recordations shall contain a condition clearly stating
that at any time the City may repurchase all or part of the rights
granted by the recordation, with the qualification listed in Sub-
section (a). At the time of the recordation application, the recorded
owner shall agree in writing to follow a procedure for valuing the
recordation at the time of any buy-back as follows:
(1) Arbitration, In Section 6(b)(10) of this Ordinance the recorded
owner agrees as a condition of obtaining a recordation to sub-
mit to binding arbitration the value of the recordation and the
damages to be paid if the City diminishes in whole or in part the
rights protected by the recordation. The arbitration shall be
held pursuant to the rules of the American Arbitration Association.
The presumptive measure of damages shall be the greater of the
present net worth of the collector and associated equipment or the
discounted presenat worth of the difference in energy costs with
and without the collector for the remaining life of the collector
and associated equipment, plus the cost of removing the collector
(and repairing or putting on a new roof, siding, etc., if needed),
plus the cost of providing mechanical equipment properly sized to
perform the task formerly assumed by the collector and associated
equipment, plus the costs to the recorded owner of the repurchase
proceedings. The burden of showing the amount of these presumptive
damages shall be on the recorded owner. The City shall be given
the opportunity of showing by clear and convincing evidence that
the actual damages are less than would be calculated by this formula
and the extent of the actual damages.
(2) Eminent Domain. If for any reason binding arbitration is not
legally possible, the City may use its normal eminent domain
procedures.
(c) In either Subsection (b) (1) or (2) situations, if a private individual
stands to benefit from the repurchase of a solar access recordation,
the City may require that individual to reimburse the City for the cost
of the repurchase as a prior condition to granting a development permit
that would authorize what would have been an unlawful shading structure.
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ORDINANCE NO. 1736
Section 12. Savings Clause:
If any section, paragraph, subdivision, clause, sentence, or provision
of this Ordinance shall be adjudged by any court of competent jurisdiction to be
unconstitutional or invalid, such judgement shall not affect, impair, invalidate,
or nullify the remainder of this Ordinance, but the effect thereof shall be confined
to the section, paragraph, subdivision, clause, sentence, or provision immediately
involved in the controversy in which such judgment or decree shall be rendered,
it being the intent of the City Council to enact the remainder of this Ordinance
notwithstanding the parts so declared unconstitutional and invalid; and should
any section, paragraph, subdivision, clause, sentence, or provision of this Ordinance
be declared unreasonable or inapplicable to a particular premises or to a particular
use at any particular location, such declaration or judgment shall. not affect,
impair, invalidate,. or nullify such section, paragraph, subdivision, clause, sentence,
or provision as to any other premises or use.
APPROVED:
E.~WALTER LAWS N, Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
February 9, 1981
February 9, 1981
February 10, 1981
February 10, 1981
.,.,
ATTES`~ :
BARNEY 0. .U SA Recorder
City of Woodburn, Oregon
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ORDINANCE N0. 1736
I, BARNBY O. B11RRI5, Recorder of the City of ~1oodburn, do
hereby certify that I caused to be posted three copies of
Ordinance No. 1736, on of which said copies posted in the
City Hall on the bulletin board opposite the entrance to
the Recorder's Office, in full view of the traveling public;
a second one of said copies posted on the Woodburn Pubilic
Library bulletin board at 280 Garfield Street, in full vieTa
of the traveling public; a third one of said copies posted
on the Community Center bulletin board at 491 N. Third St.,
in full view of the traveling public; that all o.f said
places are public places within the corporate limits of the
City of Woodburn and all of said copies were posted on the
~~~ ~ day of 1981.
D
arney O. B r is, Recor er
City of ~~oodburn, Oregon