Milwaukie Considers Significant Zoning Code Changes

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The City of Milwaukie is currently processing what it has termed a "tune-up" of its zoning code. In some circumstances, however, the proposed changes reflect a major overhaul. Businesses should carefully consider how proposed changes may impact their businesses going forward and should provide the City with appropriate input.

For example, the code revisions under consideration include significant changes to the nonconforming use regulations. Nonconforming uses are defined as "uses that do not conform to the City's current land use ordinances either because they were established prior to the enactment of City ordinances governing these uses or because the uses conformed at the time they were established but applicable City ordinances have since changed." Proposed Milwaukie Zoning Code ("PMZO") 19.201. Thus, even if a business use is currently consistent with the code, these regulations could apply to the business use in the future. The proposed changes allow the City to amortize "high impact nonconforming uses." High impact nonconforming uses are defined as any nonconforming industrial uses and nonconforming commercial businesses that generate substantial traffic, noise, light, irregular hours or other negative impacts on the community. A non-exclusive list provided identifies drinking establishments, commercial recreation, adult entertainment businesses, theaters, hotels and motels as examples of high impact commercial businesses. Exceptions to the amortization provisions are nonconforming residential uses, uses protected under the Religion Land Use and Institutionalized Persons Act, and uses that can be made conforming within six months and for which the owner enters into an agreement with the City.

Under the proposal, the City Council may instruct the Planning Director to compile an inventory of nonconforming properties subject to amortization. No less than 60 days after the Planning Director's completion of the inventory, the City Council shall review and adopt the inventory by resolution at a public meeting. The Council may add or remove properties from the inventory prior to adoption. Notice is provided to the property owner no more than 30 days after adoption of the inventory with a date for the first evidentiary hearing to determine the schedule for amortization and discontinuance. The amortization schedule is to reflect amortization of the full value of any use dependent structure and facilities within a "definite and reasonable period of time."

Other proposed changes to the code that current owners and operators may wish to consider and comment on include expiration and extension of project approvals and the criteria for approval of an extension. For example, proposed code language provides that a request for an approval extension may not be submitted more than six months before expiration, must be approved before the date of expiration and requires a showing that conditions on neighboring properties have not undergone a substantial change and relevant regulations have not undergone a substantial change since the original approval was issued. PMZO 19.908.3, 19.908.4. Given the delay that is often associated with land use proceedings, businesses could suggest modifying the code to provide that the extension request must be submitted but is not required to be approved prior to expiration of the initial approval. Language modifications related to the impact of changes on adjacent land and regulations may be appropriate.

The Planning Commission held hearings on the proposed changes on January 25 and February 8 and the City Council will consider the proposal in March 2011. Staff anticipates that the earliest these provisions would become effective is May 2011. If you have questions related to code amendments under consideration, plese contact Michelle Rudd or your Stoel Rives attorney.

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Michelle Rudd
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