SUBJECT: 13-0046 / Evergreen Group, LLC
LOC 50.05.004.5.d.i:
Fourth Floor Criteria– “may”
LOC 50.05.004.5.d.i:
Fourth Floor Criteria– “may”
This development permit application is for three buildings that contain fourth and fifth floors.
Staff has found that the fifth floor is the subject of a request for an exception, but the fourth
floor is permitted if it complies with one of the four criteria of LOC 50.05.004.5.d.i:
“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. A fourth story may be permitted subject [to] the following:
“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. A fourth story may be permitted subject [to] the following:
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(1) The fourth story is residential and is contained within a gabled or hipped roof;
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(2) The site is sloping and the structure has three or fewer stories on the uphill side;
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(3) The fourth story is significantly stepped back from the building plane created by the
lower stories; or
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(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.
Staff Report, LU 13-0046, pg. 9
(1) Prior to adoption of the Code Reorganization, this section was stated in “shall”,
not “may”.
(2) During the Code Reorganization process, there was a scrivener’s change from “shall” to “may” but this was not noted as a change to the staff reviewers, the Planning Commission, or the City Council. Accordingly, it would qualify as a Code Reorganization Variance per Section 26, Ord. 2579.
In an email exchange last October, Mr. Boone gave an informal explanation of how the code should be interpreted for the applicant's use.
(2) During the Code Reorganization process, there was a scrivener’s change from “shall” to “may” but this was not noted as a change to the staff reviewers, the Planning Commission, or the City Council. Accordingly, it would qualify as a Code Reorganization Variance per Section 26, Ord. 2579.
In an email exchange last October, Mr. Boone gave an informal explanation of how the code should be interpreted for the applicant's use.
Brant and Leslie:
First, it is noted that my reply is an “informal interpretation” under LOC 50.01.005.1.b:
Any person may request the planning staff or the City Attorney for an informal interpretation. Such a request may either be oral or in writing, and is not subject to notice, appeal or a fee. Such an interpretation is not a final land use decision, however, and is not binding on City staff or City appellate authorities as it applies to future land use applications on the subject property or in general.
Second, in review of the legislative history of the current code version, it has previously been noted that the use of “may” in this subsection was an inadvertent error in the code reorganization process – it was supposed to be “shall”:
“[8‐19‐13 E‐note] There is a substantive difference between pre‐code reorg and code‐reorg, based on "may" v. "shall". According to Jessica, there was no intent to change the text.
First, it is noted that my reply is an “informal interpretation” under LOC 50.01.005.1.b:
Any person may request the planning staff or the City Attorney for an informal interpretation. Such a request may either be oral or in writing, and is not subject to notice, appeal or a fee. Such an interpretation is not a final land use decision, however, and is not binding on City staff or City appellate authorities as it applies to future land use applications on the subject property or in general.
Second, in review of the legislative history of the current code version, it has previously been noted that the use of “may” in this subsection was an inadvertent error in the code reorganization process – it was supposed to be “shall”:
“[8‐19‐13 E‐note] There is a substantive difference between pre‐code reorg and code‐reorg, based on "may" v. "shall". According to Jessica, there was no intent to change the text.
Setting aside the availability of a Code Reorganization Variance for the moment, what would be the interpretation of
“may” as used in LOC 50.05.004.5.d.i.
“May” is expressly defined as discretionary, per LOC 50.10.003.1.a.
The legal interpretation is 4 pages long and is worth reading - but read it with a grain of salt sprinkled on.
I am not a lawyer! Administrative law and land use codes are a complex legal study. However, from a layperson's point of view - it seems extremely risky and unwise to hinge a legal interpretation of this magnitude on one person's recollection of what was intended when a code was writte and/or rewritten. In most contracts that I have seen, once approved by the parties involved, the wording is set in stone unless all parties agree to a change.
The allowance of a 5th story is inserted here as a given, although the code makes NO provision for any building taller than 4 stories! Evergreen Group's attorney claimed the 5th story was permissible because it was within the height limits AND because the code did not expressly disallow it! Wow! Now one has to write everything you don't want as well as what you do? Where does it all end? If the common man can understand the meaning and intent of the code, why then are the lawyers having such difficulty? Maybe that's why our judicial system puts our personal liberty in the hands of juries of our peers rather than lawyers!
The legal interpretation is 4 pages long and is worth reading - but read it with a grain of salt sprinkled on.
I am not a lawyer! Administrative law and land use codes are a complex legal study. However, from a layperson's point of view - it seems extremely risky and unwise to hinge a legal interpretation of this magnitude on one person's recollection of what was intended when a code was writte and/or rewritten. In most contracts that I have seen, once approved by the parties involved, the wording is set in stone unless all parties agree to a change.
The allowance of a 5th story is inserted here as a given, although the code makes NO provision for any building taller than 4 stories! Evergreen Group's attorney claimed the 5th story was permissible because it was within the height limits AND because the code did not expressly disallow it! Wow! Now one has to write everything you don't want as well as what you do? Where does it all end? If the common man can understand the meaning and intent of the code, why then are the lawyers having such difficulty? Maybe that's why our judicial system puts our personal liberty in the hands of juries of our peers rather than lawyers!
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