Up Sucker Creek

Up Sucker Creek
Photo Courtesy of the Lake Oswego Library

Thursday, May 15, 2014

First up: Annual Code Updates

A new broom sweeps clean,
But an old broom knows where the corners are.  -- Proverb

Annual Code Updates:  What You Should Know
(Also referred to as "housekeeping")

The Community Development Code Annual Housekeeping Amendments (LU14-0014carry some surprises.  Housekeeping is the wrong term however, since some residents would rather sweep these revisions out the door, not invite them in.  Below is just one example of what is in the document that people are not happy with - changes that break long-standing agreements, projects in progress or are a misrepresentation of the source, etc.

Exhibit  "A" LU  13-0014 (from the chart on the linked report -see above)
page5image1440 page5image1524 page5image1608 page5image1692
DESCRIPTION.                            SOURCE          CODE. REF.     M56.  Geog Area.      Notes
6   Replaces "may" with "shall"       Code ReOrg.
      in Downtown Overlay re:           mistake
      Fourth Floor  

Let's compare the revision (above)  to the code as currently written (below):

d.    Number of Stories
New buildings shall be at least two stories tall, and new and remodeled building shall be no greater than three stories tall, except:
i.    Fourth Story
A fourth story may be permitted subject the following:
(1)    The fourth story is residential and is contained within a gabled or hipped roof;
(2)    The site is sloping and the structure has three or fewer stories on the uphill side;
(3)    The fourth story is significantly stepped back from the building plane created by the lower stories; or
(4)    Fourth story design elements are used to break up the mass of a building, create visual interest and variety, hide mechanical equipment, define an entry or define a particular building’s function. Examples of such design elements include dormers, towers, turrets, clerestories, and similar features.
"May" as currently written, implies that there would be a situation where a fourth story "may not" be permitted. This makes the fourth story of buildings within the Downtown Overlay at most three stories, and in some situations, there "may" be a fourth.  There is no criteria for when a building may or may not meet the qualifications for gaining a fourth floor, so one can assume it is left to the DRC and/or the City Council to decide.  The code makes the fourth floor discretionary.

Changing "may" to "shall" switches the rule to mean that: A fourth floor "shall" be permitted if the subsequent conditions are adhered to.  There is no discretion in this wording - either the applicant can or cannot have a fourth floor depending upon if he wants to complete a defined set of requirements.

This might apply to buildings like the Wizer Block and any new development downtown.  In its current form, it can be argued that the code only allows 3 stories outright, while a change to "shall" would make the fourth floor a right of the developer.  The code revisions do not have any explanatory paragraph describing the staff's error and the repercussions of changing the code at this particular date when the Wizer application has not been completed, and there are several other big developments being planned for downtown.  No matter, it's just one little word in the Annual Housekeeping Amendments.

Note:  I am not an attorney.  Consult an attorney for a professional, legal opinion of the discussion above.  The thoughts expressed above are my own opinions.

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