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Ord 2218 - Zone Ord Non Conf Str COUNCIL BILL NO. 1893 ORDINANCE NO. 2218 AN ORDINANCE INTERPRETING THE WOODBURN ZONING ORDINANCE REGARDING THE MAINTENANCE OF A NON-CONFORMING STRUCTURE, AFFIRMING THE POSmON OF THE WOODBURN PLANNING COMMISSION; AND DECLARING AN EMERGENCY. WHEREAS, the Planning Commission conducted a public hearing on this matter at its February 11, 1998 meeting; and WHEREAS, the Commission, after providing a full and fair opportunity for testimony, closed its public hearing and adopted a final interpretative order; and WHEREAS, Stephen Smith appealed this interpretation to the City Council; and WHEREAS, the City Council conducted a de IlQYQ public hearing on May 11, 1998 and considered public testimony, written information and the record of the Planning Commission proceeding; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. The City Council finds that it is called upon to interpret the terms of the city's own enactment, to-wit: the Woodburn Zoning Ordinance. The City Council has the legal authority to make this interpretation and it constitutes a "local government interpretation" under ORS 197.829, Gaie v City of Portland, 319 Or 308 (1994) and Clark v Jackson County 313 Or 508 (1992). Section 2. The City Council concludes, based upon its interpretation and the facts presented, that Section 3.070 (Destruction of Non-Conforming Structures) has no application to the issue before the City Council. Section 3. The City Council concludes, based upon its interpretation and the facts presented, that maintenance of the non-conforming structure was permitted under the terms of the Woodburn Zoning Ordinance and that a non-conforming structure continues to exist. Section 4. The City Council's interpretation is based upon the Findings and Conclusions contained in Attachment "A", which is affixed hereto and by this reference incorporated herein. Section 5. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect Page 1 - COUNCIL BILL NO. 1893 ORDINANCE NO. 2218 immediately upon passage by the Council and approval by the Mayor. Approved as to fOrm~ ~~ City Attorney G-L/-~r8 Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: ~~ Mary e t, City Recorder City of Woodburn, Oregon Date , ~ APPROVED: ~~ /l~ Nancy A. Kir ey, Mayor June 8, 1998 / June 9. 1998 / June 9. 1998 June 9. 1998 Page 2 - COUNCIL BILL NO. 1893 ORDINANCE NO. 2218 -.. .'...., '-'-."~--"._--T"---'---'~"--"_.''''.'-'--'' ._"__.~'_"_'_"~->--__"_.__~,"n_ ATTACHMENT Page -L of A 'f FINDINGS AND CONCLUSIONS L Findin&$ ofFaet A. The City Council finds that the record containing the fact$ relevant to thi$ interpretation consists of the following: 1. The Staff Report (with all attachment$) on the appeal of the Final Order of the Planning Commission dated March 4, 1998. 2. The entire record of the February 11, 1998 Planning Commis$ion hearing. 3. The entire record of the previous interpretation by the Planning Commission which was made at the January 9, 1997 and January 23, 1997 Planning Commission meetings. 4. The entire record of the May 11, 1998 City Council appeal hearing. B. The house located at 276 E. Lincoln, Woodburn, Oregon, was constructed in approximately 1919 as a two-story dwelling. C. The side yard of the house sits six inches closer to iu ea$terly property line than i$ now permitted by the Woodburn Zoning Ordinance. D. Since the existence of this side yard setback predated the Woodburn Zoning Ordinance, it constituted a nonconforming structure under the ordinance prior to the renovation of the house by its present owner. E. In December 1996, the present owner of the house obtained a building permit to begin renovation of the house. F. Renovation of the house occurred but did not change the nonconforming side yard setback. IL Applicable Law A. The City Council finds that the following sections ofits own enactment (the Woodburn Zoning Ordinance) need to be interpreted: 1. Section 1.400. Nonconforming Structure. A building or structure or portion thereoflawfully existing at the time this ordinance became effective, which was designed, erected, or structurally altered, for a use that does not conform to the use regulations of the district in which it is located, or which does not conform to the setbacks or maximum lot Page 1 - Findings and Conclusions ,. -~ .,", ..... -,...".,..,.._..,.-..,-~"_..~-~_.. ATTACHMENT A Page ~ 01 If coverage or other provisions herein established for the district. 2. Section 3.070. Destruction of Nonconforming Structures. (a) In case any lawful nonconforming building is damaged or destroyed by fire, explosion, an act of God, or an act of a public enemy or by any other cause, to the extent that the total deterioration exceeds sixty percent of the cost of replacement of the building, using new materials, the land and building shall be subject to all the regulations specified by this Ordinance for the district in which such land and building are located. 3. Section 3.060. Repair to Nonconforming Structures. A nonconforming structure may be repaired and maintained, so long as any such repair or maintenance does not in any way increase its nonconformity and it remains otherwise lawful. 4. Section 1.475. Repair. The reconstruction or renewal of any part ofan existing building for the purpose ofits maintenance. The work "repair" or "repairs" shall not include structural changes. 5. Section 3.080. Enlargement or Extension to Nonconforming Buildings. A nonconforming building may be enlarged, extended, or structurally altered provided such enlargement, extension, or structural alteration itself conforms in all respects to the regulations specified by this Ordinance for the district in which such building is located, but otherwise it shall be unlawful to enlarge, extend or structurally alter any nonconforming building. B. The City Council finds that it has the legal authority to make an interpretation of its own enactment (the Woodburn Zoning Ordinance) unless this local interpretation is contrary to state law or can be shown to be "clearly wrong." ORS 197.829, Clark v Jackson County_ 313 Or 508, 836 P2d 710 (1992). m. Legal Conclusions A. The City Council concludes that the question before it is whether the owner's action to renovate the house located at 276 E. Lincoln, without moving the building six inches to conform to the Woodburn Zoning Ordinance current setback requirement, changes the legal status of the building as a nonconforming structure. B. The City Council concludes that the building located at 276 E. Lincoln constituted a "nonconforming structure" under Section 1.400 of the Woodburn Zoning Ordinance prior to its renovation by the current owner. C. The City Council concludes that Section 3.070 - Destruction of Nonconforming Page 2 - Findings and Conclusions ..",----.......----.--. II ATTAC_~ENT A Page of J.f Structures - of the Woodburn Zoning Ordinance has no legal application to the involved facts because the City Council interprets "destruction" as the ruination of the involved structure, whether by a public enemy or an Act of God. D. The City Council concludes that it is necessary to interpret three sections of the Woodburn Zoning Ordinance that do have legal application to the involved facts. These sections provide as follows: Section 3.060. Repair to Nonconforming Structures. A nonconforming structure may be repaired and maintained, so long as any such repair or maintenance does not in any way increase its nonconformity and it remains otherwise lawful Section 1.475. Repair. The reconstruction or renewal of any part ofan existing building for the purpose of its maintenance. The work "repair" or "repairs" shall not include structural changes. Section 3.080. Enlargement or Extension to Nonconforming Buildings. A nonconforming building may be enlarged, extended, or structurally altered provided such enlargement, extension, or structural alteration itself conforms in all respects to the regulations specified by this Ordinance for the district in which such building is located, but otherwise it shall be unlawful to enlarge, extend or structurally alter any nonconforming building. E. The City Council concludes that Section 3.060 of the Woodburn Zoning Ordinance provides that a nonconforming structure can be "repaired" or "maintained" so long as such "repair" or "maintenance" does not in any way increase its nonconformity. The term "repair" is defined by the Woodburn Zoning Ordinance and has the meaning given to it by Section 1.475. However, the City Council concludes that the term "maintain" is undefined in the Woodburn Zoning Ordinance and needs interpretation. The City Council interprets the term "maintain" to mean "continue" and finds that this interpretation is in accord with one of the term's ordinary meanings. F. Thus, the City Council interprets Section 3.060 of the Woodburn Zoning Ordinance to require that: (1) "A nonconforming structure may be repaired and maintained [or continued] (2) so long as such repair or maintenance [or continuance] does not in any way increase its nonconformity and it remains otherwise lawful". Page 3 - Findings and Conclusions _. , ','_.. -'.~ ".~k' _ ''r''''' _...._...... .__^'_~___~_.__....._....,_.._...__,...,.."~..'H____' ATTAC'1fENT~ Page of ..::r::::. G. The City Council concludes that, prior to renovation, the nonconformity of the structure located at 276 E. Lincoln was the side yard setback of the house which sits six inches closer to its easterly property line than is now permitted by the Woodburn Zoning Ordinance. Since the relevant facts indicate that the renovation of the house did not change this side yard setback, the City Council concludes that the nonconformity was not in any way increased, but was only "maintained" or "continued". H. The City Council concludes that its interpretation of Section 3.060 of the Woodburn Zoning Ordinance is consistent with Section 3.080 of the ordinance which provides that "[a] nonconforming building may be enlarged, extended, or structurally altered provided such enlargement, extension, or structural alteration itself conforms in all respects to the regulations specified by this Ordinance." In concluding that the nonconformity of the side yard setback was not increased but only maintained, the City Council interprets the terms "enlargement," "extension," and "structural alteration" as having no application to the relevant facts because all of these terms presume that the nonconformity was increased, at least to some degree, by the renovation and no such increase occurred. I. The City Council concludes that the building located at 276 E. Lincoln remains a "nonconforming structure" under Section 1.400 of the Woodburn Zoning Ordinance after its renovation by the current owner. 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