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LUBA2006-065 - John Frewing (3)
1 BEFORE THE LAND USE BOARD OF APPEALS SEP12' ~~S H, 49 L44~;A 2 OF THE STATE OF OREGON 4 JOHN FREWING, 5 Petitioner, RECEIVED 6 7 vs. SEP 13 2006 8 9 CITY OF TIGARD, RAMIS CREW CORRIGAN, LLP 10 Respondent, ATTORNEYS AT LAW 11 12 and 13 14 WINDWOOD CONSTRUCTION, 15 Intervenor-Respondent. 16 17 LUBA No. 2006-065 18 19 FINAL OPINION 20 AND ORDER 21 22 Appeal from City of Tigard. • 23 24 John Frewing, Tigard, filed the petition for review and argued on his own behalf. 25 26 Timothy V. Ramis, Portland, filed a response brief and Gary Firestone, Portland, 27 argued on behalf of respondent. With him on the brief were Gary Firestone and Ramis Crew 28 Corrigan, LLP. 29 30 Christopher P. Koback, Portland, filed a response brief and E. Michael Connors, 31 Portland, argued on behalf of intervenor-respondent. With him on the brief was Davis 32 Wright Tremaine, LLP. 33 34 BASSHAM, Board Chair; HOLSTUN, Board Member, participated in the decision. 35 36 AFFIRMED 09/12/2006 37 38 You are entitled to judicial review of this Order. Judicial review is governed by the 39 provisions of ORS 197.850. Page 1 • 1 Opinion by Bassham. 2 NATURE OF THE DECISION 3 Petitioner appeals a city council decision on remand from LUBA that adopts 4 additional findings and condition supporting a residential subdivision. 5 MOTION TO TAKE EVIDENCE 6 In support of arguments under the fourth assignment of error, petitioner moves to take 7 evidence not in the record pursuant to OAR 661-010-0045.1 The fourth assignment of error 8 alleges that the City of Tigard Mayor had indirect ex parte contacts and that the Mayor has a 9 conflict of interest that precludes his participation in the -proceedings on remand. In the 10 motion, petitioner seeks to establish by means of depositions and subpoenas (1) the content 11 of alleged ex parte contacts involving the Mayor and (2) information regarding city goals for 12 obtaining open space, the remuneration paid the Mayor, and the importance of meeting open 13 space goals to the political success of the Mayor. 14 As discussed further undei the fourth assignment of error, petitioner has not- 15 established a sufficient basis to believe that any ex parte contact occurred, and thus has not 16 established a basis to allow evidence outside the record to determine the content of such 17 communications. With respect to the alleged conflict of interest, the facts petitioners allege 18 fall far short of constituting a conflict of interest, and thus petitioner has not demonstrated a ' OAR 661-010-0045 provides, in relevant part: "(1) Grounds for Motion to Take Evidence Not in the Record: The Board may, upon written motion, take evidence not in the record in the case of disputed factual allegations in the parties' briefs concerning * * * ex parte contacts, * * * or other procedural irregularities not shown in the record and which, if proved, would warrant reversal or remand of the decision. "(2) Motions to Take Evidence: "(a) A motion to take evidence shall contain a statement explaining with particularity what facts the moving party seeks to establish, how those facts pertain to the grounds to take evidence specified in section (1) of this rule, and how those facts will affect the outcome of the review proceeding." Page 2 I basis to take evidence on that ground, either. Accordingly, the motion to take evidence is 2 denied. 3 FACTS 4 The challenged decision is before us for the third time. In Frewing v. City of Tigard, 5 50 Or LUBA 226, affd 203 Or App 322, 127 P3d 681 (2005) (Frewing 11), we remanded the 6 city's subdivision approval on a very limited basis: On remand, the city was required to 7 either explain why it is not possible to preserve 23 trees identified in footnote 16 of our 8 opinion, or require that the tree plan be amended to preserve those trees.2 We further stated: 9 "In fulfilling their obligation to preserve trees if possible, the city and 10 applicant are generally entitled to rely on the applicant's tree plan, which was 11 prepared by a certified arborist in consultation with the applicant and the 12 applicant's engineer, to identify the trees it is possible to preserve and the trees 13 it is not possible to preserve. But if a real issue is raised about whether it is in 14 fact possible to preserve particular trees that the tree plan slates for removal, 15 some specific explanation for why those trees must be removed must be 16 included in the city's findings. That findings obligation may in turn 17 necessitate additional justification by the certified arborist. Neither the city 18 nor the intervenor claim that no issue was raised about the trees petitioner 19 identifies on page 15 of his petition for review. See n 16. 20 "However, we also caution that our remand does not obligate the city to 21 provide petitioner another opportunity to identify additional trees that might 22 be preserved. The city's obligation on remand is limited to the trees 23 identified in n 16 of this opinion." Id. at 251-52. 24 On remand, the applicant, intervenor-respondent (intervenor), revised the tree plan 25 and proposed to preserve all of the identified trees. The city council held a public hearing at 26 which it accepted testimony from petitioner, among others, and voted to approve the 27 application, with additional findings and a condition requiring intervenor to preserve the 23 28 identified trees. This appeal followed. z Preservation of trees was an issue pursuant to Tigard Community Development Code (CDC) 18350.100(13)(3)(a)(1), which provides: "The streets, buildings and other site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible[.]" Page 3 1 FIRST AND SECOND ASSIGNMENTS OF ERROR 2 Petitioner contends that the revised tree plan is inconsistent with applicable code 3 requirements. First, petitioner notes that the revised tree plan depicts a new feature, labeled 4 "metal fence on steel posts" that appears to generally demarcate the areas where trees will be 5 removed for development from areas where trees will be protected. Each of the 23 trees 6 identified in Frewing II are in the area that will not be developed. However, petitioner 7 observes that some trees in the protected area, including trees in close proximity to the 8 protected trees, are marked for removal. Petitioner contends that it is unclear which trees will 9 be protected and which removed. Further, petitioner argues that removal of trees in close 10 proximity to the 23 identified trees presents a threat to those protected trees. Finally, 11 petitioner notes that the text and tables of the tree. plan were not modified to show 12 preservation of the 23 trees. For these reasons, petitioner argues that the revised tree plan is 13 insufficient to ensure protection of the 23 trees. 14 Intervenor explains that the "metal fence on steel posts" is not a tree 15 protection/removal boundary per se, but simply a fence installed in compliance with the 16 original conditions of subdivision approval, one that generally demarcates areas to be 17 developed from areas that will remain undeveloped. It is clear from the revised tree plan, 18 intervenor argues, which trees will be removed and which protected, on either side of that 19 metal fence. With respect to tree plan text and tables, intervenor notes that the city addressed 20 that issue in its findings, and concluded that with the newly imposed condition requiring 21 protection of the 23 trees, there is no need to modify the text and tables. That condition 22 unequivocally requires protection of the 23 trees, intervenor argues, and there is no reason to 23 believe that those trees will not be protected. 24 We agree with intervenor. It is clear under the revised site plan and condition that the 25 23 trees will be protected. The city adopted findings concluding that the revised plan 26 controlled the tree plan text and tables, and petitioner does not challenge those findings. Page 4 1 With respect to removal of trees in proximity to the 23 trees, petitioner does not explain why 2 their removal threatens the protected trees, nor has petitioner demonstrated that any 3 additional measures are necessary to protect the trees. 4 Petitioner next contends that 10 of the 23 identified trees are not identified by species 5 in the tree inventory, as required by CDC 18.709.030.B.1. For example, petitioner argues 6 that some trees are simply identified as "cedar" instead of "Western Red Cedar." The city 7 addressed this issue, finding that petitioner raised it on appeal to LUBA in Frewing 1, and did 8 not prevail, and therefore that issue cannot be raised on remand. Petitioner disputes that 9 finding, arguing that LUBA did not resolve the issue of species identification on its merits, 10 and therefore that issue is still unresolved, and can be raised again on remand and in the 11 current appeal proceeding. 12 Intervenor responds, and we agree, that the issue of species identification cannot be 13 raised in this appeal, under Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992). 14 Intervenor argues that petitioner failed to raise this issue in his initial brief in Frewing 11, and 15 raised it only in a reply brief, which LUBA did not allow. 50 Or LUBA at 229. Petitioner 16 apparently attempted to raise the issue again before the Court of Appeals, but that court 17 affirmed LUBA's decision, including any contentions regarding the decision not to allow the 18 reply brief and hence not to allow petitioner to belatedly raise the issue of species 19 identification. We agree with intervenor that petitioner waived the issue by failing to raise it 20 in his petition for review in Frewing 11. See DLCD v. Douglas County, 37 Or LUBA 129, 21 143 (1999) (where the petitioner could have but did not challenge coordinated city population 22 projections in its initial appeal before LUBA, petitioner waives the right to challenge those 23 projections in its appeal of the decision on remand). 24 Finally, petitioner contends that there is no evidence that the revised tree plan was 25 "prepared by a certified arborist" as required by CDC 18.790.030.A. Intervenor responds that 26 the original tree plan was prepared by a certified arborist, and that there is no requirement Page 5 1 under either the city code or LUBA's remand that the revisions to the site plan to protect the 2 23 identified trees be prepared by a certified arborist. We agree with intervenor that 3 petitioner has not established either that the code or our remand required that a certified 4 arborist revise the tree plan to reflect that the 23 trees will be protected. 5 The first and second assignments of error are denied. 6 THIRD ASSIGNMENT OF ERROR 7 Petitioner contends that sometime prior to the remand hearing, intervenor submitted 8 to the city engineered drawings showing design changes from the conceptual development 9 designs earlier approved by the city. Petitioner argues that these design changes are 10 "significant changes" that trigger the requirement for a new application, under 11 CDC 18.350.030.E. According to petitioner, the city must address this issue in the course of 12 the remand hearing, and the city erred in failing to do so. 13 Intervenor responds that the city limited the remand proceedings to the issue of the 23 14 identified trees, and did not open those proceedings up to other issues. Moreover, intervenor 15 argues that the engineered drawings are simply more detailed finished designs that the 16 conditions of tentative subdivision approval required intervenor to submit. According to 17 intervenor, it is not surprising that more detailed designs differ in some respects from 18 conceptual designs. Intervenor argues that the city will determine in due course whether the 19 submitted designs are consistent with the approved conceptual designs, and that there is no 20 basis to require the city council to conduct that determination under the limited remand from 21 Frewing II. 22 Again, we agree. As discussed under the fifth assignment of error, the city council 23 limited the scope of the remand proceedings to the issue of the 23 identified trees. None of 24 the alleged design changes cited by petitioner has anything to do with those trees. As 25 intervenor explains, it is common for preliminary subdivision or planned development 26 approvals to require applicants to submit more detailed or final grading or engineering plans, Page 6 1 in order to obtain final subdivision or planned. development approval. Typically, the local 2 government evaluates those plans to determine whether they are consistent with the approved 3 preliminary or conceptual plans. That determination is usually an entirely separate decision, 4 process from the preliminary approval decision, and any decisions that may be required on 5 remand of such tentative approvals from LUBA. Petitioner has demonstrated no basis to 6 require the city to make such determinations in the course of the present remand hearing 7 concerning its preliminary subdivision and planned development decision. 8 The third assignment of error is denied. 9 FOURTH ASSIGNMENT OF ERROR 10 Petitioner contends that the city Mayor engaged in an indirect ex parte contact with 11 the applicant, and moreover is barred from participating in the decision due to a direct 12 financial conflict. 13 A. Ex Parte Contact • 14 Petitioner argues that the record indicates that the Mayor engaged in an indirect ex 15 parte contact with the applicant regarding possible donation of part of the subject property. to 16 the city for open space use. As evidence of the alleged ex parte contact, petitioner cites to a 17 newspaper interview with the Mayor, in which the Mayor discussed the possibility that a 18 portion of the subject property would be donated to the city as open space, and was quoted as 19 saying that "free was a very good price." At the February 28, 2006 City Council meeting, 20 petitioner asked the city council members to disclose any ex parte contacts. In response, the 21 Mayor described the newspaper interview but stated that any information he received 22 regarding potential donation of property came from communication with staff, and that the 23 Mayor has had no contacts of any kind with intervenor or its representatives.3 3 Petitioner cites to the following transcript of the February 26, 2006 city council meeting: "[Mayor]: I think [petitioner's request for disclosure of ex parte contacts] is directed primarily at me because I was the one quoted in the newspaper article and I did have [an Page 7 . 1 Petitioner cites to CDC 18.390.050.D.8, which provides that city council members 2 shall not "communicate, directly or indirectly, with any party or representative of a party in 3 connection with any issue involved in a hearing, except upon giving notice, and an 4 opportunity to participate."4 Further, petitioner notes, CDC 18.390.050.D.8, prohibits city interview with a reporter] and I did make a statement with regard to the potential for a portion of this parcel that was unbuildable being given to the city and that was based on a conversation I had I believe with our Community Development Director, Tom Coffee and he might want to confirm whether or not that was the case and that was I guess because they were having a discussion with regard to what would happen in the fixture with this piece of property because a portion of it was not buildable. But actually I think there was a misquote in the paper in regard to whether or not it had been donated or would be donated because to my knowledge nothing like that has been done yet-no donation has yet taken place. So in fact I don't know whether that actually meant that the property would change hands or that that portion of the property which was not buildable would be made available to the city to improve it so it could be used as open space, * * * because the only discussion I had was just on one brief occasion with a member of City of Tigard staff. "As far as the principals of [this] development, I've never met or talked to any of them outside of public hearings we've had in this room, would not know them on the street, don't know them in any way. So far as whether the potential that property would be donated to the city biasing me in any way, the fact that I had on previous occasions approved this planned development before there was any mention or discussion or even thought that this might take place, I would think would show that even if I were to approve it tonight, I had approved it previously without any kind of promise or suggestion that this might take place, so I think that would draw into question as to whether or not that would be any type of inducement." Partial transcript of February 28, 2006 City Council Meeting, attached to the Petition for Review, Appendix D-2. a CDC 18.390.050.D.8 provides: "a. Members of the Review Authority shall not: ,,0) Communicate, directly or indirectly, with any party or representative of a party in connection with any issue involved in a hearing, except upon giving notice, and an opportunity for all parties to participate; "(2) Take notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case unless the parties are afforded an opportunity to contest the materials so noticed; "b. No decision or action of the Review Authority shall be invalid due to ex parte contacts or bias resulting from ex parte contacts with a member of the decision- making body if the member of the decision-making body receiving contact: "(1) Places on the record the substance of any written or oral ex parte communications concerning the decision or action; and Page 8 1 council member from taking "notice of any communication, report, or other materials outside 2 the record prepared by proponents or opponents in connection with the particular case unless 3 the parties are afforded an opportunity to contest the materials so noticed." Petitioner argues 4 that the Mayor may have had "indirect" communication with intervenor via city staff, and 5 that the city erred in not allowing petitioner to question the Mayor about his conversation 6 with staff, and to rebut the substance of that conversation. 7 Communication with planning staff is not an ex parte communication. 8 ORS 227.180(4); CDC 18.390.050.D.8.d. Here, planning staff apparently informed the 9 Mayor that staff and intervenor had had discussions regarding donating a part of the subject 10 property to the city as open space. It is unclear whether and to what extent ORS 227.180(4) 11 and CDC 18.390.050.D.8.d would allow staff to convey to a decision maker information 12 relevant to a pending land use matter that was gained outside the public hearing process. On 13 the one hand, planning staff receive a great deal of information from, and have significant • 14 contacts with, applicants and the public outside the public hearing process, and in turn have 15 significant contacts with governing body members on a wide range of subjects. It is 16 inevitable that on occasion information obtained by staff outside the public hearing process 17 that has some bearing on a land use matter before the governing body will be conveyed to 18 governing body members outside the hearing process. We are aware of no cases suggesting 19 that if staff convey such information to decision makers that such communication with staff 20 is considered an indirect ex parte communication with the source of that information. "(2) Makes a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication made at the first hearing following the communication where action shall be considered or taken on the subject to which the communication is related. "d. A communication between City staff and the Review Authority shall not be considered an ex parte contact." Page 9 i 1 On the other hand, it certainly seems inconsistent with the purpose of ORS 227.180 2 and CDC 18390.050 D.8 to allow staff to convey to decision makers evidence critical to the 3 decision that was gained outside the public hearing process from one of the parties to the 4 decision, and shield disclosure of such evidence under the "staff communication" exception 5 at ORS 227.180(4) and CDC 18.390.050 D.8.d. 6 However, we need not attempt to determine how broad or narrow the "staff 7 communication" exception is, because we disagree with petitioner that any ex parte contact 8 occurred at all in the present case. CDC 18.390.050 D.8.a.1 prohibits ex parte contacts with 9 parties "in connection with any issue involved in a hearing." As noted, the only issue 10 remanded by LUBA and considered at the remand hearing was whether to protect the 23 trees 11 identified in our decision. Petitioner does not explain what connection a potential donation 12 of land on the subject property to the city has to that issue.5 As far as we are advised, that 13 staff and intervenor have discussed donation of open space on the subject property has • 14 nothing to do with any approval criteria for the subdivision as a whole, much less the specific 15 tree preservation criterion and the very limited issue to be resolved on remand from Frewing 16 IT Because the substance of the communication has no discernible "connection with any 17 issue involved in the hearing," that communication was not a direct or indirect ex parte 18 contact that require disclosure or that obligated the city to offer petitioner an opportunity for 19 rebuttal .6 5 As far as we can tell, none of the 23 trees are within the stream buffer or open space areas of the property that were presumably the subject of discussion between staff and intervenor. 6 The city also argues, and we tend to agree, that even if the communication had some connection with any issue involved in the hearing and was otherwise an ex parte contact, the Mayor in fact disclosed the substance of that communication at the first opportunity. As far as petitioner has shown, petitioner did not request further disclosure or object to the adequacy of that disclosure below. Before LUBA, particularly in seeking to take evidence outside the record, petitioner appears to argue that the Mayor's disclosure was inadequate. However, it seems to us that the Mayor fully disclosed the substance of his communication with staff, vi:., he was informed that staff and intervenor had discussed donating the unbuildable portion of the subject property to the city. Perhaps influenced by his view that the Mayor is biased and has a conflict of interest, petitioner seeks to question the Mayor about a number of things, but as far as disclosure of the substance of the staff communication goes, petitioner has not demonstrated that there is anything more to disclose. Page 10 1 Although petitioner does not couch it this way, the real focus of his ex parte contact 2 argument may be that the Major was "biased" or improperly influenced to approve the 3 application on remand due to his knowledge that intervenor might donate the unbuildable 4 portion of the property to the city, and thus cast his vote based not on the tree preservation 5 criterion and evidence related to that criterion but rather in the hope that the city would obtain 6 "free" open space.7 7 To the extent petitioner makes this argument, we reject it. As the Mayor noted in his 8 disclosure, the Mayor twice voted to approve the subdivision application, including approval 9 of the initial tree plan, before learning from staff that discussions regarding donation of land 10 had occurred. That alone belies the suggestion that the Mayor's vote on remand was 11 improperly based on matters extraneous to the tree preservation criterion and evidence related 12 to that criterion. 13 B. Conflict of Interest 14 Petitioner also argues that the Mayor has a direct or substantial financial interest in 15 the decision, and therefore has a "conflict of interest" that bars the Mayor's participation in 16 the decision, under CDC 18.390.050.D.7.8 Petitioner apparently reasons as follows: (1) one The city further argues that petitioner has not demonstrated that there is anything in the substance of the staff communication with the Mayor to rebut. Although we need not resolve that contention, we tend to agree. Petitioner does not explain what evidence he would (or could) submit to rebut the statement that staff and intervenor have discussed donating the unbuildable portion of the subject property to the city, much less what relation any evidentiary rebuttal to that statement would have to any issue involved in the remand hearing. The standard for determining actual bias is whether the decision maker "prejudged the application, and did not reach a decision by applying relevant standards based on the evidence and argument presented [during quasi-judicial proceedings]." Spiering v. Yamhill County, 25 Or LUBA 695, 702 (1993). A party alleging disqualifying bias must "show clearly that a public official is incapable of making a decision on the basis of evidence and argument [in the record]." Schneider v. Umatilla County, 13 Or LUBA 281, 284 (1985). s CDC 18.390.050.D.7 provides, in relevant part: "Parties to a Type II Administrative Appeal hearing or Type III hearing are entitled to an impartial review authority as free from potential conflicts of interest and pre-hearing er parte contacts as reasonably possible. It is recognized, however, that the public has a countervailing right of free access to public officials. Therefore: Page 11 . 1 of the goals of the city is to acquire open space, (2) city staff and intervenor have discussed 2 donating open space to the city and such donation presumably will occur only if the 3 application is approved; (3) city voters will be pleased if open space on the property is 4 donated to the city, (4) if the city voters are pleased, then the Mayor will be re-elected in the 5 next election, (5) if the Mayor is re-elected, he will retain the stipend and other emoluments 6 he receives from the city. Therefore, petitioner concludes, the Mayor has a direct financial 7 interest in the challenged decision, and is barred from participating in the PUD decision. 8 The city responds, and we agree, that the link between the challenged' decision, the 9 potential donation of open space, and the Mayor's chances of re-election are too remote to 10 result in a potential or actual financial conflict of interest. Even if it were clear that the 11 Mayor's vote on this land use matter might affect his re-election, we do not believe the 12 Mayor's desire to please the voters combined with receipt of a stipend for continued service 13 as an elected official constitutes a potential or actual financial conflict of interest. • 14 The fourth assignment of error is denied. 15 FIFTH ASSIGNMENT OF ERROR 16 Petitioner argues that the city committed procedural errors during the remand 17 proceeding, and adopted inadequate findings. 18 A. Scope of Remand 19 First, petitioner argues that the city council failed to make an actual determination to 20 limit the scope of the remand hearing to the issue of the 23 trees. According to petitioner, at b. Any member of the Review Authority shall not participate in any proceeding or action in which any of the following has a direct or substantial financial interest: The member or member's spouse, brother, sister, child, parent, father-in-law, mother-in- law, partner, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed at the meeting of the Review Authority where the action is being taken[.]" Page 12 1 the hearing the city attorney advised the city council that the scope of the hearing was so 2 limited, but the city council never actually decided to limit the hearing to the issue remanded 3 by LUBA. Petitioner speculates that the city attorney may have misled the city council into 4 believing that it had no choice but to accept a limited scope of remand. 5 The city cites to a portion of the remand hearing minutes where the Mayor advised 6 petitioner that the only issue before the city council was the 23 trees. Record 155. The city 7 argues that the Mayor, acting as chair of the council, rules on procedural issues such as the 8 scope of hearing, subject to reversal by the council. According to the city, the Mayor ruled 9 that the scope of hearing was limited, and the council accepted that ruling. We agree with the 10 city that the city council effectively limited the scope of hearing. Petitioner's speculation that 11 the city council may have misunderstood its authority to determine the scope of remand does 12 not provide a basis for reversal or remand. 13 B. Staff Report 14 Second, petitioner argues that CDC 18.390.050.C.2.h requires that the notice of 15 hearing include a statement that the staff report will be available at least seven days before 16 the hearing.9 City staff provided a staff report seven days before the remand hearing on 17 February 28, 2006, at the conclusion of which the city council closed the record, deliberated, 18 reached a tentative decision, and continued the matter until March 28, 2006 for adoption of 19 findings and the final decision. At the March 28, 2006 meeting, staff presented proposed 9 CDC 18.390.050.C.2. implements ORS 197.763(3)(i) and provides, in relevant part: "Content of Notice. Notice of a Type II Administrative Appeal hearing or Type III hearing to be mailed, posted and published as provided in Subsection 1 above shall contain the following information: "h. State that a copy of the staff report shall be available for inspection at no cost at least seven days prior to the hearing, and that a copy shall be provided at a reasonable cost[.]" Page 13 . I findings and conditions, including findings that respond to issues raised by petitioner. The 2 city council voted to adopt those findings in support of its final decision. 3 Petitioner argues that that the proposed findings and condition constitute a staff report 4 or supplemental staff report, and that the city violated CDC 18.390.050.C.2.h by failing to 5 make that report available to the public at least seven days prior to the March 28, 2006 6 meeting. Relatedly, petitioner argues that the city erred in refusing to allow petitioner an 7 opportunity to review and comment on the proposed findings prior to adopting the final 8 decision. 9 The city responds, and we agree, that CDC 18.390.050.C.2.h is a notice provision that 10 requires only that the notice include a statement that the staff report is available at least seven 11 days prior to the "hearing." Petitioner does not explain why the March 28, 2006 meeting is a 12 "hearing" or why CDC 18.390.050.C.2.h applies to it. Further, neither the code nor the 13 statute it implements require the city to treat staff-generated proposed findings as a staff 14 report or supplemental report and make those findings available to the public seven days 15 prior to the meeting at which those findings are adopted as part of the final decision. 16 Petitioner also cites no authority that requires the city to provide petitioner with an 17 opportunity to review and comment on proposed findings prior to their adoption. See 18 Arlington Heights Homeowners v. City of Portland, 41 Or LUBA 560, 565 (2001) (absent 19 local provisions to the contrary, there is no right under Oregon law for opponents to review or 20 rebut proposed findings prior to their adoption). 21 C. Petitioner's challenges to the findings 22 Finally, petitioner offers the following critiques of the findings and condition adopted 23 on remand. 24 1. Condition Requiring Preservation of the 23 Trees 25 Petitioner contends that the condition "impermissibly waives the requirements" of the 26 tree preservation requirements of the Tigard Code. Petition for Review 18. However, we Page 14 1 cannot follow petitioner's argument. Petitioner complains that a "Tree Removal, Protection 2 and Landscape Plan" dated November 19, 2004, fails to comply with various code 3 requirements. Petitioner also complains that the revised tree plan does not identify all trees 4 by species, and that the revised plan proposes to remove certain trees within the stream buffer 5 zone at the west end of the property. What either plan has to do with the condition imposed 6 on. remand requiring preservation of the 23 trees, or with the 23 trees, or with any issue 7 within the limited scope of remand, is not explained. Petitioner has not demonstrated any 8 reversible error with respect to the condition requiring preservation of the 23 trees. 9 2. City Forester Standards 10 Petitioner argued below that the city should impose new standards adopted by the city 11 forester rather than the city's tree preservation regulations, or amend city regulations to 12 incorporate and apply the new standards. The city adopted findings on remand rejecting this 13 argument as being outside the scope of remand. Petitioner asserts on appeal that the city . 14 should adopt and apply the new city forester standards, but does not explain why, much less 15 why the city erred in rejecting that issue as being outside the narrow scope of remand. 16 3. New Fencing 17 As noted earlier, the revised tree plan depicted a new line described as a "metal fence 18 on steel posts." Petitioner asked the city below to require the applicant to confirm the 19 purpose of that fence. The city's findings reject that request as being outside the scope of 20 remand. On appeal, petitioner argues that the purpose of the fence is not outside the scope of 21 remand. 22 As discussed tinder the first assignment of error, the "metal fence on steel posts" 23 apparently has only a tangential bearing, if any, on the issue of preserving the identified 23 24 trees. Because the fence was first depicted on the revised tree plan, it is at least arguable that 25 petitioner was entitled to raise new issues regarding the fence. However, the only substantive 26 issue petitioner raises regarding the fence we rejected under the first assignment of error. Page 15 I Under this sub-assignment of error, petitioner advances no cognizable issue other than to 2 complain that the city erred in finding that the purpose of the fence is outside the scope of 3 remand. While that finding may have been technically incorrect, petitioner does not explain 4 why any error in adopting that finding warrants reversal or remand. 5 4. Ex Parte Contacts 6 Finding No. 15 responds to petitioner's concerns regarding ex parte contacts and 7 states that city council members had declared that they had no contacts with the applicant, 8 and the applicant had declared no contacts with city council members. Petitioner argues that 9 this finding is incorrect and inadequate for reasons set out under the fourth assignment of 10 error. However, we rejected the arguments under the fourth assignment of error, and 11 petitioner's challenge to the city's findings regarding ex parte contacts provides no basis for 12 reversal or remand. 13 5. City Manager Statements • 14 Finding No. 16 recites that "[t]he City Manager stated that there have been 15 discussions between staff and the applicant on this issue [donating land], but that no Council 16 member was involved or informed of the discussions." Record 6. Petitioner complains that 17 this finding inaccurately states what the city manager actually said at the March 28, 2006 18 meeting, and further that it conflicts with the statement of the Mayor, in which he indicates 19 that he learned of the discussions through staff. 20 As quoted in the transcript attached to the petition for review, the city manager stated 21 that "[w]e have referred this particular donation to our Parks and Recreation Advisory Board. 22 No action has been taken [with respect to donation], the city has not taken title in any way 23 whatever, nothing has come to the City Council." Appendix D-2. Petitioner is correct that 24 the finding that no city council member has been "involved or informed of the discussions" is 25 broader than the city manager's statement that "nothing has come to the City Council," and 26 appears to be somewhat inconsistent with the Mayor's statement. However, petitioner does Page 16 . 1 not explain why any inadequacy or inaccuracy in the city's finding that no city council 2 member "was involved or informed of the discussions" warrants remand. We have already 3 rejected petitioner's substantive arguments regarding ex parse contacts. Given that 4 disposition, any mischaracterization of testimony or other inadequacy in the findings the city 5 adopted to respond to petitioner's arguments regarding ex parte contacts is, at best, harmless 6 error. 7 The fifth assignment of error is denied. 8 The city's decision is affirmed. • Page 17 Certificate of Mailing I hereby certify that I served the foregoing Final Opinion and Order for LUBA No. 2006-065 on September 12, 2006, by mailing to said parties or their attorney a true copy thereof contained in a sealed envelope with postage prepaid addressed to said parties or their attorney as follows: Christopher P. Koback Davis Wright Tremaine LLP 1300 SW 5th Avenue Suite 2300 Portland, OR 97201 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Timothy V. Ramis Ramis Crew Corrigan LLP 1727 NW Hoyt Street Portland, OR 97209 Dated this 12th day of September, 2006. Kelly Burgess Debra A. Frye Paralegal Executive Support Specialist v - - - - r " - - _ - - - - - - - - . _ ' - - ` - , - - - - • _ - - - _ •••f - _ - - ~ _ _ _ r>) - - - - - - - - ~,-h-- - Y - _ BEFORE: i =i: AND`U SE= P BOARD`OF°AP E` ALS . , - - - - _ _ - > ' - _ - - -JUN=:2.._ 6w : : 7 _ 00 THE TA 2r . > - = - Olt- F GON==" S TE OF,6RE' R - i _ - - _ _ - _ _ _ - _ _ _ - _ _ _ - "r- - - C-4:°. - - - - C - ~7 :"r -2- RE {N: CO > Y I RIG' -r- ,--r~- . - - TTORS - - N~ S,. 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'i ranscri• `f' o e - Council :1VIee r aztial D= 1 - D `T - - - _ ` = _ _ viderice N . i .dix!E::: ' 6ti oi` to .Take. o 'In•.tfi- _ Reco d aric- davit - PPe , Affi - =E=L t e _ , } _ _ . =A ,endix:F.Petifioner em M o`randum=for=Revi . e of New Eindin :F=1a - PP - - - _ . fr : - - - _ - dix Tlie- - - = en ed: D - hall ecis ou - - G=: -g :APPS -r' - 1 - - - = iY - . _ - - . - _ - - - - : - _ - . - - - _ - - - - - - - - 'VY-- - - - - ((//-~~((J~ - - - _ - - _ - _ _ - _ - - _ WS _ rtificate -of e_ rvi S ce and F_ilin _ - - - 9 " .0 , . - - - - - - - - - - - _ - - ~ - .'tom- - - _ - - - - - _ - - _ _ _ _ - - _ _ _ - _ _ - - _ - - - - ! - - _ - - - - _ - - - _ _ _ - - BEFORE THE LAND USE BOARD OF APPEALS FOR THE STATE OF OREGON JOHN FREWING, Petitioner LUBA No. 2006-65 Vs. CITY OF TIGARD, Respondent And WINDWOOD CONSTRUCTION, Intervenor-Respondent PETITION FOR REVIEW AND PETITIONER'S BRIEF John Frewing City of Tigard Windwood Construction 7110 SW Lola Lane Tim Ramis Chris Koback Tigard, OR 97223 Ramis Crew Corrigan Davis Wright Tremaine 1727 NW Hoyt 1300 SW 5t' Ave, Ste 2300 Portland, OR 97209 Portland, OR 97201 503-245-5760 503-306-0258 503-241-2300 CONTENTS Standing 2 Statement of Case 2 Assignment of Error 1: Noncompliant Tree Preservation 4 Assignment of Error 2: Indeterminate Decision Regarding Preserved Trees 6 Assignment of Error 3: Changed Information Submitted to City 8 Assignment of Error 4: Ex parte Contact, Failure to Allow Exploration of Contact 11 Assignment of Error 5: Hearing Procedure Defects"- - - - - - - - . Appendix A: Markup of Revised Tree Preservation Plan 9-22-05 A-1 Appendix B: Markup of Tree Inventory B-1 Appendix C: Illustrations of Changed Information Submitted to City C-1 Appendix D: Transcript of February 28, 2006 City Council Meeting (Partial) D-1 Appendix E: Motion to Take Evidence Not In the Record and Affidavit E-1 Appendix F: Petitioner Memorandum for Review of New Findings F-1 Appendix G: The Challenged Decision G-1 Certificate of Service and Filing 1 STANDING Petitioner appeared before the Tigard City Council on February 28, 2006 as part of the public hearing for its ASH CREEK ESTATES SUBDIVISION LUBA REMAND. Record at 168. Such appearance creates standing for appeal. ORS 197.830 STATEMENT OF CASE Nature of land use decision and relief sought. The subject land use decision was a final decision of the Tigard City Council on remand from LUBA. t It involved the approval of a planned development, subdivision and adjustments for "Ash Creek Estates". The decision was a Type III quasi-judicial land use decision under the Tigard Community Development Code (TCDC), Chapter 18.390. Petitioner seeks remand or reversal on several grounds.2 Summary of arguments. First, in submitting information regarding the preservation of 23 trees (the subject of prior LUBA remand), the application does not meet TCDC approval criteria for preservation of trees.3 Petitioner cites inconsistencies and omissions. Second, in submitting a revised tree preservation plan regarding the preservation of 23 trees, the application presents new and inconsistent information, resulting in an indeterminate and unenforce#ble decision by the Tigard City Council. Third, before the date of the public hearing on Ash Creek Estates, the applicant submitted other new information purporting to show compliance with the approved 1 The challenged decision is attached as Appendix G. Additional Exhibits are provided in the Record at 11-115. 2 Causes of action noted below, `violates or improperly construes applicable law,' `prejudice of substantial rights,' `not supported by substantial evidence,' `exceeds its jurisdiction' and `findings are insufficient' refer to OAR 661- 010-0071 and its subparagraphs where these terms are identified. 3 TCDC, the Tigard Community Development Code 2 design to the City of Tigard that actually alters the approved design for the development. • Although raised by Petitioner below, Tigard City Council did not consider this changed information which is in conflict with the approved plans. Fourth, member(s) of the Tigard City Council had ex parte contact with the applicant, failed to disclose such before the public hearing and refused to allow questioning of themselves regarding such contact to develop the substance of the ex parte contact; the contact shows bias such that members of the City Council were unable to reach a fair decision. This is contrary to requirements of the TCDC. Fifth, in conducting the local quasi-judicial hearing, City of Tigard violated its own rules for a full and fair hearing; substantial rights of petitioner were prejudiced. Summary of material facts. The original Ash Creek Estates application and local approval was appealed and decided as LUBA 2003-194 (Frewing 1) that was remanded to Tigard on August • 20, 2004. The decision by Tigard City Council on that remand was appealed and heard as LUBA 2005-042 (Frewing 2) and was remanded to Tigard on September 20, 2005. The Oregon Court of Appeals affirmed this remand without opinion on December 7, 2005. The remand required that City of Tigard either explain why 23 trees, earlier shown as being preserved, could not be preserved or act to preserve these 23 trees. City of Tigard noticed and held a quasi-judicial hearing on this remand February 28 and March 28, 2006. This appeal follows. LUBA Jurisdiction. LUBA has jurisdiction to hear this appeal because the decision on remand was a final land use decision by City of Tigard regarding application of land use regulations and standards in a planned development in Tigard. Petitioner has exhausted all administrative remedies by participating in Tigard's land use decision. 3 ASSIGNMENT OF ERROR 1 LUBA remanded, as a minimum, consideration of 23 trees which had been indicated as saved in Windwood's original application, but which were indicated as removed in its revised application. LUBA instructed "the city must explain why it is not possible to preserve the 23 trees or require that the tree plan be amended to preserve those trees."A Petitioner asserts that preserving the trees means preserving the trees in accordance with the TCDC, not some other unknown meaning of `preserve'. Petitioner examined TCDC 18.790, the cited and applicable code approval requirements for tree preservation, to see if the revised tree plan evidence submitted by Windwood complies with these requirements and actually preserves the subject 23 trees. TCDC 18.790.030 B requires submittal of a tree plan to identify `all existing trees' and to identify `all trees which are proposed to be removed.' Windwood's sole revision to its tree plans was a changed figure "REVISED TREE PRESERVATION PLAN 9-22-05", sheets 12A and 12B of 12 with a cover letter dated September 28, 2005. Record at 353, 354.6 Petitioner asserts as follows that this revision is inadequate to bring the tree plan into compliance with TCDC 18.790.030 for preservation of the 23 trees: 4 LUBA 2005-042, Final Order at 25 5 Previously considered in LUBA 2005-042, Record at 397-443 6 A markup of the right half of Sheet 12B is included for convenience as Appendix A. It consists of four sheets, A-I being the lower right portion, A-2 being the lower left portion, A-3 being the upper right portion, and A4 being the upper left portion. Lot numbers, the new tree protection boundary fence, the 23 LUBA save trees and other trees mentioned in the text are highlighted by Petitioner. 4 A. While the tree plan figure has been revised with a new line, modifying a `tree removal • boundary' line of a prior submittal `7 and showing a new `tree removal boundary' (See Appendix A), the text and tables of the tree plan have not been modified to show preservation of the 23 trees subject to the current remand (See Petitioner testimony, Record at 168 and Appendix B). The tree plan as a whole is therefore indeterminate regarding preservation of the 23 trees. The revised line is not labeled in any way as a `tree removal boundary' line, but the figure legend only notes it is a `metal fence on steel posts', thereby adding to the indeterminate nature of the revised tree plan. The record does not clearly establish which trees are to be saved and which are to be removed (misconstrue applicable law, insufficient findings). See also Assignment of Error 2 below. B. At least 10 of the 23 trees at issue are not identified by species in the tree inventory, as required by the Tigard code at TCDC 18.790.030 B.1. This is a clear and important requirement of the code, inasmuch as this information can assist the crew in the field to determine which trees are to be removed and which are to be saved (misconstrue applicable law). See Appendix B; Western Red Cedar is the species for the trees simply termed `cedar'. Regarding Additional Findings on this issue, the `Response to Comments from John Frewing, No. 9'9 states that the issue of tree identification by species cannot be raised again. 10 Petitioner asserts that neither LUBA nor Court of Appeals addressed the issue of tree identification by species in prior proceedings regarding Ash Creek Estates and it can be raised in this proceeding, particularly regarding the 23 trees identified by LUBA- Beck v City of Tillamook, 105 OrApp 276 established the principle that where an issue is not conclusively decided in a LUBA 2003-194, Record at 325 e LUBA 2005-042, Record at 397-442. See for example tree 5289, a 29" bigleaf maple and tree 5283, a 31" western red cedar. 9 Record at 5 io Record at 5 5 previous appeal, where the reviewing body had not reached some issues, they may be raised in • subsequent proceedings. Hence, this finding is insufficient. C There is no evidence that the revised tree plan figure was `prepared by a certified arborist' in accordance with the rules of the Tigard code (misconstrues applicable law, not supported by evidence in the record as a whole). TCDC 18.790.030 A. In fact, Windwood, in testimony before the City Council admitted that a certified arborist was NOT consulted in revising the tree plan figure." LUBA itself, in its remand decision, noted the important role of the certified arborist in determining which trees could be saved. 12 The decision therefore improperly construes applicable law. Applicable law expressly requires that a) all trees be identified and trees to be removed be identified, b) trees be identified by species, and c) that the applicant's tree plan be prepared by a certified arborist. The findings • are insufficient, specifically with regard to the 23 trees subject to LUBA's remand. Without evidence of preparation by certified arborist, the revised plan lacks evidence for sufficient findings. These issues were raised below13. To the extent that City of Tigard defers decisions on these specific matters until a later date, there is no finding of feasibility. ASSIGNMENT OF ERROR 2 While LUBA was very clear on the minimum scope of a remand proceeding, applicant took the opportunity to submit additional and new evidence in its revision of the tree plan figure. New evidence affords Petitioner the right to review and comment. Petitioner raised below the issue " Record at 155. Also see transcript, Appendix D. Applicant's attorney did state that a certified arborist `prepared the report', referring to an earlier tree plan, LUBA 2005-042, Record at 397-442, but not referring to the "Revised Tree Preservation Plan 9-22-05", Record of this proceeding at 353-354. 12 LUBA 2005-042 at 25. u Record at 168 6 that such new evidence places the protection and preservation of the 23 trees in an • indeterminate state. Specifically, the new evidence is the new line on the tree plan figure 14 that is the `tree removal boundary' line. This line separates th e area of development and tree removal from the area where there will be no tree removal. In some cases, the new line surrounds an individual tree. However, in the case of the 23 trees at issue, the new line does not surround them individually, but as a group, all located in the area where there will be no tree removal. However, the revised figure of the tree plan affects other trees not previously considered. It shows large trees in the vicinity of the 23 trees, ie in the area where there will be no tree removal, which large trees are designated with an "X" to be removed (see drawing legend). Removal of these adjacent trees is a threat and danger to the 23 trees promised to be saved without some • intervening identified protection measures. For example, Appendix A (Page A-3) shows on Lot 10 identified trees 6104, 6105 and 6106 in the tree protection zone to be removed and within 15 feet of LUBA save trees 6107 and 6108. Similarly on Lot 13, Appendix A (Page A- 2) shows identified tree 5395 to be removed and within 20 feet of the canopy of LUBA save tree 6116. The finding of Tigard City Council that the 23 trees will be preserved is inconsistent with the 9-22-05 tree plan which shows adjacent large trees to be removed with no intervening tree protection measures for the 23 trees to be saved This inconsistency is not resolved in the proceeding before the Tigard City Council. The fact that some trees within the protected tree protection zone are marked to be removed is an inconsistency which fails to meet TCDC - namely that all trees to be removed shall be identified - the status of healthy trees marked for removal within the tree protection zone is indeterminate. 14 Appendix A 7 This additional information by applicant warrants review by City of Tigard and allows • comment by Petitioner. Approval of the revised figure with its inconsistent tree plan improperly construes applicable law and results in insufficient findings. Is As part of the local hearing, Petitioner asked Tigard to address this inconsistency caused by submittal of additional information; the City Council chose not to discuss or decide any aspect of this issue. 16 Where the decision makers at the local level do not make an interpretation, it has been within the scope of LUBA proceedings to either find that the decision below is indeterminate (calling for remand) or to make an interpretation itself. 17 ASSIGNMENT OF ERROR 3 Land use decisions require in an application, a record of design such that local government can • review and compare such information against the land use regulations of the city/county. In the present case, before the date of the local quasi-judicial hearing, the applicant filed with the City of Tigard, engineering drawings showing design features that are substantially different from and violate the approved planned development design. At a minimum, these information submittals are evidence of inconsistent testimony by Windwood (ie the application) that are not addressed or resolved by the Tigard City Council. Petitioner raised these filed design differences in testimony before City Council. Record at 169. Changes included: 15 See LeRoux v Mallheur County 32 OrLUBA124 (1996) where, given factual inconsistencies, the county was required to explain a reasonable basis for its choice. 16 Record at 169 17 LUBA has made a number of decisions where an indeterminate situation at the local level leads to remand See Doob v Grants Pass 34 OrLUBA 480 (1998) in which LUBA would not. make a determination where the local decision does not contain adequate interpretation of a local provision. See also Moore v Clackamas County 29 OrLUBA 372 (1995) where, in the case of conflicting evidence, the local decision maker must explain its basis for its conclusion- 8 A A completely different concept and design regarding stormwater retention. Exhibit "B" to Frewing testimony before City Council (Record at 178) shows a stormwater retention system utilizing vaults/pipes, whereas the earlier and approved design utilized a retention pond. For the approved design, see the illustration on Attachment "C" to Frewing testimony before City Council (Record at 179) that is also part of the LUBA 2003-194 record (Record at 406) and detailed in the LUBA 2003-194 record (Record at 638). On this latter sheet (LUBA 2003-194, Record at 638), the retention pond size is shown as 4800 square feet. Pond calculations are shown in this same record (LUBA 2003-194, Record at 654-657). B Lot size reductions. The earlier lot size for Lot 27 was stated as 6637 sq ft (Record at 179), but the new size of Lot 27 is significantly reduced (but not specified), as shown on the storm drainage drawing (Record at 178). Lot 27 appears to be cut in half, with the storm drainage system on a different tract - the solid line with double dash defines the lot size. The prior lot • size was noted to continue all the way west to SW 74th (LUBA 2003-194, Record at 673) whereas the most recent evidence shows it not approaching SW 74d' (Record at 178). This reduction in lot size, at least in the amount of the pond, 4800 sq ft, changes the housing density calculations (LUBA 2003-194, Record at 587) that were used to permit 29 lots. C Significantly different grading (changing site topography). The approved grading plan (LUBA 2003-194, Record at 636) differs from the revised grading plan submitted to City of Tigard with construction drawings.as much as ten feet in elevation for Lot 1 and Lots 12-21; for convenience, relevant portions of both these drawings are illustrated in Appendix C." The grading of Lot 1 is dramatically changed, the slope of the private roadway is increased, the slope of lots 12-21 is increased and the slope of the east embankment of SW 74n' is increased IS Pages C-1 and C-2 are the approved grading plan Pages C-3 and C4 are the revised grading plan submitted to City of Tigard by applicant as evidence of compliance and construction approved by Tigard. 9 such that the retaining wall adjacent to the stream, that is shown on the approved grading plan, • is no longer shown. D A reduction in the `K' value of the SW 74`h Avenue grading, making the dip in the street even steeper and sharper than the previous design which was approved previously by a City Engineer waiver of public facility design standards. This nonconforming `K' feature was first an issue of appeal in LUBA 2003-194 and Petitioner's claim that a `K' value of 5.2 was not properly approved was sustained (LUBA 2003-194, Final Order at 27). (Tigard Public Improvement Design Standards normally call for a `K' value of 13.4 for local streets.) On remand and appeal again, in LUBA 2005-042, Petitioner's Assignment of Error was denied because an `equivocal' request for a `K' value of 5.2 was deemed to have been approved by the City Engineer. Petitioner raised below the fact that detail drawings now show this roadway dip steeper and sharper than was approved - see Appendix C19 that specifies a `K' value of 5.11 (highlighted by Petitioner) that is less than the prior approved value of 5.2. The record contains no second waiver of this reduced `K' value, it is a violation of the approved design. Appendix C also shows (and is marked so) a reduced and noncompliant `K' value for SW 74th at a location near Station 22{00 which has never been approved by City of Tigard. These changes constitute `significant changes' as defined by the Tigard Code. See TCDC 18.350.030 B. TCDC 18.390.080 DA provides direction for City Council action when significant changes to the application are submitted to the city. No City Council action has been taken on these changes. The changes are `evidence' as defined by ORS 197.763 (9)(b) - facts, documents, data or other information offered to demonstrate compliance. The proposed design changes violate the approved development plan. Approval of Ash Creek Estates on remand with these changes in the record misconstrues applicable law. The Tigard City Council 19 Pages C-5 and C-6 are evidence of compliance and construction approved by Tigard. 10 exceeded its jurisdiction in approving Ash Creek Estates when Petitioner had properly identified the changed and inconsistent evidence in public hearing. LUBA should remand the application to Tigard for consideration of these design changes. The TCDC requires at TCDC 18.350.030 E that substantial modifications made to the approved conceptual development plan shall require a new application. The TCDC at TCDC 18.350.040 A clearly states that noncompliance with an approved detailed development plan shall be a violation of the code. ASSIGNMENT OF ERROR 4 The evidence of the record clearly shows sign of some kind of ex parte contact between at least the Mayor and the developer or representatives of the developer regarding donation of some of • the development site to Tigard for open space use. This ex parte contact falls well within the bounds of a communication that concerns the `decision or action at issue.' This ex parte contact comes late in the process of Tigard's consideration of an application for Ash Creek Estates and may well be part of `sweetening the pot' for final approval of the development by Tigard City Council. For the prior year (2005), Tigard City Council had placed emphasis on finding some open space for Tigard to acquire. Receipt of open space on the Ash Creek Estates site would be a first for the city and fulfill one of the council goals. Goal fulfillment is an integral part of political success for the elected City Council members, as evidenced by citizen value surveys conducted by Tigard. City Council members are compensated for their work, including a monthly stipend, expenses and health care coverage. In this case, the ex parte contact was not disclosed at the start of the quasi-judicial hearing as required by TCDC 18.390.050 D.7.a. When challenged by Petitioner in the local proceeding, the Tigard City Council deferred to the advice and judgment of their attorney and did not allow the requested questioning of the City 11 Council by Petitioner, a necessary opportunity to explore the nature of the contact. 20 The • challenge by Petitioner included prima facie evidence of ex parte contact and conflict of interest. The failure to disclose and allow examination of the Mayor on this challenge both violates applicable law and prejudiced the substantial rights of Petitioner and calls for reversal. Petitioner, at the start of his testimony, objected to this procedure by City Council?~ First, the matter of ex parte contact will be discussed, then the matter of conflict of interest or bias will be discussed. Both state rules and Tigard rules prohibit undisclosed ex parte contact between decision makers and a land use applicant as in this instance. However, Tigard rules are slightly different than state rules. ORS 227.180(3) sets minimum standards for quasi- judicial hearings by the Tigard City Council - any member must place on the record the substance of any written or oral ex parte communications and must make public announcement • of the substance of the ex parte communicati on and provide parties opportunity to rebut the substance of the ex parte communication. ORS 227.180(4) does exempt contacts between decision makers and staff from the ex parte disclosure rules. City of Tigard rules at TCDC 18.390.050 D.8 are somewhat more explicit and at the same time more restrictive. They state that in this case, members of City Council shall not "communicate, directly or indirectly, with any party or representative of a party in connection with any issue involved in a hearing, except upon giving notice, and an opportunity for all parties to participate" or "take notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case unless the parties are afforded an opportunity to contest the materials so noticed." The City of Tigard attorney, in advising City Council and members of the public at the start of the quasi-judicial hearing made a somewhat different 20 See Garrigus v Lincoln City 25 OrLUBA 754 (1993) where LUBA acknowledged this right 21 Record at 155 12 announcement, saying "Council members must declare any contacts about this case with a member of the public. Council members must also declare if they have independent knowledge of relevant facts, such as from a visit to the site in question. A Council member who describes ex parte contacts or independent information may still participate in the decision. After the discussion of conflicts and ex pane contacts, any person may challenge the participation of a Council member or rebut any statements made. The Council member in question may respond to such a challenge." Record at 185. Petitioner asserts that the City attorney instructions to City Council were legally insufficient, thereby causing City Council members to fail in their duty to disclose contacts or information from the applicant or his representatives, directly or indirectly. This constitutes violation and misconstruing of applicable law and calls for reversal or remand. • In this case, the "directly or indirectly" phrase of the Tigard rules is important. In response to Petitioner's challenge, Mayor Dirksen did admit to one conversation with City of Tigard staff because `they' were having a discussion about the future of this property. The `they' was never explored. Contact between the City of Tigard staff member or his representatives and applicant or applicant's representatives was never explored. Given the exemption for City Council members to discuss matters with staff, it was completely unexplored whether there was an `indirect' communication between City Council members and the applicant or applicant representative in this case. The City attorney's questioning of City Council members on ex parte contacts were clearly bounded whether "you" have had any contact with applicant or applicant representatives. Upon hearing the challenge by Petitioner, the City's attorney said that he wanted to give other parties the opportunity to comment on whether they had any contact, "directly" with any of the decision makers. The response of City Council members to 13 the City attorney's questions on ex parte contact were similarly stated narrowly22 - for example by Councilor Nick Wilson, "I've had no contact with owner, developer or anyone involved in this development, either by telephone, in person, or email or any other way." Also, Councilor Sydney Sherwood advising that she "has not spoken to the applicant or applicant representatives These statements fall far short of meeting the Tigard code requirements for disclosure, specifically by ruling out any indirect contact. Subsequently, the applicant addressed City Council, saying, "I haven't had any contact with any of you personally at all." None of this questioning addressed the mandatory requirement barring indirect contact between the decision makers and applicant. In this case there was no disclosure by any City Council member of the substance of any ex pane contacts (Harding advised that she attempted to visit the site, but it was posted; Dirksen simply said he was `well aware' of the location of this site.) Disclosure of the substance is a mandatory requirement of the Tigard code (TCDC 18.390.050 D.7.a.). The prima facie evidence of ex parte contact that was presented was a newspaper story23 about donation of this site to City of Tigard, including `extensive negotiations' between City of Tigard and the applicant and Mayor Dirksen's quoted conclusion that `free is a pretty good price'. This quote, if not earlier conveyed to the applicant via City of Tigard staff, is a public communication of City acceptance of some unknown agreement about the future of some portion of the Ash Creek Estates site or a taking notice of communications outside the public process of this land use hearing. The failure to disclose the substance of the ex parte contact or taking notice of a non-public communication makes this decision not in compliance with TCDC 18.390.050 D.8.b.(1) and (2). The statement by Mayor Dirksen later that he had seen `no maps' of the site zz Appendix D, page D-1 and Record at 153, 154 23 Record at 182 14 and the location of the 23 trees24 is in contrast to his initial conclusion that he and all Council members had `familiarized themselves with this application and the remand. 25 Such changed position on familiarity with the site features further supports the belief of Petitioner that Mayor Dirksen had contacts, direct or indirect with applicant or his representatives regarding donation of land as part of Ash Creek Estates approval. Finding 16 of Resolution 06-15 (Record at 6) says that `The City Manager stated that there have been discussions between staff and the applicant on this issue, but that no Council member was involved or informed of the discussions'. This Finding is insufficient and without basis in evidence in that it substantially misstates the wording of the City Manager - see both the meeting minutes (Record at 154) and Appendix D, page D-2 for an accurate statement of the City Manager - reliance on what are actually not facts in the record in support of the final decision invalidates the Finding. Petitioner requested at the local hearing the necessary opportunity to establish the substance and nature of the ex parte contact, but was denied such opportunity. See Appendix D to this Petition, page D-1 for the actual sequence of denial. Hence, this Petition for Review at the state level includes a Motion to Take Evidence Outside the Record, in order to develop the ex parte contact for the LUBA decision record.26 But ORS 244.130 says that failure to disclose an actual or potential conflict of interest, by itself, is not sufficient to void the decision of a public official. An actual conflict of interest is also necessary. Tigard rules regarding conflict of interest are stated at TCDC 18.390.050 D.7. These rules are simple as applied in this case. A City Council member shall not participate in any proceeding or action in which he/she has a `direct or substantial financial interest'. Petitioner asserted that the Mayor's approval quote, "free is a pretty good price," showed ex 14 Appendix D, page 2 25 Appendix D, page 1 ib Appendix E 15 parte contact, direct or indirect, and went on to assert that the Mayor has a direct or substantial financial interest. Specifically, the Mayor's position is remunerated (monthly allowance, expenses and health benefits) believed to be in the amount of thousands of dollars per year, and his political success is believed to be tied substantially on his acquiring at least one open space parcel for Tigard soon, since such annual goal had been adopted over a year prior to this proceeding. These facts constitute clear and unmistakable evidence of conflict, creating bias and making the Mayor incapable of fairly deciding the issue of Ash Creek Estates. Petitioner requested the necessary hearing to place these assertions on the record, establish the remuneration, the city open space goal and the importance of meeting Tigard's open space goal for political success of City Council members, but was denied the opportunity to develop this evidence of conflict of interest or bias at the local level. Hence, this Petition for Review in state proceedings incorporates a Motion to Take Evidence Outside the Record. Petitioner seeks to establish the above facts proving a conflict of interest and barring participation on the part of Mayor Dirksen. The procedure followed by Tigard City Council in this proceeding misconstrued applicable law, the aforementioned Tigard code, and prejudiced Petitioner's substantial rights, calling for reversal or remand. ASSIGNMENT OF ERROR 5 Petitioner asserts that the decision process at the local level included several deficiencies and deviations that prejudiced his substantial rights to a full and fair hearing. They were individually raised at the local proceeding or arose after the close of the local hearing so that they could not reasonably be raised in the local proceeding. 16 A. Although LUBA remanded the application for consideration of the protection and preservation of a certain 23 trees, which would be the minimum scope of the remand hearing, there was no actual decision in the record by Tigard City Council to so limit the hearing. Tigard staff published a notice of hearing that limited the scope of hearing to the preservation of 23 trees and the City attorney advised at the start of the hearing27 that the scope would be so limited, but there is no record of the City Council itself making that decision. The City attorney went further to advise City Council that to broaden the hearing "beyond LUBA's specified scope' would `violate LUBA's decision'28. Petitioner did ask well before the hearing that the scope be broadened, but such request went unanswered and not considered by City Council. See Record at 343 and 169. This request was for issues material to approval of Ash Creek Estates; it included new information provided to Tigard regarding the existence of a 5- foot planter strip alongside SW 74m and Tigard review of public health and safety aspects of the fill/culvert design, both issues potentially changing the design previously approved and so falling as additional examples of significant design changes identified but not considered by Tigard City Council. Petitioner objected to this determination and procedure adopted by City Council. Petitioner asserts that the advice of City attorney, accepted by City Council, was legally wrong, limited consideration of substantial issues raised by Petitioner and thereby prejudiced his substantial rights. Remand is requested. B. The Tigard procedure (TCDC 18.390.050 C.21.) for a Type III hearing such as this remand proceeding calls for a staff report to be provided at least seven days before the hearing; such staff report was made available for the February 28 meeting, but not for the March 28 continuation of the remand hearing. In the 28 day interim, City staff prepared additional discussion and analysis which was presented at the March 28 meeting. It was in essence, a 27 Record at 185 2s Record at 152 17 staff report. Without a seven day opportunity to review and comment on this discussion and analysis, the substantial rights of petitioner to a full and fair hearing were prejudiced, which calls for remand. Petitioner submitted to City Council on March 28 a statement asking for the necessary review time, but in the hands of City attorney, it was judged to have `already had a public hearing' and was not passed on to City Council for consideration29 and not entered into the public record. This procedure prejudiced Petitioner's substantial rights; remand is requested. The statement is attached to this Petition for Review as Appendix F. C. The staff materials presented at the March 28 hearing contain substantial discussion and analysis 30. For the Additional Condition and each of the 16 Additional Findings, Petitioner requested time to review the new materials, evaluate whether the findings `explain the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explain the justification for the decision based on the criteria, standards and facts • set forth' as required by the Tigard code. Premier Development v City of McMinnville, 50 Or LUBA 666 is a relevant precedent to the effect that challenged conditions which first appear in the final decision do not allow Petitioner any opportunity to raise related issues regarding the conditions at local proceedings and hence are appropriate for LUBA consideration; the same logic appears appropriate for staff analysis and findings. If given the opportunity to review the Additional Condition and 16 Additional Findings, Petitioner would have raised the following issues; they are raised here for LUBA consideration: C1 The Additional Condition31 impermissibly waives the requirements of the Tigard code, TCDC 18.790 regarding tree removal and preservation and substitutes instead the provisions of a "Tree Removal, Protection and Landscape Plan" dated November 19, 200432 This substitute • 29 Record at 121 ao Record at 49 " Record at 7 32 LUBA 2005-042, Record at 397443 18 tree plan does not call for identification of all existing trees, as does the Tigard code at TCDC • 18.790.030 A, does not call for a tree removal permit for any tree located in a sensitive land area (stream buffer) as does the Tigard code at TCDC 18.790.050 and does not address the necessary mitigation required by the Tigard code at TCDC 18.790.060 D.33 As noted above in Assignment of Error 1, Item B, the applicant's tree plan does not identify all trees by species. As shown on the latest "Revised Tree Preservation Plan 9-22-05, Sheet 12A, a number of trees within the stream buffer zone (sensitive lands) at the west end of the site are planned for removal, eg trees 5205, 6350, 5241, 5240,5229, 5081, 5203, 5077, etc. The application for Ash Creek Estates 34 does not address mitigation, leaving this compliance with this code requirement unresolved in the record as a whole. These three deficiencies and the failure to comply with the Tigard code noted above show that the Tigard City Council misconstrued applicable law and call for remand of the final decision. C2 The `Response to Comments from John Frewing No. 10'35 states that tree protection standards in effect at the time of the application are the appropriate considerations for this proceeding. Petitioner agrees that this is the case for `regulations' of the Tigard code, but the City Forester applies his more detailed professional standards in individual applications. Petitioner did identify36 the changed City Forester standards that have evolved over time and should be applicable to this tree plan submittal, which came to the city on September 29, 2005 37 Failure to consider the City Forester standards prejudiced the substantial rights of Petitioner and calls for remand. C3 The `Response to Comments from John Frewing No i 1' states that confirmation of the purpose of new fencing shown on the `Revised Tree Preservation Plan 9-22-05' is outside the • 33 See exclusion, LUBA 2005-042, Record at 398 34 LUBA 2003-194, Record at 600-601 35 These responses are found at Record 5 and 6 36 Record at 168 and 171 ff 37 Record at 351 19 • scope of the remand and not required by any applicable standard. Contrary to this view, the LUBA remand required either explanation or protection and preservation of 23 certain trees; the role of the new fencing is directly relevant to the remand and fencing which protects the 23 trees (ie its purpose) is required by the applicant's `Tree Removal, Protection and Landscape Plan'38, submitted as showing compliance with TCDC 18.790.030 B. City Council approval misconstrues applicable law and calls for remand. C4 The `Response to Comments from John Frewing No 15' states that `Council members stated that they had not had any contacts with the applicant/developer and the City Manager stated that all contacts had been at the staff level.' This statement fails to connect the testimony of the record with the applicable regulation that addresses not only personal contacts, but also indirect contacts. See Assignment of Error 4 above. Because of this shortcoming, this finding is inadequate, it fails to meet the requirements of ORS 227.173 (3) and the decision should be remanded. This same response states that `Representatives of the applicant also testified that there had been no ex parte contacts between the applicant or anyone associated with the applicant and any Council member regarding the property." This purported statement by `representatives of the applicant' disagrees with the transcript of the hearing in that it is much broader than actually was spoken. The finding in this regard has no-basis in fact in the record, is defective and this is cause for remand. See Appendix D, page D-1 for an accurate statement of applicant and representative. C5 The `Response to Comments from John Frewing No. 16' states that `The City Manager stated that there have been discussions between staff and the applicant on this issue, but that no Council member was involved or informed of the discussions." This statement is much broader than what was actually spoken. See Appendix D. In fact, just the opposite was admitted by Mayor Dirksen in his explanation of his quotation in The Oregonian, namely that he did in fact 38 LUBA 2005-042, Record at 397-443 20 have a conversation with Tigard staff, because `they were having a discussion with regard to • what would happen in the future with this piece of property.' So this finding, in this regard has no basis in fact in the record, the finding is defective and calls for remand. If, in the alternative, LUBA chooses not to decide the case based on issues C 1 through C5 above, Petitioner asks for a remand based on procedural practices which prejudiced Petitioner's substantial rights and calling for Tigard City Council to address these challenges to its decision. John Frewing June 26 2006 21 os2g EST APPSNDMA A 6 p81 1 Q ~ O :.QS33 53Q6 6>'2 - _ - =L UBA SAVE TREES (L UBA 2005-042) 623 r~ . S 5323 500 8 1zp e19 ~t 6122 Z 05380 (i)S360 0 6. Os36j Qs365 - pass ®5358c KU RAHAS HI 632 & ASSOCIATES, INC. 368 e Civil Engineering • Water Resources 6328 Landscape Architecture Planning Environmental • Surveying L5580 SW Jay Street. Suite 200 Beaverton, Oregon 97006 (503)644-6842 tax. (503)644-973i . Os35 j o c3,3. REVISED TREE 537,64366 PRESERVATION $3550 S(-Al F- 1 "=20' PLAN 9 22 '•SANJ--SAN SAN -3'30 A-1 SHEET NO. 12 8~ KAI# 2129 ILA of TREE Pp OTECT ION NEW 538 ti ZONE FENCING 5397.4 1 \ 529,3 s395 sJg7 5384 \ \ }z , ` TREES IN PROTECTED Z01'~ SO ADJACENT 5388 TO BE CUT, AL 6ttq 5~4 S s 5\308A 5,308 TO EUBA SAVE TREES ~ ~.11 ~ ~ ~ ~s.198 oj 13 - It \ \ 66t7,6c 6115 -304 V Q5386 ZONE \ \05305 TREES IN PROTECTED \ SHOyyN To BE CUT 05303 - bst18 C Os3; \ t \ 533 \ I 338 @545,6 054,50 a 31 , 1 X6139 053tZ 196117 \ \ 4 ~ OS~yB \ .4307 06135 ' \ \ c~' P 0532&-,._ ~ ~ . 5,329 0 05 3 J'48 O55 t _.J ~ 673 *32, dS337 ?8 35t 6127® S12 9 613 137.. 77 613g s 755 1@5346 QS345 ,29 537j 30 " r 65,24 05332 5523 ~°613q 05327 53430. 053 06320 .06132 534t x(~ 535407 5342 5344 (7 0 5.340 2 05,544 05338. 5350 5336g(j053 22 075374,. )1Cq 7E 2 S TEA4S 6552 L15522q 06133 5336_ )5514 x5353 6,325a 63_2 sl- $A0 S~N SAN SM OJ2 wRE: MF9 324 _ _ - - " 53-5-;w 352 SSIJ IN A-2 u(uwll UaTs 28j QT7( 01/11/03 x TREES 12" AND GREATER Check/Revise Date REVISIONS TREES IN PROTECTED ZONE ESS THAN 12" TO TO BE CUT, ALSO ADJACENT TO LUBA SAVE TREES 10T CONFIRMED BY •T Z 6GREATER THAN 12" HAZARD sips Imo' O TREES (ALL HAZARD TREES ON LOTS SHALL BE CUT) I HA ZARD TREES SMALLER " THAN 12 (ALL HAZARD 6104 s TREES ON. LOTS SHALL BE VID PROF~s I 2e0 0 3p CUT) NE'fR SiOZ I TREES GREATER THAN 12" w 10,053 TO BE CUT r- OREGON A610TREES LESS " THAN 12" TO f A8E CUT Fc~ 29, r RY KURP' EXPIRES 6/30/2005 NEW TREE PROTECTION ARE NOT ZONE FENCING - - - - . SUBJECT URING VISION OR 6099 _ HOUSES, THE GRADING IS PROPOSED J 1 CLOSER THAN 1' PER INCH DIAMETER 6p a s?6~. OF TREE. AR13ORIST SHALL PROPOSE p~!'\ NECCESSARY MITIGATION. 529 1pp 3. ALL TREES SMALLER THAN 12" ' _ WILL BE CUT. TREES. LESS THAN 12" O '~T9 AT EDGE OF LOTS MAY BE SAVED U14TIL HOUSES ARE CONSTRUCTED TO MAXIMIZE THE NUMBER OF TREES W SAVED. 611( . )95 S28 A. SEE ABORIST REPORT FOR SIZES, t) CONDITION AND REMOVAL LIST 5. HAZARD. TREES WITHIN THE LOTS n SHALL BE CUT. 6. HAZARD TREES WITHIN OPEN SPACE s . O 41 SHALL BE REVIEWED BY ARBORIST 2ej DURING CLEARING AND WILL BE CUT l u u 1 IF THEY REPRESENT A SIGNIFICANT 1 ~6 SAFETY HAZARD o 7. ALL TREES TO BE SAVED SHALL ItAVE U TREE PRi "ICR10 PLACED AFOUNO ECTED BY Q 7 Q I AA.BORIS-T A_3 L O o 608o METAL FENCE O s2g,. ON STEEL POSTS. 4,. 6 _ - - 1 f 05265 05290 X674 5258 j°~. • . / ! . ! ! 0 0607,3 I 5284 75t ! 3 _ 6072 - - 05264 527 175.4 1- 1 1526q 9 1 1 I I j ! 529i 1 0 599 5g62 ~ $2 ~ NEW TgEE CING ! ! • ZONE FEN ! 5957~~5T 5999 1 1 / ! 937A 5991 05977 6111 5964 / 5958 ' 5 588 960 05%0 I . 15958A 110 ! . 5 1 0 't02 : /269 ~0 ~ 018 7 21 +956 / 597; MBF1~►~ 1 Lp t~! ,~rUT1 , ~ • 52$1 _ 05998/ 24 f 527_ J IW h--& . 5279 ti ` %52798 ,5279 -5396 609 5979 ~ I 2 . 5962 5278 5396 , 296q 15 5296 1 5971 52790 6091 i70 5969 69A 6 9. 5295A 2958 I 5295 1 S l~ 6089 60$$ 5Y$1 ssa. 7 j 59 72 0.6026 'IQ..3 5912 60276 938 030 6090 037 035034 032 1~02a~ ~ A041 3 65 It h 040 )4042 029 ! 592$ f- 111039 908 5902/ 3 33 031 43 6085 44 *sOT" 5931., 5924 ~ 56 4 i 6086 591 H 5917 is A-4 ' s,1Y11 ."5 4 Ash Cree* • Tree Inventory A B D E F 0 H I J K VIAULft ree TREES, Removal -TREE LARGER Larger TREE DIAMETER THAN 12" INCH then 12" ' REMOVAL LESS HAZARD TREE 1 POINT # DESCRIPTION DIAMETER DIAMETER Diameter INCHES THAN 12" TREE CONDITION COMMENTS. 1173 6113 BIRCH 8 1174 6114 MAPLE 9 1176 6118 WESTERN D CEDAR .1 13 POOR SUPPRESSED 1176 6116 CEDAR • 7 1177 6117 CEDAR 6 - 1178 6118 CEDAR 6 1179 6119 WESTERN R FE-DAR 1 12 POOR BROKEN 0 1180 6120 WESTERN RE CED R0 10 POOR BROKEN TOP 1181 6121 WESTERN RED CEDAR VERY POOR BROKEN OP 8" DIA 1182 6122 WESTER RED CEDAR 7 POOR BROKEN TOP SUPPRESSED 1183 6123 WESTERN RED CEDAR 10 GOOD E1ll 84 61 24 WESTE N RED CEDAR 1 VERY POOR BROKEN TOP 9" DIA 85 8126 CED R • 7 8 8126 CEDAR ~ 8 7 8127 CEDAR 9 6128, MAPLE TO 4 STEMS, 4,9, ,6 Inches diameter, equivalent 8129 OREGON ASH 15 1 16 B GOOD to a 15 Inch diameter tree. ) 8130 ASH 9 8131 CEDAR SN G 9 •i v2 8132 CEDAR 1 30 1193 6133 WESTERN RED CEDAR VERY POOR DAD TO RU DECAY 16" DIA 1194 6134 DAR 8 OVER MATURE, BROKEN O WITH NEW LEADER, 18" X 17" TRUNK CAVITY NORTH 1195 6135 OREGON ASH 1 VERY POOR SIDE HOLLOW HAZARDOUS 25" DIA 1196 6136 CEDAR 6 1197 8137 CEDAR 8 1198 6138 CEDAR C 10 •1199 8139 'MAPLE i 1 is HIGH CROWN, 3" DIAMETER BLAZE WEST 1200614 . 0 OREGON RED ALDER ~i SIDE 3" DIAMETER BLAZE SOUTH SIDE AT i VERY POOR 3" ABOVE GROUND LEVEL 7" DIA 1201 6141 OREGON RED ALDER 10 FAIR HIGH CROWN 1202 6142 OR GON RED ALDER 8 POOR HIGH CROWN 1203 6143 OREGON RED ALDER y 9 POOR HIGH CROWN 1204 6144 BIGLEAF MAPLE l~ 7 POOR BROKEN TOP WITH NEW LEADERS 1208 8145 ALDER ~ZC7 10 a a Teragan Associates, Inc. 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OUT-r 7 JT ~O - - - - +00 T 60 GRAPHIC SCALE KURAHASHI 1 a. ~k ASS&cLt ms: INC. cm LA '.'a (IX t4Q I Lb.4®mW . 9Qe..1tvR t L-A . 30 'L 13360 SVhr st-I, 34ta E00 - (w2tx.-ma -nz LamW{~nt 74TH AVENLE ° - STREET A STORM PLA PROFiE : zo+oo 20+50 21+00 21+50 - C-6 22+50 8L SECTIONS seer Na., 5 Of 19 KA i 2129 - APPENDIX D • TRANSCRIPT OF FEBRUARY 28, 2006 CITY COUNCIL MEETING (PARTIAL) City Council members Dirksen, Wilson, Sherwood, Woodruff and Harding, City Counsel Ramis, Applicant Counsel Koback, Applicant Richards Appellant Frewing City Manager Prosser Ramis - (Explaining Agenda Item 6 after reading statement of hearing procedure (Record at 185)) "So the scope of the hearing is limited to the 23 trees and their treatment as noted in footnote 16; no other issue is before the Council." Dirksen - "Do any members of Council wish to report any exparte contact or information gained outside of this hearing, including site visits?" Other Councilors - (none except Harding, who stated she has driven by the site). Dirksen - "I confess I am well aware of location of the site." Dirksen - "Have all members familiarized themselves with this application and the remand? (no response from Council members) And are there any challenges from the audience regarding Council jurisdiction to hear this matter or is there any challenge to the participation of any member of Council?" • Frewing - (See written statement, Record at 180-182) Asserted his position that ex parte contact had taken place and bias made one or more Councilors `not capable' of making a decision based only on the facts of the application and hearing. Stated that this presentation concluded his challenge and sat at the witness table to take questions/continue the discussion. Ramis - "I said you may take a seat in the audience here." Ramis - Explained his view of how a challenge should be processed - no City Council response. Said he wanted to give "other parties in the case the opportunity to comment on whether they had any contact, directly, with any of the decision makers on matters raised by Mr Frewing." Koback - "Nothing happened" Richards -"I haven't had any contact with any of you personally at all." Ramis - Asks each councilor to address two subjects -whether "you" have had any discussions with applicant or applicant's representatives about the subjects Mr. Frewing has raised and whether the fact that there might be some open space as part of this application would bias you in some way that would prevent you from making a fair decision based on the criteria and facts represented to you. Wilson - "I've had no contact with owner, developer or anyone involved in this development, either by telephone, in person or email or any other way." Sherwood - States she has not spoken to parties. Woodruff- States this issue is before his term, no contact, no conflict, no bias. • Harding - States this issue is before her term, no contact with people involved, no conflict, no bias. D-1 Dirksen - "I think this is directed primarily at me because I was the one quoted in the newspaper article and I did have a /was interviewed by Mr. Bella and I did make a statement with regard to the potential for a portion of this parcel that was unbuildable being given to the city and that was based on a conversation I had I believe with our Community Development Director, Tom Coffee and he might want to confirm whether or not that was the case and that was I guess because they were having a discussion with regard to what would happen in the future with this piece of property because a portion of it was not buildable. But actually I think there was a misquote in the paper in regard to whether or not it had been donated or would be donated because to my knowledge nothing like that has been done yet no donation has yet taken place. So in fact I don't know whether that actually meant that the property would change hands or that that portion of the property which was not buildable would be made available to the city to improve it so it could be used as open space, but without the property actually changing hands, I really don't know whether/which, because the only discussion I had was just on one brief occasion with a member of City of Tigard staff. As far as the principals of the/this development, I've never met or talked to any of them outside of public hearings we've had in this room, would not know them on the street, don't know them in any way. So far as whether the potential that property would be donated to the city biasing me in any way, the fact that I had on previous occasions approved this planned development before there was any mention or discussion or even thought that this might take place, I would think would show that even if I were to approve it tonight, I had approved it previously without any kind of promise or suggestion that this might take place, so I think that would draw in to question as to whether or not that would be any type of inducement." Ramis - "I haven't heard anything here that would indicate either there has been any exparte communication or any Council member finds a reason that they couldn't, because of bias, hear the case. I would recommend that you proceed with the hearing and any decision you reach tonight be a tentative one so that we can come back with findings for you to consider that would address the exparte communication and bias issues as well as the substantive decision you render tonight." Prosser - Explaining status of property acquisition in response to Ramis question. "The city has not taken title to any land. We have referred this particular donation to our Parks and Recreation Advisory Board. No action has been taken on this piece at all, the city has not taken title in any way whatever, nothing has come to City Council. So Mr Bella's reporting in the newspaper was incorrect." Dirksen - Clarifies that with regard to the 23 trees, he has seen `no maps'. Woodruff- "I want to clarify the purpose of this hearing. I know that there are some people who believe this decision was made in error from the very beginning, that the whole space should not be developed. But tonight, the decision before us, as you have described it, is very narrow. We don't have a choice of whether we should move forward on this project or not; we have the question of whether or not these 23 trees should be allowed to stand or be able to explain why they don't have to stand. Is that correct?" Ramis - "That's absolutely, yes." Woodruff- "These are the only choices we have before us?" • Ramis - "Right. Mr Mayor, I think we can proceed at this point" D-2 APPENDIX E PETITIONER'S MOTION TO TAKE EVIDENCE NOT IN THE RECORD AND AFFIDAVIT OF JOHN FREWING Pursuant to OAR 66-010-0045, Petitioner moves to take evidence not in the record and attaches his Affidavit to this motion. The grounds for this motion are 1) that the nature of ex parte contacts asserted are not in the record despite Petitioner's request for the opportunity to develop that evidence through questioning at the local level and 2) that the facts showing of conflict of interest are not in the record despite Petitioner's request for the opportunity to develop that evidence through questioning at the local level. These are • procedural irregularities, which, if proven, would warrant remand or reversal of the local approval decision. Regarding ex parte contacts, Petitioner 1) seeks to discover for the record the substance (nature, timing, content) of the communication between Mayor Dirksen and Oregonian columnist Rick Bella, reported in the newspaper, 2) seeks to discover for the record the substance (nature, timing, content) of the communication between Mayor Dirksen and Community Development Director Tom Coffee, and 3) seeks to discover for the record whether this communication was part of indirect contact (ie made by Coffee or his associates on City of Tigard staff and applicant or his representatives) between Mayor Dirksen and the applicant, Windwood Construction, or its representatives. These facts • E-1 are expected to show that Mayor Dirksen was well aware of or participated in negotiations regarding the donation of some portion of the Ash Creek Estates site to the City of Tigard during City Council consideration of approval of the development, without those negotiations being part of the public process of decisionmaking regarding the Ash Creek Estates application and without those negotiations being disclosed as ex parte contacts or as issues noticed by Mayor Dirksen. Ex parte contact without disclosure of the substance at the commencement of the hearing is prohibited by Tigard rules, TCDC 18.390.050 D.7.a and 18.390.050 D.8. and if proven, would call for remand or reversal of the local approval decision. Regarding conflict of interest, Petitioner seeks to establish for the record that Mayor • Dirksen had a direct or substantial financial interest in the outcome of negotiations regarding donation of a portion of the Ash Creek Estates site to City of Tigard, thereby creating a conflict of interest that would bar his participation in the local approval decision. TCDC 18.390.050 D.7.b. To establish this as part of the record, Petitioner, in addition to establishing the ex parte contact noted above, seeks to establish facts surrounding the City Council goal of acquiring open space lands for the city, seeks to establish the remuneration by City of Tigard to Mayor Dirksen and seeks to establish the importance of meeting the open space lands goal to the political success of Mayor Dirksen. • E-2 AFFIDAVIT OF JOHN FREWING IN SUPPORT OF MOTION TO TAKE EVIDENCE NOT IN THE RECORD STATE OF OREGON ) County of Washington ) I, John Frewing, being first duly sworn, depose and say: I I am the Petitioner in LUBA'proceeding 2006-075 and make this affidavit in support of my motion to take evidence not in the record. 2 The facts I seek to establish include: a - the substance (nature, timing, content) of the communication between Mayor Dirksen and Oregonian columnist Rick Bella, reported in the newspaper, b - the substance (nature, timing, content) of the communication between Mayor Dirksen and Community Development Director Tom Coffee, c - whether this communication (b above) was part of indirect contact (ie made by Coffee or his associates on City of Tigard staff and applicant or his representatives) between Mayor Dirksen and the applicant, Windwood Construction, or its representatives, d - the nature, timing and content of a City Council goal of acquiring open space lands for the city, e - the nature, timing and amount of remuneration by City of Tigard to Mayor Dirksen, and • E-3 APPENDIX F STATEMENT OF JOHN FREWING TO TIGARD CITY COUNCIL ASH CREEK ESTATES PLANNED DEVELOPMENT (PDR 2003-00004) ET AL MARCH 28, 2006 Because the public testimony portion of the City Council hearing on Ash Creek Estates was closed on February 28, 2006, and because the agenda for this City Council meeting does not indicate that public testimony is part of Agenda Item 5, and because only yesterday did I obtain a copy of the City Council `packet' with staff report for Agenda Item 5,1 feel justified in submitting the following statement as part of the Council's regular 2-minute public communications agenda item. I wish to be granted two weeks time to comment on the new Resolution, on Additional Findings and on the Additional Condition recommended by staff for approval of Ash Creek Estates Planned Development (PDR 2003-00004) et al. I do appreciate the effort by city staff to analyze in findings the comments that I provided to the City-Council on February 28, 2006. I hope that you will direct staff will follow this practice regularly; as a citizen participant, it is most helpful to see in writing some response to comments rather than a simple `thank you for your input' that has occurred in the past. However, since your staff has had a full month to prepare its input (ie its testimony) as analysis in Additional Findings and to prepare the new Resolution and Additional Condition, and has not noticed me as a party until just now, I respectfully ask that in accordance with the rules for this proceeding, you allow me reasonable time to review these materials and provide testimony to you before your decision to adopt or modify the new Resolution, the Additional Findings and Additional Condition. Without such opportunity, I have not had a full and fair hearing on the new materials and my substantial rights for a full and fair hearing have been prejudiced. Even without full review of the new materials, however, I do restate my 2/28/06 challenge of adequate . disclosure of ex parte contact and bias on the part of one or more City Council members and register an objection to the Council decision not to arrange an evidentiary hearing on this matter. My reasons for requesting time to comment on the new testimony follow: 1 The Tigard procedure (TCDC 18.390) for a Type III hearing such as this call for a staff report to be provided at least seven days before the hearing, such staff report on the new Resolution, Additional Findings and Additional Condition has not been available for this required time. The obvious purpose of such timing is to provide the public an opportunity to comment on the substance of the staff report. 2 The new materials contain substantial discussion and analysis. For each of the 16 Additional Findings, I need the requested review period to evaluate whether the finding "explains the criteria and standards considered relevant to the decision, states the facts relied upon in rendering the decision and explains the justification for the decision based on the criteria, standards and facts set forth" as required by the Tigard code. 3 City Attorney instructions for this hearing indicate that the City Council may reopen the public portion of the hearing. Your receipt of my comments would necessitate this action. 4 As noted in Additional Finding 14, proposed for tonight's Agenda Item 5, the Ash Creek Estates applicant has agreed to an extension of time for City Council to make a final decision; providing me a two week review period still results in a decision date before the April 21, 2006 limit of 90 days for city action on LUBA remanded applications. Jo Frewing, 7117SLUoIaLn, Tigard, OR 97223 F-1 DATE OF FILING: 3/28/200( APPENDIX G u-IIQ UIT 1.A. o CITY OF TIGARD Washington County, Oregon ' NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Numbers: SUBDIVISION SUB 2003-00010 PLANNED DEVELOPMENT REVIEW DR 2003-00004 ZONE CHANGE O 20113410003 SENSITIVE LANDS REVIEW SLR 2003-00005 ADJUSTMENT AR 2003400036 & 20034)0037 Case Name: ASH CREEK ESTATES SUBDIVISION LUBA REMAND Name of Owner. Ernest E. and Elda H_ Senn Name of Applicant: Winwood Construction - Attn: Dale Richards Address of Applicant: 12655 SW North Dakota Street 7. OR 97223 Address of Property 9750 SW 74 Avenue T OR 97223 Tag /Lot Nos - WCTM 1S125DC Tag Lots 300 and 400. .A FINAL ORDER INCORPORATING-THE FACTS, FINDINGS. AND CONCLUSIONS APPROVING A REQUEST FOR A SUBDIVISION. PLANNED DEVELOPMENT ZONE CHANG SENSITIVE LANDS REVIEW, AND TWO ADJUSTMENTS (RESOLUTION NO, 06-09 AND 06-15). THE CITY COUNCIL HELD A PUBLIC HEARING ON FEBRUARY 28.2006 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION AND CONTINUED THE HEARING TO MARCH 28, 2006 TO ADOPT ADDITIONAL FINDINGS AND IMPOSE CONDITIONS THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WIITHN THIS FINAL ORDER. ITEM ON REMAND: The State Land Use Board of Appeals (CUBA) has remanded for a second time the, City Council's ~oproval of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and tlustment reviews to address a single issue relating to. tree preservation. As limited by LUBA, the issue remanded is ..nether the tree plan preserves trees to the greatest extent possible, given that the second tree.plan does not protect 23 trees designated or protection in the original tree pplan, but not des'Wa d for protection to the revised tree plan previously approved On this second remand, the app&cant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA_ A full copy of LUBA's Final Opppinioa and-Order can be obtained from City Hall at cost; or is also available online at http: / /luba_state.or.us /gdf/2005`/sept05 105042.htm. The City Council concluded that because the 23 trees at issue will be protected as shown in the second revised tree plan (dated September 22, 2005), the standard of CDC 18350.100.B3.a(1) is met. The site elements have been designed and located to preserve existing trees to the greatest extent possible. ZONING DESIGNATION: R-4.5: Low-Density Residential District APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUA remanded is CDC 18350.100.B.3.a.1, which-requires that planner developments protect existing trees to the greatest degree possible.. Action: D Approval as Requested ® Approval with Conditions 0 Denial Notice: Notice was published in the newspaper and mailed to owners of record within the required distance, affected government agencies, Affected Citizen Involvement Team, and applicants and owners. Final Decision: NiZ The adopted findings of fact, decision and statement of conditions. can be obtained from the City of Tigard Planning a Division, Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. _ -ppeab A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (CUBA) according to their procedures within 21- days.- Questions: If you have any questions, please call. the Citv -Vr~gard Planning Division at 503-6394171. G-1 EXaIBIT A ADDITIONAL FINDINGS AND CONDITION 200 - (ARCH 6) ASH CREEK ESTATES SUBDIVISION SUB2003-00010/ZON2003-00003/PDR2003-OO004/SLR2003-00005/VAR2003- 00036/VAR2003-00037 1. The Tigard City Council heard testimony on this matter at its February 28, 2006 meeting and closed the hearing. The Council adopted Resolution 06-09 approving the application with the findings and conditions recommended by staff but also decided.to continue the matter to March 28, 2006, for the adoption of additional findings and conditions. . 2_ This matter is on remand a second time from the'Land Erse Board of Appeals. The issue on this remand is limited to whether CDC 18.350.100B.3.a_1 is met as to 23 trees specified in the LUBA decision. FINDINGS IN RESPONSE TO COMMENTS 2. The City received written comments from Bob Storer and oral and written comments from John Frewing _ 0'RapoAre.to Commeatr fmm Bob Stanr 3. Mr. Storer stated that he was pot convinced that the developer or the contractors will comply with all of the conditions of approval and questions City monitoring of the proposed project This comment is not relevant to the issue on remand. There is always a risk of non-compliance with conditions of approval, but the City does monitor development and has the authority to stop work if conditions are-not complied with The risk of non-compliance is not a basis for denial. 4. Mr. Storer argued that the standard is not being met because trees other than the 23 trees are being removed- This argument is outside the scope of the issue before the CounciL Furthermore, LUBA has.already affirmed the City's decision that the removal of other trees is consistent with the standard. This issue has already been decided and is no longer subject to challenge. In LUBA Case No. 2005-042, LUBA considered the tree plan that the applicant submitted to the City-on the first remand- That plan illustrated the trees that would be preserved and the trees that would be removed- LUBA- concluded that except for the 23 trees specifically identified, the tree plan complies with -the City's requirement LUBA's decision was affirmed by the Court of Appeals. Any argument concerning any trees other than the-23 trees identified by LUBA is outside the scope of the remand 5. Mr. Storer argues that jus . wt because the development meets all standards d mean oes not that the application should be approved In a quasi-judicial proceeding, however, the City is required to approve applications that meet all applicable criteria and may not G-3 ADDITK)NAT. FTNDINCT.S AND CONT)TTNIN, ~V11AKt .rl ItRW deny an application for reasons unrelated to applicable criteria.. ORS 197.522_ . 6_ Mr. Storer argues that the development should not be approved until all local, state and federal permits and other associated approvals have been obtained. Mr_ Storer cites no authority for this proposition, and the argument is outside the scope of the remand. While the applicant must obtain all required permits, obtaining the permits does not need to occur prior to land use-approval; it is sufficient. that the approvals be obtained prior to the work 7. Mr_ Storer asks the Council to adopt mote stringent standards- While the Council may adopt more stringent standards in the future, it must consider this application under the standards in effect at the time the application was filed Adoption of more stringent standards is irrelevant to this application and decision.. . Rerponre a Commenrr fmm John Frewing 8. Mr. Frewmg comments that although the. map associated. with the tree plan. shows that the 23 trees will be protected, some of the text of the plan indicates they will be removed The Council finds that the map controls over the text and that the 23 trees at • issue will be protected To ensure.protection, the Council is adopting an additional condition of approval specifically requiring the protection of those 23 trees. Compliance with the condition is feasible - the applicant has indicated that those trees will be protected during construction- 9.. Mr. Ftewing has argued that some of the 23 trees have not been identified by species- Mr_ Frewing made a similar argument to LUBA in the last remand and did not prevail- LUBA's decision was affirmed by the Court of Appeals. This issue has been.decided against Mr_ Frewing and he cannot raise it again- Ibis argument is outside the scope of the remand It is clear from the tree plan which trees are to be protected, and that is sufficient to satisfy the CDC 18.350.100B.3_a.1 standard.. 10. Mr. Frewing argues that tree protection standards should be modified to be consistent with standards that have evolved and improved since the tree protection plan was originally prepared This argument is outside the scope of the remand. Furthermore, the application is to be judged by the standards in effect at the time the application was first submitted - ORS 227.178(3)(a). Also, -Mr. Frewing did not identify what changes in tree protection standards have occurred and did not provide any informati on that any changes in. tree protection standards have become applicable standards-or criteria in a land use application. - 11. Mr. Frewing asked the-City to require the applicant to confirm the purpose of fencing shown on the- 9/22/05 drawing. This is outside the scope of the remand and not required by any applicable standard- G-4 e nnr rrni t e r pmmy t-w e xm rnxmrrrnrr rkof n v MY ~nn~ U. Mr. Frewing makes various arguments relating to trees other than the 23 trees designated for protection. These arguments are outside the scope of the remand Whether any additional trees should be protected or whether protection for other trees - shown to be protected is outside the scope of the remand. 13. Mr. Frewing argues that the City should expand the remand beyond the narrow issue remanded by LUBA_ While the City has the authority to expand the scope of the remand, it is solely within the City's discretion whether to expand the scope beyond the issue remanded by LUBA_ The City Council chose to limitthe remand to the issue remanded by LUBA-and that decision was within the scope of the City's-discretion- LUBA explained the scope of the -remand as follows: "On remand the city must explain why it is not possible to preserve the trees identified in' footnote 16, or require that the tree plan be amended to preserve those trees." That is -the only issue on remand, and the applicant has amended the tree plan to.preserve those trees. 14. Mr. Frewing raised questions as to when the final decision needs to be made on remand The applicant has agreed to.an extension of time to make the decision, so thisIssue is moot 15. Mr. Frewing also argued that ex parte contacts had occurred and that•one or more Council members were biased: First, Mr. Frewing argued that- therehad been ex parte contact between one or more Council members and -the developer relating to the donation of property from the developer to the City for park purposes. All Council members stated that they had not had any contacts with the applicant/developer and the City Manager stated that all contacts had been at the staff level. Representatives of die applicant also testified that there had been no ex pane contacts between the applicant or anyone associated with the applicant and any Council member regarding the property. The Council finds that there were no ex pane contacts as alleged by Mr. Frewing. Mr. Frewing based his. allegations of ex pane contacts on a newspaper article in The Orrgonian by Rick Bella- Mayor Dirksen stated that he had a discussion with Mr. Bella, but that Mr. Bella did not accurately report the Mayor's statements. There is no credible evidence of undisclosed ex parte contacts. 16. Mr. Frewing claims that the Council is biased because- it-is attempting to obtain open space for -the City from the applicant The City Manager stated that there have been discussions between staff and the applicant on this issue,- but that no Council member was involved or-informed of the discussions. All Council members stated that potential ` .land acquisition by the City would play no role in their evaluation of the case and that " they could judge the land use matter before them based on the facts and criteria.. - All members denied any bias. The Council finds that all Council members based their " decisions on the facts presented in the land use process and"applying the applicable criteria and standards, without other considerations. Given the- narrow scope of remand and the revised tree plan. showing protection of all 23 trees that were the subject of the remand, the only possible decision w',z annrnval G-S ATIT)rrY0NAT. FTNT1TATf=Q AUTI ( Mnrr r('inn r nn n rJI 'u 7nnI CERTIFICATE OF SERVICE AND FILING I hereby certify that on the date indicated below, I caused to be filed the original and four copies of the enclosed PETITION FOR REVIEW AND PETITIONER'S BRIEF with the LAND USE BOARD OF APPEALS PUC Building, 550 Capitol Street NE, Suite 235 Salem, OR 97301-2552 By First Class US Mail, postage prepaid. On the same date, I caused to be served as a true, complete and correct copy of this same PETITION FOR REVIEW AND PETITIONER'S BRIEF by First Class US Mail, postage prepaid on the following attorneys: Tim Ramis, Ramis Crew Corrigan Lawyers 1727 NW Hoyt St Portland, OR 97209 Chris Koback, Davis Wright Tremaine 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201 Dated this 26th day of June, 2006 J Frewing RECEIVED • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MAY 0 1 2006 RAMIS CREW CORRIGAN, LLP ATTORNEYS AT LAW JOHN FREWING, Petitioner LUBA No. 2006-065 Vs CITY OF TIGARD, Respondent And WINDWOOD CONSTRUCTION, Intervenor -Respondent PETITIONER'S RESPONSE TO MOTION TO DISMISS Petitioner opposes Windwood's Motion to Dismiss and associated Petition for Attorney Fees filed April 26, 2006. The reasons for this opposition are as follows: A The Motion to Dismiss states that Petitioner `has no reasonable basis to appeal'. It is untimely to suggest dismissal until Windwood and LUBA see the complete record for this appeal and Petitioner's Petition for. Review. As will become clear in the Record and Petition for Review, Windwood provided new evidence before the remand hearing to City of Tigard and Petitioner provided comment on. such evidence. It is City of Tigard • treatment of this new evidence, which is 'a" substantive basis for Petitioner's appeal. Additionally, bases for review may be filed related to the process of local decisionmaking on remand. Hence; Petitioner asserts that there ARE reasonable bases for appeal to LUBA. These will show that the city either exceeded its jurisdiction, failed to follow local procedures which prejudiced substantial rights of petitioner, made a decision not supported by substantial evidence, improperly construed applicable law, made an unconstitutional decision or made a decision outside its range of discretion; all are bases for appeal and remand or reversal. B Windwood has produced an affidavit that City of Tigard mailed the Final Decision on Remand to persons beyond the mailing of Notice of Intent to Appeal which was done by Petitioner on April 18, 2006. Windwood quoted out of context the statement included in Petitioner's Notice of Intent to Appeal, Section IV, that `On the Notice of Final Order by the City Council, no other persons were indicated to have been mailed written notice.' This quote is accurate, contrary to an assertion by Windwood. Windwood may indeed have found somewhere in city records the "Affidavit of Mailing" stating that others were mailed written notice, but the Affidavit of Mailing was not sent to Petitioner. Petitioner has corrected his mailing of the Notice of Intent to Appeal. See attached SUPPLEMENTAL NOTICE OF SERVICE. Windwood correctly cites the OAR provision requiring mailing of the Notice of Intent to • Appeal. However, Windwood does not cite the_earlier provision of LUBA rules, namely, OAR 661-010-0005, "Technical violations not affecting the substantial 'rights of parties shall not interfere with the review of .a land use decision or limited land use decision." C.Q T✓2 • Windwood makes no claim and offers no evidence or argument that the technical violation cited has in any way affected its substantial rights to a full and fair hearing, therefore this element of the Motion to Dismiss fails. The persons not receiving the initial mailing of Petitioner's Notice of Intent to Appeal include Kurahashi, Richards and Senn family, all of whose positions have been represented by Chris Kobeck, and Bielke and Storer, neighbors and acquaintances of Petitioner Frewing who provided views at the local hearing much like that of Petitioner Frewing. None have indicated any prejudice to substantial rights in this proceeding. C Windwood petitions for attorney fees based on its own view of Petitioner motivations. Such views are certainly permissible, but Windwood offers no evidence of `harassment and delay.' Petitioner asserts that, similar to Windwood, he is dismayed and somewhat frustrated by the failure of City of Tigard to conduct a full and fair hearing and arrive at an enforceable decision which complies with the Tigard comprehensive plan and development regulations on its first consideration of the application. In two prior appeals to LUBA, the agency in fact found that the appeal was well founded in law and fact - the agency remanded the local decision. In the current appeal, Petitioner is of the view that there is similarly probable cause that the local decision was not well founded in law or fact. Jo Frewing April 9, 2006 • CERTIFICATE OF FILING AND SERVICE I hereby certify that I have filed with the Land Use Board of Appeals, PUC Building, 550 Capitol St NE, Suite 235, Salem, OR 97301-2552 the original and one copy of the above PETITIONER'S RESPONSE TO MOTION TO DISMISS together with SUPPLEMENTAL NOTICE OF SERVICE on April 29, 2006 by US mail, first class and this same day to Tim Ramis, Ramis Crew Corrigan & Bachrach, 1727 NW Hoyt, Portland, OR 97209 and to Chris Koback, Davis Wright Tremaine, 1300 SW Fifth Ave, Suite 2300, Portland, OR 97201. J Frewing Ap ' 29, 2006 • • SUPPLEMENTAL NOTICE OF SERVICE I, John Frewing, hereby certify that on April 29, 2006, I served a true and correct copy of my NOTICE OF INTENT TO APPEAL by US mail, first class, on the following persons: Kurahashi and Associates, 15580 SW Jay St, Suite 200, Beaverton, OR 97006 Dale Richards, Winwood Construction, Inc. 12655 SW North Dakota St, Tigard, OR 97223 Ernest E, Elda H & Ray Senn, Connie Coleman, Karen Schuster, 9750 SW 74'h Ave, Tigard, OR 97223 Walt Senn, 13323 Meridian Avenue N, Marysville, WA 98271-7090 Sue Bielke, 11755 SW 114'h Pl, Tigard, OR 97223 Bob Storer, 7225 SW Ventura Drive, Tigard, OR 97223 9. a~-' -I I John Frewing April 2 , 2006 • • • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON JOHN FREWING, Petitioner, LUBA No. 2006-065 VS. CITY OF TIGARD, Respondent, and WINDWOOD CONSTRUCTION, Intervenor-Respondent. • INTERVENOR-RESPONDENT'S MOTION TO DISMISS Intervenor-Respondent Windwood Construction moves to dismiss Petitioner's appeal on the grounds that there are no legitimate grounds for an appeal and Petitioner's current appeal is solely for purposes of harassment and delay. MOTION TO DISMISS 1. In light of the limited scope of the remand and the City's decision, Petitioner has no reasonable basis to appeal. This is the third appeal Petitioner has filed in connection with the Intervenor's application for approval of a PUD development in the City of Tigard. In Frewing v. City of Tigard; 47 Or LUBA 331 (2004), Petitioner appealed the City's initial approval of Intervenor's application. In that case, including all sub-assignments of error, Petitioner raised 25 assignments Page 1 INTERVENOR-RESPONDENT'S MOTION TO DISMISS PDX 1414955v1 44727-24 J1W of error. LUBA rejected all but four assignments of error. On remand, Intervenor and the City corrected the errors LUBA identified and the City again approved Intervenor's application. Petitioner again appealed the City's approval raising multiple assignments of error. Frewing v. City of Tigard, 50 Or LUBA 226 (2005). In that case, LUBA rejected all but one of Petitioner's assignments of error and severely limited the scope of the remand. Specifically, Petitioner had argued that in light of LUBA's rejection of the City's interpretation of Tigard Community Development Code ("TCDC') 18.790.030 related to a tree plan, and Intervenor's subsequent submission of a formal tree plan, Intervenor did not show that its proposal preserved trees to the greatest extent possible as required to TCDC 18.350.100(B)(3)(a)(i). In its Final Opinion and Order, LUBA agreed that in light of the new tree plan, Intervenor must show that it was preserving trees to the greatest extent possible, but • limited the inquiry to 23 specific trees and remanded the case to the City solely for the purpose of having Intervenor explain whether it was feasible to preserve those 23 specific trees. LUBA No. 2005-042, p. 22, n. 16 and p. 24. Specifically, LUBA wrote: However, we also caution that our remand does not obligate the City to provide petitioner another opportunity to identify additional trees that may be preserved. The City's obligation on remand is limited to the trees identified in n. 16 of this opinion. On remand to the City, Intervenor submitted a revised tree plan that preserved all 23 trees LUBA identified. A copy of the City's Notice of Decision is attached as Exhibit 1 to the Affidavit of Christopher P. Koback (hereinafter "Koback Aff.') filed contemporaneously herewith. Based upon Intervenor's revised plan, the City again approved Intervenor's application with an additional condition to assure the preservation of the 23 trees. See, Koback Aff., Exhibit 1. In light of the limited scope of LUBA's remand and the Intervenor's response to that remand, there is no reasonable basis for Petitioner's current appeal. The interests of justice Page 2 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS r i require that LUBA dismiss Petitioner's appeal and enter an order prohibiting further appeals related to the City's approval of the specific application at issue. 2. Petitioner did not properly invoke LUBA's jurisdiction. Pursuant to OAR 661-010-0015(1)(a), to properly perfect an appeal to LUBA, a party must file a Notice of Intent to Appeal ("Notice') with LUBA on or before the twenty-first (21 S) day after the date the decision sought to be reviewed becomes final. OAR 661-010- 0015(2) and OAR 661-010-0015(3)(f) impose another mandatory requirement. The Notice shall be served on all parties to whom written notice of the land use decision was mailed as shown on the governing body's records. In this instance (LUBA No. 2006-065), Petitioner did not serve the Notice on multiple parties to whom the City mailed notice of the decision. Petitioner served the City and the Intervenor, but recited that "no other persons were indicated to have been mailed written notice." That is not accurate. The City's records illustrate that the City mailed notice of the decision to several other persons. Koback Aff., 13. PETITION FOR ATTORNEY FEES Pursuant to ORS 197.830(15)(b), Intervenor requests an award of reasonable attorney's fees because Petitioner could not have had probable cause to believe that the current appeal was well founded in law or fact. Petitioner's history in this matter demonstrates that the current appeal is for purposes of harassment and delay. In the event LUBA awards attorney's fees to Intervenor, it will submit a detailed statement of fees.. DATED this Z day of ril, 2006. L P. • stopher P. IT back, OSB 91340 Of Attorneys for Windwood Construction Page 3 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS CERTIFICATE OF FILING I hereby certify that I filed the original of the INTERVENOR- RESPONDENT'S MOTION TO DISMISS, together with one copy thereof, with-the Land Use Board of Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, OR 97301-2552, on April ZOO 2006, by first class mail, postage prepaid, to the Board at the above address. Pits hristopher . Koback, O B #91340 Of Attorneys for Windwood Construction CERTIFICATE OF SERVICE I hereby certify that on Apri1Y-W^, 2006, I served a true and correct copy of this INTERVENOR-RESPONDENT'S MOTION TO DISMISS on the persons listed below by first class mail, postage prepaid: John Frewing 7110 S.W. Lola Lane Tigard, OR 97223 Petitioner Timothy V. Ramis Ramis Crew Corrigan & Bachrach 1727 N.W. Hoyt Portland, OR 97209 Of Attorneys for Respondent DATED this 2L'(* day of April, 2006. Lstopher P. Koback, OSB # 1340 Of Attorneys for Windwood Construction CERTIFICATE OF FILING/SERVICE PDX 14149550 44727-24 w • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON JOHN FREWING, Petitioner, LUBA No. 2006-065 VS. CITY OF TIGARD, Respondent. MOTION TO INTERVENE Windwood Construction moves to intervene on the side of Respondent City of • Tigard in the above-captioned appeal. Petitioner is represented by Christopher P. Koback, whose address and telephone number are as follows: Christopher P. Koback Davis Wright Tremaine 1300 S.W. Fifth Avenue, Suite 2300 Portland, OR 97201 Telephone: (503) 241-2300 Fax: (503) 778-5299 The movant's right to intervene in this matter is established by the fact that it was the applicant in the proceedings before the City on which this appeal is based and has a substantial interest in the outcome of this appeal. DATED thisZkje., day of April, 2006. r . Christopher P. Koback, OSB #91340 Of Attorneys for Windwood Construction Page 1 MOTION TO INTERVENE PDX 1414035vl 44727-24 • CERTIFICATE OF FILING I hereby certify that I filed the original of the MOTION TO INTERVENE, together with one copy thereof, with the Land Use Board of Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, OR 97301-2552, on April 4472006, by first class mail, postage prepaid, to the Board at the above address. 4s s P. topher P. oback, OSB #91340 Of Attorneys for Windwood Construction CERTIFICATE OF SERVICE I hereby certify that on April x^2006,1 served a true and correct copy of this MOTION TO INTERVENE on the persons listed below by first class mail, postage prepaid: John Frewing 7110 S.W. Lola Lane Tigard, OR 97223 Petitioner City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Respondent Timothy V. Ramis Ramis Crew Corrigan & Bachrach 1727 N.W. Hoyt Portland, OR 97209 Of Attorneys for Respondent DATED thisZX"day of April, 2006. QJ.A-MD U Christopher P. Koback, OS13 #91340 Of Attorneys for Windwood Construction CERTIFICATE OF FILING/SERVICE PDX 1414035v1 44727-24 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON JOHN FREWING, Petitioner, LUBA No. 2006-065 VS. CITY OF TIGARD, Respondent, and WINDWOOD CONSTRUCTION, Intervenor-Respondent. AFFIDAVIT OF CHRISTOPHER P. KOBACK IN SUPPORT OF INTERVENOR-RESPONDENT'S MOTION TO DISMISS STATE OF OREGON ) ss: County of Multnomah ) I, CHRISTOPHER P. KOBACK, being first duly sworn, depose and say: 1. I am an attorney licensed to practice in the State of Oregon and a partner with the law firm of Davis Wright Tremaine. I am the attorney primarily responsible for representing the Intervenor-Respondent ("Intervenor") in the above-captioned matter. I make this affidavit in support of Intervenor's Motion to Dismiss LUBA No. 2006-065. 2. Attached hereto as Exhibit 1 is a copy of the City of Tigard's Notice of Decision in File No. SUB 2003-00010/PDR 2003-004/ZON 2003-00003/SLR 2003-00005NAR 2003-00036 & 2003-00037. Page 1 AFFIDAVIT OF C. KOBACK IN SUPPORT OF INTERVENOR'S MOTION TO DISMISS PDX 1416681v144727-24 • 3. Attached hereto as Exhibit 2 is a copy of the City of Tigard's Affidavit of Mailing of its final decision in File No. SUB 2003-00010/PDR 2003-004/ZON 2003-00003/SLR 2003-00005NAR 2003-00036 & 2003-00037. U topher . Koback, O §B #91340 SUBSCRIBED AND SWORN to before me this cPJ day of April, 2006. OFRCM SM JAW& LAURA K TUTTLE NOTARY PUBUC•OREGON NOT Y PUBLIC FOR OREGON COMMISSION NO. 383930 My Commission expires: -O S Ow COMMISSION EXPIRES AUGUST 23, 2008 Page 2 - AFFIDAVIT OF C. KOBACK IN SUPPORT OF INTERVENOR'S MOTION TO DISMISS DATE OF FILING: 3/28/2006 F;~GFj\j5D . AQR p 5 2405 r . CITY OF TIGARD Washington County, Oregon UANISW81GNj3REMAlN~LIP , • NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Numbers: SUBDIVISION SUB 2003-00010 PLANNED DEVELOPMENT REVIEW DR 2003-00004 ZONE CHANGE O 2003-00003 SENSIT LANDS REVIEW SLR 2003-00005 ADJUSTMENT AR 2003-00036 &-2003-00037 Case Name: ASH CREEK ESTATES SUBDIVISION LUBA REMAND Name of Owner. Forest E. and Elda H. Senn Name of Applicant: Winwood Construction Attn: Dale Richards Address of Applicant: 12655 S North Dakota Street T d OR 97223 Address of Property: 9750 SW 74 Avenue T' OR 97223 Tax Ma /Lot Nos.: WCTM 1S125DC Tax Lots 300 and 400. a A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS APPROVING A REQUEST FOR A SUBDIVISION PLANNED DEVELOPMENT ZONE CHANGE,. SENSITIVE LANDS REVIEW. AND TWO ADJUSTMENTS (RESOLUTION NO. 06-09 AND 06-15). THE CITY COUNCIL HELD A PUBLIC HEARING ON FEBRUARY 28, 2006 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION AND CONTINUED THE HEARING TO MARCH 2& 2006 TO ADOPT ADDMONAL FINDINGS AND IMPOSE CONDITIONS. THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED V4 IT-IIN THIS FINAL ORDER ITEM ON REMAND: The State Land Use Board of Appeals (LUBA) has remanded for a second time the City Council's ap val of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and A ent reviews to address a. s>ngle.issue relating to tree preservation. As limited by LUBA, the issue remanded is wh er the tree plan preserves trees to the greatest e3gent possible, given that the second tree.plan does not protect 23 trees designated for protection in the original tree plan, but not designated for protection in the revised tree plan previously approved. On this second remand, the applicant has submitted a second revised tree plan that amends the first. revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full coy of LUBA'.s Final Opiniout and. Order can be obtained from City Hall at cost, or is also available online at htW:Z/IubiLstate.or.us.Zpdf/2005pi~tRtO5LO5042.hmcL The City Council concluded that because the 23 trees at issue will be protected as shown in the second revised tree plan (dated September 22, 2005), the standard of CDC 18.350.100.B.3.a(1) is met. The site elements have been designed and located to preserve existing trees to the greatest extent possible. ZONING DESIGNATION: R-4.5: Low-Densety Residential District APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a.1, which requires that planned developments protect existing trees-to the greatest degree possible. Action: ➢ D Approval as Requested ® Approval with Conditions O Denial Notice: Notice was published in the newspaper and mailed to owners of record within the required distance, affected government agencies, Affected Citizen Involvement Team, and applicants and owners. Final Decision: `I M- 1!!T f DE~_ ,S1 A OF:TI~ C ITY s_..; . - ANDBI C9N S "E- APRIL Yf2006. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning j ' ' on, Tigard Ciry Hall, 13125 SW HallBoulevard, Tigard, Oregon- • A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of eals (LUBA) according to their procedures within 21 days. on' Questions: If you have any questions, please call the City of Tigard Planning Division at 503-639-4171. EXHIBIT 1 AFFIDAVIT OF (NAILING I, tPatyiciaL L r( being first duly swom/affirm, on oath depose and say that I am a SeniorAdwh arativeSpecialrwfor the City of 4?gart~ ras oufungton County Oregon and that I served the following: ccxnwvw~eamd.)e.a.1 - 9 NOTICE OF FINAL ORDER FOR: Onr SU62003-00010/PDR2003-00004/ION2003-00003/SLR2003-0000S/VAR2003-00036/VAR2003-00031 ASH (REEK ESTATES SUBDIVISION LUBA REMAND #2 . p AMENDED NOTICE (Fb Noblw- Reer-) HEARING BODY: HEARING DATE: El City of Tigard Planning Director p Tigard Hearings Officer El Tigard Planning Commission ® Tigard City Council (2/2812006 & 3/28/2006) A.copy of the said notice being hereto attached, marked MINT, and by reference made a part hereof, was mailed to . each named person(s) at the address(s) shown on the attached list(s), marked EydMR V, and by reference made a part hereof, on AW4,2006, and deposited in the United States Mail on APHIAL200postage prepaid. (Person. that Prepar - , untylowkf~ $a C`~zgard Subscribed and swom/affiTried before me on the ~f day of . , 2006. oFFIcLALL!6E~] SUE RON07AF PUBLI#,ON MMISS ON EY,P RES W Co on Ekplres: t!~'~'d EXHIBIT 2 Page 1 of 2 EXHIBITS •Kurahashi and Associates Ash Creek Estates LUBA Remand #2 Attn: Greg Kurahashi and Melinda Wood (SUB2003 0010) 15580 SW Jay Street, Suite 200 "Notice of Final Order by the Council" Beaverton, OR 97006 Dale Richards Winwood Construction, Inc. 12655 SW North Dakota Street Tigard, OR 97223 Ernest E., Elda H., & Ray Senn & Connie Coleman & Karen Schuster 9750 SW 74th Avenue Tigard, OR 97223 Walt Senn 13323 Meridian Avenue N Marysville, WA 98271-7090 Davis Wright Tremaine LLP Christopher P. Koback 1300 SW Fifth Avenue, Suite 2300 • Portland, OR 97201-5682 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Sue -Bielke' 11755 SW 110 PI. Tigard, OR 97223 Bob Storer 7225 SW Ventura Drive Tigard, OR 97223 EXHIBIT 2 Page 2 of 2 CERTIFICATE OF FILING I hereby certify that I filed the original of the AFFIDAVIT OF C. KOBACK IN SUPPORT OF INTERVENOR'S MOTION TO DISMISS, together with one copy thereof, with the Land Use Board of Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, OR 97301-2552, on April 204o),2006, by first class mail, postage prepaid, to the Board at the above address. UL Of PKoback, OSB #91340 4st06;j- Attorneys for Windwood Construction CERTIFICATE OF SERVICE I hereby certify that on April 2006, I served a true and correct copy of this • AFFIDAVIT OF C. KOBACK IN SUPPORT OF INTERVENOR'S MOTION TO DISMISS on the persons listed below by first class mail, postage prepaid: John Frewing 7110 S.W. Lola Lane Tigard, OR 97223 Petitioner Timothy V. Ramis Ramis Crew Corrigan & Bachrach 1727 N.W. Hoyt Portland, OR 97209 Of Attorneys for Respondent DATED this W* day of April, 2006. b stopher P. K back, OSB #9 340 Of Attorneys for Windwood Construction CERTIFICATE OF FILING/SERVICE PDX 1416681v1 44727-24 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF.OREGON ' John Frcwing, PetliiuneT i1 d ~ "V D vs LUBA NO. 0 &-,04%r City of Tigard, Respondent APR 1 '9 2006 NOTICE OF INTENT TO APPEAL RAMIS CREW.CORRIUAN, LI ATTORNEY, - off [AW I Notice is hereby given that petitioner intends to appeal that land use decision of respondent entitled "ASH CREEK ESTRATES SUBDIVISION LUBA REMAND", which was finally approved by the Tigard City Council at a hearing on March 28, 2006, and.which involves a development subject to the Tigard Community Development Code (TCDC). The decision follows a LUBA remand relating to protection and preservation of trees on the site to the `greatest degree possible' and considers some new information submitted to Tigard by applicant. 11 Petitioner is John Frewing, 7110 SW Lola Lane, Tigard, OR 97223, 503-245-5760. III Respondent is City of Tigard, with a mailing address of 13125 SW Hall Boulevard, Tigard, OR 97223 and telephone of 503-639-4171. Tigard had as its legal counsel Tim Ramis of Ramis, Crew and Corrigan, 1727 NW Hoyt, Portland, OR 97209 and telephone of 503-222-4402. IV Applicant at time of final action was Winwood Construction, 12655 SW North Dakota Street, Tigard, OR 97223. Applicant-had-As its legal counsel Chris Koback of Davis Wright Tremaine LLP, 1300 SW Fifth Avenue, Suite 2300, Portland, OR 972.01. and telephone of 503-241-2300. On the Notice of Final Order by The City Council, no other persons were indicated to have been mailed written notice. Anyone who desires to participate as a party in this case before LUBA must file with the Board a Motion to Intervene as required by OAR 661-10-050. Attached to this Notice of Intent to Appeal is a single check in amount of $325 payable to the Land Use Board of Appeals for filing and for a deposit on costs. Jo Frewmg Ap ' 18, 2006 CERTIFICATE OF SERVICE I hereby certify that on April 18, 2006, I served true and correct copies of this Notice of- Intent to appeal on all persons listed in paragraphs III. and IV pursuant to OAR 661-010- 0015(2) by US mail, first. class (LUBA) .and US mail, first class (others). J Frewin9 April1 2006 e i.. r Oregon Land Use Board of Appeals PUC Building Theodore R. Kulongoski, Govemor 550 Capitol Street NE, Suite 235 1859 Salem, OR 97301-2552 (503) 373-1265 (Voice/TTY) April 19, 2006 Timothy V. Ramis Ramis Crew Corrigan LLP 1727 NW Hoyt Street Portland, OR 97209 RE: Frewing v. Tigard LUBA No. 2006-065 This is to advise you that a Notice of Intent to Appeal was sent certified mail on April 18, 2006 and received by the Board on April 19, 2006, in the above matter and that OAR 661-010-0015 requires that service of the notice of intent to appeal be made upon the respondent within 21 days after the date of the land use decision being appealed. A copy of the record is to be prepared by respondent and transmitted to the Board within 21 days of the date of such service. Enclosed is a summary of the specifications for preparation of the record as set out in OAR 661-010-0025(4). • if the decision being appealed is on remand from LUBA and the record on remand incorporates the original record, you will need to refile a copy of the original record as we no longer maintain records from closed appeals. Attached to this letter is a notice of the option to seek mediation in this matter. Very truly yours, Debra A. Frye Executive Support Specialist Enclosures cc: John Frewing BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON FREWING, ) LUBA NO. 2006-065 Petitioner, ) Index and Record vs. ) ) QTY OF TIGARD, ) SUB2003-00010/PDR2003-00004 ZON2003-00003/SLR2003-00005 Respondent. ) VAR2003-00036/VAR2003-00037 • TRANSMITTAL OF CITY OF TIGARD RECORD LUBA RECORD NO.2006-065 Frewing vs. City of Tigard City of Tigard File Nos. SUB2003-00010/PDR2003-00004/ZON2003-00003/ SLR2003-00005/VAR2003-00036/ VAR2003-00037 I, Patricia Lunsford, Senior Administrative Specialist of the City of Tigard, herewith transmit a copy of the original of the entire record under review in the proceeding named on the cover and listed in the preceding table of contents. I certify that I have compared the copy of any document or paper filed herein with the original and this is a true and correct copy of the original and the whole thereof. • Dated this 8`h day of May, 2006. ;atiicia Lunsf or dministrative Specialist, of T Ad • i • CERTIFICATE OF FILING LUBA RECORD NO.2006-065 Frewing vs. City of Tigard City of Tigard File Nos. SUB2003-00010/PDR2003-00004/ZON2003-00003/ SLR2003- 00005/ VAR2003- 0003 6/ VAR2003- 0003 7 I, Patricia Lunsford, hereby certify that on May 8, 2006, I filed a copy of the original of this INDEX AND RECORD in LUBA No. 2006-065 with the Land Use Board of Appeals, Public Utility Com r~i Building, 550 Capitol Street NE, Suite 235, Salem, Oregon 97301-2552, byfirst class mail. r` By tricia Lunsfor Sr. Administrative Specialist, i of and Dated this 8t' day of May, 2006 CERTIFICATE OF SERVICE • LUBA RECORD NO.2006-065 Frewing vs. City of Tigard City of Tigard File Nos. SUB2003-00010/PDR2003-00004/ZON2003-00003/ SLR2003- 00005/ VAR2003- 0003 6/ VAR2003- 00037 I, Patricia Lunsf ord, hereby certify that on May 8, 2006, I served a true and correct copy of this INDEX AND RECORD in LUBA No. 2006-065, City of Tigard File Nos. SUB2003-00010/PDR2003- 00004/ZON2003-00003/SLR2003-00005/VAR2003-00036/VAR2003-00037 by first class mail on the following persons: Petitioner Attorney for Applicant Attorney for Respondent John Frewing Christopher P. Koback Timothy V. Ramis 7110 SW Lola Lane Davis Wright Tremaine LLP Ramis, Crew, Corrigan & Bachrach Tigard, OR 97223 1300 SW Fifth Avenue, Suite 2300 1727 NW Hoyt Street P , OR 97201 5682 Portland, OR 97209 B Y atricia Lunsford • Sr. Administrative Specialist, ty of and Dated this 8t' day of May, 2006 ll r~ Postal C3 (Domestic CERTIFIED MAIL,, RECEIPT For delivery information visit our website at www.usps.coma M Postage $ , r=I CertittedFee O v p Return Redept Fee re ®`i7 (Endorsement Required) ZZ j C3 Restricted Delivery Fee .0 (Endorsement Required) ru Totat Postage S Fees M 0o Wino Land Use Board of Appeals StPO, oxNo.. Public Utility Commission Building or-eoicNO'_... 550 Capitol Street NE, Suite 235 ff~ Salem, OR 97301-2552 PS Form 3800, June .2002 See Reverse for Instructions SECTION SENDER: COMPLETE THIS SECTION COMPLETE THIS ON DELIVERY ■ Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. ❑ Agent ■ Print your name and address on the reverse x ❑ Addressee so that we can return the card to you. B. Received by (Printdd Name); C.-,Date of Delivery ■ Attach this card to the back of the mailpiece, , , i or on the front H space permits. I - 1 I ' I F 1. Article Addressed to: D. Is delivery address dffi&r ni from hem 1? ❑ Yes , If YES, enter delivery address below: ❑ No H. Ay ®9 Land Use Board of Appeals 1 Public Utility Commission Building Ai ii i, [VI !550 Capitol Street NE, Suite 235 3. Service Type, n l; Salem, OR 97301-2552 ® Certifie A211, Ewic ' Mail ❑ Registered Retum Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes V 2. (Transfer from from service ?abet) 7003 2260 0001 6391 8204 (trans PS Form 3811, February 2004 Domestic Retum Receipt 102595-02-WI540 • • Postal a CERTIFIED MAIL. RECEIPT co r=i (Domestic CD -D Postage $ Q O Certified Fee vv ~l p Return Reciept Fee P (Endorsement Required) C3 Flestricted Delivery Fee -D (Endorsement Required) IL Total Postage & Fees $ M. O ent o ° John Frewing or PO Box No. 7110 SW Lola Lane crq, ware aPta Tigard, OR 97223 PS Form 3800, June 2002 See Reverse for Instructions • SECTION SENDER: COMPLETE THIS SECTION COMPLETE THIS ON DELIVERY ■ Complete items 1., 2, and 3. Also complete A. Signature Rem 4 if Restricted Delivery is desired. 4PAgent i ■ Print your name and address on the reverse X'~ 1 ❑ Addressee I so that we can return the card to you. B. Re rv by ( Printed e) C. Date of Delivery ■ Attach this card to the back of the mailpiece, ,t r LE ir/~N J 1 or on the front if space permits. 1, D. Is deliver/address different from Item 1? ❑ Yes 1. Article Addressed to: If YES, enter delivery address below: ❑ No t John Frewing { 7110 SW Lola Lane 3. Service Type Tigard, OR 97223 C10 Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. If 4. Restricted Delivery? (Extra Fee) ❑ yes 2. Article Number 7003 2260 0001 6391 8181 (Transfer Irom vm service ~ PS Form 3811, February 2004 Domestic Return Receipt 102595.02-WI540 I • U.S. Postal Service-r. CID CERTIFIED MAILT. - - D- ,a (Domestic : For delivery information visit our website at www.usps.coffig Postage $ /s a ~ ' ra ,l v C3 Certified Fee Q Return Redept Fee ) Po e (Endorsement Required) r3 Restricted Delivery Fee -D (Endorsement Required) y~2o~~ ap L/ nJ Total Postage & Fees Is C 1° • iM C3 nr TO Christopher P. Koback r` sneer ;i t Nu.„'° Davis Wright Tremaine LLP - - orPOBoxNo. - 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201-5682 PS Form 3800, June 2002 See Reverse for Instrucions • SENDER: COMPLETE THIS SECTION i COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. X ❑ Agent ■ Print your name and address on the reverse ❑ Addressee so that we can return the card to you. B. Received y 'f ed Name) C. Date of Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. D. Is delivery address different from Item 1? ❑ Yes r 1. Article Addressed to: If YES, enter delivery address below: ❑ No I' Christopher P. Koback© Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2300 3. Service Type Portland, OR 97201-5682 19 Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number (transfer hom service labeq 7003 2260 0001 6391 8198 i PS Form 3811, February 2004 Domestic Return Receipt 102595024A-1540 i Postal CERTIFIED MAIL. RECEIPT Iti a (Domestic 11 C: For delivery information visit our website at www.usps.coms, 0 nn r-q Ir M 1-0 Postage $ S 1 rq OI~•, Certified Fee O Postal (Endorrsseement Required) "Here 0 Restricted Delivery Fee C~ N (Endorsement Required) / ~a ASS fLl Total Postage t£ Fees ,0 m O Sent To o Timothy V. Ramis sneer, AiFyd,-- Ramis, Crew, Corrigan and Bachrach----- or PO Box No. ciy 1727 NW Hoyt Street Portland, OR 97209 SECTION PS Form 3800, June 2002 See Reve;;e for Instructionos SENDER: COMPLETE THIS SECTION 1 COMPLETE THIS ON DELIVERY ■ Complete items 1, 2, and 3. Also complete A. Signature item 4 if Restricted Delivery is desired. ❑ Agent ■ Print your name and address on the reverse ❑ Addressee r so that we can return the card to you. B. Received by (Printed Name) C. Date of Delivery ■ Attach this card to the back of the maiipiece, or on the front if space permits. 1 ~ ~r)Q t: D. Is delivery address different from item 1? ❑ Yes 1. Article Addressed to: If YES, enter delivery address below: ❑ No Timothy V. Ramis Ramis, Crew, Corrigan and Bachrach S 1727 NW Hoyt Street 3. Service Type Portland, OR 97209 )Q Certified Mail ❑ Express Mail ❑ Registered ❑ Return Receipt for Merchandise f ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ yes 2. Article Number 7003 2260 0001 6391 8174 (Transfer from service label) i h. PS Form 3811, February 2004 Domestic Return Receipt 10259542-M-1540 ; Index & Record • TABLE OF CONTENTS OF RECORD LUBA RECORD NO. 2006-065 Frewing vs. City of Tigard City of Tigard File Nos. SUB2003-00010/PDR2003-00004/ZON2003-00003/ SLR2003-00005 /VAR2003-00036/VAR2003-00037 Statement Certifying the Record i Certificate of Filing/Certificate of Service ii Table of Contents PAGE Affidavit of Mailing Notice of Final Order by the City Council (Resolution No. 06-15 Passed March 28, 2006) dated April 4, 2006 Approving the Ash Creek Estates Subdivision Remand including Attachments 1 "Draft" Council Minutes dated March 28, 2006 116 Citizen Communication sign- u sheets for March 28, 2006 130 Council Agenda dated March 28, 2006 131 Council Agenda Item Summa dated March 28, 2006 (Agenda Item #5 136 Attachment 1: Proposed Resolution including Ftndin s and ExhibitA 137 Council Minutes dated February 28, 2006 142 Resolution No. 06-09 Adopted February 28, 2006 165 Public Testimony Received at the February 28, 2006 City Council Public Hearing: Letter from John Frervin including Attachments A, B and C 168 Letter rontohn Frervin regarding Ex Parte Contact 180 • Letter rom Bob Storer dated Februa 27, 2006 183 Statement read b the City Attorney - Quasi-judicial Land Use Hearin Procedures 185 Public Hearin Testimony sign-up sheets for February 28, 2006 for Ash Creek Estates LUBA Remand 187 List of parties that were mailed the February 28, 2006 Ash Creek Estates LUBA Remand Council Packet Item 189 Council Agenda dated February 28, 2006 190 Council Agenda Item Summa dated February 28, 2006 (Agenda Item #6 196 Attachment 1. Pm posed Resolution Adopting Findin sAnd Conditions 198 Exhibit A: Staff port and Conditions o A roval o anua 25, 2005 as adopted the Council 201 Exhibit B: Resolution 03-61 229 Exhibit C.• Resolution 03-58 231 Attachment 2. Ci Attorns Memorandum dated anua 10, 2006 305 Attachment 3: Letter from Applicant's Attorndated Februa 9, 2006 includin the Revised Tree Plan 307 February 9, 2006 Affidavit of Publication from Community Newspapers for Ash Creek Estates LUBA Remand including a co of the actual publication 312 February 6, 2006 Affidavit of Mailing Notice of Public Hearing for the February 26, 2006 City Council Public Hearin including attachments 313 February 6, 2006 Ma and List of Property Owners within 500 feet of the Ash Creek Estates Subdivision 326 February 9, 2006 Letter from Christopher P. Koback to Dick Bewersdorff including Attachments 336 February 2, 2006 Letter from Lori R. Stalker to Michelle Waring including Attachment regarding a State of Oregon Court of Appeals Court Ordered Award of Costs 341 December 23, 2005 Letter from John Frewin to Tom Coffee including Attachments 343 December 7, 2005 Appellate judgment and Supplemental judgment b the State of Oregon Court of Appeals 348 September 28, 2005 Letter from Christopher P. Koback to Dick Bewersdorff Including the revised Ash Creek Estates Tree Plans dated September 22, 2005 351 LUBA Final Opinion and Order No. 2005-042 Remanded September 20, 2005 355 The following oversized documents are not included with this record. A copy can be obtained by contacting Patricia Lunsford, City of Tigard, 503-639-4171, 13125 SW Hall Boulevard, Tigard Oregon 97223 A. Audio Tapes for City Council Meetings of 2/28/06, 3/28/06 B. Video Tapes for City Council Meetings of 2/28/06, 3/28/06 iii AFFIDAVIT OF MAILING I, fttriciaL. L Q being first duly swom/affirm, on oath depose and say that I am a SerdorA~lmimstrativeSpecia&tfor the City of TWar4 Wasfiington County, Oregon and that I served the following: (Chen ApWgxmle Boa(s) Bdw4 . ❑X NOTICE OF FINAL ORDER FOR: 0=~, SUB2003-00010/PDR2003-00004/ION2003-00003/SLR2003-00005/VAR2003-00036/VAR2003-00031 ASH CREEK ESTATES SUBDIVISION LUBA REMAND #2 ❑ AMENDED NOTICE (File NolName Reference) HEARING BODY: - HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer ❑ Tigard Planning Commission ® Tigard City Council (2/28/2006 & 3/28/2006) 9copy of the said notice being hereto attached, marked Exhibit "A", and by reference made a part hereof, was mailed to each named person(s) at the address(s) shown on the attached list(s), marked Exhiblt'B", and by reference made a part hereof, on April 4,2006. and deposited in the United States Mail on April 4,2006, postage prepaid. (Person that Prepay e County of Was *ton ) ss. C,t ward -6 Subscribed and sworn/affirmed before me on the day of 4AA , 2006. :OFIFICLAL SEAL UE ROSS NOT/PUeL1C-0REGON COM:ION N0.375152 MY COMMISSIOT;RES DEC. 1, 2007 '~11 my Co i on Expires: DATE OF FILING: 3/28/200F [y~Jtp1B'T.A L/-H CITY OF TIGARD _ • Washington County, Oregon NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Numbers: SUBDIVISION SUB 2003-00010 PLANNED DEVELOPMENT REVIEW DR 2003-00004 ZONE CHANGE O 2003-00003 - SENSITWE LANDS REVIEW SLR 2003-00005 ADJUSTMENT AR 2003-00036 &-2003-00037 Case Name: ASH CREEK ESTATES SUBDIVISION LUBA REMAND Name of Owner: Ernest E. and Elda H. Senn Name of Applicant: Winwood Constriction . Attn: Dale Richards Address of Applicant 12655 SW North Dakota Street Tigard. OR 97223 Address of Property: 9750 SW 74 Avenue TiTrarj OR 97223 ` Tax Ma /Lot Nos.: WCTM 1S125DC Tag Lots 300 and 400. :d A FINAL ORDER INCORPORATING THE FACTS, FINDINGS. AND CONCLUSIONS APPROVING A REQUEST FOR A SUBDIVISION PLANNED DEVELOPMENT ZONE CHANGE SENSITIVE LANDS REVIEW AND TWO ADIiISTMENTS (RESOLUTION NO, 06-09 AND 06-15). THE CITY COUNCIL HELD A PUBLIC HEARING ON FEBRUARY 28, 2006 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION AND CONTINUED THE HEARING TO MARCH 28, 2006 TO ADOPT ADDITIONAL FINDINGS AND IMPOSE CONDITIONS. THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER ITEM ON REMAND: The State Land Use Board of Appeals (LUBA) has remanded for a second time the. City Council's approval of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment reviews to address a single issue relating to tree preservation. As limited by LUBA, the issue remanded is whether the tree plan preserves trees to the greatest extent possible, given that the second tree.plan does not protect 23 trees designated Tor protection in the original tree plan, but not designated for protection in the revised tree plan .previously approved. On this second remand, the applicant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full copy of LUBA's Final Oppiniou and. Order can be obtained from City Hall at cost, or is also available online at http://lu .state.or.us/pdf/200-/sWt05/05042.htm. The City Council concluded that because the 23 trees at issue will be protected as shown in the second revised tree plan (dated September 22, 2005), the standard of CDC 18.350.100.B.3.a(1) is met. The site elements have been designed and located to preserve existing trees to the greatest extent possible. ZONING DESIGNATION: R-4.5: Low-Density Residential District APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a.1, which requires that planned developments protect existing trees to the greatest degree possible. Action: ➢ Approval as Requested © Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to owners of record within the required distance, affected government agencies, Affected Citizen Involvement Team, and applicants and owners. Final Decision: THIS=I9TI9,VIINAL DECISION OF `SHE CITY G s r` - 1 ND Cfl1VIES F_FFEG'I`IVE ON:APRIL:4; 2006 The adopted findings of fact, decision and statement of conditions- can be obtained from the City of Tigard Planning Division, Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. J*AppeaL• A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (CUBA) according to their procedures within 21- days. Questions: If you have any questions, please call.the City of Tigard Planning Division at 503-639-4171. 2 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL • RESOLUTION NO. 06- A RESOLUTION AND FINAL ORDER SUPPLEMENTING RESOLUTION 06-09 APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003- 00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003-00005/ADJUSTMENT (VAR) 2003-. 00036/ADJUST7%4ENT (VAR)' 2003-00037) - ON REMAND FROM LUBA; AND ADOPTING ADDITIONAL FINDINGS AND IMPOSING AN ADDITIONAL CONDITION. WHEREAS, the City Council adopted Resolution 06-09 at its February 28, 2006 meeting relating to the Ash Creek Subdivision land use but continued the heating to adopt additional findings;' WHEREAS, Resolution 06-09 accurately sets forth the procedural history of this. matter, WHEREAS, the Council has considered the proposed additional findings and condition proposed by staff; NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: Resolution 06-09 and all findings and conditions included or incorporated into Resolution 06-09 remain in effect. This Resolution supplements, but does not otherwise amend Resolution 06-09. Resolution 06-09 and this resolution constitute the final decision of the City. SECTION 2: The Council, adopts the findings in the document entitled "ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) ASH CREEK ESTATES SUBDIVISION SUB2003-00010/ZON2003-00003/PDR2003-00004/SLR2003-00005/VAR2003-00036-0037" . attached hereto as Exhibit A, as additional findings, and imposes the additional condition of approval included in that document SECTION 3: This resolution is effective when notice of the decision is mailed - PASSED: This a b day of 2006. Mayor - q of Tigard ATTEST: yLQ - • City Recorder - City of Tigard RESOLUTION NO. 06 - ~J Page 1 3 EXHIBIT A • ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) ASH CREEK ESTATES SUBDIVISION SUB2003-00010/ZON2003-00003/PDR2003-00004/SLR2003-00005/VAR2003- 00036/VAR2003-00037 1. The Tigard City Council heard testimony on this matter at its February 28, 2006 meeting and closed the hearing. The Council adopted Resolution 06-09 approving the application with the findings and conditions recommended by staff, but also decided to continue the matter to March 28, 2006, for the adoption of additional findings and conditions. . 2. This matter is on.remand a second time from the Land Use Board of Appeals. The issue on this remand is limited to whether CDC 18.350.100B.3.a 1 is met as to 23 trees specified in the LUBA decision. FINDINGS IN RESPONSE TO COMMENTS 2. The City received written comments from Bob Storer and oral and written comments from John Frewing. Rerpon e to Commentr from Bob Storer 3. Mr. Storer stated that he was trot convinced that the developer or the contractors will comply with all of the conditions of approval and questions City monitoring of the proposed project This comment is not relevant to the issue on remand. There is always a risk of non-compliance with conditions of approval, but the City does monitor development and has the authority to stop work if conditions are-not complied with. The risk of non-compliance is not a basis for denial. 4. Mr. Storer argued that the standard is not being met because trees other than the 23 trees are being removed. This argument is outside the scope of the issue before the Council. Furthermore, LUBA has-already affirmed the City's decision that the removal of other trees is consistent with the standard. This issue has already been decided and is no longer subject to challenge. In LUBA Case No. 2005-042, LUBA considered the tree plan that the applicant submitted to the City-on the first remand. That plan illustrated the trees that would be preserved and the trees that would be removed. LUBA- - concluded that except for the 23 trees specifically identified, the tree plan complies with the City's requirement. LUBA's decision was affirmed by the Court of Appeals. Any argument concerning any trees other than the 23 trees identified by LUBA is outside the scope of the remand. 5. Mr. Storer argues that just because the development meets all standards does not mean that the application should be approved. In a quasi-judicial proceeding, however, the City is required to approve applications that meet all applicable criteria and may not ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) Page 1 of 4 4 • deny an application for reasons unrelated to applicable criteria. ORS 197.522. 6. Mr. Storer argues that the development should not be approved until all local, state and federal permits and other associated approvals have been obtained. Mr. Storer cites no authority for this proposition, and the argument is outside the scope of the remand. While the applicant must obtain all required permits, obtaining the permits does not need to occur prior to land use approval; it is sufficient that the approvals be obtained prior to the work 7. Mr. Storer asks the Council to adopt more stringent standards. While the Council may adopt more stringent standards in the future, it must consider this application under the standards in effect at the time the application was filed. Adoption of more stringent standards is irrelevant to this .application and decision. Response to Comments fmm John Firaing 8. Mr. Frewing comments that although the. map associated with the tree plan shows that the 23 trees will be protected, some of the text of the plan indicates they will be removed. The Council finds that the map controls over the text and that the 23 trees at issue will be protected. To ensure protection, the Council is adopting an additional condition of approval specifically requiring the protection of those 23 trees. Compliance with the condition is "feasible - the applicant has indicated that those trees will be protected during construction. 9.. Mr. Frewing has argued that some of the 23 trees have not been identified by species- Mr. Frewing made a similar argument to LUBA in the last remand and did not prevail- LUBA's decision was affirmed by the Court of Appeals. This issue has been decided against Mr. Frewing and he cannot raise it again. This argument is outside the scope of the remand. It is clear from the tree plan which trees are to be protected, and that is sufficient to satisfy the CDC 18.350.100B.3.a.1 standard.. 10. Mr. Frewing argues that tree protection standards should be modified to be consistent with standards that have evolved and improved since the tree protection plan was originally prepared. This argument is outside the scope of the remand. Furthermore, the application is to be judged by the standards in effect at the time the application was first submitted - ORS 227.178(3)(a). Also, -Mr. Frewing did not identify what changes in tree protection standards have occurred and did not provide any information that any changes in. tree protection standards have become applicable standards or criteria in a land use application. 11. Mr. Frewing asked the City to require the applicant to confirm the purpose. of fencing shown on the 9/22/05 drawing. This is outside the scope of the remand and not required by any applicable standard. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006 Page 2 of 4 5 12. Mr. Frewing makes various arguments relating to trees other than the 23 trees designated for protection. These arguments are outside the scope of the remand. Whether any additional trees should be protected or whether protection for other trees shown to be protected is outside the scope of the remand. 13. Mr. Frewing argues that the City should expand the remand beyond the narrow issue remanded by LUBA- While the City has the authority to expand the scope of the remand, it is solely within the City's discretion whether to expand the scope beyond the issue remanded by LUBA..The City Council chose to limit the remand to the issue remanded by LUBA and that decision was within the scope of the City's-discretion. LUBA explained the scope of the remand as follows: "On remand the city must explain why it is not possible to preserve the trees identified in footnote 16, or require that the tree plan be amended to preserve those trees." That is the only issue on remand-, and the applicant has amended the tree plan to.preserve those trees. 14. Mr. Frewing raised questions as to when the final decision needs to be made on remand. The applicant has agreed to-an extension of time to make the decision, so this issue is moot. 15. Mr. Frewing also argued that ex parte contacts had occurred and thavone of more Council members were biased- First, Mr. Frewing argued that there had been ex parte contact between one or more Council members and the developer relating to the donation of property from the developer to the City for park purposes. All Council members stated that they had not had any contacts with the applicant/developer and the City Manager stated that all contacts had been at the staff level. Representatives of the applicant also testified that there had been no ex parte contacts between the applicant or anyone associated with the applicant and any Council member regarding the property. The Council finds that there were no ex parte contacts as alleged by Mr. Frewing. Mr. Frewing based his. allegations of ex parte contacts on a newspaper article in The Oregonian by Rick Bella. Mayor Dirksen stated that he had a discussion with Mr. Bella, but that Mr. Bella did not accurately report the Mayor's statements. There is no credible evidence of undisclosed ex parte contacts. 16. Mr. Frewing claims that the Council is biased because it is attempting to obtain- open space for the City from the applicant The City Manager stated that there have been discussions between staff and the applicant on this issue, but that no Council member was involved or informed of the discussions. All Council members stated that potential land acquisition by the City would play no role in their evaluation of the case and that they could judge the land use matter before them based on the facts and criteria. All members denied any bias. The Council finds that all Council members based their decisions on the facts presented in the land use process and applying the applicable criteria and standards, without other considerations. Given the narrow scope of remand and the revised tree plan showing protection of all 23 trees that were the subject of the remand, the only possible decision was approval. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) Page 3 of 4 6 ADDITIONAL CONDITION Applicant shall not remove or damage and shall preserve the 23 trees specified in footnote 16 of the LUBA decision in accord with Conditions 55 through 58. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) Page 4 of 4 7 CrrY OF TIGARD, OREGON RESOLUTION NO.06-(ZR A RESOLUTION AND PINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION- . (SUBDIVISION (SUB) 2003-000101PLANNED -"DEVELOPMENT REVIEW - (PDR) 2003- -00004/ZONE.-- CHANCE : (ZON) 2003-00003/SENSITIVE LANDS, REVIEW (SLR) 2003-.. ..00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) 2003-00037)'- -ON RBM ND FROM LUBA;-AND- ADOPTING FINDINGS AND IMPOSING CONDITIONS. WHEREAS, the Planning Commission initially reviewed this case at a public hearing at its meeting on July 7, 2003; and . WHEREAS, the Planning Commission made motions to both deny and approve-the. application, both of which failed in a 4-4 tie vote; and WHEREAS' the by-laws of the Planning Commission and Robert's Rules of Order. specify that if as affirmative vote in favor of an application is not attained, the application. is denied. Since the denial occurred de facto,. no findings were adopted, and the denial is without prejudice; and WHEREAS, the City Council held a public hearing on the appeal of the denial .on August 12, 2003 and September %2003; and- WHEREAS, the City. Council adopted findings and conditions of approval that were prepared by the applicant, Winwood Construction, on October 28,2003 by Resolution 03-58; and WHEREAS, the Resolution- contained an erroneous date reference and was corrected by adopting the amended Resolution 03-61 on November 4; 2003; and WHEREAS, the City Council's decision was appealed to the State Land Use Board of Appeals (LUBA) on November 25, 2003 based on 25 alleged errors and sub errors in the decision; and WHEREAS, LUBA concluded in their Final Opinion and Order (LUBA No. 2003-194) on August 20, 2004 that 21 of those assignments of error were denied, but remanded the decisions back to the city on four issues; and WHEREAS; the City Council on February 22, 2005, after a duly noticed hearing approved the revised application on remand; and WHEREAS; the City's February 22, 2005 decision was appealed to LUBA, which remanded the decision on the very-narrow issue whether CDC 18.350.100.B.3a(1) had been complied with as to those trees that were protected in the tree plan originally approved but not protected in the tree plan submitted on the first remand; and RESOLUTION NO. 06 - Oq Page I- 8 WHEREAS, applicant has submitted a second revised. tree plan that designates those 23 trees. for protection but is otherwise the same as the revised tree plan; NOW, THOZEFORE, BE IT RESOLVED by the Tigard City Council that SECTION i : The Tigard City. Council, approves . applications - SUB2003--00010/PDR2003- 00004/ZON2003-00003/SLR2003=00t~OS AK20D3-0U036/VAR2U03-00037 - -Ash Ctreek .Estates Subdivision subject to-the conditions of approval stated in the s%T..s. January 25; 20Q5, report to: Council, attached hereto as Exhibit A, and incorporated hereiti by thin reference aril the additional condition (Condiia3~ 59) stated in- Section 3 of this resolution. 'Ile Council adoppts -the foadings stated in . the January -25, 2005, staff report, and The additional-finding stated in Section 2. SECTION 2: The Council adopts the foll owing additional finding: CDC 18.3 50. 100B.3.a(l) requires that in planned developments: (1) The streets, buildings and other site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the. greatest degree possible; LUBA has remanded this ' matter- on the narrow issue whether this standard has been met, given that the, original tree -plan showed that .trees wound be protected within certain areas and the -revised tree plan showed that 23 trees - would be removed within the area-designated for protection in the original tree i plan. The applicant has submitted a second revised tree plan, dated September-22, 2005, that protects all 23 trees that were the basis for the 'LUBA remand. - The second revised tree plan is otherwise identical to the revised tree plan submitted after the first remand. LUBA explicitly stated that the remand issue was limited to consideration of those 23 trees. The Council finds that because the 23 trees at issue will be protected, the standard of CDC 18.350.100B.3.a(1) is met. The site elements have been designed.and located to preserve existing trees to the greatest extent possible. SECTION 3: The Council imposes the following additional condition of approval (Condition 59): Applicant shall comply with and implement the second revised tree plan (dated September 22, 2005). Applicant shall protect trees designated for preservation in the second revised tree plan as provided in Conditions 55 through 58 (Exhibit A). 0 - -j RESOLUTION NO. 06 Page 2 SECTION 4: The Tigard City Council incorporates resolutions 03-61 and 03-58 along with the related findings attached hereto. as Exhibit B. and Exhibit C respectively and incorporated herein by this reference- to the extent that. the findings contained therein do not conflict with, the findings adopted in Sections 1 and 2. SECTION 5:. This resolution is effective when notice of the decision is mailed PASSED: This day of 2006. Mayor, ity of Tigard A T: City Recorder - City of Tigard RESOLUTION NO. 06 - ©C Page 3 10 i EXHIBIT A Agenda Item: Hearin Date: February 8 2005 Time: 7:30 PM T = O~k r Bu:... Cmr of i1G. Sp e ra . .04" :A &t r -LEC3V:. .96 DAY REMAND PERIOD=- 3/13/2005 S.ECTION_ L. _ _APP_LICATION SUMMARY FILE NAME: - REMAND of ASH CREEK ESTATES SUBDIVISION LUBA FILE NO: 2003494 CITY CASE NO'S: Subdivision.(SUB) SUB2003-00010 Zone Change (ZON) ZON2003-00003 Planned Development Review (PDR) -PDR2003-00004 Sensitive Lands Review (SLR) SLR2003-00005 Adjustment (VAR) VAR2003-00036 Adjustment (VAR) VAR2003-00037 APPLICANT: Dale Richards OWNER: Ernest E. and Elda H. Senn Winwood Construction 9750 SW 74"' Avenue 12655 SW North Dakota Street : Tigard, OR 97223 Tigard, OR 97223 PROJECT Kurahashi and Associates CONTACT: Attn: Greg Kurahashi - 15580 SW Jay, Suite 200 Beaverton, OR 97006 REQUEST: The State Land Use Board of Appeals (LUBA) has remanded City Council's approval. of a 294ot planned development on 9.3 acres and associated sensitive lands and adjustment reviews for additional findings to support their decision. This hearing is limited to the four specific assignments of error which are generally. 1) the City's acceptance of lower 'W values in relation to the proposed vertical sag curve. on .SW 74"' and demonstration that the City Engineer is-authorized to approve such deviations to adopted street standards, 2) the requirement that the applicant prepare and submit a tree plan that identifies the size, species, and location of trees on the site, provides a removal plan, protection plan, and mitigation program in accordance with TCDC18.790, 3) revised findings are required for the proposed curb fight sidewalks on SW 74"' to address the relevant criteria of TCDC- 18.370.C.11., and 4) additional findings related to the landscape protection criteria of TCDC 18.745.030.E. - K NING SIGNATION: 'R-4.5' Low-Density Residential District LOCATION: 9750 SW -74"' Avenue; WCTM 1 S125DC, Tax Lots 300 and 400. it ASH CREEK ESTATES SUMMSEON IZEMMEr STAFF REPORT (SUB200300010) . crTY cOuwjL HEARING 2NV2( 15 1 . PPUCABLE VWMEW RITERIA: Community Development Code- Chapters 18.370, 18.790, and 18.810 SECTION R. STAFF RECOMMENDATION Sa f tecommends that:--the amity :Coc it aaecepl bM. ado-t :the ad tional dings -presen. in- the appiica6ft submittal, as fu!th&-6Wborated on Vkhin--tfiis -report: find that ~tM. proposed- I66hed Development and. street adjustments vflhiot-adversely ailed ttie helilth; sa€ety and w&arre :ofi:~e City and meets the Approval Criteria -outiined 'in this report. Wherefore, -Staff recommends i subject to the Conditions of Apprpval :and R`dings adopted pf&i iut y as osolu_ lion 03.61 `afit_ -fuii et. refined, and amended within' trig Tepott CONDITIONS OF APPROVAL (Note, conditions #1-51 are from the original decision and are included for reference only) THEE FOLLOWING CONI)i hoNS -.SHALL B SATISFIED PRIOR Tb Ct~M.MENCWG--A.N , ONSME 1_ MPROVEMEATS, INCLUDING: GRAD:ING,= XCA V614 M61-0 SILL AC~IV}TIES: _ Submit to the Planning Department (Morgan Tracy, 639-4171, ext. 2428) for review and approval: 4) Prior to site work, the applicant shall submit an arborist report with tree protection recommendations, and shall provide the City Arborist with- a construction sequence including installation and removal of tree protection devices,-clearing, grading, and paving- 2_ Prior to site work, the applicant shall submit a complete set of construction documents with the. tree locations for the City Arborists review. The applicant will not cut any healthy trees within the designated open space tract- Furthermore, the applicant shall not'cut any healthy trees in the tree preservation areas of Lots 1-18,'which shall be defined as the area at least 15' from the rear of the building footprints. However, if an arbonst determines that trees in these areas are dead, diseased, or pose a safety hazard, then the applicant shall remove affected'trees from those areas. 3. Prior to site work, the applicant shall notify the City Arborist at least 48 hours prior to commencing construction when the tree protection measures are in place so that he may verify that the measures will function property. 4. Prior to site work; the applicant shall provide evidence of all necessary approvals for work within the wetlands from US Army Corps of, Engineers and the Division of State Lands. 5. Prior to site work, the drainage tract must be dearly identified in the field with permanent (preferably with minimum 4-foot-tall black chainlink) fencing so as to insure no grading or material is placed in this area: Any fencing that is damaged during construction must be • replaced prior to final building inspection. If the damage is such that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately: 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet. ASH CREEK ESTATES SLWNISiON -REMAW STAFF REPORT (WB20034D0010) 12 bmit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and pppoval: 7. Prior to approval of construction plans, the-applicant shall "pothole" the City of Tualatin's main water transmission line to determine the exact location and'condition of the pipe. The applicant shall notify the City of Tigard and the City of Tualatin 48 hours prior to the pothole inspections and when any construction activity will impact-the pipe (such as placement of fill and excavation in the immediate vicinity) so that a representative from both the Cities of Tualatin and Tigard can be present. 8. Prior to commencing onsite improvements, a Public Facility Improvement (PFI) permit is required for this project to cover all. infrastructure and any other work in the public right-of-way- Eight (8) sets of detailed public improvement plans shall be submitted -for review to the Engineering Department NOTE: these plans-are in addition to any other drawings required by the Building Division and should only include sheets relevant to-public improvements. Public Facility. Improvement (PFI) permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.ci.tigard.or,usY. 9. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as th e °PermittW, and who will provide the financial assurance for the public improvements. Forexample, specify if the- entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information.to the Engineering Department will delay processing of project documents. 10. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan ;is for parking and traffic control during the public improvement construction phase. All.construction vehicle parking shall be provided on-site. No construction vehicles or equipment will be permitted to park on the adjoining residential public streets. Construction vehicles include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings proposed by this application, and shall include the vehicles of all suppliers and employees associates with the project 11. The applicant shall submit construction plans to the Engineering Department as a part of the. Public Facility Improvement permit, which indicate that they will c:onstruct'a half-street . improvement. along. the frontage of 74th Avenue. The improvements adjacent to this site shall include: A. . City standard pavement section for a neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet; B. Pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage_ ; C. Concrete curb, or curb and gutter as needed; - • D. Stone drainage, including any off.-site storm drainage necessary to convey surface and/or subsurface runoff; E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F. Street trees in the planter' strip spaced- per TDC requirements; G. Street striping;, ASH CREEK ESTATES SUBDIVISION 'REMAND* STAFF REPORT (SUB20034040) 13 CITY COUNCIL HEARING 2/82005 H. Streetlight layout by applicant's engineer, to be approved by City Engineer, • I. Underground utilities; . J. Street signs (if applicable); K. Driveway apron (if applicable); ` L: -Adjustments in vertical and,/or horizontal alignment to construct SW 7e Avenue in a safe manner, as approved by the Engineering. Department, including reductions to the speed limit as necessary; and - M. Right-of-way dedication to provide 27 feet from centerline.. 12. The applicant's Public Facility Improvement permit construction drawings shall indicate that full width street improvements, including traffic control devices, mailbox clusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street trees, streetlights, and underground utilities shall be installed within the interior subdivision streets. improvements shall be designed and constructed to local street standards. 13.: A profile of 70 Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 14. The applicant's construction drawings shall show -that the pavement and rock section for the proposed private street(s).shall meet the City's public street'standard for a local residential street. The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility improvement permit. 16. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department (Kim McMillan) as a part of-the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved. by the City Engineer. The proposed facility. shall be dedicated. in a tract to the City of Tigard on the final plat. As a part of the improvement plans submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval. by the Maintenance Services Director. The facility shall be maintained by the developer for .a three- year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed, the City will inspect the facility 8nd make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition,,the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 17. An erosion control plan shall be provided as part of the Public. Facility Improvement (PFI) permit drawings. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual, December 2000 editi on." 18. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be grades to ensure the surface drainage is directed to the street or a public storm drainage system 14 ASH CREEK ESTATES MMMSION -REMAND' STAFF REPORT (SUB2003-00010) PA approved by the Engineering Department. For situations where the back portions of lots drain . away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey -runoff from each lot: 19. The applicant shall incorporate the recommendations from the submitted geotechnical report by GeoPacific Engineering, Inc., dated May 9, 2003, into the.final grading. plan. The applicant shall have the geotechnical. engineer ensure that all grading, including cuts and fills, are constructed in accordance with the approved plan and Appendix Chapter 33 of the-UBC. A final construction supervision report shall be filed with the Engineering Department prior to issuance of building. permits. 20. The design engineer shall indicate, on- the grading plan, which.lots will have natural slopes between 10%. and 20%, as well as.lots that will have natural slopes in excess of 20%. This information will be. necessary in determining if special grading inspections arid/of permits.will .be necessary when the lots develop. 21. The final construction plans shall be signed by the geotechnical engineer to ensure that they have reviewed and approved the plans. The geotechnical engineer shall also sign the as-built grading. plan at the end of the project. 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act. THE FOLLOWING CONDITIONS SHALL--BE SATISFIED PRIOR TO APPROVAL-0FTHE°FI4AL-'PLAT: Submit to the Planning Department (Morgan Tracy, 639-4171, ext 2428) for review and approval: 23. Prior to approval of the final plat, the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. 24. Submit a revised street tree/landscape plan that shows an alternative tree species used for the public street to vary the streetscape. 25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and cause a statement to be placed on the plat limiting additional direct vehicular access to SW 74th Avenue. 26. Provide a plat name reservation approval from Washington County. 27. Prior to final subdivision plat approval, the applicant shall convey title for the proposed open space to a homeowner's association in accordance with the 'requirements of Section 18.350.110.A..2.b of the Tigard Development Code. dWbmit to the Engineering Department (Kim McMillan), 639-4171, ext_ 2642) for review and pproval: 28. Prior to approval of the final plat the applicant shall obtain a plumbing permit for the construction of the private storm line in the private street. ASH CREEK ESTATES SUMMSION'RELMD" STAFF REPORT(SUB2003-00010) 15 ~rrv rev uv-n ~s~uutrz ~RrrxvK Prior to approval of the final plat, the applicant shall pay an addressing fee in.-the amount of $900.00 (Staff Contact: Shirley Treat, Engineering). . 30. Prior to approval of the final plat, the applicant shall cause a statement to be placed on the final plat to indicate that the proposed private street(s) will be jointly awned and maintained by - the private. property owners who abut and take access from- it (them): - 31: Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&R's) for this project, to be recorded with the final plat, that dearly lays out a maintenance plan and agreement for the proposed private street(s).. The CC&F;Vs shall obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s). The CC&R's shall additionally establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the lots or tracts following completion of the'subdion improvements. Trees may only be allowed to be removed subject to a certified arborisfs finding that the trees are dead; or in severe decline. The applicant shall submit a copy of the CC&R's.to the Engineering Department (Kim McMillan) and the Planning Department' (Morgan Tracy) prior to approval of the final plat_ 32. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association.' Prior to approval of the final plat, the applicant shall either place the existing overhead utility- lines along SW 7e Avenue underground as a part of this project, or they shall pay-the fee in- lieu of under grounding. The fee shall be calculated by the frontage of the site that is parallel to the utility lines and. Will be $27.50 per lineal foot. If the fee option is chosen, the amount will be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior to approval of the final plat, the applicant shall provide a maintenance access road to the facility and any drainage structures within the facility to accommodate City maintenance vehicles. The access road shall be paved and have a structural section capable of accommodating a 50,000-pound vehicle. The-paved wdth.shall. be a minimum .of 10 feet wide, and there shall be two-foot rods shoulders provided on each side. If the maintenance roadway . is over 150 feet in length, a turnaround shall be.provided. 35. The applicants final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system (GPS) geodetic control network (GC 22). These monuments shall be on the same-line and shalt .be of the same precision as. required for the subdivision plat boundary. Along with the coordinates, the. plat shall contain the scale factor to convert ground measurements to grid measurements and the.angle from north to grid north. These coordinates can be established by: • GPS be networked. to the City's GPS survey. • By random -traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements: A. Submit for City review four-(4) paper copies of the final plat prepared by, n tend strvevor licensed to practice in Oregon, and necessary date or narrative. ASH CREEK ESTATES StROMSION WMAW STAFF REPORT PUB2003-00010) 16 B. Attach a chedc.in the amount of the.current final plat review fee (Contact • Planning/Engineering Permit Technicians, at (503) 639-4171, ext. 426). C. The final plat and date or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard. • D. The right-0f--way dedication for 74 h Avenue shall be made on the final plat. E. Note: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating- that the City has reviewed the final plat and submitted comments-to the applicant's surveyor, F; After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures (for subdivisions). THE FM IN ND IT. 10NS:SHACL SE SI~►Tlfi lEfl - - PFld2.`TOSSfJA1CE:.F 1301 DING hERM17`S: Submit to the Planning-Department (Morgan Tracy, 639-4171,.ext. 2428) for review and approval: 37. Prior to issuance of any building permits, re-plant any area where vegetation has. been removed as a result of grading in conformance with the Clean Water -Services Standards as set forth in the site assessment file #2819, prior to. obtaining building permits. Prior to issuance of any building Permits, the applicant shall submitPtans that show one (1) off- street parking space, which meets minimum dimensional.requirements and setback requirements as specified in Title 18, provided on-site for each new-home. 39. At the time of application for building permits for individual homes, the applicant shall demonstrate that each site wilt be accessed by a minimum 10-foot-wide paved access. 40. Prior to the issuance of building permits, the-developer shall sign a-copy of the City's sign compliance agreement. 41. Prior to the-issuance of building permits the applicant shall submit a revised plan that indicates the modified setbacks as set forth in this decision and record a copy of the approved setback plan with the deeds for each lot. 42. Prior to issuance of building permits for structures on the individual lots within this development, the applicant shall demonstrate compliance with the height requirement of the underlying zone. The requirement calls for 30-foot maximum height for primary units and 15 feet maximum for all accessory structures. 43. Prior to the issuance of building permits on any lot, the applicant must provide city staff, with a letter from Clean Water Services that indicates compliance with the approved service provider . letter (#2819). Submit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and approval: ASH CREEK ESTATES SUBDMSION'REMANir STAFF REPORT (SUB2w3wom 17 Prior to issuance of building permits the applicant's engineer shall provide a post construction sight distance certification for the new intersection at 70 Avenue. 45. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. 46. Prior to issuance of building pemiits, the City Engineer shall deem the public improvements substantially complete. Substantial completion-shall be when: 1) all utilities.are installed and inspected for compliance, including franchise utilities, 2) all local residential street have at least one lift of asphalt, 3) any off--street and/or utility improvements are substantially completed, and 4) all street lights are installed and ready to be energized. Note: The City apart from this condition, and in accordance with .the City's model home policy may issue model home permits). 47. Prior to issuance of building permits, the applicant shall provide. the City with as-built drawings- of the public improvements as follows: 1) 3 mil mylar, 2) a diskette of the as-builts in "DWG" format, if available; otherwise "DXF" will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with. an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane. Coordinates, referenced. to NAD 83 (91). 48. Prior to issuance of building permits; the applicant shalt provide the Engineering. Department with a "photo mylar copy of the recorded final plat. 49. The applicant shall provide signage at the entrance of each shared flag lot driveway or private street that lists the addresses that.are served by the given driveway or street- THE.FOLLOWINGCONDM- 0- .SH~44L:B_E.SATISFtED Pf21OR TO ISSUX'N "-.:OF _1`INAL -Bt11bb- WG_ NSPECTION: 50. The applicant shall install street trees and an evergreen hedge of Leyland Cypress spaced no greater than three feet on center along the northern property line of Lots 1-10_and the eastern- property line of Lots 10-1.2. ADt)ITIOiNAL-C.ONDMONS-.-OF-APPROVAL fOR MA CE EEi4`ESTATES: 51. The applicant and future owners of lots within the development shall ensure that the requirements. of Tigard Community Development Code (TCDC) -18:725, Environmental Performance Standards, are complied with at all times. _ ASH CREEK ESTATES SUBMISION `REMAND' STAFF REPORT (SUB2003 =10) 18 ADDITItNAL.CNDLONS:fMI'DSEb T~H f2ENFAND fINDI4GS-4itD-=ANA.fStS- 52. Prior to commencing site work, the applicant shall submit construction drawings that show advisor "l 5 mph" speed limit signs to be placed in advance of the crest and sag curves on 9W74 in accordance with the City Engineer's Memorandum of January 25, 2005, which - requires that the sag be monitored after construction to determine if any other measures need to be taken. The applicant shall be responsible for installation of additional measures within a year after construction of the street is accepted by the City if monitoring indicates that additional traffic control measures are needed. 53. Prior to commencing site work, the applicant -shall submit a bond for the equivalent value of mitigation required (3,446 number of caliper inches times $125 per caliper inch). If additional > trees are preserved through the subdivision improvements and construction of houses, and are property protected through these stages by the same measures afforded to other protected trees on site, the amount of the bond may be correspondingly reduced. Any trees planted on the site or off site in accordance with 18.790.060 (D) will be credited- against- the bond, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the bond as a fee in lieu of planting. 54. -Prior to issuance of building permits, the applicant/owner shall record a deed restriction for each lot to the effect that any existing-tree greater than 12" diameter maybe removed. only if the tree dies or is hazardous according to a certified arborisL The deed restriction may. be • removed or will be considered invalid if a tree preserved in accordance with- this decision should either die or be removed as a hazardous tree. 55. Prior to - commencing any site work, the applicant shall submit construction drawings that include the approved Tree Removal, Protection and Landscape : Plan.. The aTree Protection Steps" identified in Teragan & Associates Letter of November 19, 2004- shall be reiterated in the construction documents. The plans shall also include a construction sequence. including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. 56. Prior to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow. access by the City Forester for the purpose- of monitoring and inspection of the tree protection to verify that the tree protection.-measures are performing adequately. Failure to follow the plan,'-or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. 57. Prior to final plat approval, the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, once every two weeks, from initial tree protection zone (TPZ) fencing installation, through site work, as he monitors the construction activities and progress. These reports should include any changes that occurred to the TPZ as well as the condition and location of the tree. protection fencing. If the amount of TPZ was reduced then the Project Arborist. shall justify why the fencing was moved, and-shall certify that the construction activities to the trees did not adversely impact the overall, and long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan i1z tent hainn- ASH CREEK ESTATES SUBDMSION'REMAMY STAFF REPORT (SUB200300010) 19 • followed by the contractor, the City shall.stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This.inspection will be to-evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any part-of the Tree Protection Plan has been violated. 58. Prior to issuance of building permits, the applicant shall submit site. plan drawings indicating- the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the- placement and---construction techniques to be employed in. building the house. All proposed protection fencing shall be installed and-inspected prior to commencing construction, and shall remain in place through the duration of - home . building. After approval from the City Forester, the tree protection measures may be removed. THIS APPROVAL SHALL BE VAU&P611"18:Mt~ quq FROM TtiE:~1=F~CFJ1/E DAT~.OF.THE:coil( -=COUNCIL`S FiNi4L bt6s ON. SECTION III. BACKGROUND INFORMATION Application History The property is currently developed with one single-family residence and a couple- of small outbuildings. On July 7'h, 2003, the Tigard Planning Commission held a public hearing to consider an - plication for a 29. lot subdivision and planned development on 9.36 acres. The property is located *9750 SW 7e Avenue. The proposal is to provide single-family detached housing on lots ranging between 4,702 and 11,616 square feet. The Planning Commission moved. to deny the application, which failed in.a 4-4 tie vote. The Commission then moved to approve the application, which also failed in a 4-4 tie vote. Based on the Commission's by-taws and Robert's Rules of Order, without a majority affirmative vote, the application is denied. Since no motion was approved, ' no findings in support or against.the application were adopted. The applicant, Dale Richards of Windwood Homes, filed an appeal of the application denial on July 15, 2003. His stated grounds for the appeal are `That applicant contends that the Planning Commission should have adopted specific grounds for. denial. The denial should. have been based on the proposed plan not meeting the Development Code. All specific requirements. of the'code were met:. The applicant, therefore, proposes that the, project should be -approved through the appeal process On August 12, 2003, the City Council held a public hearing on the appeal to reconsider the application, de novo. - Based on the large numbers of those in attendance wishing to-testify, there was insufficient time to receive testimony from all interested. patties. Therefore Council continued the public hearing to the September a Council meeting to complete-the public testimony. . 40the September 9, 2003 hearing, the applicant. offered rebuttal to the points raised by the opponents: After -the hearing dosed, Council -members indicated that they _ were persuaded the requirements of the Development Code had been met and approved a motion for tentative decision for approval of the application. Council directed the applicant to provide the written findings for this decision for- final Council consideration at its October 28, 2003 meeting. - The applicant submitted ASH CREEK ESTATES SUBDMStON 'R MNU STAFF REPORT (SUB20OMMIO) 20 findings along with modified conditions of approval to support the decision. At the October meeting, 400 uncil adopted resolution 03-58 approving the Ash Creek Estates Subdivision. In that resolution, a reference was made to a letter dated September 26, 2003 from the applicant. That date was erroneous. The letter which established the Conditions of Approval for the project is dated October 10, 2003. The correct-letter, and consequently the correct findings and conditions of - approval were. incorporated in the adopted resolution... Only the reference to the date of the letter im the resolutio_ n was in error. As a result, on November 4, 2003, the. City Council adopted a resolution (Resolution No. 01-61) correcting the reference. Within the 21-day appeal period established for appeals to-the State Land Use Board- of Appeals, John Frewing filed. an. appeal with LUBA. On August 20, 2004, the Land Use Board of Appeals ("LUBA"), issued a decision to remand the City's decision approving the application. LUBA's decision specified four instances where it found the City's findings insufficient. Vicinity Information: -The site is located in the northwest comer of the City limits, south of 51111 -Taylor's Ferry Road, on the east side of SW 74 h Avenue. The property is surrounded on all sides by single-family residences on lots that vary in size. There is a stream (Ash Creek) on the property that runs in an east west direction along the southern property boundary. This drainageway contains wetlands and areas of steep slopes. Proposat Information: e applicant.is proposing to subdivide the parcel into 29 lots for single-family residences. Because 19the trees, wetlands; and slopes on the-site, the. applicant has requested a planned development to allow them to vary the underlying zoning standards to develop around these features. The applicant is also requesting an adjustment to allow a curb tight sidewalk as opposed to a sidewalk separated from the travel surface by a -planter strip, and an -adjustment to the cul-de-sac standards limiting the number of units on a cul-de-sac and the 200-foot maximum length permitted for a cul-de-sac. SECTION.IV. 'DECISION MAKING PROCEDURES PERMITS AND USE- USE CLASSIFICATION: SECTION 18.130.020 Lists the Use Categories. The applicant is seeking approval of a 29-lot subdivision or! 9.3 acres. The lots are to be developed with detached single-family-homes. Single family residential development is outright permitted in. the R- 4.5 zone. The existing single-family home is to be demolished., Lot sizes . within the. proposed development are between 4,702 and 1.1,616 square feet and average 6,424 square feet. The applicant is also proposing to set aside approximately 4.15 acres in an open space tract for the drainageway and wetland area. A private-street cul-de-sac is also proposed to extend from the public street stub into the property. The site is located within the_ R-4.5, Low Density Residential District. - Planned Developments are permitted in all zoning districts. The applicant has applied for conceptual and. detailed planned development approval in conjunction with the subdivision. AMUMMARY OF-LAND USE PERMITS:- CHAPTER 18.310 efines the decision-making type to which the land-use application is assigned. This is a Planned' Development/Subdivision, which is defined as a Type lll-PC Application. The Planning Commission decision is appealable to the City Council. The City Council decision is the final 21 ASH CREEK ESTATES SUBDMSION'RaM[r STAFF REPORT (SUB2M3.00010) MTV nNtiwa •rr+..~n.n..v.nr - . 1 ~ easion at the local level. Appeals of City Council decisions are heard at the State level -by the Land ;e Board. of Appeals (LUBA). LUBA may either affirm, reject, modify, or remand the decision back to the local decision making authority. In this case, LUBA remanded the-decision for further consideration.. DECISION MAKING PROCEDURES: CHAPTER 18:390. Describes the decision-making procedures. Type III procedures apply to quasijudicial permits and actions that ' contain predominantly discretionary approval criteria. Type -III-PC actions are decided by the Planning Commission with appeals to the City Council. Type I11-HO actions are decided by the Hearings Officer with appeals to City Council. In cases where both the Hearings Officer and Planning Commission are involved, the. Planning Commission has preferential jurisdiction, per Tigard Development Code (TDC) Section 18.390.080(D)(2)(a). SECTION Vi. APPLICABLE REVIEW CRITERIA AND.FINDINGS As this case has been remanded from LUBA' based on four -assignments of error related to insufficient evidence to support, the City's,conclusions, the applicable review criteria are those'related to the specific assignments of error. City Council- has previously reviewed this proposed. development, and provided findings related to the other relevant portions of the review criteria. Those findings are memorialized by Resolutions 03-58 and 03-61. This review is limited to the criteria and issues that were raised by LUBA. The applicant provided a narrative and additional evidence to respond to the issues outlined in LUBA's mand.- The findings contained herein are intended to supplement the City's existing adopted.findings Were consistent In the case that the following findings conflict with the original findings, -these findings shall govern. LUBA's opinion on the four assignments of error on which it remanded are reproduced in their entirety in the following sections (distinguished by a different typeface), followed by the applicant's additional findings and Staffs analysis, as applicable. 1. ASSIGNMENT OF ERROR 5(B) LUBA found that there was inadequate evidence to support the City's position that it has the authority to approve a street design that does not meet the standard design specifications, especially as it relates to the vertical sag curve on SW 74u' Avenue. The text of their discussion follows: B. Vertical Sag Curve SW 74d. Avenue along the western border of the property is currently unimproved. To improve SW 74~ Avenue along the western border of the property a creek and wetlands -near the southwestern comer of the property must be crossed, which will create 'a vertical sag curve. With increased speed, the vertical sag curve needs to be more level or gentle to allow traffic traveling at the road's design speed to travel across the vertical sag curve safely- With decreased speed, the vertical sag curve can be steeper, or more severe, and still be safely 0an ORS 197.835(9) states "In addition to the review under subsections (1) to (8)-of this section, the board shall reverse or remand the d use decision under review if the board finds [that] the local government or special district-made a decision not supported by substantial evidence in the whole record." 2According to respondent, a vertical sag curve is the opposite of the type of curve that must be negotiated to limb and crest a hill and descend the other side of the hillcrest- In traversing a vertical sag curve, one descends to the bottom of the curve and then climbs up the other side of the curve. 22 ASH CREEK ESTATES SUBOMSIONt'REMAMr STAFF REPORT (SM003.00010) veled. The issue presented in this subassignment of error is whether the city approved construction of 74`" with a vertical sag curve that is too steep. (emphasis added) TCDC 18.81.0.020(B) provides that the City Engineer is to establish street construction standards.3 The parties apparently agree .that the City Engineer has done so. Attached to the petition for review, as Appendix B, are two figures that petitioner -and. the city apparently agree are street construction standards that have been adopted by the City Engineer. The fast figure shows a typical road pavement section, which indicates that the design speed for local roads is 25 miles per hour. The second figure shows vertical sag curve M" values for roads with different design speeds. We do not. fully understand that table, but the vertical sag curve "K" values clearly increase with design speed- For example a road with a design speed of 25 miles per hour must have a K value of at least 13.4. For a road with a design speed of 55 miles per hour, a K value of at least 65.1 is required. It appears that the smaller the "K" value the steeper the vertical sag curve. Conversely, the larger the "K" value the more gentle the curve. Rather than place fill in the area of the creek-to decrease the severity of the vertical sag curve to a "K" value of at least 13.4, the county [sic] approved a steeper vertical sag curve with a "K" value of 5.4.4 To allow the steeper vertical sag curve and maintain safety, the county [sic] reduced the speed limit that would otherwise apply to this part of SW 7e Avenue to 15 miles per hour. The county [sic] explained its decision as follows: "The applicant also requested. that the speed limit be reduced to 15 miles per hour in the section where the 74'h Avenue crossing'will occur. This speed limit was accepted by the City of Tigard Engineer. The city of Tigard standards are met by a 15 mile per hour vertical curve design,-to a `K value' of greater than 5 (AASHTO)" Record 43. It may well be that a road with speed limited to 15 miles per hour with a vertical sag curve with a "K" lue of greater than 5 is just as safe as roads with the design speeds shown on the table with vertical sag curves ith the "K" value that corresponds to the different design speeds. However, the city's street standards seem to call for roads with a design speed of at least 25 miles per hour. Roads with a design speed of 25 miles per hour may have vertical sag curves with a "K" value of no less than 13.4.- While- avoiding the fill that will be necessary to achieve a vertical sag curve in this section of SW 74'h Avenue might. make sense ..from both environmental impact and traffic engineering perspectives, and might result in no compromise in safety if the posted speed limit is reduced to 15 miles per hour, the city's- findings identify no authority for simply deviating from the lowest "K" value that is specified in, the city's standards, and reducing the speed on the street to maintain safetys (Emphasis added). If the City Engineer has retained discretion under the TCDC and any other related city regulations to simply deviate from the table and allow construction of a road with a lower "K" value and impose a speed limit to preserve safety, no party identifies such authority. The findings simply say the City Engineer has accepted the proposal. Neither the city's findings nor the response brief identify any place in the record that explains the City Engineer's reasoning in support of the lower "K" value or the city's engineer's authority to approve deviations from the adopted "K" values. Without that explanation, we must sustain this subassignment of error. .~mwsaeaa v^ - m aF -~en~•~®~®a ' . • . - - Agri. ADDITIONAL FINDINGS AND ANALYSIS SW 74th Avenue along the western border of the property is currently unimproved. The City required the applicant to make improvements to S.W. 74 as part of its approval (Conditions 10, 11, 13, 33, 45)_ 0CDC 18.810.020(B) provides: tandard specifications. The City Engineer shalI.establish [street and utility] standard specifications consistent with the application of engineering principles-" `Che findings explain that to achieve a "K value of 13.4 a great deal of fill would be.required in the wetland and that fill would have to be placed on top of an existing water line.- The city wished to avoid placing.this amount of fill on the water line- Record 84. 5Taken to an extreme, if the speed limit were reduced to a crawl, we assume almost any "K" value could be accommodatM 23 ASH CREEK ESTATES SUBDNtSM `REMAND' STAFF REPORT (SLWOM-00010). e applicant has accepted these conditions. The applicant notes that due to the topography and the Wstence of a stream, the improvements to S.W. 74 will, result in a fairly steep sag curve and a corresponding crest curve. There are standards that' define how steep sag and crest curves can-be at various speeds. The steepness of the curves is expressed as a "K" value:- For example, at a speed of 25 miles per hour (mph), the typical standards require a vertical sag "K° value of no less than 13.4. In this case, the speed limit on S.W. 70 is 25 mph. To achieve a "W value of 13.4, the applicant would have to place a significant amount of fill in S.W: 74 to make the sag curve shallower and the crest curve lower. During the hearing process, the applicant provided evidence that significant fill would cause negative impacts to the resources adjacent to S.W. 7e and might. possibly damage an existing 36-inch diameter water main serving the City of Tualatin that is in the street right of way- Also, in order to be able to maintain this line, the amount of earth over the line must be minimized. By designing the curves to meet the "W values-required for a'25 mile per hour design speed would result in fills,greater than 35 feet deep. This would impede normal and emergency maintenance and repairs as well as make a large failure have catastrophic results (.e. loss of the road and loss of water service to the City of Tualatin). Also the fills would result in greater impacts to the creek with either, larger footings for retaining walls or wider fill slope areas, which would remove a meander in the creek, more wetland area, and additional large trees from the sensitive area. The applicants engineer considered using a bridge as opposed to fill. The applicant's engineer concluded that a. bridge would result in an unmaintainable water line that could not be repaired or ainteiined under the bridge deck and the line would be much too expensive to construct and intain. Relocating the waterline is not a viable option either since it would interrupt water service to the City of Tualatin. This would also increase the difficulty of maintaining the line as it would be in the waterway as well as have increased impacts to the sensitive resources. As the applicant had previously presented, allowing for a lower speed limit is the only reasonable solution to the waterline construction and maintenance issue. At 15 mph, Windwood could make the required improvements using only 21.63 ft. of fill. While that means-that any repair will still require some excavation, it is 13.27 feet less than what is required if the sag curve is designed at 25 mph, and as a result, much more viable to maintain. Accordingly, the applicant proposed to lower the speed limit in the area of the sag curve to 15, mph. At that speed the sag curve "K" factor is no less than 5. The applicant could improve. S.W.74th to meet that standard without significant fill. The City agreed with the applicant's proposal and, in the final findings, stated as follows: 'The applicant also- requested. that the speed limit be reduced to 15 mph in-the section where. the S.W . 74 Avenue crossing will occur. This speed limit was accepted by the City of Tigard Engineer. The City of Tigard standards are met by a 15 mph vertical curve design to a °K° value of greater than 5 (AASHTO) The City Engineer has provided a memorandum expressly approving the modified design by granting an exception to the standard- This exception is mitigated by the requirement for additional advisory - *gnage and street lighting, as further described in the memo. Section B (City of Tigard Standard Specifications) reads "The City Engineer shall establish standard specifications consistent with the application of engineering principles" The City's Public Improvement standards are based on AASHTO standards and the standards of Washington County. The preface to the City's design standards states: "The formhas been kept brief and no attempt has been made to 4 ASH CREEK ESTATES SUBDAnSKM 7XDMD' STAFF REPORT (SUB2003000101 I I -cover all possible situations or to provide detailed explanations." In relation to sag curves and crest erves, the Washington County standards; as set forth in tables, include speeds of less than 25 mph- and speeds as.tow as 15 mph. Because the City's published tables are not intended to be comprehensive and because they are based on Washington County standards, the applicant asserts, and the City agrees that the. City Engineer has the authority to approve a design based on a 15 mph speed consistent with Washington County standards. The-Washington County table confirms that the applicant's proposed design meets AASHTO standards since Washington County designs conform to AASHTO. - In fact, the applicant's proposed design exceeds. Washington County's. standards. Washington County's standard for both sag and crest curves require a "r value of at least 5.0 at 15 mph. The . applicant's proposed design will result in a "W value-of 5.3. . In order to clarify'the authority to "set" speed-limits, the applicant's engineer contacted the State of Oregon. The speed limit is set by the State as 25 miles per hour as the normal speed limit on all residential streets. Where specific sections of streets cannot meet this standard, cities have authorization to provide design exceptions that allow for sections of streets that they are in ownership of to be constructed, reconstructed, or repaired that don't meet the speed limit standards. The State administers design exceptions on its own highways as well. According to the State, design exceptions at the state level are mitigated by using advisory signs as well as other safety measures. Jurisdictions are, therefore, allowed to post special signs and take other measures to safely control traffic. The applicant proposes two options: • Option 1: Advisory Signage - A. Install "Bump" sign-with 15 mph advisory sign below it. B. Install "DIP". sign with 15 mph advisory sign.below it. (Place sign in advance of crest or sag to allow safe reaction and deceleration time.) Option 2: Three Way Stop Intersection A. Install a "3 .Way. Stop" at the intersection of the new public road access to S.W. 74 Avenue. B. Install "DIP" sign with 15 mph advisory sign below it. (Place sign in advance of crest or sag to allow safe reaction and deceleration time.) Although Option 2 would result in a stop sign on S.W. 74 which is a through street,.this would remove -the need to sign the street for 15 miles per hour at the crest since the stop sign will slow traffic to an approach speed of 15 mph at the critical location.. Although this would not meet warrants for a "need" by ASSHTO standards, this would be a very effective "legal' mitigation for the crest not meeting speed-design standards. These measures would qualify as a mitigation for the sag and crest. The City Engineer has determined that neither option presented is desirable. Option 1 seemingly _ lls for the installation of a speed bump, which could exacerbate the present deficient "IC value, and ere is insufficient documentation in the record to indicate the effects of such a proposal.. Option 2. proposes to install stop signs on a designated through route (SW 7e Avenue), without sufficient. warrants to require the stop signs. The City. Engineer has determined that placement of "15 mph" . advisory signage in advance of the crest and sag in each direction are appropriate mitigation 25 ASH CREEK ESTATES SUBCM/ISKM W-MAND' STAFF REPORT (SUBM034=10) ~mi nrv nor" ucor►~ ~rorv+nc easures and are sufficient to address the deficient "K" value. The City Engineer has determined 49t the sag should be monitored to verify whether the signage is sufficient to slow-traffic. If not effective, the applicant will be required to install additional traffic control measures at the direction of the City Engineer within-a year following completion of the street construction. A condition to this effect will'be imposed: Recommended. Condition of Approval (#52): Prior to commencing site work, the applicant shall submit construction. drawings that show . adviso °15 rnph° speed limit signs to be placed in advance of the crest and sag curves on SW 747.in accordance with the City Engineer's Memorandum of January 25, 2005, which -requires that the sag be monitored after construction to determine if any other measures need. to be taken. The applicant shall be responsible for installation of additional measures within a year after construction of the street is accepted by the City if monitoring indicates that additional traffic control measures are needed. 2. ASSIGNMENT OF ERROR 50) LUBA disagreed with the City's interpretation of the Development Code that would exempt properties with timber deferral status from filing a tree plan consisting of an inventory,. removal plan, protection plan, and mitigation program. The text of their discussion follows: 1. Completeness and Adequacy of the Applicant's Tree Plan • One section of the TCDC is entitled "Tree Removal." TCDC 18.790. We recently discussed this section of the TCDC at some length in Miller v City of Tigard, 46 Or LUBA 536, 539-43.(2004)_ There are, several sections of TCDC 18.790 that are relevant under this assignment of error. -1. Tree Removal Permits TCDC.790.050 identifies. circumstances where a permit is required from the city to remove a tree and identifies circumstances where a permit is not required to remove a tree.6 Under TCDC 18-790.050(A), a city permit is required to remove any trees growing on sensitive lands. But under TCDC 18.790.050(A), -no permit would be required from the city to remove the trees from the part of the subject property that falls outside the sensitive land area along the southern part of the property. TCDC 18.790.050(D)(4) appears to have been intended as a fitrther qualification of -the TCDC 18.790.050(A) requirement for a permit to remove trees on sensitive lands- But if TCDC 18.790.050(D) was intended to qualify TCDC 18.790.050(A), the final clause of TCDC 18.790.050(D)(4) renders the exemption inapplicable in the only circumstance it could apply, i.e., where land in Christmas tree or-forest- tax deferral- is on sensitive lands. The TCDC 18.790.050(D)(4) exemption is unnecessary for trees that are not located on sensitive lands, because TCDC 18.790.050(A) does not require a permit to remove such trees in the first place. In summary, as far as we can tell, the applicant could remove all of the trees from the portion of the property that the applicant proposes to develop, without violating TCDC .18.790.050(A). That is because those 6As relevant, TCDC 790.050 provides- "A. Removal per t required Tree removal permits shall be required only for the removal of any tree which is located on or in- a trve land-area as defined by Chapter 18.775. ssss "D_ Removal permit not required: A tree removal permit shall not be required for the removal of a tree. which- "sssss - "4: is used for Christmas tree production, or [stands on] land registered with the Washington County Assessor's office as tax= deferred tree farm or small woodlands, but does not stand on sensitive lands 26 ASH CREEK ESTATES SUBDMSION TZ AW STAFF REPORT (SUB20M.00010) ees are not located on sensitive lands, and TCDC 18:790.050(A) does not require a permit to remove trees 4less. those trees are located- on sensitive lands.. 2. The Tree Plan Requirement TCDC 18.790.030 requires that a tree plan be-provided when property is developed.? The precise nature of the obligation to protect trees through a tree. plan is somewhat ambiguous. TCDC18.790.030(A) states "[pjrotection is preferred over removal wherever possible." [See footnote 71. But TCDC.. 18.790.010(0) expressly recognizes that trees may need to be removed to develop property," and TCDC 18.990.030(B)(2) anticipates that more than 75% of the trees on a site may be removed to accommodate development, subject to mitigation requirements. [See footnote 71. In addition to the somewhat ambiguous preference for preserving trees, the-city-also relies on a series of incentives for tree preservation, which are set out in TCDC 18.790.040. 3. Petitioner's Arguments Petitioner challenges the adequacy of the applicant's tree protection .plan.. The focus of petitioner's challenge is on the part of the subject property that is to be developed, where most of the trees will be removed. It is not clear to what degree petitioner's arguments challenge the adequacy part of the plan that applies to the - sensitive - lands, where almost all of the trees are to be preserved: But petitioner's argument includes an overriding complaint that the applicant's tree protection plan evolved significantly over the course of the local proceedings and that it is difficult or impossible-to determine with any degree of certainty precisely what the tree protection plan is. The city and intervenor do not really respond to petitioner's arguments that the tree protection plan that the applicant submitted and the city. ultimately -approved is inadequate. to comply with' a number of particular requirements of TCDC 18390.030. (emphasis added) Instead they. rely on city ~uncil findings that no tree protection plan is required at all for the part of the property that'.lies. outside the sensitive -lands part of the property and that. the plan to protect nearly all the trees on the sensitive lands is sufficient to comply with TCDC 18.390.030. We turn to those findings. 'TCDC 18.790.030 provides: "A. Tree plan required A tree plan for the planting, removal and protection of trees prepared by a certified arbodst shallbe provided for any lot, parcel or combination of lots or parcels for which a. development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. "B. Plan requirements. The tree plan shall include the following. "l . Identification of the location, size-and species of all existing trees including trees designated as significant by the city, "2. Identification of a program to save existing trees or mitigate tree removal over 12- inches in caliper. Mitigation must'follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shill. be exchisive of trees required by other development code provisions for landscaping, streets and parking lots: "a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; "b. Retention of from 25% to 501/o of existing trees over 12 inches in caliper requires that two-thirds of the trees to be removed be mitigated in accordance with Section 18-790.0601); "c. Retention of from 501/o to 751/o of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.0601); "d Retention of 75% or greater of existing trees over 12,inches in caliper requires no mitigation- "3. Identification of all trees which are proposed to be removed; _ ~1 A protection program defining standards and methods that will be used by the applicant to protect trees during and after (6nstrction. * # 8TCDC 18.790.010(C) provides: "Recognize-need for exceptions: The City recognizes that, ; s * at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development." 27 ASH CREEK ESTATES SUBDMSION `REMAND' STAFF REPORT (SUB2003MMO) ~ i 4. The City's Findings Simply stated the city council found that r tree protection plan is not required for the part of the subject property where the applicant proposes -to develop houses, notwithstanding the express requirement in TCDC 18390.030 that a tree plan.must be.provided "for any lot, parcel or combination of lots or parcels for which a development application for a subdivision.* * * [or] planned development * * * is filed." The city council reached this conclusion based in large part on the TCDC 18.390.050(D) exemption for tree removal permits discussed above. The city council recognized that if TCDC 18.390.050 is read by itself the TCDC 18.390.050(D)(4) exception serves no purpose, for the reasons we have already explained. 'To give TCDC 18390.050(Dx4) some effect, the city council concluded it should be read to exempt proposals to develop lands that are not sensitive lands from the TCDC 18.390.030. requirements for a tree plan and for mitigation in certain circumstances. The fatal problem with that inteipretation is that TCDC.18.390.050(D)(4) does not say anything about tree plans or mitigation; if is an unnecessary exception to the TCDC 18390.050(A) requirement for a tree permit. We review a local governing body's interpretation of its land-use regulations under the standard set out- at ORS 197.829(l) and-the Court of Appeals' decision in Church v Grant Couniy.9 Even if interpreting TCDC 18390.050(D)(4) in the way the city did here might have survived the more deferential standard of review that was required before Church, it cannot be affirmed undei Church. Contrary to the city's argument, the city's interpretation does not merely clarify "the scope of the exemption" provided by TCDC 18.390.050(D)(4), it applies it to a tree plan requirement .that it clearly does not apply to. The city council's interpretation is inconsistent with the express language of TCDC 18.390.050(D)(4). . The city council's policy reason for the interpretation it applied here presents only a slightly closer question. The city council concluded that no permit is necessary from the city to harvest trees outside sensitive -lands. If the.city is right about that, the applicant in this case could remove all of the trees in. the area proposed r development and then submit the application, thereby avoiding any requirement to produce a tree- plan for at area of the property. If that is true, there may be a' loophole in the city's tree removal ordinance that in some circumstances may effectively eviscerate the TCDC 18.390.030 requirement • for a • tree plan and mitigation. Even if the applicant could take advantage of that loophole, as. far as we know -it has not done so, and the trees remain on the area of the property to be developed. It is also important to note that the possibility that the applicant in this case could utilize the loophole to remove the trees before submitting an application does not render the requirement for a tree plan nonsensical. If the portions of a proposed development site that are not sensitive lands are not completely logged before development even though they could be logged, as will frequently be the case for a variety of reasons, there- is- nothing nonsensical about requiring a tree plan to protect those trees on lands to be developed, during and after the construction phase, and requiring mitigation for the trees that will be removed. It may be that the tree plan that the applicant has proposed comes far closer to a tree plan for the entire property that complies with TCDC 18390.030 than petitioner argues. However, without some assistance from the city and intervenor, we cannot conclude that the approved tree plan is consistent with TCDC 18.390.030. We reject the city's attempt to-interpret TCDC 18390.030 with TCDC 18390.050(D)(4) to conclude that no tree plan is required for the part of the site that does not qualify as sensitive lands. (Emphasis added) This subassignment of error-is sustained. ADDITIONAL FINDINGS AND ANALYSIS "ORS 197.829(l)piovides- - ' UBAJ shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board es that the local government's interpretation: "(a) is inconsistent with the express language of the comprehensive plan or land use regulation; "(b) Is inconsistent with the purpose for the comprehensive plan or, land use regulation; "(c) b inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or "(d) is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements" 28 .ASH CREEK ESTATES SUBDN4S1ON TZMANiY STAFF REPORT (SUB20034=101 its decision, City Council interpreted its code -to require a tree plan only in situations where the 46plicant was required to obtain :a tree cutting permit to remove trees. The City reasoned that because the applicant in this case was not required to obtain a-tree cutting permit for the majority of its site as it was in timber deferral, a tree plan for the entire-site was not required. A tree plan was submitted for the balance of the site where sensitive lands were present. LUBA rejected the City's interpretation. Accordin9IY, the applicant has submitted a tree plan encompassing the entire site and which includes all of the information required in TCDC-18.790.030. The City Forester has reviewed the plan and has agreed that it is acceptable, as noted in his Memorandum of January 24, -2005. The proposed attached. tree plan and arborist's report establishes the trees to be saved and those to be cut. As reflected in that plan, there. are 893 total trees on site that are larger than 12° diameter. Of those, 115 are deemed hazardous -and are not subject to the mitigation requirement. From the remaining 778 net viable trees, 321 are proposed, for removal. This constitutes a 59% retention. - Since the total number of frees that will be retained is greater than 50%; one-half of the caliper inches being. removed is required to be mitigated. A total of 6892 caliper inches are to be removed, so 3,446 caliper inches will be required to be replanted. This may be accomplished by either planting trees on-site, off-site or payment of a fee in lieu. To assure . that mitigation is accomplished and that subsequent tree removals are undertaken in accordance with the requirements of this chapter, staff recommends that the following conditions be imposed: . Recommended Conditions of Approval (#53 and #54): Prior to commencing site work, the applicant shall submit a bond for the equivalent value of mitigation required (3,446 number of caliper inches times $125 per caliper inch). If additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected.through these stages by the same measures afforded to other-'protected trees on site, the amount of the bond may be correspondingly reduced. Any trees planted on the site or off site in accordance with 18.790.060 (D) will be credited against the bond, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the bond as a fee in lieu of planting. Prior to issuance of building permits, the applicanttowner shall record a deed restriction to the effect that any existing tree greater than 12" diameter may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance With this decision should either die or be removed as a hazardous tree. 3. ASSIGNMENT OF ERROR 5(J) LUBA found that the City erred in its decision to grant adjustments to the street improvement standards (number of units on a cul de sac; length of a cul. de sac, and curb tight sidewalks on SW 70) by not providing sufficient findings to respond to the adjustment criteria. The text of their discussion follows: J. Special Adjustments The challenged decision grants an adjustment to street improvement sidewalk construction standards to Aw a curb-tight sidewalk where SW 7e Avenue crosses the drainageway. - The challenged decision also is two adjustments to allow construction of the pro~osed cul=de-sac. Those adjustments allow the cul-de- sac to exceed 200 feet in length and to serve 23 houses.t 1OUnder the TCDC, cul-de-sac streets may, provide access to no more than 20 houses. The adjustment allows the cul-de-sac to serve 23. houses- Apparently the first 200 feet of the cul-de-sac will provide access to lots t and 2 and lots 20-23 The adjustment to the ASH CREEK ESTATES SUBDWIStON T"AW STAFF REPORT (SU8200300010) 29 The citycouncil's decision does not apply the special adjustment criteria set out at TCDC W70.020(C)(I 1), even though the adjustments all appear to be directed at street improvement rec uirements.t t Instead, the city council applied the special adjustment criteria at TCDC I8.370.020(C)(1).t No . party questions that choice by the city, and we therefore do not question it either. The city's findings addressing the TCDC 18.370.020(C)(I)(a) requirement that there be special circumstances are set out beldw. * * The applicant is requesting an adjustment to the 5-foot planter strip along 74°i Avenue. to reduce .1,100 additional square feet of impact to the drainageway and wetland area. The applicant proposes this curb tight sidewalk for the special circumstance where the development is required to cross the stream. Outside the resource area, the sidewalk will meet the. required public street standards. "Due to the presence of the sensitive -lands, the development width of the property makes a looped street unfeasible. Also, because of existing development patterns adjacent to the site,. the curl-de-sac could not be extended to, the site's east property line. The applicant was able to. extend a new public street to the north property line for future connectivity. The length of the cul-de-sac is the primary reason to exceed the 20 home maximum standard on this private street. Because of the special circumstances affecting this property, this criterion has been satisfied." . Record 30a. The city council's findings explaining why the adjustments are necessary for proper design and functioning of the subdivision under TCDC 18.370.020(C)(1)(b) are as follows: 200-foot length limitation is necessary to provide access to lots 3 through 19. Otherwise a loop road would be required and it would appear that such a loop road would almost certainly have to encroach on the wetland and drainage area that is protected under the proposed plan. "TCDC 18.370.020(C)(1 l) provides: "Adjustments for street improvement requirements (Chapter 18.810). By means of a Type H procedure, as governed by Section 18:390:040, the Director shall approve, approve with conditions, or deny a request-for an adjustment to the street improvement requirements, based on findings that the following criterion is satisfied: Strict application of the standards.will result in an unacceptably adverse impact on existing development, on the proposed development, or on natural features such as wetlands, steep slopes or existing mature trees. In approving an adjustment to the standards, the Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards." r?TCDC 18370.020(C)(1) provides: "Adjustments to development standards within subdivisions (Chapter 18.430)- The Director shall consider the application for adjustment at the same time he/she considers the preliminary plat An adjustment may be approved, approved-with conditions, or denied provided the Director finds: "a. There are special circumstances or conditions affecting the property which are unusual and peculiar to the land as compared to other lands similarly situated; "b. - The adjustment is necessary for the proper design or 5nction of the subdivision; "c. The granting of the adjustment will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property, and "dd The adjustment is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the regulations of this title." adjustment criteria at TCDC 18370.020(C)(1) in some respects resemble traditional variance criteria, which are exceedingly- - cult to satisfy. Lovell v Independence Planning Comm., 37 Or App 3, 586 P2d 99 (1978); Wendand v. City ofportland, 22'Or 'TMA 15, 24-26 (1991); Patzkowski Y_ Klamath County, 8 Or LUBA 64, 70 (1983). However as the Court of Appeals made clear in deBardelaben v. Tillamook County, 142 Or App 319, 325-26, 922 P2d 683 (1996), LUBA is to extend appropriate deference to the city's interpretations of its own adjustment criteria. Under Church v.' Grant County, the city is not entitled to the highly deferential standard of review that was required at the time deBardelaben was decided, but it still is entitled to appropriate deference under ORS 197.829(1) and Church. 30 ASH CREEK ESTATES SUBDMSION 'REMAND" STAFF REPORT (SUB2003 )00101 "The adjustment request for the curb tight sidewalk is necessary. to reduce impacts to the drainageway and wetlands. The adjustment for the cul-de-sac length is necessary to provide access to Lots 3-19 and to allow a turn around for emergency equipment and garbage trucks. The adjustment to allow more than 20 units to access the cul-de-sac is a result of both the length of the resulting cul-de-sac, and the desire. to eliminate the need for a second redundant access serving three lots. Providing this second access would have reduced the amount of area available for buildings, with the result of eliminating the lots being served by it. Therefore, this criterion is satisfied" Record 30a-31. The city council's finding regarding the TCDC 18.370.020(C)(1)(c) public health safety and welfare criterion is as follows: "The Fire District has reviewed the proposed street design and has provided no objections to these adjustments. There is no evidence that these adjustments will be detrimental to the health safety or welfare to other property owners surrounding. the site-" Record 31. Finally, the city council's finding regarding the TCDC 18.370.020(C)(IXd) extraordinary* hardship standard is as follows: "Due to existing development patterns, the natural resources, and the shape of the site,. the adjustment is necessary for the applicant to. make use of substantial property rights. The applicant is pioposing to build within the density prescribed for this site. The criteria for granting these adjustments to the street design, cul-de-sac length, and sidewalk standards have been satisfied:" Id. Petitioner assigns error to the city's findings concerning the TCDC 18.370.020(C)(1)(c) public health Mety and welfare criterion and the TCDC 18.370.020(C)(1)(d) extraordinary hardship standard We have set out the other city findings, on the first two criteria, because they have some bearing on the last two criteria Petitioner first . contends that, contrary to the city's , finding that there is no evidence that these adjustments will be "detrimental to the health safety or welfare to other property owners surrounding the -site," there is a great deal of evidence to that effect. The city appears to be correct that some of the evidence cited by petitioner relates more to the development itself rather than the three adjustments that are at issue under this subassignment of error. However, some of the evidence cited by petitioner clearly does address this criterion, and the city's finding that there is no such evidence is in error. (Emphasis added) This part of -subassignment of error 5(n is sustained Petitioner also argues the city's finding that the adjustments are needed to preserve a substantial property right due to extraordinary hardship that would result from strict-compliance with the adjusted standards are inadequate and are not supported by the evidentiary record. Reading the city's- findings concerning TCDC 18.370.020(C)(lxa) and (d) together, we reject petitioners challenge to the findings regarding the cul-de-sac adjustments under TCDC 18.370.020(C)(1)(d). It is reasonably clear from those findings that if the applicant were forced to provide access to the proposed lots without the adjustments, much more of the property would -have to be developed with roads, at a significant additional expense and with the potential loss of lots that would otherwise be approvable. It is reasonably clear . that the city considers those impacts to constitute a hardship. We cannot say the city misinterpreted TCDC 18370.020(Cx1)(d) or that its findings are inadequate to demonstrate.that the cul-de=sac adjustments comply with that criterion. The city's findings concerning-TCDC 18.370.020(C)(1)(d) and the curb tight sidewalk are a different ory. Although it appears that granting the adjustment would serve the desirable purpose- of minimizing fill in 31 ASH CREEK ESTATES SUBDMSION REMAND- STAFF REPORT (SUB2Qai4=10) j wetland and drainage area, the city does not explain why it would be a hardship on the applicant to construct 1weonforming sidewalk_13 To summarize, the city's findings concerning TCDC 18.370.020(C)(1)(c) are inadequate for'all three adjustments. The city's findings concerning'TCDC 18.370.020(C)(1)(a) and (d) are sufficient to demonstrate that the cut-de-sac adjustments comply with TCDC 18370.020(C)(1)(d). The city's findings concerning TCDC 18.370.020(C)(1)(d) : are inadequate to demonstrate that the curb tight sidewalk adjustment satisfied that criterion. ADDITIONAL FINDINGS AND ANALYSIS The City Council addressed the applicant's requested adjustment request under'TCDC 18.370.020(0x1), wtiicti is a general adjustment stand ard and not under TCDC_ 18.370.020(0)(11 which is specific to street improvements. The applicant has acknowledged that in its application material it too addressed the requested adjustments -under the general standard as opposed to the specific standard. In. its decision, LUBA concluded that the .City's findings related to the health safety and welfare impacts of the three adjustments were insufficient. LUBA also concluded that the extraordinary hardship criterion to allow the curb tight sidewalk had not been sufficiently addressed. Staff asserts. that the adjustment for the curb tight sidewalk was not necessary based on the strict criteria in Chapter 18.810, and provides findings for such a conclusion below. Nevertheless, the applicant has provided additional findings related to both the general adjustment. standard as well as the specific street adjustment criteria. Staff agrees that the specific criteria related to street improvements are.more appropriate to this decision than the more general criteria. Staff therefore lieves that the specific criteria of TCDC 18.810.070(C), and 18.370.020(C)(11) apply rather than fte general criteria of TCDC 18.370.020(C)(1). In the event that the Council or a reviewing entity take the position that the general criteria apply, findings relating to those criteria-are also provided. Planter Strip Requirement 18.810.070 (C) A planter strip separation of at least five feet between the curb and the sidewalk shall be required .in the design of streets. except where the following conditions exist: there is inadequate right-of-way: the curbside sidewalks already exist on predominant portions of the street; it would conflict with the utilities, there are significant natural features (large trees, water features etc) that would be destroyed if the sidewalk were located as required, or where there are existing structures in dose proximity to the street (15 feet or lessAdditional consideration for exempting the planter strip requirement may be given on a case by case basis if a property abuts more than one street frontage. There is adequate right of way to accommodate the required planter strip, and sidewalks do not-yet exist on predominant portions of the street. There ate some potential conflicts with utilities, but not'on the side where the planter strip is required. There are also no existing structures that would be in such dose proximity to the new sidewalk. However, additional large trees and water features would be destroyed if the sidewalk were required to be moved five feet further east into the sensitive lands resource. Staff interprets the term "destroyed" to mean that additional trees would be removed; and additional area within. the sensitive resource area would be' disturbed by grading activity, vegetation removal and possible stream bank rechanneling. Although"it is acknowledged that in some instances, ese areas can be restored by the planting of new trees, or through revegetation and redirection of 13 We note that there is no extraordinary hardship criterion tike TCDC 18370.020(C)(1)(d) in the special adjustment criteria for street improvement standards at TCDC 18370.020(C)(11). See n 48. However, as previously noted, the city applied the special adjustment criteria, at TCDC 18370.020(0)(1) rather than the TCDC 18370.020(C (l 1) criteria. 32 ASH CREEK ESTATES SUBDMSION 'REMAND' STAFF REPORT (SUB20W-00013) ! i the stream channel, it is the general preference and the expressed intent of this exemption to avoid impact in the first place. pollecific Adjustment Criteria 18.370.020(Q1 1 "Strict application of the standards will result in an unacceptably adverse impact on existing development, on the proposed development, or on natural features such as wetlands, steep slopes or - existing mature trees. In approving an adjustment to the standards, the* Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards." Findings for Length-of Cul de Sac (TCDC 18.810.030(L)) Strict application of the. 200 foot limitation on cut de sac length would result in an unacceptable adverse impact on the proposed development and natural features for .the following reasons. Preexisting development surrounds a majority of the site to the north and east.. Ash Creek cuts across the property from the southeast to the northwest. The only undeveloped area borders the 968. foot deep site for the first 490. feet.. The last 478 feet could either be served by a long cut de sac, or a loop street. A loop street could not. return to SW 741' without a high degree of encroachment into the stream and wetland resource. This near doubling of pavement would serve no additional units, and would likely result in the loss of the two lots on the south side of the stream. The other possible option would be to propose a street that would extend through the developed properties and ultimately connect with an .adjacent public street. This would have adverse impacts upon existing development however. As described previously, there are no impacts to the public health safety or welfare from granting such an adjustment, so it follows that the impacts raised here exceed any benefit to the public from a strict adherence to this standard. Ondings for Number of Units served By a Cul de Sac Strict application of the 20 unit maximum limitation on a cut de sac would result in an unacceptable adverse impact on the. proposed development and natural features for the following 'reasons. Similar to the findings for the length of the cut de sac, it follows that with a cut de sac of this length, the number of units served by it will exceed the maximum allowed. In this case, there are three additional units on the private cut de sac. -By strictly complying with this standard, the applicant would either have to lose three lots, an adverse impact on the proposed development, or reconfigure the through public street to accommodate the three additional units. Staff examined the future streets plan to asses what impact would result if the public street in Ash Creek Estates were extended to encompass the three additional lots presently on the cut de sac. Staff found that if the street were extended to encompass.the three additional units, the extension of the public street north would either not align with SW Shady Place (thus requiring an adjustment to street spacing) or would not meet geometric curve requirements-to make the alignment (thus requiring an adjustment to street. improvement standards), or would need to terminate in a second cut de sac (thus requiring further adjustments to cut de sac length and number of units served). As noted previously, staff found that safety will not be impacted by the three additional units as the cut de sac street and intersection is in all other manners conforming with design requirements and capable of handling the additional vehicle trips. Also, TVF&R has determined that length does not affect safety with respect. to the number of lots to'be served by a cuWe-sac. The public welfare is moreover unaffected by the three additional houses on this cut de sac since the standard is intended- to limit the use of lengthy cuts-de sac and promote connectivity and transportation options. In this case, there are no available points to connect to, apart m what is already proposed by the future street plan. The existing development pattem and resence of resources prevent the development from complying with the block length standards. Accordingly, there are only two options to access. the eastern tots in the proposed subdivision- one is a cul-de-sac and one is a looped street within the subdivision. A looped street would have to be constructed in environmentally sensitive land and would require significant excavation and/or fill. ASH CREEK ESTATES SUBDMSIO T"AND- STAFF REPORT (SU62OM-00010) 33 c1TY COUNCIL HEARING 2182005 With the proposed cul de sac, preservation of the stream bed and stormwater conveyance system will achieved. This will serve to benefit the general welfare of the public at large. Therefore, staff finds tat the potential adverse impacts exceed the public benefits of strict application of the standards. Findings for Curb Tight Sidewalk TCDC 18.810 030(L) p requirement would result in an unacceptable adverse Strict application of the 5 foot wide planter stri impact on the proposed development and natural features for the following reasons. If a 5=foot planter strip was required, then an approximate 1,100 additional square feet of impact to the drainageway and wetland areas would occur. While this would not have an. adverse impact on existing development, it would have some impact to the proposed development in. terms of-additional landform disturbance and cost- This would also certainly have an additional adverse impact to existing natural features including the stream, wetlands, and likely additional trees. The public benefit of f-a planter strip is the additional aesthetic amenity of breaking the hardscape mass. 'The presence of the large open stream channel behind the road and sidewalk will serve a..similar purpose. Therefore, staff finds that the potential adverse impacts exceed the public benefits of strict application of the standards: General Adjustment. Criteria 18.370.020(C)(1) "c. The granting of the adiustment will not be detrimental to the public health, safety and welfare or incurious to the rights of other owners of property" Findings for Length of Cul de Sac (TCDC 18.810.030(L)) nting the requested adjustment will not be detrimental to the public health, safety and welfare of te public. Nor will it be injurious to the rights of other property owners: The length of a cul-de-sac is a planning issue related to-an attempt to geometrically control block sizes from becoming too long. This standard allows continuity of blocks without. having long dead-end streets affecting block sizes. The applicant's engineer has evaluated this issue as part of a team whose responsibility it is to evaluate the methods set by Metro to control block geometry to increase- connectivity. By limiting the length of cul de sacs, developers are encouraged to- provide more. through. streets, thereby enhancing connectivity. This enhanced welfare is balanced by increased through traffic which may disturb residents. From a safety standpoint, culs-de-sac are vulnerable, from the standpoint of only having one available ingress/egress. In certain situations, this access . could become blocked preventing residents access to or from their homes. This is. also balanced from a public safety perspective by the fact that culs-de-sac are more defensible spaces from, burglary, and. are generally less prone to break-ins and vandalism. The length of a cul de sac has no bearing on public health. Additionally, neither the Tigard Police nor TVF&R raised any safety concerns over the length of the proposed cul-de-sac. Extending the length of the WI-de-sac reduces the number of intersections and. the safety risks associated with intersections. Opponents testified generally that the adjustments allowing a longer cul-de-sac that would serve more than 20 residences would increase the amount of traffic and nearby streets- and then concluded with no further evidence that an increase in traffic will automatically result in decreased safety. The - City finds that the amount of traffic is a function of the number of proposed units, not the arrangement of streets. It may be the case that more traffic will use the single point of access, than if there were o entries into the street, but the net difference from a conforming cul de sac is-approximately 30 tips per day (see the following findings related to 3 extra units on the cul de sac). - This limited number of additional vehicles that will result from the adjustments as opposed to the development- itself will not automatically result in decreased safety as -the streets within and adjacent to the proposed subdivision are capable of handling the full amount of traffic from this development. ASH CREEK ESTATES SUBDMSION -REMAND- STAFF REPORT (SUB2003-00010) 34 f f , oreover, when the property to the north is developed, a new street will connect to the proposed Obdivision and serve to offset the traffic impact at SW 74"' and the Ash Creek Estates public street intersection. Findings for Number of Units served By a Cul de Sac In examining the detrimental impacts to the public health, safety, and welfare, it is important to consider that a conforming cul de sac is limited to 20 units. The subject application represents an increase of 3 units. Many of the findings presented previously with regard to the length of the cul de sac are still relevant to these findings. However this request.will result in a net increase of approximately 30-vehicle trips per day moving through the intersection of the public street and-private cul de sac. There has been no evidence to suggest that.the.public health will be impacted by this additional traffic, as the total number of units is still within the permitted range of density on the site. . In evaluating injury to the rights of other owners of property, the only adjacent property that. may be affected by the proposed addition of-3 lots on the cul de sac is tax lot 200 (immediately north of the subject site). Staff examined the future streets plan to asses what impact would result if the public street in Ash Creek Estates were extended to encompass the three additional lots presently on the cul de sac. Staff found that- if the street were-extended to encompass the three additional units, the extension of the public street north would. either not align with SW Shady Place (thus requiring an adjustment to street spacing) or would not meet geometric curve requirements to make the alignment (thus requiring an. adjustment to street improvement standards), or would need to terminate in a second cul de sac (thus requiring adjustments to cul de sac length and number of units served). With the requested adjustment, the property rights of the adjacent owner are preserved. Staff found that 10Ifety will not be impacted by the, three additional units as the cut de sac street and intersection is in other manners conforming with design requirements and capable of handling the additional vehicle trips. Also, TVF&R has determined that length does not affect safety with respect to the number of lots to be served by a cul-de-sac. TVF&R makes the determination of whether the number of lots poses a safety concern. According to Eric McMullin, TVF&R requires two (2) accesses for safety .when more than 25 residential houses are on a street. Here, that standard is met because only 23 houses will be served. The public welfare is moreover unaffected by the three additional houses on this cul de sac since the standard is intended to limit the use of lengthy cuts-de sac and promote connectivity and transportation options. In this case, there are no available points to connect to, apart from what is already proposed by the future street plan. The existing development pattern and presence of resources. prevent the development from complying with the block length standards. However, where the block length standards incorporated an exemption for these types. of constraints, the cut de sac standards did not. Moreover, due to these prior development patterns, there is no way to connect the private street serving the lots to adjacent streets. Accordingly, there are only two options to access the lots in the proposed subdivision: one is a cul-de-sac and. one is a looped street 'within the subdivision. A looped street would have to be constructed in environmentally sensitive land and would require significant excavation and/or fill. With the proposed cul de sac, preservation of the stream bed and stormwater conveyance system will be achieved. This will -serve to benefit the general welfare of the public at large. Therefore, staff finds no basis to determine any detriment will occur to the public health, safety, or welfare nor does staff find that there is any injury to neighbors as a result of allowing the three additional units on this cul de sac. - No additional conditions -are warranted in this case. 16indings for Curb Tight Sidewalk TCDC 18 810 030(L) Curb tight sidewalks in the area proposed will not be detrimental to the public health, safety and welfare or injurious to the-rights of other property-owners. (The curb fight sidewalk can be considered safe because the area behind the sidewalk has a flat spot which allows pedestrians to keep to the outside while walking.) Curb tight sidewalks ate used often and are an alternate location in many ASH CREEK ESTATES SUBDMSION 'REMAND STAFF REPORT (SUB2003-00010) 35 imilar public streets throughout the city.-This.is not a safety concern. Instead, this detail is used mere-only a few curb cuts are proposed. Planting strips provide for street furniture and places to put mailboxes, power poles, streetlights, telephone. pedestals, and power pedestals. This area does not have many of these features. In addition, as discussed above, the traffic in the area of the proposed -adjustment will be traveling relatively slowly due to the topography of the road. With a normal sized sidewalk, there will not*be pedestrian/vehicle conflicts. The curb-tight sidewalks result in less impact to the stream, and a healthy environment contributes to.public health. °c. The adiustment is necessary for the Preservation and enioyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the regulations of this title. Findings for Curb Tight Sidewalk TCDC 18 810 030(L) Without granting the adjustment, the applicant would be required to amend the Division of State Lands and Army Corps joint wetland permit. One aspect these.. agencies seek in wetland fill/encroachment permits is minimization of disturbance. to the resource. It is conjecture to speculate that the applicant would not be able to obtain such an amendment to-their permit; however, it is important to consider the possibility. Without the DSL/Ammy Corps approval, the project would not be allowed to proceed; depriving the applicant of the ability to dev_ elop t he property at the allowed density- Theo ' ther hardship that would be encountered is.the additional cost associated with either additional fill, or.larger retaining walls. Since the value of the exaction for the roadway .stream crossing is.already disproportionate, additional costs placed on this crossing result in an exceeding hardship on the applicant. The applicant would therefore be denied the rights to develop his property ithin the normal limits of takings law. As the findings for granting the adjustments have been met, no additional conditions of approval are warranted. 4. ASSIGNMENT OF ERROR 5(K) Lastly, LUBA found that since there had been no tree plan filed to establish the methods and extent of tree protection requirements, it was premature to determine whether sufficient protection had been .....afforded to plant materials. The text of their discussion follows: 1K. Landscaping . _ _ ~ _ _ One of the specific planned development criteria is. TCDC 18.350.100(B)(3)(g)(1).14 Petitioner contends that-the city erred in counting the 44 percent of the site that will be included in the open space and drainage tract on the site, which will be-left in its current undeveloped state, in applying the TCDC 18.350.100(B)(3)(g)(1) landscaping requirement. Petitioner contends that TCDC 18.350.100(13)(3)(g)(1). requires more proactive landscaping efforts on the part of the applicant. The city's interpretation of TCDC 18350.100(B)(3)(g)(1) to allow the. open space area that is to be left in its- natural state to be counted toward the TCDC 18.350.100(B)(3)(g)(1) 201/o landscaping requirement is implicit. Record 29. The city contends-that it is a sustainable interpretation under ORS 197.829(1) and. Church- We agree with the city. - 14TCDC 18-350. 1 00(11)(3)(g)(I) imposes the following requirement: Residential Development: In addition to.the requirements of subparagraphs (4) and (5) of section a of this subsection, a minimum of 20 percent of the site shalt be landscaped[.]" 36 ASH CREEK ESTATES SUBDMSION "REMAW STAFF REPORT (SUB2003.OW10) Petitioner also.cites TCDC. 18.745.030(E) and TCDC .18.350.100(B)(3)(a)(5) and argues that the *plicanfs landscape plan fails to protect existing vegetation "as much as possible" or replace trees." The city c es not respond A petitioner's contention concerning preservation of vegetation during construction under -TCDC 18.745.030(E). Accordingly, we sustain that part of subassignment of error 5(l). (Emphasis added).- Petitioner's contention regarding TCDC- 18.350.100(B)(3)(a)(5) is not clear: We have already sustained petitioner's subassignment of error 5(1). Until that deficiency is considered by the city on remand, it is premature to consider whether there. is any. obligation to replace any trees in the-. area to be developed, beyond the replacement trees that are already proposed. This subassignment of error is sustained in part. ADDITIONAL. FINDINGS AND ANALYSIS LUBA had found that since the applicant had not prepared a tree: plan; there was inadequate evidence to evaluate the petitioner's claim that vegetation was not being. protected. The applicant has submitted the required tree plan, including a protection program. Apart from the' areas that will be disturbed to construct the infrastructure (sewer; water, storm drainage, streets, 'etc.) and the lots that will be graded -for soil stability and proper drainage, the remainder of the site will be required to be protected from disturbance. The applicant will be required to erect protection fencing around each tree -or group of trees to be retained- To ensure that the remaining vegetation is protected as much as possible, the following conditions should be required. Recommended Conditions of Approval (#55, 56, 57, 58): Prior to commencing any site work the applicant shall submit -construction drawings that • include the approved Tree Removal, Protection and `Landscape Plan. The "Tree Protection StepsT identified in Teragan & Associates Letter of November 19, 2004 shall be reiterated in the construction documents. The plans shall also include. a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. Prior. to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are performing adequately: Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be-grounds for immediate suspension of work on the site unfit remediation measures and/or civil citations can be processed. Prior to final plat approval, the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, at least; once every two weeks, from initial tree protection zone (TPZ) fencing installation, through site work, as he monitors the construction activities usTCDC 18.745.030(E) provides: - -m-Protection of existing v etation_ Existing vegetation on a site shall be protected as much as possible. The developer. shall provide methods for the protection of existing vegetation to remain during the construction process, and IF 2 The plants to be saved shall be noted on the landscape plans (e.g., areas not to be disturbed can be fenced, as in snow fencing which can be placed around individual trees). TCDC 18350.100(B)(3Xa)(5) provides: "Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal." 37 ASH CREEK ESTATES SUBDIVISION 'REMAND' STAFF REPORT (SUB2003-00010) MTI ~N.../~s • r n.n.nnni i and progress. These reports should include any changes that occurred to the TPZ as well as . the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the. construction activities. to the trees did not adversely impact the overall and long-term health and stability of the tree(s). If the reports are riot submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZs or the Tree Protection Plan is not being followed by the contractor, the City shall stop work on the project until-an inspection can be done by the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing; determine if the fencing was -moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees -that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction. techniques to be employed in building the house. All proposed. protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval from the City Forester, the tree protection measures may be removed. : SECTION VII. CONCLUSION In conclusion, the City asserts that the applicant has adequately responded to the errors identified by ~UBA, and has supplemented the record with additional information and evidence with which to evaluate e findings. Staff concurs with the applicant on these findings, and has recommended several additional conditions of approval to ensure -that these standards and practices are.implemented as part of this final decision. Staff therefore recommends-approval of the.Ash Creek Estates Subdivision, case file SUB2003-000101 ZON2003-00003/ PDR2003-00004/ SLR2003-000051 VAR2003-00036/ VAR2003- 00037. January 25, 2005 PREPARED BY: Morgan Tracy DATE Associate Planner January 25, 2605 APPROVED BY: Dick Bewersdorff DATE Planning Manager 38 ASH CREEK ESTATES SUBDMStON 'REMAND' STAFF REPORT (SUB2003-00010) EXHIBIT B • CITY OF TIGARD, OREGON ' RESOLUTION NO.03-(01 A RESOLUTION TO AMBND RESOLUTION 03-58, APPROVMG THE ASH CREEK ESTATES PLANNED -DEVEMPMBNT, TO CORRECT 'S'HE REFERENCED DATE OF TH 6 APPUCANT'S LET= ESTABLISHING THE CONDITIONS OF APPROVAL. WHEREAS, the Planning Commission reviewed the Ash Creep Estates Planned Development proposal at a public hearing at its meeting of July 7, 2003; and WHEREAS, flee-Planning Commission made motions to both deny and approve the -application, bc& of which failed in a 44 tie vote; and WIIEREAS, the by-laws of the Planning Commission and Robert's Rules. of Order specify that if an affirmative vote in favor of an application is not attained, the application is denied. Since the denial occurred de facto, no findings were- adopted, and the denial is without prejudice; and W M EAS; the City Council held a public hearing on flie appeal of the denial on August 12, 2003 which was continued to September 9, 2003 to take additional testimony; and • R'I EREAS, City Council reviewed the testimony, submittals, and staff report on Augast 12, 2003 and September 9, 2003, and reviewed findings and conditions of approval that were prepared by the applicant, Winwood Construction, on October 28,2003; and WHEREAS, the City Council concluded that the proposed development with the conditions of approval as prepared by the applicant, would be in compliance with all applicable decision criteria; and WHEREAS, the -City Council adopted a resolution approving the Ash Creek Estates Subdivision that included a reference to Eadlibit A, the applicauYs letter dated September 26, 2003, where the correct date of that letter and Bxlubit as included with the previous resolution 'was in fact October 10, 2003, and Council wishes that the record reflect the accurate date; NOW, TITEItffORB, BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Couacil approves applications SUJ32003-0Ml( PDR2003- 00004/ZON2003 M3/SLR2003-000051VAR2003-00036!VAR2003-00037 - Ash Creek Estates Subdivision, subject to the conditions of approval stated in the letter dated October. 10. 2003. from Steve Tray of Kurahashi Associates to the City of Tigard,. attached with Resolution 03-58 and incorporated herein by this reference. - j RESOLUTION NO. 03 Page 1 39 i stosompeo-Tt.t ~e 41 bom'JO cowca jut Twei this~ , a b,,v vo 200 is ~~,pl'~ 3= ~ daY ~ ~ - PASS' - . dd - Civy °f Tl city TIC ~gpl~il3O-fl3 l[ { FPSp P~2 41 ' i EXHIBIT C CITY OF TIGA RD, OREGON R.Es IL:U rm NO. o3_58. A RMOLUTION N-AND FINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUE) 2003-40Q10/PLANNED DEVELOPMENT REVIEW EPDR) 20034OWM,- N E CHANGE (ZON) 2003-00003/SENSMVE LANDS REVIEW (SLR) 2003-00005/ADJUST1 fMr (VAR) 2003-000WADJUSTMENT (VAR) 2003-(10037), ADOPTING FINDINGS AND DVOSING CONDITIONS. WHEREAS, the Planning Commission reviewed"this case at a public hearing ai its meeting of Iuly"7, 2003; . and WHEREAS, the Planning Commission made motions to both deny and approve the appfication, both of . which faded in a 44 tie vote; and WHEREAS, the by4avws of the Manning Commission and Robert's Rules of Order specify that if an affirmative vote in favor of an application is not attained, the application is denied Since the denial occurred de facto, no findings were adopted, artd the denial is without prejudice; and • WHEREAS; the City Council held a public heating on the appeal of the denial on August 12, 2003 which was continued to September 9, 2003 to take additional testimony, and WHEREAS, the City Council reviewed the testimony, submittals, and staff report on August 12, 2003 and September 9, 2003, and reviewed findings and conditions of approval that were prepared by the applicant, Wlmvood Construction, on October 28, 2003; and WIMREAS, the City Council concluded that the proposed development with the conditions of approval as prepared by the applicapt, would be in compliance with all applicable decision criteria; M MT, THERE :FORT, BE IT RESOLVED by the Tigard City Council that SECTION 1: The Tigard City Council approves applications SUB2003-MtO/PDR2003- 00004/ZON2003-00003/SL,R2003-00005/VAR2003-0003GIVA.R2003-00037 - Ash Creek Estates Subdivision, subject to the conditions of approval stated in the letter dated September 26, 2003, from Steve Kay of Kurahashi Associates to the City of Tigard, attached hereto as Exhibit A and incorporated herein by this reference. SECTION 2: The Tigard City Council adopts the findings stated in the StaffReport to the Planning Commission, attached hereto as Exhibit. B and incorporated herein by this reference. The Council fivdier adopts the fin&gs stated in the above-referenced Exhibit A. RESOLUTION NO. 03 Page l 41 r OfTh$.deeuiOlm ~ted- ois egfieea►no0 203. soby SECTYotq 3' b daY of PASS'S= 1 of gad MR - 42 I~ go. 03 - VESOL p page2 • Exhibit A Steve Kay Kurahashi and Associates 15580 SW Jay Street, Ste 200 Beaverton, OR 97006 October 10, 2003 City ofTigard City Council Members 13125 SW Hall Blvd. Tigard, OR 97223 Re: Findings For Ash Creek Estates Subdivision, SUB2003-00010 Dear City . Council Members: On September 9, 2003, the City Council approved the application for the Ash Creek Estates Subdivision, SUB2003-00010. On behalf of the applicant, Windwood Construction; we are submitting findings that . demonstrate how the applicant has met the approval criteria identified in the Staff Report. Applicable development criteria, responses to those criteria, and additional suggested Conditions of Approval are provided below. • APPLICABLE REVIEW CRITERIA AND FINDINGS: CHAPTER 18350: PLANNED DEVELOPMENTS The Planned Development Process: Section 18350.030 states that there are three elements to the planned development approval process, as follows: • The approval of the planned development overlay zone; • The approval of the planned development concept plan; and • 'The approval of the detailed development plan. Findings: As required, the applicant has followed the Planned Development process for this application- This application has been submitted for approval of the planned development overlay zone, concept plan, and detailed plan Applicability of the Base Zone Standards: Section 18350.070 requires compliance to-specific development standards: The provisions of the base zone are applicable as follows: Lot dimensional standards: -The minimum lot size, lot depth and lot width standards shall-not apply except as related to the density computations under Chapter 18.715; 43 • Findings: As allowed under the planned development the _ process, applicant has requested smaller lot sizes than required by the R-4.5 zone. Proposed lot widths are 50 feet or wider and lot depths are 68-153 feet deep. As required by the Conditions of Approval, the applicant will be required to modify Lot 29 so that it meets frontage standards. The applicant has met the density requirements as discussed later in these findings. Site coverage: The site coverage provisions of the base zone shall apply; Findings: The R-4S zone does not have site coverage requirements, therefore-this standard does not apply- Building height: The building height provisions shall not apply; " Findings: The applicant has not proposed an alternative height standard with this application, therefore the application is subject to the standards of the base zone. Structure setback provisions: Front yard and rear yard setbacks for structures on 'the perimeter of the project shall be the same as that required by the base zone unless otherwise provided by Chapter 18360; Findings: The applicant has met this standard by submitting a site plan illustrating building envelopes • within the development. Perimeter setbacks are as required by the base zone, and are further described as a 15-foot rear yard setback on Lots 1-13, a 20-foot- front yard setback for Lots 24-27, and a 10-foot south side yard for Lot 29, a flag IoL In the interior of the site, the applicant proposes an 8-foot front yard setback to primary structures and porches. Setbacks to the face of the garage is proposed to remain at 20 feet from the front property line of Lots 12-26. Setbacks to the garage on Lots 1-11 are proposed to be 22.5 feet, where sidewalks are 4.5 feet on to those lots- The side yard setback provisions shall not apply except that all detached structures shall meet the Uniform Building Code (UBC) requirements for fire walls; Findings:-The applicant proposed to reduce the side yard setback from 5 to 3 feet, which is the minimum separation required for UBC compliance. No projections including bay windows or chimneys, shall be allowed into the side areas. Therefore, this criterion has been met_ Front yard and rear yard setback requirements in the base zone setback shall. not 9pply to structures on the interior of the project except that: (1) A minimum front yard setback of 20 feet is required for any garage structure which opens facing a street; (2) A minimum front, yard setback of 8 feet is required for any garage opening for an attached singlesfamily dwelling facing a street as long as the required off-street parking spaces are provided. Findings: As mentioned previously, the applicant proposes an 8-foot front yard setback to primary structrues and porches and setbacks "to the face of the garage is proposed to. remain at 20 to 22.5 feet: However, several of the rear setbacks have been modified with this application. Staff has recommended that the rear yard setbacks for lots with depths of 100 feefor more (e.g. lots 13 through 18) not be reduced As required by the staffs Conditions of Approval, the applicant is required to maintain a 20- foot rear yard setback for Lots 27 and 28. With the" Condition of Approval, this criterion has been met_ 2 44 Other provisions of the base zone: All other provisions of the base zone shall apply except as modified by this chapter_ Findings: Required provisions of the base zone have been satisfied by the applicant. All other provisions of the base zone will be met during the building pecmitphase. PD Approval Criteria: 18350.100 Specific planned development approval criteria. The Commission shall make findings that the following criteria are satisfied when approving or approving with conditions, the concept plan. The Commission shall make findings that the criteria are not satisfied when denying an application. All the provisions of the land division provisions; Chapters 18.410, 18.420 and 18.43b,.shall lie met; Findings: The applicant has requested to subdivide the property concurrently with the planned development approval, therefore this criterion has been met. The applicant's compliance with Chapters 18410,18.420 and 18.420 is discussed below. Except as noted, the provisions of the following chapters shall be utilized as guideline. A planned development need not meet these requirements where a development plan provides alternative designs and methods, if acceptableto the Commission, that promote the purpose • of this section. In each case, the applicant must provide findings to justify the modification of the standards in the chapters listed on Subsection 3 below. The developer may choose to. provide or the commission may require additional open space dedication and/or provision of additional amenities, landscaping or tree planting. Chapter 18.715, Density Computation and Limitations. Unless authorized below, density shall be governed by the density established in the underlying zoning district. The Commission may further authorize a density bonus not to exceed 10% as an incentive to increase or enhance open space, architectural character and/or site variation incorporated into the development. These factors must make a substantial contribution to objectives of the planned development. The degree of distinctiveness and the desirability of variation achieved shall govern the amount of density increase which the Commission may approve according to the following: • A maximum of 3% is allowed for the provision of undeveloped common space. • A maximum of 3% is allowed for landscaping; streetscape development; developed open spaces, plazas and pedestrian pathways and related amenities; recreation area. development, and/or retention of existing vegetation'; • A maximum of 3% is allowed for creation of visual focal points; use of existing physical amenities such as'topography, view, and suntwind orientation; . • A maximum of 3% quality of architectural quality and style; harmonious use of materials; innovative building orientation_ or-buiilding grouping; and/or varied use of housing types. Findings: The applicant has not requested any modifications to the density standards, therefore this _ • 3 45 • standard has been met Density will be further discussed under Chapter 18.715 below- , Chapter 18.730: Exceptions To Development Standards Findings: The applicant has requested modifications to the lot standards under the planned development process, therefore this criterion is not applicable. Chapter 1&795: Visual Clearance Areas.. Findings: As required, the applicant has submitted plans which show that visual clearance areas at.street intersections will be maintained free. from obstructions taller than 3 feet in height. The applicant's plans. identify that vision, clearance areas and sight distance requirements will be met at the intersection of 74!b Avenue and Street `A', as well as at the intersection of the proposed Street `A' and the new private. street. Compliance with vision clearance requirements will be confirmed by a post improvements-construction sight distance certification and through the building permit process for all homes to be constructed within the development. Therefore, this criterion has been met by the applicant. Chapter 18.745: Landscaping And Screening Findings: There is no landscaping buffer requirement between the proposed detached single-family. development and the adjacent detached single-family developments- However, the-applicant is required • to Landscape 201/o of the site because. of the request for a Planned Development The applicant has provided a-street tree plan for 74t° Avenue and has proposed to leave the open space tract in its natural state to meet this criterion- The open space accounts for 44% of the site, which already contains more than the 20% gross site area of landscaped areas, therefore this criterion is met Chapter 18.765: Off-Street Pdrldng And Loading Requirements Findings: The minimum requirement for household living is one space for every dwelling unit The applicant has proposed 2-car garages and another 2 spaces into each of each garage for every lot within the development, therefore this criterion is satisfied. Chapter 18.705: Access, Egress And Circulation Findings: The applicant has provided access to every lot through-a minimum 10-foot wide driveway that connects to a public or private street The proposed street improvements are evaluated later in this report_ Chapter 18.780: Signs - Findings: No signs are requested with this application. -There has been a proliferation of sign violations from marketing new subdivisions. In accordance with a policy adopted by the Director's Designee, all new subdivision developers must enter into a sign compliance agreement to facilitate a more expeditious court process-for citations. The applicant has been required to sign this compliance.agreement through a condition of approvaL 46 In addition, the following criteria shall be met: Relationships to the natural and physical environment: The streets, buildings and other site elements shall be designed and located to .preserve the . . existing trees, topography and natural drainage to the greatest degree possible; - Findings: The applicant has proposed to remove the trees within the developable area and retain all trees . in the open space tract, except where they are impacted by public facility improvements. Removal of these trees is allowed due to the site's forest timber deferral status. Since the open space tract also contains the natural drainage way, it will be preserved by the proposal. The drainageway will only be slightly impacted by the City required extension of 74'h Avenue, but this impact will be minimized by utilizing curb tight sidewalks to limit fill encroachment_ During the hearing, the-applicant further proposed to retain trees within a 15 foot perimeter where proposed lots abut existing homesites on the north and east boundaries of the site (Lots 1-13). Additionally, the applicant proposed enacting a CC&R related to continued preservation of trees left on site following development. An erosion control and grading plan will be required during the engineering approval process to ensure sensitive areas will not be impacted by sedimentation or erosion, as well as to mitigate off-site impacts. The erosion control plan will ensure that areas where landfoffi alteration takes place.will be replanted.- The applicant has also submitted a geotech report, which indicates which areas should and should not be developed. As a Condition of Approval, the applicant will be required to undertake. farther geotechnical investigations in for Lots 13-15, 22 and 23. The applicant is also conditioned to have the geotechnical • engineer review the proposed building placement grading plans prior to final plat approvaL Therefore, as required, the applicant has met this criterion to the greatest extent possible. Structures located on the site shall not be in areas subject to ground slumping and sliding; Findings: The applicant's geotech report indicates areas of slumping and sliding in the proposed open space tract, where development is not proposed Lou 13-15 and between lots 22 and 23 have steep slopes and groundwater that was encountered during digging of the test pits. As a Condition of Approval, the applicant will be required to undertake finther investigations in these areas. There shall be adequate distance between on-site buildings and other on-site and-off-site buildings on adjoining properties to provide for adequate light and air circulation and for fire protection; Findings: The applicant does notpropose to reduce the rear setbacks for Lots 1-12. For the interior of site, the street and front yard setbacks will establish ample distance between the.homes. The applicant also proposes 3-foot side yards between interior lots, which complies with UBC standards. Therefore, this criterion has been satisfied. The structures shall be oriented with consideration for the sun and wind. directions, where possible; and Findings: The applicant has oriented. proposed structures in a north-south direction to the extent possible to provide for opportunities to maximize southern glazing exposure. • 5 47 Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal Findings: As mentioned previously, removal of trees outside the sensitive land area is allowed.due to the site's forest timber deferral status. Some trees within the open space tract will require removal to account for utility construction and for the street crossing, but these have been design to minimize impacts on trees. The applicant has preserved trees in the open space tract to the maximum extent possible_ Buffering, screening and compatibility between adjoining uses; Buffering shall he provided between types of land uses, e.g., between single-family and multi-family residential, and residential and commercial uses; Findings: The applicant is proposing a detached single=family residential development and adjacent properties are also detached single-family residential developments. Therefore, according to the development code, this criterion is not applicable to this application. In addition to the requirements of the buffer matrix (Table 18.745.1), the following.factors shall be considered in determining the adequacy and extent of the buffer required under Chapter 18.745: • The purpose-of the buffer, for example to decrease noise levels, absorb air pollution, filter dust, or to provide a visual barrier; • The size of the buffer needs in terms of width and height to achieve the purpose; • The direction(s) from which buffering is needed; • The required density of the buffering; and - • Whether the viewer is stationary or mobile. Findings: There are no buffering requirements between the proposed single-family homes and the. existing single-family homes; therefore this criterion is not applicable. On-site screening from view from adjoining properties of such activities as service areas, storage areas, parting lots and mechanical devices on roof tops shall be provided and the following factors shall be considered in determining the adequacy of the type and extent of the screening: (a) What needs to be screened; (b) The direction from which it is needed;. and c) Whether the screening needs to be year-round. Findings: There are no service areas, storage areas, parking lots or mechanical devices proposed with this development, therefore this criterion is not applicable. Privacy and Noise: Non-residential structures which abut existing residential dwellings shall be located on the site or be designed in a manner, to the maximum degree possible, to protect the private areas on the adjoining properties from view and noise; Private outdoor area - multi-family use:- Shared outdoor recreation areas - multi-family use: Findings: The applicant is proposing single-family dwelling units- These criteria relate to non-residential or multi-family structures. 48 Access and Circulation: The number of allowed access points for a development shall be provided in Chapter 18.705; Findings: Lots 1-27 have direct frontage to a local public or private street in the interior of the site. As a Condition of Approval, Lots 28 and 29 will share a common driveway to 74`s Avenue, a Neighborhood Route. All circulation patterns within a development must be designated to accommodate emergency vehicles; and Findings: Tualatin Valley Fire and Rescue have reviewed the proposal and indicated that the proposed . circulation system is acceptable if certain conditions are addressed To satisfy these conditions, the applicant must satisfy the following conditions before by the applicant is issued building permits: 1. FIRE APPARATUS ACCESS ROAD WIDTH AND VERTICAL CLEARANCE: Fire apparatus access roads shall have an unobstructed width of not less than 20 feet (15 feet for one or two dwelling units and out buildings), and an unobstructed vertical clearance of not less than 13 feet 6 inches. (UFC Sec. 902.2.2.1) Where fine apparatus roadways are less than 28 feet wide, "NO PARKING" signs shall be installed on one side of the roadway and in turnarounds as- needed Where fire apparatus roadways are 32 feet wide or more, parking is not.restricted. (UFC Sec. 902.2.4) 2. NO PARKING SIGNS: Where fire apparatus roadways are not.of sufficient width to accommodate parked vehicles and 20 feet of unobstnrted driving surface, "No Parking" signs shall be installed on one or both sides of the roadway and in turnarounds as needed (UFC Sec. 902.2.4) Signs shall conform to the City if Tigard engineering standards. 3. TURNING RADIUS: The inside turning radius and outside turning radius shall not be less than 25 feet and 45 feet respectively, measured from the same center point. (UFC Sec. 9022.2.3) 4. GRADE: Private fire apparatus access roadway grades shall. not exceed an average. grade of 10 percent with a maximum grade of 15 percent for lengths of no more than 200 feet. Intersections and turnarounds shall be level (maximum 5%) with the. exception of crowing for water run-off. Public streets shall have a maximum grade. of 15%.. (UFC Sec. 902.22.6) 5. SINGLE FAMILY DWELLINGS AND DUPLEXES - FIRE HYDRANTS: Fire hydrants for single family dwellings, duplexes and subdivisions, shall be placed at each intersection. Intermediate fire hydrants are required if any portion of a structure exceeds 500 feet from a hydrant at an intersection as measured in an approved manner around the outside of the structure and along approved fire apparatus access roadways. Placement of additional fire hydrants shall be as approved by the Chief_ (UFC Sec: 903.42.2) 6. FIRE HYDRANT DISTANCE FROM AN ACCESS ROAD: Fire hydrants shall be located not more than 15 feet from an approved fire apparatus access roadway. (UFC Sec. 903.42.4) 7. REFLECTIVE HYDRANT. MARKERS: Fire hydrant locations shall be identified by the installation of reflective markers. The markers shall be blue. They shall be located adjacent and - • 7 49 i to the side of the centerline of the access road way that the fire hydrant is located on_ In case that there is no center line, then assume a centerline, and place the reflectors accordingly. (UFC Sec. 901.4.3) 8. SINGLE FAMILY DWELLINGS - REQUIRED FIRE FLOW: The minimum available fire flow for single family dwellings and duplexes shall be 1,000-gallons per minute- If the structure(s) is (are) 3,600 square feet or larger, the required fire flow shall be determined according to UFC Appendixx Table A-III-A-1. (UFC Appendix III-A, Sec. 5) 9. ACCESS AND FIRE FIGHTING WATER SUPPLY DURING CONSTRUCTION: Approved fire apparatus access roadways and fire fighting water supplies shall be installed and operational prior to any other construction on the site or subdivision (UFC Sec. 8704) Provisions shall be made for pedestrian and bicycle ways if such facilities are shown on an adopted plan. Findings: SW 74" Avenue, which fronts the development, is a Neighborhood Route but has not been designated for bike lanes. This criterion does not apply. Landscaping and open space: Residential Development: In addition to the requirements of subparagraphs (4) and (5) of section a of this subsection, a minimum of 20 percent of the site shall be landscaped; Findings: The open space and drainage tracts of this proposal account for 44% of the site area. That in • combination of the landscaping on the site will exceed the minimum 20°/. landscape criteria. Much of the open space area will remain in its natural state, however, areas of steep slopes that are disturbed must be replanted according to the geotech report. Additionally, areas within the drainageway and wetlands will require mitigation replanting per Clean Water Services and the. Division of State Lands requirements: Therefore, this criterion has been met. Public Transit: ' Provisions for public transit may be required where the site abuts a public transit route. The required facilities shall be based on: • The location of other transit facilities in the area; and • The size and type of the proposed development The required facilities shall be limited to such facilities as: • A waiting shelter, • A turn-out area for loading and unloading; and • Hard surface connecting the development to the waiting area Findings: The site does not abut a public transit route, therefore this criterion is not applicable Signs: Findings: No signs are proposed with this development_ There has been a proliferation of sign violations fi-om marketing new subdivisions- In accordance with a policy adopted by the Director's Designee, all new 8 - - 50 subdivision developers must enter into a sign compliance agreement to facilitate a more expeditious court process for citations. The applicant has been required to sign this compliance agreement through a condition of approval Parking: All parking and loading areas shall be generally laid out in accordance with the requirements set forth in Chapter 18.765; Up to 501/6 of required off-street parking spaces for single-family attached dwellings may be provided on one it more common parking lots within the planned development as long as each single-family lot contains one off-street parking space. Findings: The applicant has proposed that the homes will have minimum 2-car garages and another 2 spaces in front of each garage in the driveway for every lot within the development, therefore this criterion is satisfied. Drainage: All drainage provisions shall be generally laid out in accordance with the requirements set. forth in Chapter 18.775, and the.criteria in the adopted 1981 master drainage plan; Findings: The applicant's engineer has. prepared preliminary calculations which indicate that meeting storm water drainage standards is technically feasible, as it has been shown on the submitted preliminary plans. To ensure that standards for storm water drainage will be met, the applicant has been conditioned to comply with applicable City of Tigard and Clean Water Services storm water requirements. Floodplain dedication: Where landfill and/or development is allowed within or adjacent to the 100-year floodplain, the-City shall require consideration of the dedication of sufficient open land area for a greenway adjoining and within the floodplain, This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway with the floodplain in accordance with the adopted pedestrian bicycle pathway plan. Findings: Ther e are no areas within the 100-year floodplain on the site. Therefore, this standard is not applicable. Shared Open Space: Requirements for shared open space: Where the open space is designated on the plan as common open space the following applies: • The open space shall be shown on the final. plan and recorded with the Director; and • The open space shall be conveyed in accordance with one of the following methods: By dedication to the City as publicly-owned and maintained as open space. Open space proposed for dedication to the City must be acceptable to it with regard to the size, shape, location, improvement and budgetary and maintenance limitations; By leasing or conveying title (including beneficial ownership) to a corporation, home association or other legal entity, with theCity retaining the development rights to the - 9 51 • property. The terms of such lease or other instrument-of conveyance must include provisions suitable to the City Attorney for guaranteeing the following: • The continued. use of such land for the intended purposes; • Continuity of property maintenance; • When appropriate, the availability of funds required for such maintenance; • Adequate insurance protection • Recovery for loss sustained by casualty and condemnation or otherwise. By any method which achieves the objectives set forth in Subsection 2 above of this section. Findings: As a condition of approval, the applicant will be required to convey title of the proposed open space as a separate tract to a Homeowner's Association in accordance with the requirements of the Tigard Development Code and Clean Water Services requirements for buffers. CHAPTER 18.370: SPECIAL ADJUSTMENTS Adjustments to development standards within subdivisions (Chapter 18.430)_ The Director shall consider the application for adjustment at the same time helshe considers the preliminary plat. An adjustment maybe approved, approved with conditions, or denied provided the Director finds: Findings: The applicant is requesting an adjustment to the street improvement standards on SW 74th Avenue. and an adjustment to the cul-de-sac standards. On 7e Avenue, the applicant is requesting an adjustment to allow the sidewalk to be curb tight in order to reduce the amount of fill required in the, drainageway area. The applicant has also requested that the cul-de-sac design standards be adjusted to allow 23 homes access to the cul-de-sac verses the allowed standard of 20 homes, and to allow a cul-de- sac longer than 200 feet These adjustments are addressed below. . There are special circumstances or conditions affecting the property, which are unusual and peculiar to the land as compared to other lands similarly situated; Findings: The applicant is requesting an adjustment to the 5-foot planter strip along 7e Avenue to reduce 1,100 additional square feet of impact to the drainageway and wetland area. The applicant proposes this curb tight sidewalk for the special circumstance where the development is required-to cross the stream Outside the resource area, the sidewalk will meet the required public street standards. . Due to the presence of the sensitive lands, the development width of the property makes a looped street unfeasible- Also, because of existing development patterns adjacent to the site, the cul-de-sac could not be extended to the site's east property line. The applicant was able to extend a new public street to the north property line for future connectivity. The length of the cul-de-sac is the primary reason to exceed the 20 home maximum standard on this private street. Because of the special circumstances.affecting this property, this criterion has been satisfied. The adjustment is necessary for the proper design or function-of the subdivision; Findings: The adjustment request for the curb tight sidewalk is. necessary to reduce impacts to the 10 10 52 dramagewaY and wetlands- The adjustment for the cul-de-sac length is necessary to provide access to Lots 3-19 and to allow a turn around for emergency equipment and garbage trucks. The adjustment to allow more than 20 units to access the cul-de-sac is a.result of both the length of the resulting cul-de-sac, and the desire to eliminate the need for a second redundant access serving three lots. Providing this second access would have reduced the amount of area available for buildings, with the result of eliminating the lots being served by it. Therefore, this criterion has been satisfied. The granting of the adjustment will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property; and Fmdings: The Fire District has reviewed the proposed street design and has .provided no objections to these adjustments. There is no evidence that these adjustments will be detrimental to the health safety or.. . welfare to other property owners surrounding the site. The adjustment is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship, which would result.from strict compliance with the regulations of this title. F'mdings: Due to existing development patterns, the natural resources, and the shape of the site, the adjustment is necessary for the applicant to make use of substantial property rights. The applicant is proposing to build within the density prescribed for this site. The criteria for granting-these adjustments to the street design, cul-de-sac length, and sidewalk standards have been satisfied CHAPTER 18330: ZONE CHANGE: • A recommendation or a decision to approve, approve with conditions or to denyan application for a quasi-judicial zoning map amendment shall be based on all of the following standards: Demonstration of compliance with all applicable comprehensive plan policies and designations; Findings: This application has been reviewed under the standards of the Tigard Development Code, which is implemented under the comprehensive plan. This criterion has been satisfied. Evidence of change in the neighborhood or community or a mistake or inconsistency in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application. Findings: The applicant satisfies the criteria- for a zone change-to place the Planned Development Overlay zoning onto the property. CHAPTER 18.430: SUBDIVISIONS Preliminary Subdivision Plat Approval Criteria: 18A30.040 Approval criteria: The approval Authority may approve, approve with conditions or deny a preliminary plat based on the following approval criteria: I1 - 11 53 The proposed preliminary plat complies with the applicable zo ning ordinance and other - applicable and regulations; Findings: As illustrated by this report; the proposed plat complies with all applicable ordinances and regulations- The proposed plat name is not duplicative or otherwise satisfies the provisions of ORS Chapter 92; Findings: As required, the applicant will provide an approved plat name reservation prior to final. plat approvaL The streets and roads are laid out so: as to conform to the plats of subdivisions and maps of major partitions already-approved for adjoining property as to width, general direction and in all other respects unless the City determines it is in the public interest to modify the street or road pattern; and Findings: As mentioned previously, site conditions and existing development limit the applicant to provide street stubs to the east and south, however, a street stub has been provided to the property to the north- The applicant is also proposing to extend 74" Avenue to the south. This. criterion has been met. An explanation has' been provided for all common improvements. • Findings: The applicant has provided an explanation for all common improvements. As required, the applicant will provide an approved plat name reservation prior to final plat approvaL CHAPTER 18.510: RESIDENTIAL ZONING DISTRICTS Residential Zoning District: Section 18510.020 The R45 zoning district is designated to accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet. Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also permitted conditionally. Findings: This Planned Development is permitted in this district as long as the applicant satisfies all applicable criteria. Development Standards: Section 18510.050 States that Development standards in residential zoning districts are contained in Table 18510.2: Findings: The proposed development is a Planned Development and is allowed to very from the standards of the base zone. Therefore, the applicant has satisfied these criteria. CHAPTER 18.705: ACCESS AND EGRESS Minimum- access requirements "for residential use: Section 18.705.030H - 12 12 5 • Access Management (Section 18.705.030.II) Section 18.705.030.11.1 states that an access report shall be submitted with all new development proposals which verifies design of driveways and streets are safe by meeting adequate stacking needs, sight distance and deceleration standards as set by ODOT, Washington County, the City and AASHTO. Findings: The applicant's engineer indicates that sight distance will be met. The engineer is required to -provide a post-construction sight distance certificate to ensure that this standard is met_ Section 18:705.030.11.2 states that driveways shall not be permitted to be placed in the influence area of collector or arterial street intersections. Influence. area of intersections is that area where queues of traffic commonly form on approach to an intersection. The minimum driveway setback from a collector or arterial street intersection shall be 150 feet, measured from the right-of-Way line of the intersecting street to the throat of the proposed driveway. The setback may be greater depending upon the influence area, as determined from City Engineer review of a traffic impact report submitted by the applicant's traffic- -engineer. In a case where a project has less than 150 feet of street frontage, the applicant must explore any option for shared access with the adjacent parcel: If shared access is not possible or practical, the driveway shall be placed as far from the intersection as possible. Findings: The proposed new intersection of Street `A' and 74d Avenue, a Neighborhood Route, is not within the influence area of Taylor Ferry Road, a collector street. This criterion has been met. Section -18.705.030.11.3 and 4 states that the. minimum spacing of driveways and streets along a collector shall be 200 feet. The minimum spacing of driveways and streets along an arterial shall be 600 feet. The minimum spacing of local streets along a local street shall be 125 feet. Findings: The proposed intersection is over 280 feet away from the intersection of 70 Avenue and Barbara Lane. This standard has been met_ Vehicular access and egress for single-family, duplex or attached single-family dwelling units on individual lots and multi-family residential uses shall not be less than as provided in Table 18.705.1 and Table 18.705.2; Findings: As a condition of approval, the applicant.will be required to provide a minimum 10-foot wide paved accessway for each single-family lot. Vehicular access to multi-family structures shall be brought to within 50 feet of the ground . . floor entrance or the ground floor landing of a stairway, ramp, or elevator leading to.the dwelling units. Findings: Since this is a proposal for a single-family development, this standard does not apply. Private residential access drives shall be provided and maintained in accordance with the provisions of the Uniform Fire Code. Findings: Individual homeowners will maintain the access drives. once the property is developed. The • 13 13 54 Fire District has already reviewed and provided comments on the proposed development, therefore this criterion has been satisfied. Access drives in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus by one of the following: • A circular, paved surface having a minimum tarn radius measured from center point to outside edge of 35 feet; • A hammerhead-configured, paved surface with each leg of the hammerhead having a minimum depth of 40 feet and a minimum width of 20 feet; The maximum cross slope of a required turnaround is 5%. Findings.- Since there are no access drives that exceed 150 feet in length, this criterion does not apply. Vehicle turnouts (providing'a minimum total driveway width of 24 feet for a distance of at least 30 feet), may be required so as to reduce the need for excessive vehicular baclang motions in situations where two vehicles traveling in opposite directions meet on driveways, in the excess of 200 feet in length. Findings: There are no access drives that exceed 200 feet in length, therefore this criterion does not apply- Where permitted, minimum width for driveway approaches to arterials or collector streets shall, no less than 20 feet so as to avoid traffic turning from the street having to wait for • traffic exiting the site. Findings: This site is not adjacent to a collector or arterial-, therefore this standard does not apply. To provide for increased traffic movement on congested streets and to eliminate turning movements problems, the Director may restrict the location of driveways on streets and require the location of driveways be placed on adjacent streets, upon the finding that the proposed access would cause or increase existing hazardous conditions to exist which would constitute a clear and present danger to the public health, safety, and general welfare. Findings: The proposed development can comply with all applicable requirements of Chapter 18.705. As a condition of approval, the applicant will provide joint access with an easement or tract to Lots 28 and 29. In addition, the applicant will be conditioned to demonstrate that all lots can be accessed by a minimum 10-foot wide paved accessway. CHAPTER 18.715: DENSITY COMPUTATIONS Density Calculation: 18.715.020 Definition of net development area. Net development area, m acres, shall be determined by subtracting the following land area(s) from the gross acres, which is all of the land included in the legal description of the property to be developed: • 14 14 55 • i S T • All sensitive land areas: a. Land within the lWyear floodplain; b. Land or slopes exceeding 25%; c. Drainage ways; and d. Wetlands. • All land dedicated to the public for park purposes; • All land dedicated for public rights-of-way. When actual information is not available, the following formulas may be used: Single-family development: allocate 20% of gross acreage; Multi-family development: allocate 15% of gross acreage. • All land proposed for private streets; and • A. lot of at least the size required by the applicable base zoning district, if an existing dwelling is to remain on the site- Calculating maximum number of residential units. To calculate-the maximum number of residential units per net acre, divide the number of square feet in the net acres by the minimum number of square feet required for each lot in -the applicable zoning district Findings: The density calculations for the site are as follows: Gross lot area: 407,721 square feet Public Street dedication 17, 828 square feet Private Street dedication 22,670 square feet Drainageway 70,862 square feet' Steep Slopes . 107,556 square feet Wetlands (contained in drainagewaD Net Developable Area: 188,805 square feet Number of Lots Allowed in Net Developable Area: 25 Lots Residential Density Transfer Rules governing residential density transfer. The units per acre calculated by subtracting land areas listed in Section-18.715:020 A. la - c from the gross acres may be transferred to the remaining buildable land areas subject to the-following limitations: 1. The number of units which can be transferred is limited to the number of units which would have been allowed on 25 percent of the unbuildable area if not for these. regulations; and 2. The total number of units per site does. not exceed 125 percent of the maximum number of units per gross acre permitted for the applicable comprehensive plan designation. Findings: According to the rules of density transfer, the applicant is able to utilize 25%'of the drainageway and steep slopes as part of the net developable area. To calculate the maximum allowed density, the net developable area is divided by the minimum allowed square footage of the site's zone. Drainageway and steep slopes =178,418. 25% of this constrained area = 44,604 Net Developable area =178,418+44,604 = 233,409 square feet R11S Zone: 233,409 (net developable area)n,500 (minimum allowed sf for this zone) = 31dwelling units _ • 15 15 56 J The total number of units allowed is: 125% (gross acreage) x 25 Lots = 31 Lots Therefore, the proposed 29 dwelling units do not exceed the maximum density ofthe net developable area- This criterion has been meL Calculating minimum number of residential units. As required by Section 18.510.040, the minimum number of residential units-per net acre shall be calculated by multiplying the maximum number of units determined in the Subsection B above by 80% (0-8). Findings: The required minimum density is calculated as follows: 25 Lots x 0.80 = 20 Lots The applicant has met this standard. CHAPTER 18.725: ENVIRONMENTAL PERFORMANCE STANDARDS Noise. For the purposes of noise regulation, the provisions of Sections 7.41.130 through 7.40.210. Of the Tigard Municipal Code shall apply. Visible Emissions. Within the commercial zoning districts and the industrial park (1P) zoning district, there shall be no use, operation or activity which results in a stack or other pointsource emission, other than an emission from space heating, or the emission of pure uncombined water (steam) which is visible from a property line: Department of Environmental Quality (DEQ) rules for visible emissions (340-21-015 and 340-28-070) apply- Vibration. No vibration other than that caused by highway vehicles, trains and aircraft is permitted in any given zoning district which is discernible without instruments at the property line -of the use concerned. Odors. The emissions of odorous gases or other matter in such quantities as. to be readily detectable at any point beyond the property line of the use creating the odors in prohibited. o DEQ rules for odors (340-028-090) apply. . Glare and.beat. No direct or sky reflected glare, whether from floodlights or from high temperature processes such as combustion or welding, which is visible at the lot line shall be permitted, and 1) there shall be no emission or transmission of heat or heated. air which is disconcernible at the lot line of the source; and 2) these regulations shall not apply to signs or floodlights in parking areas or construction equipment at the time of construction or excavation work otherwise permitted by this title. 16 57 Insects and rodents. All materials including wastes shall be stored and all grounds shall he maintained in-a manner which will not attract or aid.the propagation of insects or rodents or create a health hazard. Findings: Adherence to these standards will be assured through the on-going review of the City of Tigard Code Enforcement Officer after individual lots are purchased by homeowners. A condition will be imposed to require ongoing compliance with this standard from the applicant and future owners of lots. With this condition, these standards have been met. CHAPTER' 18.745: LANDSCAPING AND SCREENING Establishes standards for landscaping, buffering and screening to enhance the aesthetic environmental quality of the City. Findings: There are no landscaping standards that apply to the R4-5 zone. However, the open space and drainage tracts constitute approximately 441/6 of the site area Additional landscaping will be planted within lots by individual homeowners. Section 18.745.040. states that all development projects fronting on public street, private street, or a private driveway more than 100 feet in length after the adoption of this -title - shall be required to plant street trees in accordance with the standards in Section 1&745.040C- Findings: As a condition of approval, the applicant will be required to submit a revised street tree plan that identifies an alternative tree species for either the public or private street to vary the streetscw- Individual lot owners will not be issued a certification of occupancy until the landscaping requirements of 18.745.040 have been met. The applicant agrees that varying the street trees is feasible and that this condition can be met. Buffering and Screening - Section 18.745.050 Buffering and Screening is required to reduce the impacts on adjacent uses which are of a different type in accordance with the matrices in this chapter (Tables 18.745.1 and 18:745.2). Findings: The applicant has been conditioned to comply with Landscaping and Screening requirements of Chapter 18.745. However,, single-family developments are adjacent to the subject site so there are no buffering and screening requirements for this project. During the application appeal process, the applicantproposed the installation of a Leyland cypress hedge along the rear of lots 1-12 for additional privacy screening for existing abutting homes. This is memorialized as a condition of approval. CHAPTER 18.755: MIXED SOLID WASTE AND RECYCLABLE STORAGE Findings: Waste. Management, the correct service provider has reviewed the applicant's proposal and has found it to be acceptable for the removal of solid waste and recyclables. 17 58 CHAPTER -18.765: OFF-STREET PARIUNG AND LOADING REQUIREMENTS This chapter is applicable for development projects when there is new construction expansion of existing use, or change of use in accordance with Section 18.765.070 Minimum and. Maximum Off-Street Parking Requirements. Findings: As mentioned previously, the applicant has proposed 2-car garages and another 2 spaces in front of each garage for every lot within the development, therefore this criterion is satisfied. To ensure that the development complies with this standard, the developer has been conditioned to submit materials demonstrating that at least one off-street parking space, which meets minimum dimensional requirements and setback requirements as specified in Title 18, will be provided on-site for each new home. CHAPTER 18.775: SENSITIVE LANDS Jurisdictional wetlands. Landform alterations or developments which-are only within wetland areas that meet the jurisdictional requirements and permit criteria of the U.S. Army Cones of Engineers, Division of State Lands, CWS, and/or other federal, state, or regional agencies, and are not designed as significant wetlands on the City of Tigard. Wetland and Streams Corridors Map.,.. do not require a sensitive lands permit The City shall require that all necessary permits from other agencies are obtained. Allother applicable City requirements must be satisfied, including sensitive land permits for areas within the 100-year floodplain, slopes of 25% or greater or unstable ground, . drainageways, and wetlands which are not under state or federal jurisdiction. Findings: The wetlands on this site are not designated as significant by the City_ However, as a condition of approval, the applicant will be required to obtain all the necessary permits from the Army Corp, Division of State Lands, and Clean Water Services- Steep slopes. The appropriate approval authority shall approve, approve with conditions or deny an application request for a sensitive lands permit on slopes of 25% or greater or unstable ground based upon findings that all of the following criteria have been satisfied: 1. The extent and nature. of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for the use; ' 2. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off-site effects or hazards to life or property; 3. The structures are appropriately sited and designed to ensure structural stability and proper drainage of foundation and crawl space-areas for development with any of the following soil conditions: wet/high water table; high shrink-swell capability; compressibleforganic; and shallow depth-to-bedrock; and 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. Findings: As mentioned previously, the applicant has attempted to reduce the area that the development - 18 . 59 impacts the steeps slopes and natural areas of the site. An erosion control and grading plan will be "required during the engineering approval process to ensure sensitive areas will not be impacted by sedimentation or erosion, as well as to prevent off-site impacts. -The erosion control plan will ensure that areas where landform alteration takes place will be replanted- The applicant has also submitted a geotech report, which indicates which areas should and should not be developed. As a Condition of Approval, the applicant will be required to undertake further geotechnical investigations iri.for Lots 13-15, 22 and 23. The applicant is also conditioned to have the geotechnical engineer review the proposed building placement grading plans prior to final plat approval- Within drainageways. The appropriate approval authority shall approve, approve with conditions or deny an application request for a sensitive land permit within drainaggways based upon findings that all of the following. criteria-have been satisfied: 1. The extent and nature of.the proposed land form alteration or development will not create site disturbances to an extent'greater.than.that required for the use; Findings-. The applicant has proposed to extend 7e Avenue to meet the objectives of the City's Transportation Plan and to serve two lots in the southern portion of the site. The applicant has proposed a . curb tight sidewalk to minimize the amount of fill in the stream corridor. The extent ofthe disturbance is not greater than the proposed use, therefore this criterion has been met. 2. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off-site effects or hazards to life. or property; Findings: An erosion control and grading plan will be required during the-engineering approval process to ensures sensitive areas will. not be impacted by sedimentation.or erosion, as well as to prevent off-site impacts. The applicant is also conditioned to have the geotechaical engineer review the proposed building placement prior to City approval of construction plans. 3. The water flow capacity of the drainageway is not decreased; Findings: The applicant has submitted a stormwater report that includes using an oversized box culvert to ensure that upstream properties are not affected by the development- . " _ 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces willbe replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and "Screening; Findings: The applicant has been conditioned to submit an erosion control and grading plan which will require areas to be replanted prior issuance of final building permits- In addition, the applicant is required to replant per the requirements of the Clean Water Services letter. 5. The drainageway will be replaced by a public facility-of adequate size to accommodate maximum flow in accordance with the adopted 1981 Master Drainage Plan; Findings: The 1981 Master Drainage Plan does not identify any public facilities for this portion of Ash 19 60 Creek. 6. The necessary U.S. Army Corps of Engineer and State of Oregon Land Board, Division of State Lands, and CWS approvals shall be obtained; Findings: The applicant has submitted approvals from Clean Water Services- As a condition of approval, the applicant will be required to show approvals from the Corps of Engineers and the Division of State Lands- 7. Where land form alterations and/or development are allowed within and adjacent to .the 100-year floodplain, the=City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the Comprehensive Plan. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian bicycle pathway plan. Findings: There is no 100-year floodplain within the,proposed development site, therefore this standard. is inapplicable- In order to receive a sensitive lands permit, the applicant has been conditioned to meet the following: • Prior to the issuance of final occupancy on any building, the applicant must provide City staff with a letter from Clean Water Services that indicates compliance with the approved service provider letter. • Prior to any site work; the applicant shall provide evidence of all necessary approvals from Army Corps of Engineers and the Division of State Lands- Prior to any site work, the drainage tract must be clearly identified in the field with permanent fencing so as to insure no grading or material is placed in the area. Any fencing that is damaged during construction must be replaced prior to final building inspection- Prior to final plat approval submit and receive approval for an erosion control and,gradmg plan for alteration on slopes exceeding 25%_ • Re-plant any area where vegetation has been removed as a result of grading in conformance with the Clean Water Services Standards as set forth in the site assessment file, prior to obtaining permits_ • Prior to commencing on-site improvements, the applicant shall have the geotech engineer review and approve the construction plans for the City's review and approval CHAPTER 18.790: TREE REMOVAL A tree plan for the planting, removal and protection of tees prepared by as certified arborist shall be provided with a site development review application. The tree plan shall include identification of all existing trees, identification of a.program to save existing trees or mitigate tree removal over 12 inches in caliper, which trees are to be removed, protection program defining standards and methods that will be sued by the applicant to protect tress daring and after construction. Findings: CDC 18.790.050 provides exemptions from the requirement to obtain tree removal permits- One of those exemptions is stated in CDC 18.790.050(D)(4). The City Council has interpreted this exemption as being applicable to the requirement to develop a tree plan and to provide mitigation for trees 20 61 removed at the time of development imposed by CDC 18.790.030. This interpretation is based on the Council's understanding' of the intent of the exemption. The exemption was intended to recognize that when trees have been planted or maintained with the goal that they ultimately be used for timber or pulp, it is reasonable to allow the property owner to harvest them without requiring mitigation. Allowing the harvest of trees intended for timber or pulp without requiring a tree plan or mitigation is a good policy because. it respects the reasonable expectations of property owners.' Furthermore, if the exemption did not apply at the time of development, property owners with tag-deferred timber property would cut all the timber on the property so that they could develop in the future without being required to mitigate.. This is not desirable because it would lead to widespread harvesting of trees that have environmental benefits and that contribute to the character of City of Tigard The interpretation is also based on the language of CDC 18.790.050. That section requires tree removal permits only for trees on sensitive lands. CDC 18.790.050(A) The exemption only applies to trees that are not on sensitive lands. CDC 18.790.050(D)(4). If the exemption in CDC 18.790.050(]))(4) applied only to the requirement of CDC 18.790.050 and not to the tree plan and mitigation requirement of CDC 18.790.030, it would have been totally unnecessary because it would not exempt anything - it doesn't apply.to sensitive lands and the permit requirement only applies to sensitive lands. Separate provisions in laws or ordinances should be interpreted as having separate effects. The only way to give separate effect. to CDC 18.790.050(Dx4) is to apply it to the tree plan and mitigation requirement of CDC 18.790.030. As applied to this application, some of the property is considered to be a sensitive land, so a tree plan is required for that area. The applicant has provided a tree plan for the entire area, and so has complied with the requirement The applicant does not propose removal of more than 25 percent of trees over 12 caliper inches from the sensitive land area, so no mitigation is required under 18-790.030.. As mentioned previously, this site is in tax-deferred timber property status, therefore the applicant may harvest all the trees outside of the sensitive land areas without having to comply with the mitigation requirements of this Chapter. The applicant's tree removal plan indicates that approximately 74 trees within the sensitive land areas will be removed During the application appeal process, the applicant proposed retaining additional trees within the developable portion of the site. A IS' wide area in the. rear of the perimeter of the northern and eastern lots is proposed to retain all healthy and viable trees, subject to a certified arborists review and determination. To ensure that the trees are preserved according to the tree removal plan, the following conditions will apply: • The applicant shall submit an aborist report with tree protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. • Prior to site work, the applicant shall submit a complete set *of construction documents with the tree locations for the City Arborist review. The construction documents shall show the open space tract trees protected (with the exception of trees that require removal for utility construction) and a 15' wide area of trees protected along the rear of the perimeter lots(with the exception of any trees that are dead, dying, diseased, or deemed dangerous). • The applicant shall notify the City Arborist when tree protection measures are in place so that he may verify that the measures will function properly prior to constriction. • The applicant shall submit CC&R's that additionally.establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the lots or tracts following completion of the subdivision improvements. Trees may only be allowed to be removed subject to a certified arborist's finding that the trees are dead, or in severe decline. _ 21 62 CHAPTER 18.795: VISUAL CLEARANCE AREAS .Clear vision area shall be maintained on the corners of all_property adjacent to intersection of two streets, a street and a railroad, or a driveway providing access to a public or private street A clear vision area shall contain no vehicle hedge, planting, fence, wall structure, or temporary or permanent obstruction exceeding three (3) feet in height, measured from the top of the curb, or where no curb exists, from the street center grade, except the trees exceeding this height may be located in this area, provided all branches below eight feet are removed. For arterial streets the visual clearance shall not be less than 35 feet on each side of the intersection. Findings: The applicant has illustrated clear vision areas at the street intersections and has indicated that no obstructions will be placed in those areas. Compliance with vision clearance requirements will be confirmed through the building permit process for all homes to be constructed within the development This standard has been met CHAPTER 18390: DECISION MAKING PROCEDURES G. Impact Study: Section 18390.040.B.e Requires that the applicant shall include an impact study.. The study shall address, as a minimum, the transportation system,'including bikeways, the drainage system, the parks system, the water system, the sewer system; and the noise impacts of the development For each pubic facility system and type of impact of the development on the public at large, public facilities systems, and affected private property users In situations where the Community Development Code requires the dedication of real property interests, the applicant. shall either specifically concur with the dedication of real property interest; or provide evidence which supports the conclusion that the real property dedication requirement is not roughly proportional to the projected impacts of the development Findings: The applicant submitted an impact study, satisfying the required elements above: Rough Proportionality Analysis Findings: The Analysis has been calculated as follows: Full Impact.of the Development= 73,370 (IU. of $2,530 X"29 DU) / 032 (TIF's Coverage Citywide)- $229,281 Less TIF Assessment= (TIF of $2,530 x 29 DU)= -$73,370 Less Mitigated costs of 7e Avenue Improvement -$250,000 Estimate of Unmitigated Impacts -$94,089 Although the costs of the improvements is greater than the level of impact, the improvements have been proposed by the applicant The required dedication of right-of-way is clearly proportionate to the impact of the creation of the 29 lots. Therefore, the applicant has satisfied this criterion- 22 63 • CHAPTER 18.810: STREET AND UTILITY 11%1PROVEMIENT9 STANDARDS Chapter 18.810 provides construction standards for the implementation of public and private facilities and utilities such as streets, sewers, and drainage: The applicable standards are addressed below: Streets: Improvements: Section 18.810.030.4.1 states that streets within a development and streets adjacent shall be improved in accordance with the TDC standards. Section 18.810.030.4.2 states that any new street or additional street width planned as a portion of an existing street shall. be dedicated and improved in accordance with the TDC. Minimum Rights-of-Way and Street Widths: Section 18.810.030(E) requires a neighborhood route street to have a 54-foot right-of-way width and.a 32-foot paved section. Other improvements required may include on-street parking, sidewalks and bikeways, underground utilities, street lighting, storm drainage, and street trees. Findings:. Due to the unimproved nature of 74`h Avenue, the applicant met with representatives from the City of Tigard Engineering Department and the City of Tualatin Water District (who has a water transmission line within the 70 Avenue right of way) to discuss several issues regarding the extension of this street_ All parties agreed that the applicant should be permitted to construct 74'b Avenue with a steeper grade in order to n immize the amount of fill over the water line and in the wetland area. Therefore, the applicant requested an adjustment to the grade standard. However, since the proposed street grade does not exceed 15% for over 250 feet, an adjustment is not required. The applicant also requested the speed limit be reduced to 15 mules per hour in the section where the 74'h avenue crossing willoccur. This speed limit was accepted by the City of Tigard Engineer. The City of Tigard standards are met by a 15 Haile per hour vertical curve. design, to a "K value" of greater than 5 (AASHTO). The applicant also requested an adjustment to the sidewalk.standards at the stream crossing location on 7e Avenue. By moving the sidewalk to the curb line, five fewer feet of width into the stream corridor is avoided. Staff has recommended approval the sidewalk adjustment. Future Street Plan and Extension of Streets: Section 18.810.030(F) states that a future street plan shall be fled which shows the pattern of existing and proposed future streets from the boundaries of the-proposed land division. This section-also states that where it is necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street. These street stubs to adjoining properties are not considered to be cul-de-sacs since they are intended to continue as.through streets at such time as the adjoining property is developed. A barricade shall be constructed at the end of the street by the property owners which shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost. Temporary hammerhead turnouts or temporary cul-de-sac-bulbs shall be constructed for stub streets in 23 64 excess of 150 feet in length- Findings: The applicant has proposed to stub the new public street to the parcel to the north. As mentioned previously, site conditions and existing development limit the applicant to provide street stubs to the east and south. The applicant is also proposing to extend 7e Avenue to the.south. -This criterion has been met Street Alignment and Connections: Section 18.810.030. (G) sates that staggering of streets maldng the V intersections at collectors and arterials shall not be designed so that jogs of less than 300 feet on such streets are created,.as measured from the centerline of such street. Spacing between local street intersections shall have a minimum separations of 125 feet. All local streets which abut a development site shall be extended within the site to provide through circulation when not precluded by environmental or topographical constraints, existing development patterns or strict adherence to other standards in this code. A street connection or extension is precluded when it is not possible to. redesign, or reconfigure the constraints, the mere:presence of a constraint is not sufficient to show that a street connection is not possible. The applicant must show why the constraint precludes some reasonable street connection. Findings: As mentioned previously, the drainageway precludes extension of an interior public or private street to the south- No street connections are possible to the east due to the existing development patterns adjacent to the site:. This criterion has been satisfied Cul-de-sacs: 18.810.030.K states that a cul-de-sac shall be no more than 200 feet long, shall not provide access to greater than 20 dwelling units, and shall only be used when environmental or topographical constraints, existing development pattern, or strict adherence to other standards in this code preclude street extension and through circulation: • All cul-de-sacs shall terminate with a turnaround. Use of turnaround configurations other than circular, shallbe approved by the City Engineer; and • The length of the cul-de-sac shall be measured along the centerline of the roadway from the near side of the intersecting street to the farthest point of the cul-de-sac. • If a cul-de-sac is more than 300 feet long, a lighted direct pathway to an adjacent street may be required to be provided and dedicated to the.City. Findings: The applicant has requested an adjustment to allow a private street cul-de-sac of approximately 500 feet in length. The site is over 967 feet deep and the stream to the south makes it too narrow to accommodate a looped street In addition, steep slopes, the creek and existing development preclude any connections to.the south or east- The applicant has demonstrated that there-are no practicable alternatives to provide reasonable and efficient access to the entire property. This adjustment is justified by the shape of the property, natural features, and pre-existing development. Grades and Curves: Section 18.810.030.M states that grades shall not exceed ten percent on artgrials,12% on collectors streets, or 12% on any other street (except'that local or residential access streets may have segments with grades up to 15% for distances of no greater than 250 feet) and Findings: Staff review revealed that the proposed street grade does not exceed 15% for over 250 feet- - 24 65 Therefore, the applicant's request for an adjustment is not required . Private Streets: Section 18.810.030.5 states that design standards for private streets shall be established by the City Engineer. The City shall require legal assurances for the continued maintenance of private streets, such as recorded maintenance agreement. -Private streets serving more than six dwelling units are permitted only within planned developments, mobile home parks and multi-family residential developments. Findings: The applicant is proposing to serve a total of 23 lots (lots 1-23) with the proposed private street. Since this development is proposed as a planned development, a private street is acceptable. Block Designs - Section 18.810.030.5 states that the length, width, and shape of blocks shall be-designed with due regard to providing adequate building sites for the sue contemplated, consideration of needs for convenient access, circulation, control and. safety of street traffic and recognition of limitations and opportunities of topography. , Block Sizes: Section 18.810.040.B.1 states that the perimeter of blocks formed by streets shall not exceed 1,800 feet measured along the right-of-way line except: _ Where street location is precluded by natural topography, wetlands or .other bodies of water or. pre-existing development or; - For blocks adjacent to arterial streets, limited access highways, major collectors or railroads.- - For non-residential blocks in which internal public circulation provides,equivalent access. - Findings:-As mentioned previously, the existing development, steep slopes, and stream corridor do not allow connections other than the proposed connection to the north. The proposed street stub to the north will eventually provide a-block measuring approximately 1,250 feet_ This criterion has been met. Section 18.810.040.B.2 also states that bicycle and pedestrian connections on public easements or right=of-ways shall be provided when full street connection is not possible. Spacing between connections shall be no more than 330 feet, except where precluded by environmental or topographical constraints, existing development patterns, or strict adherence to other standards in the code. Findings: The applicant proposes to serve the site with a sidewalk on one side of the private street and a public street stub with sidewalks on both sides to the north property boundary. There are no opportunities for bicycle and/or pedestrian connections to the east or south because of topography and natural features. Therefore, this standard bas been satisfied. Lots - Size and Shape: Section 18.810.060(A) prohibits lot depth from.being more than 2.5 times the average lot width, unless the parcel is less than 15 times the minimum tot size of the applicable zoning district. Findings: -Only one of the proposed lots (#13) exceed 1-5 times the minimum lot size. This lot is 69 feet in average lot width and 170 feet in lot depth. Two and a half times the proposed lot width is 1.725 feet Since 170 feet is less than 2.5'times the lot width, this criterion has been satisfied 25 66 Lot Frontage: Section 18.810.060(B) requires that lots hav a at least 25 feet frontage on public or private streets, other than an alley. In the case of a land.partition,18A20.050JL4c applies, which requires a parcel to either have a minimum 15-foot'frontage or a minimum 15-foot wide recorded access easement. In' cases where the lot is for an attached single- family dwelling unit, the frontage shall be at least 15 feet Findings: Lots 9, 11, 12, land 29 do not have 25 feet of frontage. on a public or private street. Therefore the applicant will be conditioned to revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development Since there is greater than 25 feet of average lot frontage available for the lots.along the proposed streets, it'is feasible to modify the final plat to meet this condition. Sidewalks: Section 18.810.070.A requires that sidewalks be constructed to meet City design standards and be located on both sides of arterial, collector and local residential streets. Findings: The applicant is proposing to.construct sidewalks with other street improvements. This criterion has been satisfied Sanitary Sewers: Sewers Required: Section 18.810.090.A requires that sanitary sewer be installed to serve each new development and to connect developments to eriting mains in accordance with the provisions set forth in Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 1996 and including any future revisions or amendments) and the adopted policies of the comprehensive plan. Over-sizing: Section 18.810.090.C states that proposed sewer systems shall include consideration of additional development within the area as projected by the Comprehensive Plan. Findings: There is an existing sewer manhole in 7e- Avenue. The applicant is proposing to extend the 8 inch line north in 74'h Avenue and then east in the new public and private streets to serve all lots. As mentioned previously, the applicant is proposing to stub a line to the north for extension with future street improvements. Storm Drainage: General Provisions: Section 18.810.100.A states requires developers to make adequate provisions for storm water and flood water runoff. Accommodation of Upstream Drainage: Section 18.810.1000 states that a culvert or other drainage facility shah be large enough to accommodate potential runoff from its entire upstream drainage area, whether inside or outside the development. The City Engineer shall approve the necessary size of the facility, based on the-provisions of Design and Construction Standards for Sanitary and Surface Water Management (as adopted by the Clean Water Services in 2000 and including any future revisions or.amendments). Findings: The-applicant's engineer has done preliminary calculations to size *the new box culvert under 7e Avenue so that it accommodates upstream drainage.. The 5-foot by 10-foot box culvert has been slightly oversized for easier fish passage. The applicant has also proposed to protect the condition of the • -existing creek by moving the development away from the sensitive area boundary. Therefore, in 26 67 i accordance with City and Clean Water Services standards, the capacity of the existing drainageway will not be impacted by the proposeddevelopment. Effect on Downstream Drainage: Section 18.810:100.1) states that where it is anticipated by the City Engineer that the additional runoff resultin from the development will overload an existing drainage facility, the Director and Engineer shall withhold approval of the development until provisions have been made for. improvement of the potential condition of until. provisions have been made for storage of additional runoff caused by the development in accordance with the Design and Construction Standards for Sanitary and Surface Water Management (as adopted. by Clean Water Service in 2000 and including any future revisions or.amendments). Findings: The site generally slopes towards Ash Creel- The applicant has proposed a storm system in the new public and private streets, including the in the street stub to the north property. The storm system is proposed to outlet into a pond that will provide water.quality and quantity measures before it is discharged into Ash Creek, as required by Clean Water Services- As required, the applicant will provide access to the pond for maintenance. In addition the applicant has proposed to construct an oversized culvert under 70 Avenue to accommodate the Ash Creek Crossing- With these improvements there is sufficieint detention capacity to meet the Clean Water Services standards. Bikeways and Pedestrian- Pathways: Bikeway Extension: Section 18.810.110.A states that developments adjoining_proposed bikeways identified on the City's adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through-the dedication of easements or right-of- way. Findings: 74h Avenue is not classified as a bike facility, therefore this criterion is inapplicable- Cost of Construction: Section 18.810.110B states that development permits issues for planned unit developments, conditional use permits; subdivisions, and other developments which'will principally benefit from such bikeways shall be conditioned to include the cost of construction of bikeway improvements Findings: This standard is not applicable to this proposal. Minimum Width: Section 18.810.110.C states that the minimum width for bikkeways within the roadway is free feet per bicycle travel lane. Minimum width for two-way bikeways separated from the road is eight feet. Findings: This standard is not applicable to this proposal. Utilities: Section 18.810.120 states that all utility lines, but not limited to those required for electric communication, lighting and cable television services and related facilities shall be placed underground, except forrsurface mounted transformers, surface mounted connection boxes and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high. rapacity electric lines operating at 50,000 volts or above, and 27 68 • • The developer shall make all necessary arrangements with the serving utility to provide the underground services; - • The City reserves the right to approve location of all surface mounted facilities; • All underground utilities, including sanitary sewers and storm -drains installed in streets by the developer, shall be constructed prior to the surfacing of the streets; and Stubs for service connections shall-be long enough to avoid disturbing the street improvements when service connections are made. Exception to Under-Grounding Requirement: Section 18.81o12oC states that a developer shall pay a fee in-lieu of under-grounding costs when the development is proposed to take place on a street where existing utilities which are not underground will serve the development and the approval authority determines that the cost and technical difficulty of under-grounding the utilities outweighs the benefit of under-grounding in conjunction with the development. The determination shall be on a case-by-case basis. The most common, but not the only, such situation is a short frontage development for which under-grounding would result in the placement of additional poles, rather than the removal of above-ground utilities facilities. An applicant for a development which is served by utilities which are not underground and which are located across a public right-of-way from the applicant's property shall pay a fee in-lieu of under-grounding. Findings: All newly constructed utilities are to be placed underground. There are existing overhead lines along the frontage of SW 746 Avenue- The applicant shall either place these utilities underground or pay the fee in lieu. If the fee in-lieu is proposed by the applicant, it is equal to $2750 per lineal foot of street • frontage that contains the overhead lines. The frontage along the site is 421 lineal feet; therefore the fee would be $11,578. CONDITIONS OF APPROVAL: THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO COMMENCING ANY ON-SITE IMPROVEMENTS, INCLUDING GRADING, EXCAVATION AND/OR FILL ACTIVITIES: Submit to the Planning Department (Morgan Tracy, 6394171, Ext. 2428) for review and approval: I . Prior to site work, the applicant shall submit an arborist report with tree protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of tree protection devices, clearing, grading„and paving. 2. Prior to site work, the applicant shall submit a complete set of construction documents with the . tree locations 'for the City Arborists review. The applicant will not cut any healthy trees within the designated open space tract- Furthermore, the applicant shall not cut any healthy trees-in the tree preservation areas of Lots 1-18, which shall be defined as the area at least 15 from the rear of the building footprints. However, if an arborist determines that trees in these areas are dead, diseased, or pose a safety hazard, then the applicant shall remove affected trees from those areas. 3. Prior to site work, the applicant shall notify the City Arborist at least 48 hours prior to . . commencing construction when the tree protection measures are in place so that he may verify _ 28 69 • that the measures will function properly. 4. Prior to site work, the applicant shall provide evidence of all necessary approvals for work within the wetlands from US Army Corps of Engineers and the Division of State Lands. 5. Prior to site work, the drainage tract must be clearly identified in the field with permanent (preferably with minimum 4-foot-tall black chainlink) fencing so as to insure no grading or-` material is placed in this area Any fencing that is damaged during construction must be replaced prior to final building inspection. If the damage is such that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately. 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet. Submit to the Engineering-Department (Kim McMillan, 630 4171, ert. 2642) for review and approval: 7. Prior to approval of construction plans, the applicant shall "pothole" the City of Tualatin's main water. transmission line to determine the exact location and condition of the pipe. The applicant shall notify the City of Tigard and the City of Tualatin 48 hours prior to the pothole.inspections and when any construction activity will impact the pipe (such as placement of fill and excavation in the immediate vicinity) so that a representative from both the Cities of Tualatin and Tigard can be present. • 8. Prior to commencing onsite improvements, a Public Facility Improvement (PFI) permit is required for this project to cover all infrastructure and any other work in-the public right-of-way- Eight (8) sets of detailed public improvement plans shall be submitted for review to the Engineering Department. NOTE: these plans are in addition to any other drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement (PFI) permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.ci.tigard.or,us). 9. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the "Permittee", and who will provide the financial assurance for the public improvements- For example, specify if the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. 10. The applicant shall provide a constriction vehicle access and.parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public . improvement construction phase. All construction vehicle parking shall be provided on-site. No- construction vehicles or.equipment will be permitted to park on the adjoining residential public streets. Construction vehicles include-the vehicles of any contractor or subcontractor involved in the.construction of site improvements or buildings,proposed by this application, and shall include the vehicles of all suppliers and employees associates with the project. . 11. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which.indicate that they will construct a half-street . improvement along the frontage of 741s Avenue. The_ improvements adjacent to this site shall 29 70 • include: A_ City standard pavement section for a neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet; B. Pavement tapers needed to fie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. Concrete curb, -or curb and gutter as needed; D_ Storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F, Street trees in the planter strip spaced per TDC requirements; G. Street striping; H. Streetlight layout by applicant's engineer, to be approved by City Engineer, L Underground utilities; J. Street signs (if applicable); K_ Driveway apron (if applicable); L_ Adjustments in vertical and /or horizontal alignment to construct SW 747i Avenue in a safe manner, as approved by the Engineering Department, including reductions to the speed limit as necessary, and M_ Right-of-way dedication to provide 27 feet from centerline- 12. The applicant's Public Facility Improvement permit construction drawings shall indicate that full width street improvements, including traffic control devices, mailbox clusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, stone drainage, • street trees, streetlights, and underground utilities shall be installed within the interior subdivision -streets- Improvements shall be designed and constructed to local street standards. 13. A profile of 74'h Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 14. The applicant's construction drawings shall show that the pavement and rock section for the proposed private street(s) shall meet the City's public street standard for a local residential street_ 15. The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility improvement permit. 16. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department (Kim McMillan) as a part of the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved by the City Engineer. The proposed facility shall be dedicated in a tract to the City of Tigard on the final plat- As a part of the improvement plans submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services. Director. The facility shall be maintained by the developer for a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance.by the City. Once the three-year maintenance period is completed, the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition, the City will. not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy- If at any time during the - • 30 71 • -maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity- 17. An erosion control plan shall be provided as part of the Public Facility Improvement (PFI) permit drawings- The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual, December 2000 edition." ` 18. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of 0lots, and show that they will be graded to ensure the surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department_. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot: 19. The applicant shall incorporate- the recommendations from the submitted geotechnical report by GeoPacific Engineering, Inc., dated May 9, 2003, into the final grading plan- The applicant shall have the geotechnical engineer ensure that all grading, including cuts and fills, are constructed in accordance with the approved plan and Appendix Chapter 33 of the UBC. A final construction supervision report shall be filed with the Engineering Department prior to issuance of building permits- 20. The design engineer shall indicate; on the grading plan, which lots will have natural slopes -between 10% and 20%, as well as lots that will have.natural slopes in excess of 20%. This information will be necessary in determining if special grading inspections and/of permits will be • necessary when the lots develop. 21.. The final construction plans shall be signed by the geotechnical engineer to ensure . that they have reviewed and approved the plans. The geotechmcal engineer shall also sign the as-built grading plan of the end of the project. 22. The applicant shall obtain a 1200-C General Permit issued by the City -of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act_ THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL-OF THE FINAL PLAT: Submit to the Planning Department (Morgan Tracy, 6394171, ext 2428) for review and approval: 23: Prior to approval of the final plat; the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. 24. Submit a revised street tree/landscape plan that shows an alternative tree species used for the public street to vary the streetscape. 25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and cause a statement to be placed on the plat limiting additional direct vehicular access to SW 74'" Avenue. 26. Provide a plat name reservation approval from Washington County. • 31 72 r • 27. Prior to -final subdivision plat approval, the applicant shall convey title for the proposed open space to a homeowner's association in accordance with the requirements of Section 18350.110.A-2.b of the Tigard Development Code. Submit to the Engineering Department (Kim McMillan), 6394171, ezt 2642) for review and approval: 28. Prior to approval of the final plat the applicant shall obtain a plumbing permit for the construction of the private storm line in the private street. 29. Prior to approval of the final plat, the applicant shall pay an addressing fee in'the amount of $900.00 (Staff Contact: Shirley Treat, Engineering)- 30. Prior to approval of the final plat, :the applicant shallcause a statement to be placed on the final plat to indicate that the proposed private street(s) will be jointly owned and maintained by the private property owners who abut and take access from it (them). 31. Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&Ws) for this project, to be-recorded with the-final plat, that clearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s). The CC&Ws shall additionally establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the.lots or tracts following completion ofthe subdivision improvements. Trees may only be allowed to be • removed subject to a certified arborist's finding that the trees are. dead, or in severe decline. The applicant shall submit a copy of the CC&R's to the Engineering Department (Kim McMillan) and the Planning Department (Morgan Tracy) prior to approval of the final plat. 32. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association. 33. Prior to approval of the final plat, the applicant shall either place the existing overhead utility lines along SW 7e Avenue underground as a part of this project, or-they shall pay the fee in-lieu of under grounding. The fee shall be calculated by the frontage. of the site that is parallel to the utility lines and will be $27.50 per lineal foot. If the fee option is chosen, the amount will be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior to approval of the final plat, the applicant shall provide a maintenance access road to the facility and any drainage structures within the•fability to accommodate City maintenance vehicles. The access road shall be paved and have a structural section capable of accommodating a 50,000-pound vehicle. The paved width shall be a minimum of 10 feet wide, and there shall be two-foot rock shoulders provided on each side. If the maintenance roadway is over 150 feet in length, a turnaround shall be provided. 35. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system (GPS) geodetic control network (GC 22). These.monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates • 32 73 can be established by: • GPS tie networked to the City's GPS survey. • By random traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements: A. Submit for City review four (4) paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon, and necessary date of narrative- B. Attach acheck in the amount of the current.final plat review fee (Contact Planning/Engineering Permit Technicians, at (503) 639-4171, ext. 426). C. The final plat and date or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard. D. The right-of-way dedication for 740' Avenue shall be made on the final plat E. Note: Washington County will not begin their. review of the final plat until they receive notice from the Engineering. Department indicating that the City has reviewed. the final plat and submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final. plat, submit two mylar copies of the final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures for subdivisions)- THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF BUILDING PERMITS:- Submit to the Planning Department (Morgan Tracy, 6394171, ext. 2428) for review and approval: 37. Prior to issuance of any building permits, re-plant any area where vegetation has been removed as a result of grading in conformance with the Clean Water Services Standards as set forth in the site assessment file #2819, prior to obtaining building permits. 38. Prior to issuance of any building pemiits, the applicant shall submit plans that show one (1) off- street parking space, which meets minimum dimensional requirements and setback requirements as specified in Title 18, provided on-site for each new home. 39. At the time of application for building permits for individual homes, the applicant shall demonstrate that each site will be accessed by a minimum 10-foot-wide paved access. 40. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement 41. Prior to the issuance of building permits the applicant shall submit a revised plan that indicates the modified setbacks as set forth in this decision and record a copy of the approved setback plan with the deeds for each lot 42. Prior to issuance of building permits for structures on the individual lots within this development, the applicant shall demonstrate compliance with the height requirement of the underlying zone. The requirement calls for 30-foot maximum height for primary units and 15 feet maximum for all accessory structures- _ 33 74 r r 43: Prior to the issuance of budding permits on any lot, the applicant must provide city staff with a letter from Clean Water Services that indicates compliance with the approved service provider letter (#2819). Submit to the Engineering Department (Kim McMillan, 6394171, eat 2642) for review and approval: 44. Prior to issuance of building permits the applicant's engineer shall provide a post-construction sight distance certification for the new intersection at 7e Avenue. 45. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits- .46. Prior to issuance of building .permits, the City Engineer shall deem the public improvements substantially complete. Substantial completion shall be when; I) all utilities are installed and inspected for compliance, including franchise utilities, 2) all local residential street have at least one lift of asphalt, 3) any off-street and/or utility improvements are substantially completed, and 4)'911 street lights are installed and ready to be energized: Note: The City apart from this condition, and in accordance with the City's model home policy may issue model home permits). 47. Prior to issuance of building permits, the applicant shall provide the City with as-built drawings of the public improvements as follows: l) 3 mil mylar, 2) a diskette of the as=builts in "DWG" _ format, if available; otherwise "DXF" will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic fide with points for each stricture (manholes, catch basins, water valves, hydrants and other. water system features) in the development, and their respective X and Y State Plane Coordinates,' referenced to NAD 83 (91). 48. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a "photo. mylar" copy of the recorded final plat 49. The applicant shall provide signage at the entrance of each shared flag lot driveway or private street that lists the addresses that are served by the-given driveway or street THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF FINAL BUILDING INSPECTION: 50. The applicant shall install street trees and an evergreen hedge of Leyland Cypress spaced no greater than three feet on center along the northern property line of Lots 1-10 and the eastern property line of Lots 10-12. ADDITIONAL CONDITIONS OF APPROVAL FOR ASH CREEK ESTATES: 51. The applicant and future owners oflots within the development-shall 'ensure:that the requirements of CDC 18.725 (Environmental Performance Standards) are complied with at all times. We hope the findings provided above can be included in the F W.Order of the City Council regarding the 34 75 . ration us if ttheve any a a~ vision peel flee tom kEstates g~ - Ctee of ~pTOVaI youl Ruhi ~d - viotg Tra eT CC. As a`te a city of'T - r 35 Exhibit B Agenda Rem: 5. Hearing Date: July 7; 2003 Time: 7:00 PM 3f:P~T X44 `ENE. . E -M, SEC 120 DAYS =101212003 SECTION I. APPLICATION SUMMARY FILE NAME: ASH CREEK ESTATES SUBDIVISION CASE NOS.: Subdivision (SUB) SUB2003-00010 Zone Change (ZON) ZON2003-00003 Planned Devek~pmentReview (PDR) PDR2003-00004 Sensitive Lands Review (SLR) SLR2003-00005 Adjustment AR VAR2003-00036 Adjustment (VAR VAR2003-00037 APPLICANT: Dale Richards. OWNER: Ernest E. and Elda H. Senn Winwood Construction 9750 SW 74 Avenue 12655 SW North Dakota Street Tigard, OR 9T223 Tigard, OR 97223 PROJECT Kurahashi and Associates ~ONTACT: Attn: Greg Kurahashi 15580 SW Jay, Suite 200 Beaverton, OR - 97006 REQUEST: Approval of a 294ot Subdivision and Planned Development on 9.3 acres. The lots are proposed to be developed with detached single-family homes. Lot sizes within the development are proposed to be between 4,702 and 11,616 square feet Sensitive Lands Review is required as the prpojl fect includes areas of steep (>25%) slopes, a drainageway and wetlands. The applicant is also seeking an Adjustment to the cul-de-sac length standard, maximum number of -units permitted on a ZONING cul-de-sac, as well as an Adjustment to the street grade on SW 74 Avenue. DESIGNATION: R-4.5: Low-Density Residential District. The R-4.5 zoning district is designed to accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet Duplexes and attached single-family units are permitted conditionally. Some -civic and institutional uses are also permitted conditionally. LOCATION: 9750 SW 70 Avenue; WCTM 1S125DC, Tax Lots 300 and 400. APPLICABLE - REVIEW -CRITERIA: Community Development Code Chapters- 18.350, 18.370, 18.380, 18.390, 18.430, 18.51.0, 18.705, 18.715, 18.725,-18.745, 18.755, 18.765, 18.790, 18.795 and 18.810. SECTION II. STAFF RECOMMENDATION Steoonds_iTathe;.Pfaniing Commission find that the jueposed :ftaaii:.:fevelopriaeiit-.-and ffi ~~stre~ ~ecits>~i not -adve ;~y affect:#tie fiealtFi, -safety a~d`~rretfa~ cif _ and: rr~ets the Appcflval Sac~dard_ s_ :as outlinedi thiseport_ Tfierefore; Staft Tecii~cierxds' APPfZVAL; subject to :11:Le fc~o~ig - ed Cnnditr'ons of Approval -and Findings In _tl~e-~taff°rePort ' - - - ASH CREEK ESTATES SUBDIMM STAFF REPORT (SUB20M-00010) PLANNING COL MISSION HEARING 717r2M 77 CONDMONS OF APPROVAL ~L71#A1G' CONDtTI61S 'StAtiL BE. S~T(SF(ER.'F`'`fl' COl1B11EtC#N ITE 3 Sr fNCI.E1p1NG GRaU1PIG;~CCAVATt~iJA Ng10REIL1~ p94~~V1TtES u mit tote Planning Department organ racy, 6-16-4171, ext Mits) or review an approval: 1. -Prior to site work, the applicant shall submit an : arborist report with tree protection recommendations, and shalt provide the -City: Arborist with. -construction sequence including installation and removal. of tree protection devices, clearing, grading, and paving. 2. Prior to site work, the applicant.shall submit a complete set of construction documents with the tree locations for the City Arbonsts review. 3. Prior to site work, the applicant shall notify the City - Arborist at least 48 hours prior to commend ng-construction when the tree protection measures are in place so that he. may verify that the measures will function properly. 4. Prior to site work, the applicant shall provide evidence of all necessary approvals for work within the wetlands from US Army Corps of Engineers and the Division of. State Lands.. 5. Prior to site work, the drainage had must be dearly identified in the field with permanent (preferably with minimum 4-footfall black chainlink) fencing so as to insure no grading or material is placed in this area. An fencing that is damaged during construction must be replaced prior to final building inspection- If the damage is such that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately. 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet Oubmit to the Engineering Department (Kim McMillan, 6394171, ext. 2642) for review and approval: 7. Prior to approval of construction plans, the applicant shall pothole the City of Tualatin's main water transmission line to determine the exact location and condition of the pipe. The applicant shall notify the City of Tigard and the City of Tualatin 48 hours prior to "the pothole inspections and when -any construction activity will impact.the pipe (such as. placement of fill and excavation in the immediate vicinity) so that a representative from the City can be present. 8. Prior to commencing onsite improvements, a Public- Facility lmprovement (PFI) permit is required for this project to cover all infrastructure and any other work in the public nght-of-way. Eight (8) sets of detailed public improvement plans shall be submitted for review to the En q ineering Department- NOTE: these plans are in addition- to any drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement (PFI) permit plans shall conform to City of Tigard Public Improvement Design Standards, which. are available at City Hall and the City's web page (www.ci.tigard.or.us). 9. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity wh o will edesignated, as the °Permittee°, -and who will provide the financial assurance for a public improvements. For example, specify if the entity is a corporation, limited partnership, LLC, etc. Also specify the state within which the entity is incorporated and provide the name of the corporate contact person: Failure to provide accurate information to the Engineering Department will delay- processing of-project documents. 10. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this-plan--is for parking and traffic control during the - public improvement construction phase. All construction vehicle parking- shall be provided on-site. No- construction vehicles or quipment will be permitted to park on the adjoining residential public- streets. Construction veh' es include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings proposed by this application, and shaft include the vehicles of all suppliers and employees associated with the project. ASH CREEK ESTATES SUWMSKW STAFF REPORT (SU82003-(=10) PUwNwc COMMISSION HEARING 7!72003 78 1. The applicant shall submit construction ans to the Engineering Department as a part of the Public Facility Improvement permit; ch.. indicate that they will construct ahalf-street improvement along the frontage of 7.4~,m;- Avenue.. The improvements adjacent to this site shall include: A City standard pavement section for a neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet, B. pavement tapers needed to be the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. concrete curb, or curb and gutter as needed; D. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff, E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F. street trees in the planter strip spaced per TDC requirements; G: street striping; H. streetlight layout by applicants engineer, to be approved by City Engineer, 1. underground utilities; J. street signs (if applicable); K. driveway apron applicable); L adjustments in vertical and/or horizontal alignment to :construct SW 7e Avenue in a safe manner, as approved by the Engineering Department; and M. right-of-way dedication to provide 27 feet,from centerline. 12. The appl'icant's Public Facility Improvement permit construction drawings shall indicate that full width street improvements, including traffic control devices, mailbox dusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm . drainage, street trees, streetlights, and underground utilities shall be installed within the interior subdivision streets. Improvements shall be designed and constructed to local street standards. 3. A profile of 70 Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade- -14. The applicants construction drawings: shall show that the pavement and rock section for the proposed private street(s) shall meet the City's public street standard for a local residential street. 15. The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility Improvement permit 16. Final design plans and calculations for the pro ed public water quality/detention facilit shall be submitted to the Engineering Deppartment CKU m. M cMillan) as a : art of the . Public Facility Improvement plans. Included with the plans ll be a proposed landscape plan to be approved on JaM by'the City Engineer: The proposed facility shall be dedicated in a tract to the City of Ti the final plat As a part of the improvement plans submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The fadlity shap-be maintained by the developer fbrr a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall -be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is . completed, the City will inspect the' f idlitya and make note of any problems that have arisen and require them to be resolved before the- City will take over maintenance of the facility. In addition, the City will not take-over maintenance of theJaality unless 80 percent of the landscaping is established. and healthy. If at any time during the maintenance od, the, landscaping falls below the 80 percent level,-the-developer shat( immediately reinsta I all deficient planting at the next appropriate planting opportunity. 17. An erosion control plan shall be provided as part of the Public Facility Improvement ((PFQ permit drawings. The plan shall conform to the "Erosion Prevention and Sedment.Control-besign and Planning Manual, December 2000 edition." ASH CREEK ESTATES SLW=ION STAFF REPORT (SUB20n=10) PLANNING COMMISSION HEARING 7172003 79 18. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they vAl be graded to rains a system ensure that :surface drainage is directed to the street. or, a public storm drainage' approved by the Engineering Department For situations where the back portions of lots drain .away from a.str eet and toward adjacent tots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. 19. The applicant shall incorporate the recommendations from the submitted geotechnical report by GeoPaafic Engineering, Inc., dated May 9, 2003, into the final grading plan. The applicant shall have the geottech engineer review andapprove the construction plans for the Cit)(o review and approval : The geotechnical engineer shall. be employed. by the applicant throughout the- entire construction period to ensure that all radingg, including cuts and fills, are constructed in aceotdanc:e with the a~. proved - plan and ndix Cha ter 33 of the UBC. A final construction supervision report shaft be filed with the ngineering Department prior to issuance of building Permrfs: " " 20. The design engineer shall indicate, on the grading plan, which lots will. have natural slopes between 10% and M. as well as lots that- will have natural slopes in- excess. of 20%, This information wilt be necessary in determining if special grading inspections and/or permits will be necessary when the lots develop. 21. The final construction plans shall be signed by the geotechnical engineer to ensure that"they have reviewed and approved the plans. The geotechnical engineer shall also sign the As-built grading plan at the end of the project 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740, and the Federal Clean ater Act. `r THEE.FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO AP>'ROVAL OF"THE.FINAL"PL1~T:. " - - u mrt "tote anrnng Department Morgan racy, 639 1 ext. 2 28 " or review and approval: 23. Prior to" ap roval of the final plat, the applicant shall revise the plat to accommodate a minimum ofp25 feet of frontage for all lots within the development. 24. Submit a revised street tree/landscape plan that shows an alterative tree species used for either the public or private street to vary the streetscape. .25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and case a statement to be placed on the plat limiting additional direct vehicular access to SW 74 Avenue. ' 26. Provide a plat name reservation approval from Washington County. 27. Prior to final subdivision plat approval, the applicant shall convey title for the proposed open space to a homeowner's association in accordance with the requirements .~•of Section 18.350.110.A.2.b of the Tigard Development- Code. Submit to the Engineering Department (Kim McMillan, 639-4171,. ext. 2642) for review and approval: 28. Prior to approval of the final plat the applicant -shall obtain" a plumbing permit for the construction of the private storm fine in the private street 29. Prior to approval of the final plat,.the applicant shall pay an addressing fee in the amount of - $900.00. (STAFF CONTACT: - Shirley Treat, Engineering). 00. Prior to approval of the final plat, the applicant shall cause a statement to be placed on the final plat to indicate that 'the proposed private street(s) will- be jointly owned and maintained by the. private property owners who abut and take access from it (them). ASH CREEK ESTATES SUBOMSION STAFF REPORT (SU$200300010) PLANNING COMMISSION HEARING 7/72003 80 01. Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&R s) for this project, to be recorded with the final plat, - that dearly lays out a maintenance plan and agreement for the proposed private street(s). _ The CC&R's shall obligate the private property owners within the subdivision to create a. homeowner's association to ensure regulation of maintenance for the street(s). The applicant shall submit a copy of the CC&R's to the Engineering Department Km McMillan) prior to approval. of the final plat. 32. Prior to approval of the final plat, the applicant shall demonstrate that they have.-formed- and incorporated a homeowner's association. . 33. Prior to allpu%val of the final plat, the. applicant shall either place the existing overhead utility tines along SW 74 Avenue. undergground .as. a. part of this project, or th ey shalf'pay the. fee inn-lieu of undergrounding. The fee shali-be.calculated by the frontage of the site that is parallel to the utility lines and Will be $27.50 per lineal foot If the fee option is chosen, the amount will be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior_ to approval of the final pplat, the applicant shalt provide 'a maintenance access road to the facility and any drainage -structures within the facility to accommodate City maintenance vehicles. The access road shall be paved and have a structural section capable of accommodating a 50,000-pound vehicle. The paved width shall be a minimum of 10 feet wide, and there shall be two-foot rick shoulders provided on each side. If the maintenance roadway is over 150 feet in length, a turnaround shall be provided. 35. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system (GPS} geodetic control network (GC 22). These monuments shall-be on the same line and shall be d& same precision. as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements-and the angle from north to grid north. These coordinates can be established by: GPS tie networked to the City's GPS survey. By random traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements: A. Submit for City review four (4) paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon, and necessary data or narrative. B. Attach a check in the amount of the. current . final - plat review fee (Contact PlanninEngineering Permit Technicians, at (503) 639-4171, ext. 426). C_ The final plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (OV 92.05), Washington County, and by theCity of Tigard. D. The right-of-way dedication for 74 Avenue shall be made on the final plat E. NOTE: Washington County will not begin their review of the final plat until-they receive notice from the Engineering Department indicating that the City has reviewed the final plat and submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures (for subdivisions). -FOLL-OWIN.G:C0NDIl10NS-SHALL BE-SATISFIED PRIOR 7'fl :tSSI)ANCE OF BUILDING PERMITS: u mit to t h the Planning epa enY organ racy, 639-4171, ext. or review an approval: 37. Prior to issuance of any building permits, re=plant any area Where vegetation has been removed as a result of grading in conformance with the Clean Water. Services Standards -as set forth in the site assessment file #2819, prior to obtaining building permits. -38. Prior to issuance of any building permits, the applicant shall submit plans that-show one (1) off street parking space, which meets minimum dimensional requirements and setba requirements as specified in Title 18, provided on-site for each new home. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003 M O) PLANNING COIW4IISSION HEARING 717/2003 81 9. At the time. of application - for .building permits for individual homes, the applicant shall demonstrate that each site will be accessed by a minimum 10-foot-wide paved access. 40. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. 41.- Prior to the issuance of building permits the applicant shall submit a revised plan that indicates the modified setbacks as set forth in this decision (page 11) and record a copy of the sap' ed prov setback plan with the deeds for each lot. 42. Prior: to issuance of building permits for. structures on the individual lots within this development, the applicant shall demonstrate. compliance with the height requirement of the underlying zone.- The. requirement calls for a 30-foot maximum height for primary' units and 15- feet maximum for all accessory structures. 44. Prior to the issuance of building permits on any lot, the applicant must provide city.staff with a letter from Clean Water Services that indicates compliance with the approved service provider letter (#2819). Submit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and approval: 45. Prior to issuance of building permits the applicant's engineer shalt provide a post-construction sight distance certification for the'new intersection at 74 Avenue. 46. The City Engineer may determine the necessity for, and . require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. 047. Prior to issuance of building permits, the City Engineer. shall deem the public improvements substantially complete. Substantial completion shall be when: 1) all utilities are installed and inspected for compliance; including -franchise :uti[ities; 2) all local residential streets have at least one lift of asphalt, 3) any off-site street and/or utility improvements are substantially completed, and 4) all street r'igh are installed and ready to be energized- (NOTE: the City apart from this cond' on, and in accordance with the City's model home policy may issue model home permits). 48: Prior to issuance of building permits, the applicant shall provide the City with as-built drawings of the public improvements as fllows: 1) 3 mil mylar, 2 a diskette of the as-builts in "DWG" format, if available; otherwise "DXF' will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane Coordinates, referenced to NAD 83 (91). 49. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a °photomylar* copy of the recorded final plat. 50. The applicant shall .provide signage at the entrance of each shared flag lot driveway or private street that lists -the addresses that are served by the given driveway or street J{~t:A?DfFt01!1 .T.j :AP~~iCANT_~SHOUL-fl'BE:AWAREOF THE FOLLOWNG:SECTIONS :OF THE O f111A f t1 E aE~1NE- C6DE; THIS 1S NO7:A 1 EXCLUSIVE LIST:: 18.430.080 Im rovement A reement: e ore Uty aapproval is certmed on a final plat, and beford approved construction plans are issued by the City, the Subdivider shall: 1. Execute and fire an agreement with the City Engineer spec. 'ng the period within which all required improvements and repairs shall be completed; ' and ASH CREEK ESTATES SUMNISM STAFF REPORT (SU13MM-W010) PLANNiNG COMMtSSfON HEAMNG 717/2003 82 Include in the agreement provisions that if such work is not completed within the period specified, ' the City may complete the work and recover the full cost and expenses from the subdivider. The agreement shall stipulate improvement fees and deposits as may be required to be paid and may also provide for the construction of the improvements in stages and for the extension of time under specific conditions therein stated in the contract. 18.430.090 Bond: required by -Section 18.430.080; the subdivider shalt file with the agreement an assurance of performance supported by one of the following: 1. An irrevocable letter of credit executed by a financial institution authorized to-transact business in the State of Oregon; 2. A surety bond -executed by a surety company authorized to transact' business in the State of Oregon which remains in force untif the surety company is notified by the City in writing that it may be terminated; or 3. Cash. The subdivider shall furnish to the City . Engineer an itemized improvement estimate, certified by a registered civil engineer, to assist the City Engineer -in. calculating the -amount of the performance assurance. The subdivider shag not cause termination of nor allow expiration of said guarantee without having -first secured written authorization from the City.. 18.430.100 Filin and Recordin : Within 60 days o the tty review and approval; the applicant shag submit the final plat to the County for signatures of County officials as required by ORS Chapter 92. Upon final recording with the County, the applicant shag submit to the City a mylar copy of the recorded final plat, . 18.430.070 Final Plat AiDplication Submission Requirements: . Three copies o su ivision plat prepared a n surveyor licensed to . practice in Oregon, and necessary-.data or narrative. The subdivision Mutes data or narrative shall be drawn to the minimum standards set -forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard. STREET CENTERLINE MONUMENTATION SHALL BE PROVIDED AS FOLLOWS: Centerline Monumentation In accordance with Oregon Revised Statutes 92060, subsection (2),'the centerline. of all street and roadway rights-0f-way shall be monumented before the City accepts a street improvement The following centerline monuments shalt be set: 1. All centerline-centerline intersection points; 2_ All cul-de-sac centerpoints; - and 3. Curve points, beginning and ending points (PC's and PT's). All centerline monuments shall be set during the first lift of pavement Monument Boxes Required Monument boxes conforming to City standards will be required around all centerline intersection points, cul-de-sac center points, and curve points. - The tops of all monument boxes shag be set to finished pavement grade. ASH CREEK ESTATES sumwiSION STAEi= REPORT (SUB2003-Mlo) PLANNING COMMISSION HEARING 7172003 83 18.810 Street & Utility Improvement- Standards: 08.810.120 Utilities All utility lines in i ing, but not limited to those required for electric, communication, fighting and-cable, television services and related facilities shall be placed underground, except for surface-mounted . transformers, surface-mounted connection boxes, and meter cabinets. which may be placed above ground, temporary utility service facilities during construction, high capacity electric. fines operating at 50,000 volts or above. 18.810.130 Cash or Bond R uired Ail improvements installed by the subdivider shall be guaranteed as to workmanship .and material for a. period of one year following acceptance by the City. Such guarantee - shall be secured by cash deposit or bond in. the amount of .the.. value of the improvements as set by the City Engineer. The cash or bond shall comply-with the temps and conditions of Secti on.18.810.180. 18.810.150 Installation Pre uiske No a. division improvemen. , including" sanitary sewers, storm sewers, streets, sidewalks, curbs, fighting or other r drements shall be undertaken except after the plans, therefore, have been approved by the City, permiee paid and permit issued. 18.810.180 Notice to C" Rg uired Work 9-m not min untie ity.has been notified. in advance. . 9 work is discontinued for any reason, it shall not be resumed until the City is notified. 18.810200 Engineers Certification Wn The a dividers engineer s a provide written certification of a form provided by the City that all. provements, workmanship and materials are in accord with current- and standard engineering and construction practices, and are of high grade, prior to the City acceptance of the subdision's improvements or any portion thereof for operation and maintenance. 0 tS 7~►PPROVAL : StfALL BE VALID FOR. 4 VONTkiS .FRAM THE EFFECTIVE DATA :OHE .f.~►i~INING COMWIistlo: S' 6Ee1S10N; = SECTION III. BACKGROUND INFORMATION Site Histo The property is currently developed with one single-family residence and a couple of small outbuildings. An. effort by surrounding neighbors to acquire this property for open space purposes was unsuccessful. A search of city records found no. previous land use-cases associated with this parcel. Vicinity Information: The site is located 'lp the northwest comer of the City limits, south of SW Taylor's Ferry Road, on=the east side of SW 74 Avenue. The property is surrounded on all sides.by single-family residences. on. lots that vary in size. There is a stream -(Ash Creek) on the property that runs in 'an east west direction along the southern property boundary. This drainageway contains wetlands and areas of' steep slopes. Pro osal Information: The app scant is proposing to subdivide the parcel into 29 lots for single4amily-residences. Because of the trees, wetlands, and slopes on the site, the applicant has requested a planned development to allow them to vary the underlying zoning standards to develop around these features. The applicant is- MpIso requesting an adjustment to allow a curb tight sidewalk as opposed to a sidewalk separated from W me travel surface by a planter strip, and an adjustment to the cul-de-sac standards limiting the number of units on a cul-de-sac and the 200-foot maximum length permitted for a cul-de-sac. : . ASH cREEK ESTATES SUBDIVISION STAFF REPORT (SUB200300010) PLANNING COMMISSION HEARING 7nr20M 84 ECTION IV. DECISION MAKING -PROCEDURES, PERMITS AND USE USE CLASSIFICATION: SECTION 18:130.020 Lists the Use Categories. The'applicant is seeking approval-of a 29-lot subdivision on 9.3 acxes. The-lots are to be developed with detached single-family homes. The existing single-family home is to be demolished. Lot-sizes within the development are between 4,702 and 11,616 square feet. The applicant-is also proposing to set aside an approximate 4.15 acre open space tract for the drainageway and wetland area A private . street cut-de-sac is also proposed to extend from the public street stub into the property.. The site is located within the R-4.5, Low Density Residential District. Planned Developments are permitted in all districts. The applicant .has applied for conceptual and detailed planned development approval in conjunction with the subdivision. SUMMARY LAND USE PERMITS: CHAPTER 18.310 Defines the ecision-ma ing type to which the an -use application is assigned. This is a Planned Development/Subdivision, which is defined as a Type Ilt-PC.AppCcation: Adjustments are ty~cally Type II Administrative decisions and Type 111 sensitive lands. decisions 'are heard. by the Tigard Hearings Officer; however, when applications are heard concurrently, the highest decision maldng body will make the decision on all matters, as described below. DECISION MAKING PROCEDURES: CHAPTER 18.390 scn es the decision-making procedures. Type Ill procedures appply to quasi-judicial permits and actions that contain predominar td discretionary approval critena. Type Ill-PC actions are decided by the Planning Commission with appeals to the City Council. Type Pile actions are decided by the Hearings icer with appeals to City Council.- In cases where both the Hearings Officer and Planning Commission are involved; the Planning Commission has preferential jurisdiction, per Tigard Development Code (TD-C) Section . 18.390.080(D)(2)(a)- SECTION V. NEIGHBORHOOD COMMENTS e The Tigard Community Development Code requires that property owners within 500 feet of th subject site be notified of the proposal, and be given an opportunity for written comments and/or oral testimony prior to a decision being made. In addition, the applicant is required to post the site with notice of the public hearing. Staff has verified- that the site is posted. Staff has not received any written comments from any neighbors about this application.. A number of nearby neighbors -have expressed interest and concern about the subject proposal; however, no comments have been received since the application was received. SECTION VI. APPLICABLE REVIEW CRITERIA AND FINDINGS GENERAL PLANNED DEVELOPMENT STANDARDS: CHAPTER 18.350 The applicant has requested a Planned Development (PD) overlay zone- change-for the subject property. - The PD overlay requires -developers to follow the Planned Development process- for.`any proposal on affected sites. The Planned Development chapter provides for -flexibility in development design and allows deviation from certain standards of the base zone. The- following addresses . . compliance with, the process and applicable base zone standards. The Planned Development Process: Be-etion 18. es a ere are three elements to the planned development approval .030 process,. as follows: • . The approval of the planned development overlay zone; • The approval of the planned development concept plan; and The approval of the detailed development plan. ASH CREEK ESTATES SLWNtSION STAFF REPORT (SUB200300010) PLANNING COMMISSION HEARING 77712003 85 This application is for all three -elements of the planned development process, overlay zone, concept :Ian, and detailed plan. A licabil' Of The. Base Zone.Develo ment Standards: Section .18.350.070 requires corn lance to sped is eve opment standards: The provisions of the base zone are applicable as follows:- Lot dimensional standards:. The minimum lot size, lot depth and. lot width standards shall not apply except as related to the density computation under Chapter 18.715; The lot sizes range between 4,702 and 11,616. square feet, and there are two tracts proposed to accommodate the private street and the .proposed open space. * The required lot size for the R-4.5 zoning district is 7,500 square feet unless an applicant specifically requests different lot sizes through the Planned Development (PD) process, as is the case for this proposal. The proposed lot widths have been varied, but all are 50 feet or wider on the -building -portion of the lots. Average lot depths range from approximately 68-153 feet deep. One of the lots (#29) does not have adequate-frontage, and will be conditioned to be modified as described later in this report. The applicant has Identified and detailed the requested lot dimensional standards for this development, and -the minimum and maximum density requirements, have been satisfied as discussed later in this report Site coverage: The site coverage provisions of the base zone shall apply; There is no site coverage requirement in the R-4.5 zone; therefore, this criterion is not applicable. Building height: The building height provisions shall not apply; and AftThe height restriction does not apply within a Planned -Development as long as the developer roposes an alternative that. is approved. In this case, the developer has not requested an alternative eight requirement, but has indicated that the lots will be developed with single-family residences. Because it is not proposed to the contrary, development within this development will be subject-to the height requirements of the underlying zone. Structure setback provisions: Front yard and rear yard setbacks for structures on the perimeter of the project shall be the same as that required by the base zone unless otherwise provided by Chapter 18.360; The applicant has provided a site plan that illustrates building envelopes within:the development. The applicant has proposed to maintain a 15-foot rear yard for all structures on lots 1-13, on the perimeter of the project. Lots 24-27 will require a 20-foot front yard, and proposed lot 29 will require a 10-foot south side yard, as it is considered a flag lot. The applicant has proposed specific reduced front yards on the intenor of the project to reduce the need for deeper lots and to reduce the grading necessary to accommodate the homes. The applicant has requested that the required front yards within the development be adjusted to 8 feet for primary, structures and porches. They have indicated that the setback to the face of garage is proposed to remain at 20 and 22.5 feet. This criterion is satisfied. The side yard setback provisions shall not apply except that all detached structures shall meet the Uniform Building Code (UBC) requirements for fire walls; The applicant has proposed reducing the side yard setbacks from 5 to 3 feet. Three feet is the minimum separation required for UBC compliance. It should be noted that no protections, such.-as chimneys or bay windows, shall be permitted to encroach into this side yard area. This criterion has been met. Front yard and rear yard setback requirements in the base zone setback shall not app to structures on the interior of the project except that: J1) A minimum front yard setback of 20= .feet is required for any garage structure which opens facing a street; (2 A minimum front yard setback of eight feet is required for any garage-opening for an attached single-family dwelling facing a private street as long as the required off-street parking spaces are provided ASH cREEK ESTATES SUBMISION STAFF REPORT (SUB2003-00010) PLANNING COMMISSION HEARING 717!2003 86 i , described above, the tots provide a minimum 20-foot setback to the garage. The front and rear ~ards have been modified-as shown in the applicant's plans, however, there are several setbacks that requ-ire modification to comply with the code standards as they are perimeter setbacks. Lot 27 is shown with a stone drainage easement. This will need to - be set aside in a separate tract, and as such, Lot 27 will no longer front on SW 74th, making the front yard on the new. public street.. A 20-foot front -yard setback will be required on this side, as it is a perimeter setback. Lot 29 is a flag lot and.is subject to 10-foot side yard setbacks on the perimeter of the project. Additionally, staff recommends thaf standard rear yard setbacks be applied to the lots that have depths of 100 feet or more (#13-19) as a suitable building envelope has been provided through reduced'front yard setbacks, and. to further protect the sensitive land resource. A summary of these changes is shown in the following table- Table 1. Modified Setbacks. for Ash Creek PD Lot Garage roe ear Side Lot # Garage Front. Rear Side 2 .5 8 15' 15 3' 6 0 8' -TT6- 7/3' • 15' T/3- 15' 373' 19__ 20' 'X 15' 3,/3. 15' 373' 19. 2 3-' 15' 3'/3' 15' 373' 3' 373' • 15' 3'/3' 21- 3' 373' 7- 81 15' 373' 3' 3'13' 15' 3'/3' 3 J' 15' 373' - 9- 81 15' 3'/3' 24 20' 3' 3'/3' . 15' 3'/3' 25 3' 373' - 15' 3'13' _ 3' 3'13' -12 20' 15' 373' 27- 0 3' 373' • 3-' 15' 3'/3'' 28- 207-1- 3' 373' 20' 8' 1 15'. 3'13' 3' --37910' 3'/3' With the changes outlined in the above table, this criterion.has been met. FINDING: Several perimeter setbacks do not meet standard..code criteria. Staff recommends . against the proposed reduced rear -yard setbacks on several lots where lot depths exceed 100 feet- CONDITIONS: - • Prior to. the issuance' of building . permits on the individual structures within this development, the applicant -shall demonstrate compliance with- the setbacks outlined in the above table. Moreover, the applicant shall submit a revised plan that indicates the modified setbacks and record a copy of the setback plan with the deeds for each lot • Prior to issuance of building ppermits for structures on the individual lots- within this . development, the applicant shall demonstrate compliance with the height requirement of the underlying zone. The requirement calls for a 30-foot maximum.height for primary units and 15 feet maximum for all accessory structures. Other provisions of the. base zone: All other provisions o the Base-zone-shall apply except as modified by this chapter. Any additional provisions of the base zone are discussed within the body of this report or will be reviewed during the budding permit phase. FINDING: The base zone standards that are related to the previously discussed criteria have been satisfied. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003-00010) PLANNING COMMISSION HEARING 7!72003 87 ,mPD Approval Criteria: 18.350.100 Keewfic lanned develo ment a roval criteria. The Commission shall make findings that the ing criteria are satisfied when approving or approving with conditions, the concept plan. . The Commission shall make. findings that the criteria are not satisfied when denying an. application. All the provisions of the land division provisions, Chapters 18.410, 18.420 and 18.430, shall be met; The applicant has appried to subdivide the property concurrently with the planned "development approval; therefore, all subdivision criteria must be satisfied. ompliance, with the subdivision approval criteria is discussed in.greater detail in Chapter 18.430. The aplication has met or can be conditioned such that the subdivision provisions are. satisfied. This criterion' is satisfied. Except -as noted, the provisions of the following chapters shall be utilized as guidelines. A planned development need not meet these requirements where a. development plan provides altemative:designs and methods, N acceptable to. the Commission, that romote the purpose of this section. In each case, the applicant must provide findings to justi / the modification of the standards in the chapters listed in Subsection. 3 below. The developer may choose to provide -or the commission may require additional open space dedication and/or provision of additional amenities, landscaping or tree. planting. Chapter 18.715, Density Computation and Limitations. Unless authorized -below, density shall be governed by the density estdblished in the :underlying zoning district The Commission may further authorize a density bonus not to exceed 10% as an incentive to increase or enhance open space, architectural character and/or site. variation incorporated into the development. These factors must make a substantial contribution to : objectives of the planned development. The degree of distinctiveness and the desirability of variation achieved hall govern the amount of density increase which the Commission may approve according to he following: A maximum of 3% is. allowed for-the Provision of undeveloped common space; A maximum of 3% is allowed for landscaping; streetscape development; developed open spaces, plazas and. pedestrian pathways and related amenities; recreation area development; and/or retention of existing vegetation; A maximum of 3% is allowed for creation of visual focal points; use of existing physical amenities such as topography, view, and sun/wind orientationA maximum of 3% utility of architectural quality and style; harmonious use of materials; innovative building orientation or-building grouping; and/or varied use of housing types. The applicant has not requested any density bonuses.. Density will be discusseflater in this report under Chapter 18.715. Chapter 18.730, Exceptions to Development Standards; None apply. This criterion is not applicable. Chapter 18.795, Visual Clearance Areas; The applicants plans show the areas-for visual clearance at"street intersections. These. areas, as well as the areas at the intersection of the driveways and the street will need to be maintained free from obstructions taller than three feet in height. Any violations of this chapter will be remedied through code enforcement Chapter 18:745, Landscaping and Screening; This is a detached single-family proposal adjacent to detached single-family homes. As such, there - are no requirements far screening or buffering from -neighboring properties. However as discussed titer in. this report, the- applicant is required fo landscape at least 220% Qf the site within a Planned Development. The applicant has provided a street tree -plan for SW 74 Avenue and proposes to leave the open space tract in its natural state. ASH CREEK ESTATES SLMMSION STAFF REPORT (SU8200300010) PLANING COMMISSION HEARING 7/12003 88 Sphapter 18.765, Off-street Parking and Loading Requirements; The applicant has proposed that all homes will be provided With 2-car garages and at least 20 feet in front of the garages; which should provide more than.. enough. parlkinq for the development. The applicant has also designed the street with adequate width to allow parking on one side of the street. The minimum requirement for household living is one space for every unit. This criterion is satisfied. Chapter 18.705, Access, Egress and Circulation; and The applicant has indicated in the narrative that each lot will be served by a driveway to -a public or Private street. The minimum required width for. a driveway'is ,be whicf~ wll be assured at time of building permit review. The proposed private street improvements are evaluated. under discussion of compliance with str eet and utility standards in Chapter 18.810 Later in this report. Chapter.18.780, Signs. No signs are proposed in conj1unction with this development Any future siggnage will be subject to the sign permit; requirements in Chapter 18 780. There. has been a -proliferatiori.:of sign violations. from new subdivisions. In accordance with a: new policy, adopted. by the. Directors Designee, all new subdivisions must enter into a sign compliance agreement to. facilitate ` a . more expeditious court process for citations. FINDING: Staff finds that the proposed development is consistent with the guidelines listed in the Planned Development Section 18.350:100:6.2. To . expedite enforcement of sign violations, a.sign compliance agreement will be required. CONDITION: Prior to the issuance of building permits, the developer shalt sign a copy'of the City's sign compliance agreement- n addition, the following criteria shall be met: Relationship to the natural and physical environment: Tffe-streets, w ings an other site elements s a e designed and- located to preserve the existing trees, topography and natural drainage to the greatest-degree possible; The site is constrained naturally by steep slopes, wetlands, and the drainsgeway that bisects the property along the southern property boundary. The. property is in forest limber deferral through Washington County and is, therefore, not subject to the. tree removal ordinance with the exception of the trees in the sensitive lands areas. The applicant . has proposed to remove all the trees within the developable area, and retain. the vast majority of trees in the open space tract, excgpt where public facility, improvements necessitate tree removal. While this is permissible under existing rules and no mitigation is required by the code, it is unclear to staff how the above-standard is being met when opportunities exist to preserve several trees outside the building envelopes and grading areas. The Planning Commission will need to. 'determine whether the preservation of the trees within the open space tract satisfies this standard. With regard to preservation of topography and natural drainage it's dear that effort was taken to preserve as much as possible of these features in their natural state. The road width.has been ree reduced in conjunction with public easements and reduced setbacks to minimize the deg of ggri~din Tirequired to accommodate the roadway, for both the private street-and the.extension of SW 4". Tie rainageway area will be slightly impacted by the proposed (and City required) crossingg~ of SW 74 . This impact will be minimized.by utilizing oversized culverts and retaining walls to 6mit-the amount of fill encroachment into the comdor. Structures located on the site shall not be in areas subject to ground stumping and sliding; The site is characterized with several areas of slopes greater.than 25%, and in limited cases up to 50% slope From the applicant's -geotech report, there is one- area where previous land slumping has -occurred, southwest of the existing residence in the open space-tract The applicant's geotech report notes the locations of construction -limits where no further. geotechnical study-is required which ,generally coincide with the rear lot fines of lots 13-27. There -are-two notable exceptions, on lots 13, 14, and 15 and between.. Iots 22 and 23 where ..the stop' are steeper, and. -groundwater was encountered for one of the test pits. The ggeotech report contains recommendations to -address stability of structures and fill on the project, srle, and requires further study in -those-two areas. The recommendations of that report will be required as a recommended condition of approval. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003-00010) PLANNING COLOMSSION HEARING 717!2003 89 1 ere shall be adequate distance between on-site buildings and other on-site and off-site buildings on adjoining properties to provide for adequate light and air circulation and for fire protection; The current proposal does not call for any reduced setbacks along the rear yards of lots 1-12. The open space tract provides ample se ration for air circulation, and light penetration. The street and front yard setbacks will establish a 46-foot separation between the.fronts of the. homes.. The side yard setbacks have been ~prroposed to be reduced to 3 feet which complies with the UBC without the need for additional rated fiirewalls. Due to the reduced side yards, no projections into the amended side yards will be allowed. This criterion is satisfied. The structures stiall be oriented with consideration for the sun and wind directions, where possible; and The proposed structures will be oriented with considerations for sun and wind to the extent practical. The majority of the lots are oriented in a north-south-direction providing for opportunities to maximize southern glazing exposure. Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790; Tree Removal. Trees are preserved in the open space tract to the maximum extent possible for this proposal. Trees outside the sensitive lands area are exempt from the tree removal standards as the property is subject to a forest deferral. Bufferin screenir;q and compatibility between ad'oinin uses: u enng shall provided between different peso land. uses, e.g., between single-family and multi-family residential, and residential and commercial uses; ecause ' the . proposed development is for single-family homes in an area characterized by Wn e-family development, the Tigard Development Code (TDC) does not require any additional buffering. This criterion is inapplicable. In addition to the requirements of the buffer matrix (Table 18.745.1), the following factors shall; be considered in determining the adequacy and extent of the buffer required under Chapter 18.745: ° The purpose of the buffer, for example to decrease noise levels, absorb air pollution, .filter dust, or to provide a visual barrier; The size of the buffer needs in terms of width and height. to achieve the purpose; The direction(s) from which buffering is needed; The required density 'of the buffering; and Whether the viewer is stationary or mobile. As stated previously, there is no requirement for buffering between existing single-family homes and new single-family homes. This criterion is inapplicable. On-site screening from view from adjoining properties of such activities as service areas, storage areas, parking tots and mechanical devices on roof tops shall be provided and the following factors shall be considered in determining the adequacy of the type and extent of the screening (a) What needs to be screened; (b) The direction from which it is needed; and .(c) Whether the screening needs to be ye. round. _ There are no specific service areas, storage areas, parking lots or mechanical devices proposed with this development. No additional screening is required. This criterion is satisfied. Privacy and noise: ° Non-residential structures which abut existing residential dwellings shall be located on the - ite or be designed in a manner, to the maximum degree possible, to protect the private areas 0on the adjoining properties from-view and noise; Private outdoor area multi-family use: Shared outdoor recreation areas multi-family use: ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUBMO .0W 10) • PLANNING COMISSION HEARING 7f7/2003 90 1 1 ese, criteria relate to non-residential or multi-family structures and are not applicable to. the ~oposed single-family-development. Access and circulation: The number o a owe . access points for a development shall be provided in Chapter 18.705; Each lot will have direct frontae to a public or private street. Staff recommends that to reduce the number of driveways on SW 71 a Neighborhood Route; lots 28 and 29 should share .access.. This will be discussed later in this report" . All circulation patterns within a development must be designed to accommodate emergency..' vehicles; and Comments from Tualatin Valley Fire and Rescue (TVF & R) indicate that the proposed circulation system for the development is. acceptable if their conditions are addressed. See Section VIII of this report for more details. Provisions shall be made for pedestrian and bicycle ways if such facilities. are shown on an adopted' plan: The project fronts on SW 741' Avenue, which is a neighborhood route but has not been designated for. M6 lanes. This criterion does not apply. Landsca in and open space: e en is Development: n addition to the requirements of subparagraphs.(4) and (5) , of section a of this subsection, a minimum of 20 percent of the site shall be landscaped; The open space and drainage tracts of this proposal constitute approximately 44% of the site area. Thapplicant has indicated that landscaping on the lots will be accomplished by each homeowner Ofor5'the arately. The project will exceed the minimum 20%-landscape criteria: There is no-landscape plan. open- space tract, however, areas of stee slopes that are disturbed are, required to be replanted per the recommendations of the applicants geotech report Areas within the drainageway and wetlands wily require mitigation replanting per the requirements of Clean Water Services and the Division of State Lands. This criterion has been met Public transit: Provisions or public transit may be required where the site abuts a public transit route. The required facilities shall be based on: The location of other transit facilities in the area; and The size and type of the proposed development The required facilities shall be limited to such facilities as: -A waiting shelter; A turn-out area for loading and unloading; and Hard surface paths connecting the development to the waiting area This site does not abut a public transit route and, therefore, this criterion is not applicable= Signs: No siggnage is proposed with this application. Any future signage wilt require a permit in compliance with the sign code. Parkin Ail arking and loading areas shall be generally laid out in accordance with the requirements - set Vorth in Chapter Chapter 18.765; • Up lo 50% of required ,off-street parking. spaces for single-family attached dwellings may be provided on one or more common parking lots within the planned development as long as each single-family lot contains one off-street parking space.- ASH CREEKESTATES SUBDMS*N STAFF REPORT (SUB20034=10) M AMNG COON HEMNG 717r2M 91 [ arking can comply with all applicable requirements of Chapter 18.765. raina e: ramage provisions shall be generally laid out in accordance with the requirements set forth in Chapter 18.775, and the criteria in the adopted 1981 master drainage plan; Storm drainage complies, or will be conditioned to compl, with applicable City of Tigard and Clean Water Services (CWS). requirements. For a more detained discussion of storm drainage, see the discussion of compliance with the requirement of Chapter 18.810 later in this report. Flood Lain dedication: Where an i an or evelopment is allowed within or adjacent to. the 100-year.floodplain, the City/ shall require consideration of the dedication of sufficient open land area for a greenway . adjoiining and within the floodplain. This area shall include Oortions of a suitable elevation for the construction of a pedestrian/bicycle pathway with the floodplain in accordance with the adopted pedestrian .bicycle pathway plan. No areas within the 100-year floodplain exist on the site. The applicant's narrative erroneously refers to areas of "100-year . floodplain" . but this is in fact areas of 25-year floodplain used to identify the extent of the drainageway. Since there are no-100-year floodplains on the property, this criterion is not applicable: FINDING: The proposed development complies, or can be conditioned to comply with all planned development approval criteria contained in Section 18.350.100 of the -Tigard Development Code. Shared.Open Space: . Re uirements.for shared o n s ace: ere a open. space is estgna ed on the plan as common -open space the following pplies: The open space area shall be shown-on the final plan and recorded with the Director; and The open space shall be conveyed in accordance with one of the following methods: By dedication to the City as. publicly-owned and. maintained as open space. Open space proposed for dedication to the City must be acceptable to it with regard to the size, shape, location, improvement and budgetary and maintenance limitations; By leasing or conveying title (including beneficial ownership) to a corporation, home association or other legal entity; with the City retaining the development rights to the property. The.terms of such lease or other instrument of conveyance must include provisions suG e to the City Attorney for guaranteeing the following: The continued use of such land for the intended purposes; Continuity of property maintenance- When appropriate, the availability of funds required for such maintenance; Adequate insurance protection; and Recovery for loss sustained by casualty and condemnation or otherwise. By any method which achieves the objectives set forth in Subsection 2 above of this section. The. applicant- has indicated that the open space areas on the site will be conveyed to the- developments: Homeowner's Association. To ensure compliance with City of Tigard standards, the following condition shall apply:- CONDITION: Pm- r-to final subdivision plat approval, the applicant shall convey title for the proposed- 0 open space to a Homeowners. Association in -accordance with the requirements of Section 18.350.110.A.2.b of the Tigard Development Code. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003-00010) PLANNING COWASSION HEARING 717!2003 92 ecial adjustments 18.370: lWdjustinents to eve opment standards within. subdivisions (Chapter 18.430). The Director shall consider the application for adjustment at -the same time he/she considers the preliminary. plat An ad ustment may be. approved, approved with conditions, . or denied provided the Director find's: The applicant is requesting an adjustment to the street improvement standards on- SW 74"' Avenue, and an adjustment to the cul-de-sac standards. Under the new Transportation. System Plan, the development is required- to provide a planter strip between the curb and sidewalk. The applicant-is requesting an adjustment to the standard to, allow the sidewalk to be curb tight in order to.reduce the amount of fill required in the drainageway area. Also, the applicant has requested an adjustment to allow the proposed private street cul-de-sac to exceed the 200-f6ot length standard by 420 feet, and to permit. 23 homes on the cul-de-sac as opposed- .to the. code maximum of 20 homes. These . . adjustments are discussed simultaneously in the'- following discussion. There are special circumstances or conditions affecting the property, which are unusual and peculiar to the land as compared to other lands. similarly situated; In the case. of the curb tight sidewalk, the site plan indicates the areas of -sensitive resources, including Ash Creek, and the associated wetlands. If a 5-foot. planter strip was required, then an approximate-1,100 additional square feet of impact to the drainageway and wetland areas would occur. The unusual circumstance for this property is the presence of the stream and the fact that the development is required to cross the stream for street connectivity. In areas outside of the resource' corridor, the sidewalk will meet the public street standards for sidewalks. This criterion is satisfied. In reference to the adjustment to allow the cul-de-sac length to exceed 200 feet as opposed to the pro sed 620 feet, the presence of the sensitive lands and stream condor limit. the developable width' of the property, such that a looped street system is not feasible. The presence of existing development to the south (Washington Square Estates), east (Washington Square Estates II), and orth (the Raiber y Patch) precludes future street-extensions. The applicant's plans propose a public Wsstreet that will temu east at approximately 1/3 the total depth of the development site. While' a connection furthas could be accommodated, the applicant's proposal provides: for . future developmpt potential of the northern lot, as well as, creates a better alignment for ultimate extension of SW 73 Avenue. There are specific topography constraints, as well as existing development patterns that limit the ability of the applicant to extend a road all the way through the development to eliminate the cul-de-sac. The resulting length of this cul-de-sac is the primary reason for the need to exceed the 20 home maximum on the cul-de-sac to a total of 23 homes. This criterion is satisfied. The adjustment is necessary for the proper design or function of the subdivision; The adjustment for the curb tight sidewalk standard is necessary for the design of this subdivision'to reduce impacts on the natural resources on the site. This criterion is satisfied. The adjustment requested for the cul-de-sac length is necessary to provide access to.lots 3-19 of this subdivision. A standard dimensioned cul-de-sac bulb has been proposed to serve emergency equipment and garbage trucks. This criterion. is satisfied. The granting of the. adjustment will not be detrimental to the public health, safety, and welfare . or injurious o the righ1s of other owners of property; and Granting of the adjustments would not be detrimental to the health, safety and welfare, nor, is there any evidence to- suggest that the adjustments would be injurious to the rights of other owners of property surrounding the site. The Fire. District has reviewed and commented and offered no objection to these adjustments. The private street will be required to meet fire district standards for width and construction. The adjustment is necessary for the preservation and enjoyment of -a substantial property right because of an extraordinary hardship, which would result from strict compliance with the. regulations of this title. - In order to develop the in the proposed manner, the applicant would need to. request the adjustments to the standrds for street improvements and the cul-de-sac length. These adjustments are necessary in order to develop the property as proposed. ASH CREEKESTATES su80mstoN STAFF REPORT (suwom-mio) PLANNM COMMISSION HEARING 7!72003 93 FINDING: The-criteria for granting the adjustments to the street design and the cul-de-sac length standards havebeen satisfied. The adjustments are requested to accommodate this development specifically because of the natural resources and shape of the resulting buildable area of the rot, as well as the consideration of pre-existing development pattems in the area that would not permit compliance with the applicable. chapters of the TDC. Zone Change: Standards for Makin Quasi-Judicial. Decisions: Chapter 18.380 recommendation or a decision to approve; approve with conditions or to eny an,application for a quasiiudicial zoning map amendment shall be based on all of the following standards: Demonstration of compliance with all applicable comprehensive plan. policies and map . designations; The Development Code implements .the goals and-policies of the Comprehensive Plan and -anned„ developments. are permitted in all ' districts when they meet the code criteria. of the Development Code. This criterion is satisfied. Demonstration of -compliance with all applicable.. standards of any provision of this code or other applicable implementing ordinance; and According to the analysis of sections below, the proposed zone change is, or has been conditioned to ensure compliance with the requirements for planned development (PD) in Section 18.350.020 and all other applicable requirements. Evidence of change in -the neighborhood or community or a mistake or inconsistency in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application. There is no change in circumstances or inconsistencies to the Comprehensive Plan or Zoning Map that warrants a zone change from the underlying zone.. However, a zone change is necessary to lace the PD overlay designation on the property.. This criterion-is inapplicable. FINDING: - The proposal. satisfies the criteria for a zone change to place the Planned Development Overlay zoning onto the property. Preliminary Subdivision Plat Approval Criteria: 1.8.430.040 Approval criteria: e pprovaT7+Uthority may approve, approve with conditions or deny a preliminary plat . based on the following approval criteria: The proposed preliminary plat complies with the applicable zoning ordinance and other applicable ordinances and regulations; As illustrated in this report, the proposed plat complies with the zoning ordinance and other applicable ordinances and regulations. The proposed plat name is not duplicative or otherwise satisfies the provisions of ORS Chapter 92; The applicant has not provided documentation of a plat name reservation; therefore, the applicant will- need to provide an approved plat name reservation prior to final.plat.approval. The streets and roads are laid out so as to -conform to the plats of subdivisions and maps of major partitions already approved for adjolning property as to width, general direction and in all other respects unless the City determines it is in the public interest to modify- the street or - road pattem; and There are no street stubs to this property from adjacent properties.' -Existing development and topography limits the ability for this applicant to provide stubs for future road service to adjacent properties to the east and south; however, a street jtub has been provided for the property to the north; and extension of the improvements to SW 74 Avenue to the south is also proposed. This - criterion has been met. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (suB=3-00010) PLANNING COMMISSION HEARMG 717AMW 94 explanation has been provided for all common improvements. The-appficant has provided an explanation for all common improvements. FINDING: The proposed development complies with all preliminary subdivision criteria; however, the applicant will need to.provide evidence that the plat name is not duplicative of others in Washington County.: CONDITION: Provide a plat name reservation approval from Washington County. ZONING DISTRICT. Residential Zonin District: Section 18.510.020 the zoning aistrict - is designed to accommodate detached single-family. homes with or without accessory residential units at a minimum lot size of-7,500 square feet Duplexes and attached single-family units are permitted conditionally. Some civic and institutional. uses are also permitted condifionally. Planned Developments are permitted in all districts provided the application satisfies all applicable criteria. Development Standards: Section 18.510.050 States that Development standards in residential • zoning . is are contained in able 18.51 .2 below: The subject site and the surrounding properties are all designated R-4.5, Low-Density Residential. EXCERPT FROM TABLE 18.510.2: DEVELOPMENT STANDARDS IN RESIDENTIAL ZONES -STANDARD R4-.5 PROPOSED(PD) Minimum Lot Size - Detached unit 7,500 sq.fL 4,702-11,616 sq. ft- - Duplexes 10,000 sq.fL WA - Attached unit 1 Wq Average Minimum Lot Width - Detached unit lots 50 ft Varies 58 ft-:#- - Duplex lots 90 ft WA - Attached unit lots WA Maximum Lot Coverage - - Minimum Setbacks - Front yard 20 ft. 8 fL - Side facing street on comer & through lots 15 ft 15 ft - Side yard 5% - 3 ft. - Rear yard 15 ft. 15 ft and 3 ft - Side or rearyard abutting more restrictive zoning district - N/A Distance between property fine and front of garage- 20 ft. 20 fL and 22.5 ft. Maximum Height 30 ft. 30 ft. Minimum Landscape Requirement - 20% For PD Overlay Ill Single-family attached residential units permitted at one dwelling per lot with no more than five attached units in one grouping_ . [21 Lot coverage includes all txnldmgs and impervious surfaces., FINDING: Since the proposed development is a Planned Development, these standards can be altered to fit a specific design. * It should. be noted that-the applicant's narrative includes a table listinq the various tot widths for each- lot_ The methodology utilized -to establish these-lot widths was indorrecL The width is measured at the front and rear yard setback and averaged to obtain the code specified lot width. In any case the lot widths exceed the minimum requirement, and are authorized through ' the Planned " Development process- . ACCESS AND EGRESS: CHAPTER 18.705 " irnmum access requirements or rest ential use: Section18.705.030H. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003 MIO) - PLANNING COMMISSION HEARING 7!7200.3 95 ccess Management Section 18.705.030.H ec on states a an access report shall be submitted with all new evelopment proposals which verifies design of driveways and streets are safe by meetin~gg adequate stacking needs, sight distance and deceleration standards as set by 01D Washington County, the City and AASHTO. The apprcant's engineer indicates that sight distance will be met. Staff recommends that the applicant's engineer provide a post-construction sight distance certification. Section 18.705.030.H.2 states that driveways shall not be permitted to be placed in the influence area of collector- or arterial street intersections. Influence area of intersectioris is that area where queues of traffic commonly form on approach to -an intersection: The minimum driveway, setback from a ,collector or arterial street intersection shall be150 feet, measured from the right-of-way line of the intersecting street to the throat of the proposed driveway. The setback maybe greater depending upon the influence area, as determined from City Engineer review of a traffic impact report submitted by the applicant's traffic engineer. In a case where a project has less than 150 feet of street frontage, the applicant must explore any option for. shared -access with the adjacent parcel. If shared access is not possible . or practical, the driveway shall be placed as far*om the intersection as possible. 74#' - Avenue is classified as a 'Neighborhood Route°. Taylor's Ferry Road is classified as a "Collector' street. Th%proposed new intersection of 70 Avenue and Street 'A' is not within the influence area of-the 74 Avenue and Taylor's Ferry Road intersection. . Section 18.705.030.H.3 and 4 .states that the minimum spacing of driveways and streets along a collector shall be 200 feet The minimum. spacing `of driveways.and =along an arterial shall be. 600 feet The minimum spacing of local streets. along .a local street shall be 125 feet The proposed intersection is over 280 feet away from the intersection of 74"' Avenue and Barbara &-ane. Therefore, this standard is met. Vehicular access and egress for single-family, duplex or attached single-family 'dwelling units on individual lots and -multi-family residential uses shall not be less than as provided in Table 18.705.1 and Table 18.705.2; TABLE 18.705.1 VEHICULAR ACCESS/EGRESS REQUIREMENTS: RESIDENTIAL USE 6 OR FEWER UNITS D.Welling Un"Its Mnimwp . Number"-'~Of -Minimum -Access Width Jmirdmum P,avemenl.~lllidth Driveway - Ri -wired . . or 2 15 feet ee The applicant has indicated in the narrative that each lot within the.subdivision will have access to a public or private street and that each access will meet the 15-foot access requirement. It should be noted that staff will recommend a condition requiring joint access for lots 28 and 29, as discussed later in this report = FINDING: All proposed lots will -meet the required 15 feet of access frontage 'required for single-family dwellings. To ensure that the -minimum width pavement requirement is met at the time of development of each parcel, the following condition shall apply: CONDITION:At the time of application for building permits for:individual homes, the applicant shall demonstrate that each site will be accessed by a minimum 10-foot-wide paved access. Vehicular access to multifamily structures shall be brought to within 50 feet of the ground floor entrance or the ground floor landing of -a stairway, ramp, or elevator leading to the dwelling units. .This: is a proposal for a single-family development. This standard does not apply. . Private residential access drives shall be provided and maintained in accordance with the provisions of the Uniform Fire Code. ASH CREEK ESTATES SUBMISION STAFF REPORT (SUBW03-00010) - - - PLANr NG COMI ISSION HEARING 717x2 i 96 ee Re'Tualatin individual homeowners.will maintain the access drives once the property is developed and sold. Valley Fire and Rescue District.has reviewed the proposal and tFie comments have been incorporated where necessary. This criterion is satisfied. Access drives in excess of 150 feet in length shall be provided with. approved provisions for the turning around of fire apparatus by one of-the following: A circular, paved surface having a minimum turn radius measured from center point to outside- edge of 35 feet; A hammerhead-configured, paved surface with each leg of the. hammerhead having a minimum depth of 40 feet'and a minimum width of 20 feet;. The maximum cross slope of a required turnaround is 5%. There are no -access drives proposed that would exceed 150 feet in length. This criterion has been met. Vehicle turnouts, (providing a minimum total driveway width of 24 feet for a distance. of at least 30 feet, may be required so as to reduce the- need for excessive vehicular backing. motions in situations where two vehicles traveling in opposite directions meet on driveways in - excess of 200 feet in length. There are. no proposed driveways in this development that exceed 200 feet in length. The deepest lot- in the proposed development is.165 feet, therefore, this criterion does not apply. Where permitted, minimum width'-for driveway approaches to arterials or collector streets shall be no less than 20.feet so as to avoid traffic turning from the street having to wait for traffic exiting the site. The site is not.adjacent to a collector or arterial. This standard does not apply. To provide for increased traffic movement on congested streets and. to eliminate turning movement problems, the Director may restrict the location of drive wa s on streets.'and require the location of driveways be placed on adjacent streets, upon the f riding that the proposed . access would cause or increase existing hazardous traffic conditions; or provide inadequate access for emergency vehicles; or cause hazardous conditions to exist which would constitute a clear and present danger to the public health, safety, and general welfare. Since SW 70 is designated a neighborhood-route, and will eventually be extended to connect to SW Locust Street, it is anticipated that traffic volumes will increase on this presently dead-ended road. To minimize traffic conflicts in this area where driveways may be difficult to see due to the vertical curves near the stream crossing, staff recommends that-the two southern lots, #28 and 29 share access through one driveway approach. This driveway is required to be a minimum of 10 feet of paved width - within a 15-11oot easement or tract. FINDING: The proposed development can - corn Iy with all -applicable access, egress, and circulation requirements of Chapter 18.705. Joint access for lots 28 and 29 will improve traffic safety by reducing the number of access points onto this- neighborhood route street CONDITIONS: • The appplicant:shall provide joint access within an easement or tract to Lots 28 and 29 and cause e-a statement to be placed on the plat restricting additional direct vehicular access to SW 74th Avenue. • At the-time of application for building permits for individual homes,-.the applicant shall demonstrate that each site will be accessed by a minimum 10-foot wide paved access. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB200300010) PLANNING COMMISSION HEARING 7/72M 97 ENSITY COMPUTATIONS: CHAPTER 18.715 ensity Calculation: 18.715.020 Definition of net development area. e development area, in acres, s all be determined by subtracting the following land area(s) from the gross acres, which is all of the land included in the legal description of the property to be developed: All sensitive land areas: a. Land within the 100-year floodplain; b. -Land or slopes exceeding 25%; c_ Drainage ways; and d. Wetlands. All land dedicated to the public for park purposes; All land dedicated for public rights-of-way. When actual information is not available, the following formulas may -be used: Single-family development: allocate 20% of gross acreage; Multi-family development: allocate 15% of gross acreage. All land proposed for private streets; and A lot of at least the size required by the applicable base zoning district, if an existing dwelling is to remain on the site. Calculatin maximum number of residential units. To calculate the maximum ,mum er o rest en al units per net acre, divide., the number of square feet in the net acres by the minimum number of square feet required for each lot in the applicable zoning district The net development area, is determined by .subtracting from the gross area, the land needed for public and private streets as well as areas for sensitive lands. The calculations are as follows: Gross lot area 407,721 square feet Public Street dedication 17,828 square feet nvate Street dedication 22,670 square feet IWrainageway 70,862-square feet Steep Slopes 107,556 square feet Wetlands Moils contained in drainageway) NET DF (ELOPABLE AREA: 188,805 square eet (Before Density Transfer) . NUMBER OF LOTS: 25 lots Residential Density Transfer u es goveni ng resiai~Tdensity transfer. The units per acre calculated-by subtracting land areas. ~sted in Section 18.715.020 A. 1a - c from the gross acres may be transferred to the remaining buildable land areas subject to the followinglimitations: 1. The number of units which can be transferred is limited to the number of units which would have been allowed on 25 percent of the unbuildable area if not for these regulations; .and 2. The total number of units per site does not exceed 125 percent of the maximum number of units per gross acre permitted for the applicable comprehensive plan designation., Based on the rules for density transfer,. the applicant is able to utilize 25% of the. constrained lands as part of the net developable area. In this case, the drainageway and steep slopes constitute a total 'of 178,418 square feet. Twenty-five percent of this area is 44,604 square feet, for a total net .developable area of 233,409-square feet. To calculate the maximum allowed density, net'developable area is divided by the minimum allowed square footage within the zone, as follows: R-4.5 zone 239 =7,500 = 31 dwelling units. The total number of units based on 125% of the gross site acreage would be 25 lots x 125%, or 31 _ .lots. FlNDING: The proposed 29 dwelling units do not exceed maximum density of the net developable area. This standard is met. AsH CREEK ESTATES suBOm=N sTAFF REPORT (suB2ow-oooio) PLANNM COMMISSION HEARM 717x"3 98 Calculatin minimum number of residential units. s required y ec ion 18. the minimum number of residential units per net acre shall be calculated y multiplying the maximum number of units determined in Subsection B .above by 80% (0.8). The minimum required density is determined by the following calculation:- 25X0.80=20 FINDING: The standard for minimum-density is met. - = ENVIRONMENTAL PERFORMANCE STANDARDS: CHAPTER 18.725 These standards require that federal and state environmental laws, rules and r ulations be applied to development within the City. of Tigard. - Section 18.725.030 (Performance Standards) regulates: Noise, visible emissions, vibration and odors. Noise. For the purposes of noise regulation, the provisions of Sections 7.41.130 through 7.40210 ofie Tigard Municipal Code shall apply. Visible Emissions. Within the commercial zonin,9 districts and the industrial park IP) zoning district, ere s a be no use, operation or activity which results in a stack or either point source emission, other than an emission from space heating, or the emission of pure uncombined water (steam) which is visible from a property line. Department of Environmental Quality. (DEQ) rules for visible emissions (340-21-015 and 340-28-070) apply. Vibration. No vibration other than that caused by highway vehicles, trains and aircraft is permed in any given zoning district which is discernible without instruments at the property line of the use concerned. .Odors. The emissions of odorous gases or other matter in such quantities as to- be readily airier able at an point beyond the property line of the use creating the odors is prohibited. DEQ rules for odors (0-028-090) apply. Glare and heat. No direct or sky reflected glare,- whether from - floodlights or from high temperature processes such as. combustion or welding, which is visible at the lot line shall be permitted and; 1) there shall be no emission or transmission of heat or heated air which is discernib(e at the lot line of.the source; and 2) these regulations shall not apply to signs or floodlights in parking areas or construction equipment. at the time of construction or . excavation work otherwise permitted by this title. Insects and rodents. All materials- including wastes. shall be stored and all. grounds shall be maintained-in a manner which will not attract or aid the propagation of insects or rodents or create a health hazard. This is a detached single-family project, which is permitted within planned developments in the R-4.5 Zone. There is nothing to indicate that these standards will not be met. However, ongoing. maintenance to meet these standards shall be maintained and any violation of these standards will be addressed by the City of Tigards' Code Enforcement Officer. FINDING: The Environmental Performance standards are met. LANDSCAPING AND SCREENING: CHAPTER 18.745 Establishes standards or an soaping, buffering and screening to enhance the aesthetic environmental quality of the City. The R-4.5 zoning district does not require any landscaping, however, planned developments require that a minimum of 200/6 of. the site be landscaped. As discussed previously, the common areas that are to be • landscaped constitute 27% of the site, and additional landscaping will be planted with the development of each lot. ASH CREEK ESTATES SUMMON STAFF REPORT (SU62003-00010) PLANNING COMMISSION HEARING 7!72003 99 I Section 18.745.040. states that all development projects fronting on a public street, private :,treet, or a private driveway more than 100-feet in length after the adoption of this title shall be required to plant street trees in accordance.with the standards in Section 18.745.040C. The applicant has provided a street tree plan for the development to include the planting of 62 Red Sunset Maples alongg the front of the lots. facing the public and private street and. along the site frontage along SW T4 Avenue. The proposed street trees are acceptable species; - however, staff recommends a greater variety of trees be used by utilizing an alternate species along either the public or private street- . This will further disti nguish. the private from the public street as well. With the change outlined above, this criterion is satisfied. _ FINDING: The proposed street tree plan should offer a greater diversity of tree species. CONDITION: Submit a revised street treellandscappee plan that shows an alternative tree species used for either the public or private street to.-vary the streetscape. Bufferin and Screenin - Section 18.745.050 Fu W . Wring an screening is reywire re uce.the impacts on- adjacent uses which are of a different type in accordance with the matrices in this chapter (Tables 18.745.1 and 18.745.2). The subject .site is surrounded by single-family developments; therefore, there is no requirement for buffering and, screening for this project. FINDING: As conditioned, the proposed development will comply.with all applicable Landscaping and Screening requirements of Chapter. 18.745: MIXED SOLID WASTE AND RECYCLABLE STORAGE: CHAPTER 18.755 Although fisted as -a review criterion or is ap ica on, this chapter is only applicable to multi-unit residential buildings containing five or more units and non-residential construction. Therefore, this chapter is inapplicable. The applicant has stated that they intend to serve the site as any other Ivingle-famil development would be served, and Pride Disposal has signed off on the site plan for serviceability. OFF-STREET PARKING AND LOADING REQUIREMENTS: CHAPTER 18.765 is Chapter is. applicable or development projects when there is new construction, expansion of existing use, or change of use in accordance with Section 18.765.070 Minimum and Maximum. Off-Street Parking Requirements. The proposed project will create 29 lots for single-family dwellings. Submittals of detailed plans for the construction of homes within the development. are not necessary at this time. Table 18.765.2 requires that one (1) off-street parking space be provided per detached dwelling unit. There is no maximum limit on parking allowed for detached single-family dwellings. There is also no bicycle parking requirementfor single-family dwellings. Staff notes that there is a 20-foot required setback from the face of garages to property lines in all residential zones. To ensure that homes constructed in this development comply with these standards, the following condition shall apply: CONDITION: At the ..time of submittal for building permits for individual homes within the development, the developer shall submit materials demonstrating that one (1-) off-street parking space, which meets minimum dimensional. requirements and setback requirements as specified in' Title 18, will be provided on-site for each new home. SENSITIVE LANDS: CHAPTER 18.775 The development site includes area of drainageways; associated wetlands, and steep slopes.. Development of sites that include these areas requires review -through the sensitive lands criteria as described below. Jurisdictional wetlands. Landform alterations or developments which are only within wetland areas that meet the jurisdictional requirements and permit criteria of the U.S. Army Corps of Wre ngineers, Division of State Lands, CWS, and/or other federal, state, or regional agencies, and -not designated .as significant, wetlands on the City of Tigard .Wetland and Streams Corridors 'Map.; do not- require a sensitive lands permit. The City shall require that all necessary -permits from other agencies are obtained. All other applicable City requirements ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SLM3200300010) PLANNING COMMISSION HEARING 7178003 100 must be satisfied, including sensitive land permits for areas within the 100-year floodplain, lopes of 25% or greater or unstable ground, drainageways, and wetlands which are not under state or federal jurisdiction. The wetlands within this site do not appear as significant wetlands on the City's map,. but are regulated by CWS and state agencies. A condition of approval will be imposed requiring the necessary permits from Army Corps, Division of State Lands, and CWS be obtained Steep slopes. The appropriate approval authority shall approve, approve with conditions or eny an application request for a sensitive lands p'e it on slopes of 25%e or greater or unstable ground based upon findings that all of the followin.9 criteria have been satisfied: 1. The extent 'and nature of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for-the use; 2. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and -off=site effects or hazards to life or property; 3. The structures, are appropriately sited and designed to ensure structural stability. and roper drainage of foundation and crawl space areas for development with any.. of. the'. p . following soil conditions: - wet/high - water table; high" shrink-swell capability; comp ressibleforganic; and shallow depth-to-bedrock; and 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. The proposed land form alteration is limited; to the extent necessary to provide for a street, sidewalk, and utilities. The applicant has attempted to limit the land alteration by narromng the street, eliminating the sidewalk on one side of the private street, and reducing front yard 'setbacks:. The predominance of the landform alteration will occur outside the stream corridor and.drainageway. Also, a ggeotechnical report has been performed. - An erosion control and grading plan Hnnill be required as part of the engineering approval process to insure that grading within the steep slope areas.will not result m sedimentation or erosion,. as well as avoid on- or off-site adverse effects.. Furthermore;: the City will require the applicants engineer to submit the proposed construction plans to the geotechnical engineer for review and approval prior to City approval of the construction plans. A geotechnical report has been conducted to evaluate the suitability of the lots for building .placement: The geotech report provides a _ desiggnated area where no further geotechnical evaluation is necessary, and areas where a more detailed analysis will be required. This designation affects a portion of the, private , street and lots 13,.14; 15, 22, and 23. A condition is required further in this report to have the geotechniical engineer review the proposed gracing and building placements prior to final plat approval for these areas. To address erosion concerns and removal of vegetation, the applicant will be required to submit an erosion control plan prior. to any grading. The applicant has not indicated that areas affected by Ian form alterations will. be re-planted if not covered by structures or,impeMou#surfaces, however, this. will be insured by the . erosion control plan and a condition requiring areas to )be re-planted pprior to final building permits .will be required as part of this approval, and is furthermore required through , the CWS service provider letter. Within drains ewa s. The appropriate approval authority shall approve, approve with conditions or deny an application request for a sensitive lands permit- within drainageways based upon-findings that all of the following criteria have been.satisfed: 1. The extent and nature of the proposed land form alteration or development will -not create site disturbances to-an extent greater than-that required for the-use*In this case, the landform alteration will include a stream crossing to extend SW 74h Avenue. This. is. a requirement of the City to improve the site frontage, provide access to the two oposed,lots, an~ further implement the objectives of the City's Transportation System Plan which designates: SW 74 as a neighborhood route. The applicant has pproposed a small retaining wall to mintmize the amount of fig in the stream corridor.. The extent of the disturbance is no greater than that required for the roadway. No disturbance within the drainageway is proposed to accommodate the tits or internal streets. - 2. The proposed land form alteration or development will not result- .in erosion, stream sedimentation, ground instability, or other adverse on-site and -off-site effects or hazards to life or property; ASH CREEK ESTATES suBDWtSioN STAFF REPORT (SUB2003430010) PLANNING COMMISSION HEARING 782003 101 described previously, an erosion. control and grading plan will be required as part of the engineering wpproval process to insure that grading within the steep slope areas will not.result in sedimentation or erosion, as well as avoid on'or off-site,adverse effects. Furthermore, the City will require the applicant's engineer to submit the proposed construction plans to the geotechnical engineer for review and approval prior.to City approval of the construction plans. 3. The water flow capacity of the drainageway is not decreased; The applicant has submitted a. stormwater report that shows that the capacity of the drainageway is not affected. The 'a plicant has proposed using an oversized box culvert to ensure that upstream properties are not affected. 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening; To address erosion concerns and removal of vegetation; the applicant will be required to- submit an.: erosion control plan prior to any grading. The applicant has not indicated that. areas affected by landform alterations will be re-planted if not covered by structures or impervious surfaces; however, this will be insured by the erosion control plan. and a condition requiring areas to be re planted prior to. final building permits W11 be required as part of this approval; and is furthermore. required through-the _CWS- service provider letter. 5. The drainageway will be replaced by. a public facility -of adequate 'size to. accommodate maximum flow in accordance with the adopted 1981 Master Drainage Plan; The 1981 Master Drainage Plan does not identify any public facilities for this portion of Ash Creek 6. The necessary U.S. Army Corps of Engineers and State of Oregon Land Board, Division of- ~tate Lands, and CWS approvals shall be obtained; The applicant has shown approvals from Clean Water Services, -but has. not yet obtained U.& Army Corps of. Engineers, and Division of State Lands approvals. These wilt be required prior to commencing any site work. 7. Where land form alterations and/or development are allowed within and adjacent to the 100- year floodplain, the City shall require the consideration of dedication of sufficient open. land. area within and adjacent to the floodplain in accordance with the Comprehensive Plan. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted. pedestrian bicycle pathway plan. There is no 100-year floodplain within or adjacent to the proposed development. This standard is inapplicable. FINDING: Provided the applicant complies with the following conditions, the proposal can meet the criteria necessary to issue a sensitive lands permit on this-particular site. CONDITIONS: • Prior to the issuance of final occupancy on any -building,-the -applicant: must provide City staff with. a letter from Clean Water:.; Services that indicates - compliance with.the approved service provider letter (#2819). • Prior to any site work, the applicant shall provide evidence of all necessary approvals from US Army Corps of Engineers and the Division of-.State Lands. • Prior to any site work, the drainage tract must be clearly identified in the field with • permanent (preferably with minimum 44oot-tall black chainlink) fencing so as to insure no grading or material is placed in-this area. Any fencing that-is damaged during construction must be replaced prior to final building inspection. ASH CREEK ESTATES SUBDMSION STAFF REPORT (WB2003-00010) PLANNM COMMISSION HEARING 71MOM 102 • Prior to final plat approval submit and receive approval for an erosion control and grading plan for alteration on slopes exceeding 25%_ • Re-plant any'area where vegetation has been removed as a result of grading in conformance-with the Clean Water Services--Standards as set forth in the site assessment file #2819, prior to obtaining building permits. • Prior to commencing on site improvements, the applicant shall have the geotech engineer review and approve the construction plans. for the City's review and approval. TREE REMOVAL: CHAPTER 18.790 Tee p an or the planting, removal and protection of trees prepared by a certified arborist shall be provided with a site development review application.; The tree plan snail include-identification . Of ail existing trees, identification of a' program to save existing trees or mitigate tree removal over 12 inches in capper, which trees are to be removed, protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. The applicant indicates in his narrative that the property is subject to a timber deferral status .and the owner has elected to remove all of the trees on the property that are outside the sensitive lands areas as provided for in the Development Code, Section 18.790.050,(D)(4). There are several'trees that are indicated for removal within the sensitive lands areas, and these trees will requite separate tree . removal .permits. Staff- estimates that there are 74 such trees. The applicant should note that a. separate fee is required foreach tree removal in a sensitive land area and based on the estimate and current permit fees, this equates to:$4,200: The applicant will need to demonstrate'compliance with the removal criteria in Section 18.790.050(A). The applicant has not submitted an arborst. report regarding the protection of the trees that will .remain on site. FINDING The applicant has provided a tree removal plan indicating the trees proposed for removal. There are approximately 74 trees in .sensitive land areas that will require . tree removal permits. No arborist report to address the protection of the remaining trees on site has. been submitted. To ensure that the trees are preserved according to the tree removal plan, the following conditions shall apply: CONDITIONS: The applicant shall submit an arborist report with tree protection recommendations, and shall ;.,provide the- City Arborist with a construction: - sequence including installation and removal of Gee protection devices, clearing, grading, and paving. Prior, to site work, the applicant shall submit a complete set of construction documents with the tree locations for the City Arborists rewew. The applicant shall notify the City Arborist when tree protection measures are in place so that he may verify that the measures will function propeiiy prior to construction. Visual Clearance Areas: Section 18.795 ear vision areas be maintained on the comers of a!! property adjacent to intersection of two streets, a street and a-railroad, or a driveway providing access to a public or private street A clear vision area shalt contain no vehicle, :hedge, plantin , fence, wall structure, or temporary or permanent obstruction exceeding three (3) -feet in heigh measured from the top of the curb, or where no -curb exists, from the street center grade, except the trees exceeding this height may be located in this area, provided all branches below eight feet are removed For arterial streets- the visual clearance shall not be less than 35 feet on each side of the intersection. ASH CREEK ESTATES WMNV=N STAFF REPORT (SLWOM-00010) PLANNING coMMtSSroN HEARING 7arz0M 103 *omrcific splans for the construction of structures are required through the subdivision process. or with vision clearance requirements shall be confirmed through the building permit cess for all homes to be constructed within the development. The applicant has illustrated the dear vision areas on the plans and included details at a larger scale fo[ the intersection of the private street at the new public street, and alt the new public street and SW 74 Avenue; and has indicated in the narrative that there will be no obstructions placed within these areas. This standard is met. G.. IMPACT STUDY: SECTION 18.390.040.B.e Requires that a applicant shall include an - impact study. The study : shall address, at a minimum;. the transportation --system, includ'n bikeways, the- drainage system, -the parks system, the water system, the sewer system, and the noise impacts of the develo ment.. For each public facility system and type of impact of the development on the public at large, public facilities systems, and affected private property users. In situations where the Community. Development Code requires the dedication of real property interests, the applicant shall either specifically concur with the dedication of real property interest, or provide evidence which. supports the conclusion that the real property . dedication -requirement is not roughly proportional to the projected impacts of the development The applicant has submitted an impact study addressing the required elements above. ROUGH PROPORTIONALITY ANALYSIS Any required street improvements to. certain collector or higher volume streets and the Washington CountyTraffic Impact Fee fTIF) are mitigation measures that are required at the time of development. Based on a transportation impact study prepared by Mr. David Larson for the A-Boy Expansion/Dolan II/Resolution 95-61, TIF's are expected to recapture 32 percent of the traffic. impact- of new development on the Collector and Arterial Street system. Effective July 1. 2003, the TIF for a detached, single-family dwelling is $2,530. Upon completion of this development, the future builders of the residences will be required to pay TIF's totaling approximately $73,370,($2,530 x 29 dwelling units). Based on.the estimate. that total TIF fees cover 32 percent of the impact on major street 07$f3ro,",ements ci de, a fee that would cover 100 percent of this projects traffic impact is $229,281 370 divided by .32). The difference between the TIF paid and the full impact, is considered as unmitigated impact. The internal. streets within the. subdivision are needed to allow the subdivision to develop and the need for. these streets is created by the subdivision. Because the need for-the internal streets is created by the development, the impact of the development is directly' proportional to the -cost of dedication and construction of the internal streets and not considered as mitigation for the. development. impact With regard to off site mitigation measures, -the applicant is proposing to make 3/ -street improvements and provide a .rossing over Ash Creek. The applicants estimated cost of these street improvements along SW 74"" Avenue is $250,000. Using the City's standard methodology, the amount of mitigation provided .through the applicant's street -improvements exceeds. the estimated value of the full impact from, this development .by. approximately $94,000. This is not roughly proportionate to the impact of the development; however, it is required for the proper function of- the applicant's subdivision, to provide access to the lots within the subdivision, and the applicant has proposed this improvement. With regard to the dedication of real. property. interests, the applicant will be required to dedicate an additional 2 feet. of right of way totaling 842 square feet for a total value of approximately $2,526. - This amount of real property dedication is roughl pproportionate to the full $229,281 impact. Although the cost of the physical Improvements exceedythe full impact, the applicant has proposed these improvements and is required to provide them in -order to satisfy -the standards of the street improvement -chapter. Full Impact . 73,370-0.32) $229,281 Less T IF Assessment... 29 lots x 2 30 -$73,370 Less mitigated costs 74 Street Improvement - $250.000 - ~Estimate of Unmitigat mpads ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2W3-OW10) PLANNING COMMISSION HEARING 7172W3 104 INDING: The applicants proper street improvements are required to address the standards of. Chapter 18.810 and to allow the subdivision to function properly. While the cost of these improvements is not- proportionate to the level of impact, the improvements have been proposed by the applicant The required dedication of right of way is dearly pro onate porti to the impact of the creation of these 29 lots. Therefore, the conditions are either roughly proportionate to the impacts sustained or required to meet the code standards and are thereby justified. STREET AND UTILITY IMPROVEMENTS STANDARDS: CHAPTER 18.810 Chapter. 1.8.810 provides construction standards or the implementation of public and private facilities and utilities such as streets, sewers, and drainage. The applicable. standards are addressed below: Streets: . improvements- Section 18.810.030.A.1 states that streets within a development and streets adjacent shall be improved in accordance with the TDC standards. Section 18.810.030.X2 states that any new street or additional street width planned as a portion of an existing street shall be dedicated and improved in accordance with the TDC. Minimum Rights-of-Way and Street Widths: Section 18.810.030(E) requires a neighborhood route street to have a 54-foot right-of-way - width 'and a 32-foot . paved section. Other- improvements required may include on-street parking,, sidewalks and bikeways, underground utilities, street lighting, storm drainage, and street trees. SW 741' Avenue ' This site lies adjacent to SW 74 Avenue, which is classified as a Neighborhood Route on the City of Tigard Transportation Plan Map. -At present, there is approximately 25 feet of ROW from centerline, .according to the most recent tax assessor's map. The applicant is proposing to dedicate additional ROW to provide 27 feet from centerline. SW 70 Avenue is currently unimproved. There is an existing drainage way that crosses 7e Avenue just south of the proposed intersection. There is also a 36-inch water transmission line, owned and operated by the City of Tualatin. The applicant's engineer found that if he designed the roadway to meet Tigard's standard for a sag vertical curve it would require significant fill to be placed over the water line. The City of Tualatin was not in favor of this amount of-fill. Another issue is the fact that the more fill that is placed in the sag curve the more impact the fill has on the drainage way wetland area: The applicant and his engineer met with representatives from Tigard, Tualatin and Tualatin . Valley Wat%Pistrict to discuss this issue. All parties agreed that the applicant should be permitted to construct 74 Avenue with a steeper grade than the standard in order to minimize the impact on the water-fine and the wetlands. The applicant would be required to a ply for an adjustment to the grade standard: This discussion will be. covered later in this report. T~e result of the applicants design proposal is that they will be constructing a 3/4-street improvement along the frontage of their site. Adjustment for Curb-ti ht Sidewalk: caue o the stream corridor an associated wetlands that traverse the proposed street crossing of SW 74' Avenue, the applicant would like to move the sidewalk to curb-tight to reduce the width of the street and the resulting amount of fill required to build the street. By placing the sidewalk ciirb'tight, 5 - fewer feet of width into the stream condor is avoided. Adjustments to -street standards are covered under TDC 18.370.020>C.11. where the Director must find that the following criterion is satisfied: `Strict application of the standards will result in an unacceptably adverse impact on existing development, on the proposed development,- or on natural features such as wetlands, steep slopes or exisfing mature- trees. In approving an adjustment to the standards, the Director shall - determine that the potential adverse impacts exceed the. public benefits of strict application of the standards." ASH CREEK ESTATES SUBOIVISKM STAFF REPORT (SUB2003-00010) PLANNING COLUSSUN HEARING 7172003 105 0 The drainageway and wetlands in Tract A adjacent to the roadway cannot be avoided while still rovidin for the street connection. The applicant .has reduced the street section to the minimum width ofg24 feet and has proposed a retaining wall to limit the amount of fill and protect the roadbed from undermining and erosion. By moving the sidewalk to the curb line, the required planting stri p s eliminated; however, additional preservation of wetlands, the stream corridor, and existing maturie trees will result. Staff finds that the adjustment would not adversely affect the public benefits, as citizens often comment that they do. not like to see mature trees being removed with development. The applicant has proposed planting street trees on the outside of the sidewalk to maintain'the street tree plating scheme. Staff recommends approval of this adjustment. Future Street Plan and Extension of Streets: Section 18.810.030(F) states that a future street plan shall be. filed. which shows the pattern of existing and proposed future streets from the boundaries of the proposed land division. This section. also states, that where it Is necessary to give access or permit a satisfactory future division of adjoining 1and,-streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street These street stubs to adjoining properties are not considered to be cut-de-sacs"since they are Intended to continue as through streets at such time as the adjoining property is developed A barricade shall be constructed at the end of the street by the property owners which shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost Temporary. hammerhead turnouts or temporary cul-de- sac bulbs shall be. constructed for stub'streets in excess of 150 feet in length. The applicant's plan shows that they will stub a public street to the parcel to the north: The location of .this street stub will accommodate effective development of this parcel. Staff concurs with the proposed plan. Street Alignment and Connections: Section 18.810.030(G) states that staggering of streets making "T" intersections at collectors and arterials shall not be designed so that jogs of less than 300 feet on such streets are created, as measured from the centerline of such street. Spacing between local street intersections shall have a 'minimum separation of 125 feet. All Olocal streets which abut a development site shall be extended within the site to provide through circulation when not precluded by . environmental or. topograhical constraints, existing development patterns or strict adherence to other* standards in this code.. A street connection or extension is precluded when it is not possible to redesign, or reconfigure the street pattern to provide required extensions. In the case of environmental or topographical constraints,. the. mere presence of a constraint is not sufficient to show that a street connection is not possible. The applicant must show why the constraint precludes- some reasonable street connection. As was stated above, the steep slopes and creek to the south preclude extension of a public or pnvate roadway further to the west. No public street connection is proposed to the east due to the fact that all parcels around that part of the site are fully developed with no street extensions available to this site. Cul-de-sacs: 18.810.030.K states that a cul-de-sac shall be no more than 200 feet long, shall not pprovide access to greater than 20 dwelling units, and shall only be used when environmental or constraints, existing development .pattern, or. strict adherence to other standards in this code-preclude street extension and through circulation: or -All cul-de-sacs shall terminate with a turnaround. Use of turnaround configurations other than circular, shall be approved by the City Engineer and The length of the cul-de-sac shag be measured along the centerline of the roadway from .the near side of the intersecting street to the farthest point of the cul-de-sac. If a cul-de-sac is more than 300 feet long, a lighted direct pathway to an adjacent street maybe required to be provided and dedicated to the City. The applicant is proposing a private street cul-de-sac that will be approximately 600 -feet long. The applicant has asked for an adjustment to the standard. Adjustments to provisions under 18.810 are covered under 18.370.020.0.11, which states: ASH CREEK ESTATES SUBOMSKN4 STAFF REPORT (SUB2003.OW10) PLANNING COMMISSION HEARING 7!I/2= 106 `The director shall approve, approve with conditions, or deny a request for an adjustment to the street -.improvement requirements, based on findings that the adverse imppact on existing development, on the proposed development, or on natural featuns such as weUanils, steep slopes orexisbng mature trees. In approving an adjustment fo the standards, the Director shall determine that the potential adverse impacts exceed the public benefits of strict apprcation of the standards". The applicant states that no practical alternatives are available to provide reasonable and efficient. access to the entire property. The applicant pr , es a private street that would have a length of approximately 500-- feet -Again, the adjustment criteria found in TDC 18.370M0.C.11 applies: `Strict application of the standards will result in an unacceptably adverse impact on existing development: on the proposed development, or on natural features such. as wetlands, steep slopes or existing mature trees. In approving an adjustment to the standards; the Director shall determine that the' potential adverse. impacts exceed- the public benefits of strict application of the standards." The site is over 967. feet deep, which poses a challenge immediately when it comes to serving developable lots with street .frontage: In addition, as was mentioned before; the steep slopes and creek to the south preclude any connection to the south. Existing development to the north and east also preclude street connections. Therefore, in order to serve the developable portion of this site, a street of over 200 feet is necessary. The impacts to the steep slopes and creek..channel would exceed any perceived public benefit. of a through street, especially when this street will only serve a total of 29 homes. Staff supports this adjustment Grades and Curves: Section 18.810.030.M states that grades shall not 'exceed ten percent on arterials, 12% on collector streets, or 12°/a on any other street- (except that local or residential . access streets may have segments with grades up to 15°/a for distances of no greater than 250 • feet), and: The applicant has applied for an adjustment to this standard, but review of their submittal- shows that the proposed street grade does not exceed 15% for-over 250 feet Therefore, an adjustment is not. required. Private Streets: Section 18.810.030.S states that design standards for private streets shalUbe established by the City Engineer. The City shall require legal assurances for the continued maintenance of private streets, such as a recorded maintenance agreement. Private streets serving more than six dwelling units are. enmitted only within planned developments, mobile home parks, and multi-family residential developments. The applicant is proposing to--serve lots 2-23 with -a private street Because this development is proposed as a planned development a private street is acceptable. The applicant shall place a statement on the face of the final plat indicating the-private .street(s) will'be owned and maintained by the properties that will be served by itithem. In addition, the applicant shall record Conditions, Covenants and Restrictions (CC&R's) alon with the final plat that wd( clarify how the private property . owners are to maintain the private stree s . These : CC&R's shall be reviewed and approved bye City prior to approval of the final plat. - e City's public improvement desiggn standards require private -streets to have a pavement section equal to a public local- street. Tfie' applicant will need to provide this type of pavement section. Block Designs Section 18.810.040A states that the length, width and shape of blocks shalt be designed with due regard -to providing adequate ' buy ding sites for the use contemplated, consideration of needs for convenient access, circulation, control and safety of street traffic and recognition of limitations and opportunities of topography. Block Sizes: Section 18.810.040.8.1 states that the perimeter of blocks formed by streets shall • not exceed 1,800 feet measured along the right-of-way line except: Where- street location is precluded by natural topography, wetlands or other bodies of water or, pre-existing development or; ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003-00010) - - - PLANNING COLO itSSION HEARING 7/7r"3 107 For blocks adjacent to arterial streets, limited access highways, major collectors or. railroads.- For non-residential blocks in which internal public circulation provides equivalent access. Because of pre-existing adjacent -development and the stream corridor, there are no further opportunities for connections. The applicants proposed street stub . to the north will eventually. provide a block measuring approximately 1,250 feet. This standard is met.. Section 18.810.040.6.2 also states that bicycle - and pedestrian connections-on. public easements or right-of-ways shall be provided when full street connection: is not -possible.. Spacing between connections shall be no more than 330 feet, except where precluded' *by .environmental or topographical . constraints, existing . development patterns,. -or strict , . adherence to other standards in the code. The applicant has proposed to serve the site with a sidewalk on one side of the private street, and to stub a .pedestrian connection with the street stub to the north. There. are no opportunities for a pedestrian connection to the east or south due to pre existing development patterns. This standard is satisfied. Lots - Size and Shape: Section 18.810.060(A) Prohibits lot depth from being more than 2.5 times -the average lot width, unless the parcel is ess than.. 1.5 times -the minimum lot size of.the applicable zoning district Only.one lot exceeds -1.5 times the minimum lot size, however this: lot (#13) is 69 feet in average width. - which is less that 2.5 times the lot depth of 170 feet. This standard is sa isfied. Lot Frontage: Section 18.810.060(B) requires that lots have at least 25 feet of frontage on -public . or private streets, other than an all In the case of a land partition, 18.420.050A4.c applies, which requires a parcel to either have a minimum 15-foot frontage or a minimum 15-foot wide.. 6 ecorded access easement: In cases where the lot is for an attached single-family dwelling unit, he frontage shall be at least 15 feet There are several lots around the cul-de-sac that have less than 25 feet of frontage. This wiilf need. to . : be revised on the final plat so that all lots meet the minimum 25-foot standard. All other lots with the. exception of lot 29 have 25 feet of frontage onto a public or private street. This is not a standard that can be deviated from through the planned development process- This-criterion is not satisfied.. FINDING: Lots 9, 11, 12, and 29 do not have 25 feet of frontage on a-public.or private street. CONDITION:Prior to approval of the. final plat, the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. Sidewalks: Section 18.810.070.A requires that sidewalks be constructed to meet City design standards and be located on both sides of arterial, collector and local residential streets. The applicant is proposing to construct sidewalks with their street improvements. This meets the standard. Sanitary Sewers: Sewers Required: Section 18.810.090.A requires that sanitary sewer be installed to serve each new development and to connect developments to existing mains in accordance with the provisions set forth in Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 1996 and including any future revisions: or amendments) and the adopted policies of the comprehensive plan. Over-sizing: Section 18.810.090.C states that proposed sewer systems . shall include consideration of additional development within the area as projected by the Comprehensive OPlan. ASH (MEEK ESTATES SL=MS1ON STAFF REPORT (SUB2003-"10) - PLANUM cOMMiSSM HEARING 7172003 108 There an exiting -sewer manhole in 74"' Avenue. The applicant is proposing to extend the 8 inch ~Gne north .in 74 Avenue -and then east- in the new public and private streets to serve all lots. They are stubbing a line to the north for extension with future street improvements. Storm Drainage General Provisions: Section 18.810.100.A states requires developers to make adequate provisions for stonm water and flood water runoff. Accommodation, of Upstream Drainage: Section .18.810.100.C states that a culvert or other drainage'' rainage facility shalt be large enough to accommodate potential runoff from.: its entire - upstream drainage area, -whether inside or outside the development.. The City Engineer. shalt approve the necessary size of the facility, based on the provisions of Design and Construction Standards for Sanitary and Surface Water Management-(as adopted' by Clean Water Services in 2000 and including any future revisions or amendments). There is a creek on the south portion of the property. The applicant is protecting that "k. by setting . the development away from the sensitive area boundary in accordance with CWS standards.. The:. drainage way will have no impact on the proposed new lots. Effect on ..Downstream Drainage- Section .18.810.100.13 states that where it is anticipated by . . the City Engineer that the additional runoff resulting from the development will overload. an'. . -existing drainage facility; . the Director and Engineer shall withhold approval of the development until provisions have been made for improvement-of the potential condition or until provisions have been made for storage of additional runoff caused by the development In'..: accordance with the Design and Construction Standards for Sanitary and Surface Water' Management (as adopted. by Clean Water Services in 2000 and including any future revisions or amendments In 1997, :Clean Water Services (CWS) completed a basin study of Fanno Creek .and.-adopted the Fanno Creek Watershed Management Plan. Section V of that plan includes a recommendation that local governments institute a stormwater detention/effective impervious area reduction poogram. resulting in no net incxease, in storm peak flows up to the 25-year event. The City will require that, all new developments resulting-in an increase of im rvious surfaces provide onsite.detention'facilities, unless the development is located adjacent to Fanno . Creek. For those developments adjacent to . Fanno Creek; the storm water runoff will be permitted to discharge without detention. The site slopes to the south towards Ash Creek. The applicant has shown a new public storm system . located. within the proposed public and private streets. They have also shown that a stub for future connection will be provided to the north, serving the.future north-south street. The storm.system will outlet to a pond that will provide both water quantity and quality measures, in accordance with CWS standards, prior to discharging to Ash Creek. The applicant w11 need to"provide access to the,pond 'for maintenance. The applicant . is also proposing.to construct a 5-foot by 10-foot box culvert under 74~' Avenue' to accommodate the crossing of Ash Creek. Bikeways and Pedestrian Pathwayys: Bikeway Extension: Section %.810.110.A states that developments adjoining %proposed bikeways identified on the Citj(s adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the dedication of easements or right-of-way. 74th Avenuels not classified as a 'bike facility. Cost of Construction: Section 18.810.110.6 states that development pennits issued for planned unit developments, conditional use permits, subdivisions, and other developments'. which will principally benefit from such bikeways shall be conditioned to include the cost or construction of bikeway improvements. _ This standard is not applicable. ASH MEW ESTATES SUBONISION STAFF REPORT (SUB2003-00010) PLANNING COMMISSION HEARING 7172O03 109 ti inimum Width. Section 18.810.110.C states that the minimum width for bikeways within the ladway is five.feet.per bicycle travel lane. Minimum.width for two-way bikeways separated from the road is eight feet. This standard is not applicable. Utilities: , Section 18.810.120 states that all utility lines, but not limited to those required for electric, communication, lighting and cable television services and related facilities shalt-be placed underground, except for. surface mounted transformers, surface mounted connection boxes and meter cabinets which may be placed above ground, temporary. utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above, and: . The developer shall make all.necessary arrangements with. the serving utility to provide the underground services; The City reserves the right to approve location of -all surface mounted facilities; All underground utilities, including. sanitary sewers and storm drains installed in streets. by the developer, shall be constructedpprior.to the surfacing of the streets; and Stubs for service connections shall be long enough to. avoid disturbing the street improvements when service connections are made. Exception to Under-Grounding Requirement; Section 18.81 OA 20.C states that a developer shall pay a fee in4leu of.under-grounding costs when the development is proposed to take place on a street where existing utilities which are not underground will -serve the development and the ap roval authority determines that the cost and technical difficulty of under-groundin the utilMes outweighs the benefit of under-grounding in conjunction with the development. 'he determination shall be on a case-by-case basis. The most common, but not the only, such situation is a-short frontage development for which under-grounding would result in the placement of additional -;poles, rather than the removal of above-ground utilities acilities. An applicant for, a development which -is served by utilities which are not 1nderground'ancf which.are. located across a public right-of-way from the applicant's property shall pay a fee in-lieu of under-grounding. There are existing overhead utility lines along the frontage of SW .74 h Avenue. If the fee in-lieu is proposed, it is equal to $27.50 per lineal foot of street frontage that contains the overhead. lines. The frontage along this site is 421 lineal feet; therefore the fee would be $ 11,578. ADDITIONAL CITY AND/OR AGENCY CONCERNS WITH STREET AND UTILITY IMPROVEMENT Traffic Stu Findin s: Traffic Impact epo was submitted by CTS.Engineers, Inc., dated April 30, 2003. CTS. analyzed the intersections at 74 Avenue and Cedarcrest Street and 74 Avenue and Taylors Ferry Road. CTS found that under existing conditions these intersections operate at Level of Service. (LOS) B or better. When this project is developed it will generate approximately 278 vehicle trips during an average week day, with 29 trips occurring during the PM peak hours and 22 trips occurring during the AM peak hours. CTS found that with the .build out of this site and 2005 traffic conditions that these intersections will .continue. to operate at LOS.B or better. CTS found that the vehicle trips will slightly ir~xease traffic volumes on surrounding streets, but will have little impact on traffic operations along 74 Avenue, including the study intersections. . Based on the findings of the traffic impact report,- staff finds that this project will not have a negative impact on the transportation system. Public Water S stem: ere is an existing TVWD water main in 74"' Avenue. The. applicant will extend a public water main .within the proposed streets. The applicant will need to obtain a permit from TVWD prior to construction. ASH CREEK ESTATES SUBOM ION STAFF REPORT (SU820DUM10) P[ANNm cofu m=ioN HEARING 7l7r2ow 110 AStorm Water Quality: IMPThe City as agreed to enforce Surface Water Management (SWM) regulations estabrshed by Clean Water Services (CWS) Design and Construction Standards- (adopted by Resolution and Order No. 00=7) which require the construction of on site water quality facilities. The facilities shall be designed to remove 65 percent of the phosphorus contained in 100 percent of the storm water runoff generated from newly created impervious surfaces. In addition, a maintenance plan shall be submitted indicating the frequency and method to be used in keeping the facility maintained through the year. Prior to construction, the applicant shall submit-plans Ind calculations for a water qquality. facility that will meet --the intent of the CWS Design Standards.. In addition, the - :a Gcant - shall. submit a maintenance plan for the facility that must be reviewed and approved by the-City prior to construction. The applicant is proposing to provide a- pond that will provide both water quantity and quality for this project. The applicant has indicated that the pond has been designed per CWS standards. Prior to the City accepting this facility as a public facility, the developer shall maintain it for a'minimum of three years after construction is completed.' The pond shall-be iced in a tract and-conveyed to the City on the final plat: The developer will be required to submit annual reports to the City which show what maintenance operations were conducted on the facility for that year. Once the three=year maintenance period is completed, the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over. maintenance of the facility. In addition; the City will not take over. maintenance of the facility unless 80 percent of the landscaping is established and healthy.. If at anytime during the maintenance period, the landscaping falls below. the - 80 percent level, the developer shall immediately reinstall All 'deficient. planting at the next appropriate planting opportunity. . Gradin and Erosion Control: Design an ons ru ►on Standards also regulate erosion control to reduce the amount of sediment and other pollutants reaching the- public storm and surface water system resulting from development, construction, grading, excavating; clearing, and any other activity which accelerates erosion. Per CWS regulations, the -applicant is required to. submit an erosion control plan for City review and approval prior to issuance of City permits. The Federal Clean Water Act requires that a National Pollutant Discharge Elimination System (NPDES) erosion control permit be issued for any development that will disturb one or more acre of Land. Since this-site is over fire acres, the developer will be required to obtain an NPDES permit from. the City prior to construction. This permit will be issued along with the site and/or building permit. A final grading plan shall be submitted showing the existing and proposed contours. - The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to insure that surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate prnrate storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. A geotechnicat report was submitted.by GeoPacifrc Engineering, Inc:, dated May 9, 2003. The geotechnicai engineer indicates that th e proposed development is likely. geotechnically feasible provided ,the geotechnical recommendations in his report are incorporated into the -design and construction pfiases of the project The recommendations of the report will need to be incorporated into- the final grading plan and a final construction' supervision report must be filed wi the Engineering Department prior to issuance of building permits. The design engineer shall also indicate, on the grading plan, which lots will have natural slopes between 10% and 20%; as well as lots that will have natural slopes in excess of 20%. This information will be necessary in determining if special..grading ' inspections and/or permits will be necessary when the lots develop. Since the site is over 1 acre in size an NPDES permit will be.required. ASH CREEK ESTATES SUBOMSION STAFF REPORT (SUB2003-00010) - PlANNM COMMISSION HEARING 7r72003 111 • Address Assi nments: e i of -1 igar is responsible for assigning addresses for parcels within the City of Tigard and within the Urban Service Boundary (USB). An addressing fee in the amount of-$30.00 per address shall be assessed. This fee shalt be paid to the City prior to approval of the final plat ; For this project, the addressing fee wilt be $900.00 (30 lots and/or tracts X $30/address = $900.00). The developer will also be required to provide s!rage at the entrance of -each shared flag. lot driveway orydvate street that lists the addresses that are served by the given driveway or street. This-wilt assist emergency services personnel to more easily find a particular home. Surve Requirements e app ican s na plat shalt contain State Plane Coordinates [NAD 83.(91 on two. monuments with a tie to the City's global positioning. system (GPS) geodetic control network (GC 22). These monuments shall be on the same line and shall be of the same precision as required for the subdivision :plat boundary. Along with the coordinates, the plat shat( contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These.-coordinates can be established by: . GPS tie networked to the CV9 GPS survey. By random traverse using conventional surveying methods. In addition, the applicant's as-built drawings shall be tied to,the GPS, network. The applicant's engineer shall provide the City with an electronic-file with points for each structure (manholes, catch basins. water valves, hydrants and. other water system features in the. development, and their respective X and Y State Plane Coordinates, referenced to NAD 8391). SECTION VII. OTHER. STAFF COMMENTS The Tigard, Building Division has . reviewed this proposal but did not provide any additional comments.- The City of Tigard Arborist has reviewed the proposal, and notes that tree protection fencing will be required for the trees to remain. The City of Tigard Long Range Planning Division has reviewed this proposal but did not provide any additional comments. The City of Tigard Crime Prevention Officer has reviewed the proposal and recommended that a monument be placed at the start of the private street identifying house addresses to reduce delays in delivery of. emergency services. RESPONSE: The private street will be named se rately from the public street Houses will be addressed off that private street and, therefore, separate addressing identification (as is typical for flag lots) is not required. The developer may choose to install such. signage, however, staff believes that with the separate street name, this signage is unnecessary. SECTION Vill. AGENCY COMMENTS The Tualatin Valley Fite and Rescue has reviewed the proposal and offered the following comments: FIRE APPARATUS ACCESS ROAD WIDTH AND VERTICAL CLEARANCE:. Fire apparatus access roads s a . nave an unotistructed - width o no less an eet for one or two dwelling units and out buildin s) and an unobstructed vertical clearance o not less. than 13 feet 6 inches. (UFC Sec. 902 2.2. Where fire apparatus roadways are less than 28 feet wide, - "NO PARKING" signs shall be ins lied on -both sides of the roadwa and in turnarounds as needNO Where fire apparatus roadways -are more than .28 feet wide tit less than 32 feet wide, PARKING" signs shall be installed On one side of the roadway and "in turnarounds as needed. Where fire apparatus roadways are 32 feet wide or more, parking is not restricted- (UFC Sec. 902.24) ASH CREFKfS[ATES SUBOMSIM STAFF REPORT (SUB2003-00010) PcA MNG COMMMION HEAR NG 7f7=3 112 • The private street shall conform to Fire District standards. 2) NO PARKING SIGNS: Where fire apparatus roadways are not of sufficient width to accommodate parked ve es an 0 feet of unobstructed driving surface, `No Parking' signs shall be installed on one or both sides of the roadway and in turnarounds as needed. - (UFC Sec. 902.2.4) Signs shall. conform to the City of Tigard engineering standards. 3) TURNING RADIUS: The inside turning radius and outside turnhig radius shall be not less: than 25 feet and 45 eet respectively, measured from the same center point. (UFC Sec. 9022:2:3) 4) GRADE: Private fire apparatus access roadway grades-shall not exceed an average grade of 10 percent with a maximum grade of 15 percent for lengths of no more than 200.feeL Intersections and turnarounds shall be level (maximum 5%) with the -exception of crowning for 'water run-off. Public streets shall have a maximum grade of 15%. (UFC Sec., 90222.6) s) SINGLE FAMILY DWELLINGS AND DUPLEXES - FIRE HYDRANTS:- Fire hydrants for single ami dwellings.- duplexes an su ivisions, shall be ace at each- intersection: Intermediate fire hydrants are required if any portion of a structure exceeds 500 feet--from a hydrantiat 'an. intersection as measured in an approved manner around the outside of the structure and* along; approved fire apparatus access roadways. Placement of additional fire hydrants shall be as approved by the Chief. (UFC Sec. 903.42.2) s) FIRE HYDRANT. DISTANCE FROM AN ACCESS ROAD: Fire hydrants shall be located not more an 15 feet from an approved re apparatus access roadway. (UFC Sec.. 903.4.2.4) 7 REFLECTIVE HYDRANT MARKERS: Fire hydran locati ons shall be identified-by the installation o reflective markers : The markers s all be blue: They shall be located adjacent and-to the side of the centerline of the access road way that the fire hydrant is located on. In case that there is no center line, then assume a centerline, and place the reflectors accordingly: (UFC Sec. 901.4.3) 8) SINGLE FAMILY DWELLINGS - REQUIRED FIRE FLOW: The minimum available fire flow for • singe family dwellings an u exes shall 1,000 gallons- a ons per minute. If the structure(s) is(are) 3,600 square feet or larger, the required fire flow shall be determined according to UFC Appendix Table A411-A-1. (UFC Appendix III-A, Sec. 5) 9) ACCESS AND FIRE FIGHTING WATER SUPPLY DURING CONSTRUCTION: Approved fire apparatus access roa ways an ire fighting water supplies shall be installed a operational prior to any-other construction on the site or subdivision. (UFC Sec. 8704) Tualatin Valley Water District has reviewed the proposal and had no objections to it. Clean Water Services has reviewed the proposal and offered the following comments: • Rood, drains from all new homes shall be collected in a public storm system and conveyed to a water quality. facility for treatement in accordance with R.O.03-11. • Proposed modifications to flood plain elevations may have impact on development. • Design must include requirements of Service Provider Letter #2819, issued May 13, 2003. The City of Tualatin has reviewed the pro sal .td offered the following comments: The City of Tualatin owns-a water main in rW 74 Avenue. The proposed grade of the street means that our line will have between 15 and 18 feet of cover. The City would like to request that before construction plans are approved, the developer be required to pot-hole the -line to detegnine. the exact location and condition of the pipe. Additionally, the City should be informed 48 hours prior to construction so that a representative from the City can be. present when they are impacting our pipe. RESPONSE: This will be required as a condition of approval. - Washington County, Portland General Electric, Tigard Tualatin School District, NW Natural Gas, Venzon, Comeast Cable, -and AT&T Gable were additionally notified of the- proposal but did not respond with formal comments. June 30, 2003.. PREPARED B organ racy A Associate Planner ASH CREEK ESTATES SUBOMSION STAFF REPORT (SUB200300010) KANNM COMML=ON HEARING 7irnm 113 g Oa 00RA G XIC INFORMATION 8YG I qtr VICINITY IW Y m SUB2003-00010 PDR2003-00004 ZON2003-00003 T SLR2003-00005 LN VAR2003-00036 VAR2003-00031 BARBAR ASH -CREEK ESTATES SUBDIVISION LUBA REMAND e o _j 1, 01 P_ ~ Delp germ ao. ! 'i°: .'.t.'f: • 1 L' T1geM Area Map VENT A N D 0 100 200 300 100 Feet V- 312 lest Q LOCUST ^ City of Tigard ST Information on this map Is for general location only and should be vedned with the Development Services Division, 13125 SW Han Blvd Z Tigard, OR 97223 (503) 83"171 http:/ Ipord.or.w Community lopmen! Plot date: Jan 11, 2005; 9lC\MAGIC03.APR EXHIBIT (6 Kurahashi and Associates Ash Creek Estates LUBA Remand #2 Attn: Greg Kurahashi and Melinda Wood (SUB2003-00010) 15580 SW Jay Street, Suite 200 "Notice of Final Order by the Council" .Beaverton, OR 97006 Dale Richards Winwood Construction, Inc. 12655 SW North Dakota Street Tigard, OR 97223 Ernest E., Elda H., & Ray Senn & Connie Coleman & Karen Schuster 9750 SW 74th Avenue Tigard, OR 97223 Walt Senn 13323 Meridian Avenue N Marysville, WA 98271-7090 Davis Wright Tremaine LLP Christopher P. Koback 1300 SW Fifth Avenue, Suite 2300 Portland, OR 97201-5682 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Sue Bielke 11755 SW 114th PI. Tigard, OR 97223 Bob Storer 7225 SW Ventura Drive Tigard, OR 97223 • 115 11 Agenda Item No. For Agenda of Tigard City Council Meeting Minutes Date: March 28, 2006 Time: 6:30 p.m. Place: Tigard City Hall, 13125 SW Hall Boulevard Tigard, Oregon Attending: Mayor Craig Dirksen Presiding Councilor Sally Harding Councilor Sydney Sherwood Councilor Tom Woodruff Absent: Councilor Wilson Agenda Item Discussion & Comments J Action Items follow u Study Session > Police Holding Facility Tour and Audit >l , The Mayor and Council'toured and inspected\the Police Department temporaiyholding facility`as recommended during a~iecent audit ,by,the State /Department\of corrections:., The State insp ction „report is ou.fil'e in the City Recorder's office. > Review of fiscal Year 2006-07 Community -`-Event Funding Requests Staffff presenter:\Finance Director Sesnon. City Council reviewed the applications for Community Event Grants, which are on file m ' the City Recorder's office. '-A ccording to the funding policy of the Budget ComtYUttee set in prior years, $49,400 is available f6r~these requests. The applications received total $$48,400. Council members discussed the application grants. Below are key points of the discussion: • There was discussion about concerns regarding the Balloon Festival which is now • charging the Caring Community $2500 for tent rental in addition to a surcharge to those Tigard City Council Meeting Minutes March 28, 2006 Page 1 116 Agenda Item Discussion & Comments Action Items follow u attending the fundraising event. Council consensus was to ask event organizer Dave Nicoli, to attend an upcoming Council meeting to discuss the Festival's budget and charges for the event. There was brief discussion about the amount of the City's contribution including the in-kind support t from the Police and Public Works Departments. i The Balloon Festival is one of the cite sponsored events for which thereis a sponsorship agreement. In 6/rdef to,\change 4 City funding, the agreement states that one year's notice must be gi en. • 4 h of July - This is a free family event • Tualatin Riverkeepers - Duringdiscussion, it was noted that,.th ° -organization has filed legal actions against-the-City. It was agreed that such activity should-be reviewed report given to the Budget Committee before final funding comrrutn ent of the graint , K7 ,requeste~~. Staff was ai requested to find bout what <,ther jurisdictions are contributing to, the Riveikeepers. \ • The Chamber~of Cornmercerrequested funds for a Leadership Instim-tc; 'The / \understandmg was that this Institute would augment the`Ciy's-program. More information abou(how much the Chamber would charge participants was requested by \ the City tCouncil to be included as part of the presentaftion information for the Budget Committee. > Regina" tion of Payday Lending Businesses Staff presenter: Finance Director Sesnon Mayor Dirksen requested that staff research and bring forward for City Council discussion possible regulations for payday lending businesses within the City of Tigard. The staff report to the City Council outlined the activity • of these lending businesses, the inaction at the Tigard City Council Meeting Minutes March 28, 2006 Page 2 117 Agenda Item Discussion & Comments Action Items follow u state level to adopt regulations, and how some municipalities have enacted ordinances to regulate these businesses within their jurisdictions. The City of Portland, which enacted an ordinance to regulate this type of business, has been sued by one of the businesses affected. After discussion, City Council consensus was for staff to monitor what the j result is in other jurisdictions with regard to legal \ 3 challenges. City Attorney Firestone advised it is likely there will be a trial court decision within\ the next year. > Discuss Action to Terminate the Urban Services \ Intergovernmental Agreement with Washington County. (See agenda Item No.. 9). Staff wily. \l,` advise Council on the background f the/Urban Services Agreement and why a change<is now being recommended:`-, > City Attorney Firestone noted'that if public' \ comment is offered on'a possible application for a/Wal-Mart store at a Tigard locatloin~Cbuncil' ,members will;need to declare any information ` -they,hear as\an ex parte contact if this matter should; in th~e'future, come be£or_e-the Council \ during a and use.hearing. CityiManager Prosser \a`dvi ed that there has-been speculation about a W.al-Mart store locating i Tigard, but City officialsldo not know fox certain if it is a Wal- Mart 1f Study Session - \y ems for%Tonighes Business Meeting Administrative A/revised agenda was distributed with the Items %followmg changes noted: - Added 1.5 - Status Community Attitude Survey and Schedule Meeting - A Special City Council Meeting will be held on April 4, 2006, to discuss the survey. - Added 9 - Discussion of Urban Services Intergovernmental Agreement - Revised Packet Materials 0 - Item 3.5 - Attached is a revised Tigard City Council Meeting Minutes March 28, 2006 Paee 3 118 Agenda Item Discussion & Comments Action Items follow u Resolution for the Skate Park Grant Application. The 4 h "Whereas" clause now reads: "WHEREAS, the City Council selected the City Hall parking lot area as the preferred City-owned site valued at $195,000; and" > Procedure for City Manager Review - Councilor Sherwood and Councilor Woodruff are reviewing' formats and examples for evaluations and will present a proposal to the Mayor and Councils Councilor Harding requested to review'aWthe forms. The City Manager Reviewiis'tentatlvely \ ' . scheduled for April 25, 2006. f C~ C~ ` i \\.✓i "i > Chamber Shining Stars Banquet~RSVP: Mayd or, , Dirksen (2); Councilor Sherwood (1.);~Councilo - Harding (1)• Councilor Woodruff (2)XAlso ~ attending Police Chief Dickinson (1). ti. Study Session concluded at\7 25 p.m: Business 1.Y 1Vlayor Dirkseri called the City',Council, ~the Local Meeting Contract ReviewBoard and the. City Center Development Agency-to Ord~a(7:30 p.m. 1.2 Council Presen\Mayor Dirrksen, Councilors Harding;~Sherw6od, and Woodruff. Council \ Absent: Wilson \13 Pledge of Allegiance 14\,Council jCommunications & Liaison Reports Councilor Sherwood mentioned we are in the process of redoing the Comprehensive Plan. 1.5 Status Report of Community Attitude Survey Councilor Sherwood noted that a firm has been chosen to conduct a Community Attitude Survey, which will be used to find out what people want. The Council will be meeting in the next week to help formulate survey questions. Tigard City Council Meeting Minutes March 28, 2006 Pace 4 119 Agenda Item Discussion & Comments Action Items follow u 2. 2.1 Tigard High School Student Envoy Krista Report/no action Citizen Foltz gave a report on recent and future Communication activities. A copy of report highlights is on file in the City Recorder's office. 2.2 Pam Brown, representing the Tigard Chamber Councilor Harding asked of Commerce noted that their Shining Stars )staff to report to the Council Banquet will be held at Crown Plaza from 6,79 whether any City employees p.m. on April 21. Ms. Brown asked the Council have been called to active for their support of Oregon Army National\ guard duty. Guard's 415` Brigade Combat Team being mobilized for active duty. The/American The Blue Star Flag will hang 11 Legion Post 158 and the VFF~?U/have given their i i' the window of the City support. Mayor Dirksen,read,and presented a Hall'lobby. Proclamation Adopting the Headquarters and Headquarters Company 4151 Brigade Combat i Team for the p'urpo'se of helping to,generate local support from Tigard area businesses and citizens for the sol`diers.arid families of this unit. The American Legion gave-the-City a Blue 'Star Flag in honor of the 4l,,,` j Bade. 2.3 C ty At orneylRamis cautioned that iti en comments at this point in the meeting are limited to items-not on the agenda2 He asked at those I Bing t64address (particular issue / - hold their comments unt'd the agenda item comes,up. If anyone wants to speak on a particular land use issue, their comments to the \ Council, now would be considered ex parte communication and Council has been advised not to speak on those topics. Sue Bielke of 11755 SW 114`'' Place Tigard, OR 7223, spoke about her concern that not enough citizens are involved in the comprehensive plan update or are educated about how to get involved. She said there may not be enough citizen input. Mayor Dirksen pointed out that the members of the Planning Committee are citizens of Tigard. He suggested that people read the Cityscape. Ms. Bielke said she was glad the City is doing a survey. Councilor Sherwood noted that Council has asked for a complete update of the Tigard City Council Meeting Minutes March 28, 2006 Page 5 120 Agenda Item Discussion & Comments Action Items follow u plan this year. They have just started and there is citizen involvement planned. She said people will hear more about this as the year progresses. Representative Larry Galizio, of 16455 SW 93 d Avenue, Tigard, OR 97224, expressed concern about a pre-application submittal for a large retail store. He said he believed this proposed site is for a Wal-Mart but their strategy is not/to, put their name on the application. He wrote a letter to Wal-Mart's corporate leadershipasking\ for confirmation but has not yet received a reply. He said he has formed a/new'\group, "Tigard First," to seek honest,answers and help make informed choices. He urged the City Council to take steps, before thi's\application., ` becomes final, to get more public input//He is very concerned about the impacts on traffic, small businesses 'the environment, heakh, care, as well as Tigard's proposed,downtown revitalization. He asked the Council to take-, action..now and look a6the,effects, these big f box stores and demand more time for,public, councilor Harding agreed that\the,Council does have respo n\bilities'before theim'but on the other hand; Measure 37,musfbe factored in. j /l She asked for-his\help in the state legislature \ fixing.Measure 37. ~r Mayor Dirks en said development of any kind is \ worthy of~close scrutiny. He said the city has `not spoken io Wal-Mart or anyone who is ~\represent e Wal-Mart. John Frewing signed up to speak but was not present. Sue Bielke turned in his written comments to the City Attorney. The City Attorney said the issue he signed up for already had a public hearing so his comments received tonight will not be entered into the public record. Tigard City Council Meeting Minutes March 28, 2006 n--- ' 121 Agenda Item Discussion & Comments Action Items follow u 3. 3.1 Approve Council Minutes for February 14 and Motion by Councilor Consent 21, 2006 Sherwood, seconded by Agenda Councilor Woodruff to approve the Consent Agenda with the revised Agenda \ Item 3.5. -The motion was approved / by a unanimous vote of Council present. \ Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Woodruff Yes 3.2 Approve City ;Center Development` gency Approved Minutes from February 21, 2006 \ 3.3 Appoint New Members to the Building Appeals\- Boa d:_Michael Kringle~n, Doug Colhng, Jeff / Approved Jurrens,EricWatson, Gerald McKee, and Aiari /Mitchell -'Resolution No. 0642 21 RESOLUTION-NO. 06-12 - A\RESOLUTION - OF THE TIGARDyCI--TY COUNCIL Z\APP~OINTING MICHAEL <RINGLEN, DOUG COLLING, JEFF JURRENS, ERIC WATSON, GERALD MCKEE AND ALAN MITCHELL TO THE TIGARD BUILDING APPEALS BOARD \3.4``Approve Library Policies Approved 3.5 Approve Submission of a Grant Application to Approved Obtain Matching Funds to Construct the Jim Griffith Memorial Skate Park RESOLUTION NO. 06-13 - A RESOLUTION AUTHORIZING THE SUBMITTAL TO THE OREGON PARK AND RECREATION DEPARTMENT (OPRD) AN APPLICATION FOR STATE FUNDS AVAILABLE THROUGH THE 0 STATE OF OREGON'S LOTTERY LOCAL Tigard City Council Meeting Minutes March 28, 2006 P,- 122 0 Agenda Item Discussion & Comments Action Items follow u GOVERNMENT GRANT PROGRAM AS A MEANS FOR PROVIDING MATCHING FUNDS TO CONSTRUCT THE JIM GRIFFITH MEMORIAL SKATE PARK 3.6 Appoint Carol Krager as Deputy City Recorder Approved RESOLUTION NO. 06-14 - A ) RESOLUTION OF THE TIGARD CITY COUNCIL APPOINTING CAROL KRAGER AS DEPUTY CITY RECORDER \ 3.7 Local Contract Review Board j i'~ ,\\3 Approved a. Award Contract to Morse,Brothers, Inc., for the Construction of the Fi, cai\Year 2005`.06 \ Pavement Major Maintenance,Pr ogram (pMMP) /J - Phase 2 / r b. Award Contract to NW Kodiak 'Construction for the Construction of Highland Drive Storm Drainage Improvements, 4. PUBLIC HEARING - 2006 \US DEPARTMENT Motion by Councilor Public Hearing OFjUSTICt\/EDWARD BYRNE MEMORIAL Woodruff, seconded by - 2006 U.S. JUSTICEASSISTANCE GRANT GAG) Councilor Sherwood to Dept. of ' ~\''eapprove the grant Justice/ Mayor Dirksen opened,the-public hearing. Police application. Edward D./ Chief Dickinson. ieported-that the/city is eligible to Byrne Memorial receive\$12, 001. Holding a Public Hearing is a The motion was approved justice---, condition* accepting the grant funds. The by a unanimous vote of Assistance Police Department recommends that the funds be Council present. Grant GAGY\ used for cellulavair cards which will improve service \ Jo, all parts of the city, which they are presently Mayor Dirksen Yes experiencing some difficulty reaching, through Councilor Harding Yes WCCCA. Additionally, these air cards would enable Councilor Sherwood Yes the department to transmit photos to officers in the Councilor Woodruff Yes field. Councilor Woodruff commented that the biggest expense is the monthly air time. He asked if this grant only pays for the first 12 months. Chief Dickinson said it could, but the city has received this grant every year. He said they could compare what is being paid to WCCCA and the service the city is receiving from them. When asked by Councilor Harding if the grant could be used for anything else, Chief Dickinson said they do have the opportunity to thane their minds. He discussed current Tigard City Council Meeting Minutes March 28, 2006 page R 123 Agenda Item Discussion & Comments Action Items follow u WCCCA upgrade activity. As no one had signed up to speak, Mayor Dirksen asked those present if there was anyone wishing to offer public testimony. There was none. Mayor Dirksen closed the public hearing. Councilor Woodruff advised caution with using grants for on- going obligations. \ 5. The City Attorney noted that after the Land,/ e\' \ Motion by Councilor Further Board of Appeals deliberated this item; staff \Woodruff, seconded by Consideration prepared comments reflecting those~findings~and an Councilor Sherwood to and additional condition. The staff recommendation is adopt.Resolution No. 06-15. Deliberation of to approve Resolution 06-15. a Resolution \ ) \1 Adopting RESOLUTION NO. 06-15 - A RESOLUTION-\' The motion was approved Additional AND FINAL ORDER SUPPLEMENTING by a 3-1 vote of the Council Findings and RESOLUTION 06-69,,APPROVING THE ASH present Imposing an CREEK ESTATES SUBDIVISION Additional (SUBDIVISION (SUB) 2003 0001`0%,PLANNED` - Mayor Dirksen Yes Condition for DEVELOPMENT REVIEWW✓(I?DR).N03- f Councilor Harding No the LUBA 00004,iONE'CHANGE (ZQN) 2006 Councilor Sherwood Yes Remand of Ash 00003/SENSITIVE LANDS REVIEW (SIR)S Councilor Woodruff Yes 11 1A Creek Estates 2005--00005 /ADJUSTMENT (VAR) 2003-00036/ Subdivision ADJUSTMENT/(VAR) 2003-0003.7.) --ON -REMAND\F,ROM LUBA; AND ADOPTING 'ADDITIONAL FINDINGS AND IMPOSING AN`ADDITIONALLCONDITION 6. Mayor Dirksen opened the public hearing. The City Motion by Councilor Formatio\of Attorney asked for any declarations or challenges. Sherwood, seconded by Sanitary Sewer City,Engineer/Duenas presented a report on Councilor Woodruff to Reimbursement formation oflthis sewer reimbursement district. He adopt Resolution No. 06-16. District No. 36 noted'that,this will be constructed this summer. (SW 93"' Ave.) The upd ted budget estimate is $506,305. Two lots are too deep to be served by this line. In response The motion was approved to a question from Councilor Harding, City by a unanimous vote of the Engineer Duenas advised the budget estimate was Council present based on the soils report and engineering fees have been added. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood asked about two lots unable to Councilor Sherwood Yes be served by this line. Mr. Duenas said one could Councilor Woodruff Yes gain access to sewer from another street. He notified the other property owner but did not receive a Tigard City Council Meeting Minutes March 28, 2006 Page 9 124 Agenda Item Discussion & Comments Action Items follow u response. Councilor Woodruff asked if any property owners of this proposed district were in attendance and several people stood. He asked Mr. Duenas to make sure we let them know what the next step is and keep them informed. Larry Caufield, 9145 SW Mountain View Lane, Tigard, asked how long construction would take.\ Mr. Duenas replied that it would take 45 days/ fter \ the bid is awarded and the pre-construction ftneeting takes place. Mr. Caufield asked what the amount of ` the contingency was. Mr. Duenas said there was 15% for contingencies and 13 was added for \ administration and engineering fee There being no further, public testimony, Mayor f% Dirksen closed the Public-Hearing. \ RESOLUTION NO. 06'=,1,6 -'A RESOLUTION ESTABLISHING SANITARY SEWER REIMBURSEMENT DISTRICT NO:`36'(SW -93`x' AVENUE) X\ . f 7. Express -.City Engineer Duenas gave `a PowerPoint Councilor Sherwood Support to/-, .-presentation on ODOT's-STIP-(State motioned to approve Include,Certain Tr na p tation Improvement Program) project Resolution No. 06-17 and Key Projects in categories and list of proje ts. He highlighted those Councilor Harding seconded the 2008-2011 projects listed that will\benefit Tigard: the motion. State Transpor • I-5 SB~I 205 merge acceleration lane The motion was approved tation Improve ment Program e I-5 Wilsonville interchange by a unanimous vote of (STIP) HallBlvd. paving (the section from Scholls Council present. Ferry to Durham Road especially) • &Hwy 99 railroad bridge (current bridge is not Mayor Dirksen Yes designed for overweight loads and does not Councilor Harding Yes meet seismic requirements). The city can get Councilor Sherwood Yes involved in the design especially pier spacing Councilor Woodruff Yes and the potential for aesthetic improvement) Councilor Harding noted that we have received support from other jurisdictions for ODOT projects that benefit Tigard. Tigard City Council Meeting Minutes March 28, 2006 Page 10 125 i Agenda Item Discussion & Comments Action Items follow u RESOLUTION NO. 06-17 - A RESOLUTION PROVIDING CITY COUNCIL INPUT INTO THE DRAFT 2008-2011 STIP (STATE TRANSPORTATION IMPROVEMENT PROGRAM)AND EXPRESSING STRONG SUPPORT FOR INCLUSION OF CERTAIN KEY PROJECTS IN THE FINAL STIP i 8. Surface Water Quality/Volunteer Cooxdinatox~ Presentation on Staedter gave a PowerPoint presentation-on'Tigard's,\ the City's Parti- participation in the Healthy Streams P,lari: \ cipation in the She discussed the City's targeted g als reiatin' to Healthy tree planting, outfalls and culverts//Benefits of Streams Plan healthy stream practices in the/Tigard area include improved fish habitat and passage; tream structure stabilization, erosion control, and stream bank o protection. She reported that 125 community volunteers planted 1,256, ees on March 4.2006. She wanted to alert the Council-to "a-future item o the next business meeting \Th re wille conside'r'a'don of an Intergovernmental Agreemen with~Cfean Water Services for aJarge restoration on Fanno\Creek. Councilor Woodruff thanked her for the repomand for her,passion about taking care of ,,---the environm\t ~ Mayor Dirksen also expressed-his appreciation and said it was\a t `bute to'the-community that such a large number of citizen) volunteers came out to plant trees this winter 9. Consider \tenm Co unity Development Director Coffee Motion by Councilor Action to gave historical background on the Intergovern- Woodruff, seconded by Terminate the mentaliAgreement between Washington County and Councilor Sherwood to Urban Services Tigard that allowed Tigard to provide development direct staff to notify Intergovern- review, building inspection services and road Washington County that the mental Agree- maintenance to the unincorporated area of Bull Tigard City Council wishes ment with Mountain. Properties have been annexed, mostly to terminate the existing Washington Co. contiguous with Tigard, but a few were not Urban Services Intergovern- contiguous. Some projects have been controversial. mental Agreement and to work with Washington At the time the IGA was drawn up, Washington County officials to determine 0 County acknowledged that accessibility to services if modifications could be in Tigard would be closer for this area than made for terms of a new Tigard City Council Meeting Minutes March 28, 2006 Page 11 126 Agenda Item Discussion & Comments Action Items follow u Washington County, which is located in Hillsboro. agreement. Washington County also assumed that this area, located in the urban growth boundary, should The motion was approved by a eventually annex to Tigard and the County would unanimous vote of Council present. not oppose this annexation. At this time, most developable land is developed and most lots are Mayor Dirksen Yes subdivided. Councilor Harding Yes Councilor Sherwood Yes Washington County discussed terminating or :Councilor Woodruff Yes amending this agreement at their workshop meeting, attended by City Manager Prosser and Interim . Community Development Director Coffee who delivered a draft letter from Mayor Diiken~ The County will be making a decision onight on this matter as 90-day's notice must/ e~given to terminate \ and the agreement ends or is extended in July) City Manager Prosser-referred to a letter,wntten to Washington County by, the-Friends of Bull Mountain, dated February'24, 2006. A copy was`not sent to the City but Washington- County provided, one to t je_City Manager. He said'ihis letter contained-several points that'are factuallydricorrec't and/he clarified those points below. The letterdicated,that Tigard withheld building -and occupancy- ermits = it did not There was one -instance whe e.an\occup my perrrut was withheld. j for Alberta Rider-School because the project manager needed to obtain building permits. He said the letter stated that Tigard collected System ' . Development Charges'ind didn't account for them. \ He said that is, absolutely 'incorrect. Concerns were ex pressed in theiletter that Tigard collected traffic unpact,fees (TIF's) and used them to make improvemen s within the City. In fact, the City has done that (with the approval of the County) on those roads that serve Bull Mountain and help residents access their residential areas and travel to areas within the City. Accounting for these funds was provided to the Friends of Bull Mountains numerous times. The letter stated that Tigard disregarded the requirements of the Bull Mountain Community • Plan. City Manager Prosser said if you look at the development pattern on Bull Mountain you will see Tigard City Council Meeting Minutes March 28, 2006 Paup 1 127 Agenda Item Discussion & Comments Action Items follow u that it has developed as provided in the plan. High density areas are located on the lower part of the mountain and less density on the upper part. He said they are concerned that the City has not provided parks. This is part of a larger issue and as Council is aware, the City has developed a list of properties it is pursuing. He said the Friends stated that termination of the/ IGA would prevent future annexations. That,is incorrect. As property owners continue_to coon e t\ the City and voluntarily request annexation,'(it WY\ \ continue to process those requests. He saidthis IGA has no effect on annexation. Z f \ \ The Washington County Commissioners' meeting ' tonight was attended by Assistant o`the City/ / Manager Newton. She, reported the County had voted to provide written notice of terminationof the Urban Services Intergovernmental Agreement to the City of Tigard, effective July-'l ,`2006; and that the Co nty_desires to entenintojriegotiations with the City~about a, possible modified agreemejt: 1 Ms' ewton said\the Commissioners focused on the positive partnerships-between Tigard and WashingtomC6ui4,aud`that this didnot imply any -criticism, of the\City of Tigard Councilor~Harding expressed concerns about the process used to, reach ilie/agreement to terminate. She would have\liked all parties concerned to meet on this at the same time. \ \ ,1) Councilor Sherwood said the City needs to focus on our Comprehensive Plan and urban renewal; things going do in our own city. Councilor Harding said she would like to see Tigard be the best it can be, living within its boundaries. She noted the amount of conflict brought forth by this issue and unincorporated area residents are now able to take their issues to the County. Councilors Woodruff and Harding asked if Tigard would be eliminating positions now that it is not Tigard City Council Meeting Minutes March 28, 2006 PaaP 11 128 Agenda Item Discussion & Comments Action Items follow u collecting SDC's from Bull Mountain. City Manager Prosser said two new positions for plan review and inspection had been added to the proposed budget. They will be removed. However, if the agreement is delayed, these positions may be filled temporarily. Once City staff hears from the County, staff will return to the City Council for additional direction. Meeting adjourned at 9:40 p.m. \ Motion by Councilor \ \ Sherwood, seconded by `Councilor Harding, to ~ djourn the meeting. The motion was approved \ by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Harding Yes \ %Councilor Sherwood Yes _ \ \ t\ Councilor Woodruff Yes \ Catherine Wheatley, City Recorder Attest\ Mayor, City of Tigard X Date: iAadm%cathyNc=%20061060328.doc • Tigard City Council Meeting Minutes March 28, 2006 PaaP 14 129 AGENDA ITEM NO.2 - C1. iZEN COMMUNICATION LATE : MARCH 28, 2006 (Limited to 2 minutes or less, please) he Council wishes to hear from you on other issues not on the agenda, but asks that you first try to resolve our concerns through staff. This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record The names and addresses ofpersons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. NAME, ADDRESS & PHONE TOPIC STAFF Please Print CONTACTED Name: LA 8911 Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City c~ State G~ Zip L2 3 Phone No. Name: 0 S L- 1~iJ PJIC~ ~111AE,~,~ L I AW I*A Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address t 0 -Vi City A State Zip l? Az Phone No. S U~ 6 U 41 1 Name , Also, please spell : name asit sounds, help the presiding officer pronounce: Address City State NZ, hone No. y CITIZEN COMMUNICATION 130 TIGARD CITY COUNCIL, LOCAL CONTRACT REVIEW BOARD 8t CITY CENTER DEVELOPMENT AGENCY MEETING a March 28, 2006 6:30 p.m. TIGARD CITY HALL 13125 SW HALL BLVD TIGARD, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 . p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:3012.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (MD - Telecommunications Devices for the Deaf).. Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 pm. on the Thursday preceding the meeting by calling. 503-639-4171, ext 2410 (voice) or 503-684-2772 (IDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - March 28, 2006 p; 131 • - AGENDA TIGARD CITY COUNCIL BUSINESS MEETING MARCH 28, 2006 630 PM • STUDY SESSION > . Police Holding Facility Tour and Audit • Police Staff > Review of Fiscal Year 2006-07 Community Event Funding Requests • Finance Staff > Regulation of Payday Lending Businesses • Finance Staff • EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing • from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any infomnation discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 730 PM 1. BUSINESS MEETR,4G- = 1.1 Call to Order - City Council, Local Contract Review Board, and City Center Development Agency 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non Agenda Items 735 PM 2. CITIZEN COMMUNICATION (Two Minutes or Less, Please) • Tigard High School Student Envoy Krista Foltz • Follow-up to Previous Citizen Communication COUNCIL AGENDA - March 28, 2006 page 2 • 132 T40 PM 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one • motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Motion to: 3.1 Approve Council Minutes for February 14 and 21, 2006 3.2 Approve City Center Development Agency Minutes for February 21, 2006 3.3 Appoint New Members to the Building Appeals Board: Michael Kringlen, Doug Collin& Jeff Jurrens, Eric Watson, Gerald McKee, and Alan Mitchell - Resolution No. 06- 3.4 Approve Library Policies 3.5 Approve Submission of a Grant Application to Obtain Matching Funds to Construct the Jim Griffith Memorial Skate Park - Resolution No. 06- 3.6 Appoint Carol Kmger as Deputy City Recorder - Resolution No. 06- 3.7 Local Contract Review Board a. Award Contract to Morse Brothers, Inc., for the Construction of the Fiscal Year 2005-06 Pavement Major Maintenance Program (PMMP) - Phase 2 b. Award Contract to NW Kodiak Construction for the Constriction of Highland Drive Storm Drainage Improvements • Consent Agenda -Items Removed for Separate Discussion: Any items requested to be remewd f om the Consent Agenda for separate discussion will be considered immediately after the Council has rated on those items wbicb do not need discussion. 7.45 PM 4. PUBLIC HEARING - 2006 US DEPARTMENT OF JUSTICE/EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT GAG) a. Open Public Hearing b. Declarations or Challenges c. Staff Report. Police Staff d. Public Testimony: Proponents Opponents e. Staff Recommendation f. Close Public Hearing g. Staff Recommendation 8.00 PM 5. FURTHER CONSIDERATION AND DELIBERATION OF A RESOLUTION ADOPTING ADDITIONAL FINDINGS AND IMPOSING AN ADDITIONAL CONDITION FOR THE LAND USE BOARD OF APPEALS (LUBA) REMAND OF ASH CREEK ESTATES SUBDIVISION (SUB2003-00010/ZON2003-00003/PDR2003- 00004/SLR2003-00005/VAR2003-0036/VAR2003-0037) The State Land Use Board of Appeals (LUBA) has remanded for a second time the City Council's approval of a 29-lot Planned Development Subdivision on 93 acres and associated Zone Change, Sensitive Lands, and Adjustment reviews to address a single issue relating to tree preservation. As • limited by LUBA, the issue remanded is whether the tree plan preserves trees to the greatest. extent COUNCIL AGENDA - March 28, 2006 page 3 133 possible, given that the second tree plan does not protect 23 trees designated for protection in the original tree plan, but not designated for protection in the revised tree plan previously approved On this second remand, the applicant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full copy of LUBA's Final Opinion and Order can be obtained from City Hall at cost, or is also available online at http://luba.stateorus/pdf/2005/sgptO5/05042.htm LOCATION: 9750 SW 74t Avenue; WCTM 1S125DC, Tax Lots 300 and 400. ZONE: R-4:5: Low Density Residential District The R-4.5 zoning district is designed to accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses iire.also permitted conditionally- APPLICABLE REVIEW CRITERIA- The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a.1, which requires that planned developments protect existing trees to the greatest degree possible. At its February 28, 2006 meeting the City Council approved Resolution No. 06-09 approving the Ash Creek Estates Subdivision. At that meeting, the council requested the City Attorney's office prepare a 'supplemental resolution and findings to respond to oral and written comments at the public hearing. a. Procedural Status: City Attorney b. Staff Report Community Development Staff and City Attorney c. Staff Recommendation d Council Discussion e. Council Consideration: Resolution No. 06- 8.15 PM 6. FORMATION OF SANITARY SEWER REIMBURSEMENT DISTRICT NO. 36 (SW 93an AVENUE) a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Engineering Staff d. Public Testimony e. Staff Recommendation f. Council Discussion g. Close Public Hearing h. Council Consideration: Resolution No. 06- 825 PM 7. EXPRESS SUPPORT TO INCLUDE CERTAIN KEY PROJECTS IN THE 2008-2011 STATE TRANSPORTATION R"ROVEMENT PROGRAM (STIP) a. Staff Report: Engineering Staff b. Council Discussion c. Council Consideration: Resolution No. 06- 835 PM 8. PRESENTATION ON THE CITY'S PARTICIPATION IN THE HEALTHY STREAMS PLAN a. Staff Report: Public Works Staff 9. COUNCIL LIAISON REPORTS • COUNCIL AGENDA - March 28, 2006 page 4 134 10. NON AGENDA TIEEMS 11. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session.- Representatives of the news media are alloWed to:attend Executive Sessions, as provided by ORS"192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 9:16 PM 12. ADJOURNMENT COUNCIL. AGENDA - March 28, 2006 page S 135 z AGENDA ITEM # FOR AGENDA OF March 28.2006 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE -Further Consideration and Deliberation of a Resolution Adopting Additional Findings and Imposing an Additional Condition for the LUBA Remand of Ash Creek Estates Subdivision (SUB2003- 00010/ZON2003-00003/PDR2003-00004/SLR2003-00005 /VAR2003-00036 /VAR2003-00037) PREPARED BY: Dick Bewersdorff DEPT HEAD OK ti CITY MGR OK ISSUE BEFORE THE COUNCIL This is a Resolution that responds to the City Council direction to the City Attorney to provide a resolution and additional findings for the public hearing held February 28, 2006 regarding the Ash Creek Estates Subdivision.. STAFF RECOMMENDATION It is recommended that the City Council approve the attached Resolution and additional findings and condition of approval supplementing Resolution 06-09 approving the Ash Creek Estates Subdivision. • INFORMATION SUMMARY At its February 28, 2006 meeting, the City Council approved a Resolution (06-09) approving the Ash Creek Estates Subdivision. At that meeting, the Council requested the City Attorney's Office prepare a supplemental resolution and findings. The findings respond to both written and oral comments made at the public hearing. The additional condition states that: Applicant shall not remove or damage and shall protect the 23 trees specified in footnote 16 of the LUBA decision in accord with Conditions 55 through 58. OTHER ALTERNATIVES CONSIDERED Revise the findings. COUNCIL. GOALS AND TIGARD BEYOND TOMORROW VISION STATEMENT Growth and Growth Management - Goal#1,-Accommodate Growth while protecting the character and livability of the new and established areas. ATTACHMENT LIST Attachment 1: Proposed Resolution Adopting Findings and an Additional Condition, including Exhibit A. FISCAL NOTES _ &A 136 CITY OF TIGARD, OREGON TIGARD CITY COUNCIL RESOLUTION NO. 06- A RESOLUTION AND FINAL ORDER SUPPLEMENTING RESOLUTION 06-09 APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003- 00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003-00005/ADJUSTMENT (VAR) 2003- 00036/ADJUSTMENT (VAR) 2003-00037) - ON REMAND FROM LUBA; AND ADOPTING ADDITIONAL FINDINGS AND IMPOSING AN ADDITIONAL CONDITION. WHEREAS, the City Council.adopted Resolution 06-09 at its February 28, 2006 meeting relating to the Ash Creek Subdivision land use but continued the hearing to adopt additional findings; WHEREAS, Resolution 06-09 accurately sets forth the procedural history of this matter, WHEREAS, the Council has considered the proposed additional findings and condition proposed by staff; NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that SECTION 1: Resolution 06-09 and all findings and conditions included or incorporated into Resolution 06-09 remain..in effect. This Resolution supplements, but does not otherwise amend Resolution 06-09. Resolution 06-09 and this resolution constitute the final decision of the City. SECTION 2: The Council adopts the findings in the document entitled "ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) ASH CREEK ESTATES SUBDIVISION SUB2003-00010/ZON2003-00003/PDR2003-00004/SLR2003-00005/VAR2003-00036-0037" attached hereto as Exhibit A, as additional findings, and imposes the additional condition of approval included in that document. SECTION 3: This resolution is effective when notice of the decision is mailed. PASSED: This day of 2006. Mayor - City of Tigard ATTEST: City Recorder - City of Tigard RESOLUTION NO. 06 - Page 1 137 ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) ASH CREEK ESTATES SUBDIVISION SUB2003-00010/ZON2003-00003/PDR2003-00004/SLR2003-00005/VAR2003- - 00036/VAR2003-00037 1. The Tigard City Council heard testimony on this matter at its February 28, 2006 meeting and closed the hearing. The Council adopted Resolution 06-09 approving the application with the findings and conditions recommended by staff, but also decided to continue the matter to March 28, 2006, for the adoption of additional findings and conditions. 2. This matter is on remand a second time from the'Land Use Board of Appeals. The issue on this remand is limited to whether CDC.18.350.100B.3.a.1 is met as to 23 trees specified in the LUBA decision. FINDINGS IN RESPONSE TO COMMENTS 2. The City received written comments from Bob Storer and oral and written comments from John Frewing. Rerponse to Comment r fmm Bob Storrr 3. Mr. Storer stated that he was not convinced that the developer or the contractors will comply with all of the conditions of approval and questions City monitoring of the proposed project. This comment is not relevant to the.issue on remand- There is always a risk of non-compliance with conditions of approval; but the City does monitor development and has the authority to stop work if conditions are not complied with. The risk of non-compliance is not a basis for denial. 4. Mr. Storer'argued that the standard is not being met because trees other than the 23 trees are being removed- This argument is outside the scope of the issue before -the , Council- Furthermore, LUBA has. already affirmed the City's decision that the removal of other trees is consistent with the standard- This issue has already been decided and is no longer subject to challenge. In LUBA Case No. 2005-042, LUBA considered the tree plan that the applicant submitted to the City on the first remand. That plan illustrated the trees that would be preserved and the trees that would be removed. LUBA . concluded that except for the 23 trees specifically identified, the tree plan complies with -s requirement. LUBA's -decision was. affirmed by the Court of Appeals. Any the City argument concerning any trees other than the 23 trees identified by LUBA is outside- the scope of the remand. 5. Mr. Storer argues that just because the development meets all standards does not mean . that the-application should be approved. In a quasi-judicial proceeding, however, the City is required to approve applications that meet all applicable criteria and may not ADDITIONAL FINDINGS -AND CONDITION (MARCH 2006) Page I of 4 138 deny an application for reasons unrelated to applicable criteria. ORS 197.522. 6. Mr. Storer argues that the development should not be approved until all local, state and federal permits and other associated approvals have been obtained. Mr. Storer cites no authority for this proposition, and the argument is outside the scope of the remand. While the applicant must obtain all required permits, obtaining the permits does not need to occur prior to land use approval; it is sufficient that the approvals be obtained prior to the work. 7. Mr_ Storer asks the Council to adopt more stringent standards. While the Council may adopt more stringent standards in the future, it must consider this application under the standards in effect at the time the application was- filed. Adoption of more stringent standards is irrelevant to this application and decision. Response to Comments fmm John Freaing 8. Mr. Frewing comments that although the map associated with the tree plan shows that the 23 trees will be protected, some of the text of the plan indicates they will be removed. The Council finds that the map controls over the text and that the 23 trees at issue will be protected. To ensure protection, the Council is adopting an additional condition of approval specifically -requiring the protection of those 23 trees. • Compliance with the condition is feasible - the applicant has indicated that those trees will be protected during construction. 9. Mr. Frewing has argued that some of the 23 trees have not been identified by species. Mr. Frewing made a similar argument to LUBA in the last remand and did not prevail. LUBA's decision was affirmed by the Court of Appeals. This issue has been decided against Mr. Frewing and he cannot raise it again. This argument is outside the scope of the remand. It is clear from the tree plan which trees are to be protected, and that is sufficient to satisfy the CDC 18.350.100B.3.a.1 standard- 1 0- Mr. Frewing.argues that tree protection standards should be modified to be consistent with standards that have evolved and improved since the tree protection plan was originally prepared. This argument is outside the scope of the remand. Furthermore, the application is to be judged by the standards in effect at the time the application was first submitted - ORS 227.178(3)(a). Also, Mr. Frewing did not identify what changes in - tree protection standards have occurred and did not provide any information that any changes in-tree protection standards-have become applicable standards or criteria in a land use application: 11. Mr. Frewing asked the City to require the applicant to confirm the purpose of fencing shown on the 9/22/05 drawing. This is outside the scope of the remand and not . required by any applicable standard. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) 139 Page 2 of4 12. Mr_. Frewing makes various arguments relating to trees other than the 23 trees designated for protection. These arguments are outside the scope of the remand. Whether any additional trees should. be protected or whether protection for other trees - shown to be protected is outside the scope of the remand. 13. Mr. Frewing argues that the City should expand the remand beyond the narrow issue remanded by LUBA. While the City has the authority to expand the scope of the remand, it is solely within the City's discretion whether to expand the scope beyond the issue remanded by LUBA. The City Council chose to limit the remand to the issue remanded by LUBA and that decision was within the scope of the City's discretion. LUBA explained the scope of the remand as follows: "On remand the city must explain why it is not possible to preserve the trees identified in footnote 16, or require that the tree plan be amended to preserve those trees." That is the only issue on.remand, and the applicant has amended the tree plan to preserve those trees. 14_ Mr. Frewing raised questions as to when the final decision needs to be made on remand. The applicant has agreed to an extension of time to make the decision, so this issue is moot. 15- Mr. Frewing also argued that ex parte contacts had occurred and that one or more Council members were biased- First, Mr. Frewing argued that there had been ex parte • contact between one or more Council members and the developer relating to the donation of property from the developer to the City for park purposes. All Council members stated that they had not had any contacts with the applicant/developer and the City Manager stated that all contacts had been at the staff level. Representatives of the applicant also testified that there had been no ex pane contacts between the applicant or anyone associated with the applicant and any Council member regarding the property. The Council finds that there were no ex parte contacts as alleged by Mr. Frewing. Mr. Frewing based his allegations of ex parte contacts on a newspaper article in The Oregonian by Rick Bella. Mayor Dirksen stated that he had a discussion with Mr. Bella,. but that Mr. Bella did not accurately report the Mayor's statements. There is no credible evidence of undisclosed ex parte contacts. 16. Mr. Frewing claims that the Council is biased because it is attempting to obtain open space for the City from the applicant. The City Manager stated that there have been discussions between staff and the applicant on this issue, but that no Council member was involved or informed of the discussions. All Council members stated that potential land acquisition by the City would.play no role in their evaluation of the case and that they could judge the land use matter before them based on the facts and criteria- All members denied any bias. The Council finds that all Council members based their decisions on the facts presented in the land use process and applying the applicable criteria and standards, without other considerations. Given the narrow scope of remand - • and the revised tree plan showing protection of all 23 trees that were the subject of the remand, the only possible decision was approval. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) Page 3 of 4 140 ADDITIONAL CONDITION Applicant shall not remove or damage and shall preserve the 23 trees specified in footnote 16 of the LUBA decision in accord with Conditions 55 through 58. ADDITIONAL FINDINGS AND CONDITION (MARCH 2006) 141 Page 4 of 4 Agenda Item No. c~ For Agenda of 1//// lo TIGARD' Tigard City Council Meeting Minutes Date: February 28, 2006 Time: 6:30 p.m. Place: Tigard City Hall, 13125 SW Hall Boulevard Tigard, Oregon Attending: Mayor Craig Dirksen Presiding Councilor Sally Harding Councilor Sydney Sherwood Councilor Nick Wilson Councilor Tom Woodruff Agenda Item Discussion & Comments Action Items (follow u Study Session Intergovern- Staff Presenter: Associate Planner Igarta • mental Agree- ment (IGA) - City Council will be asked to approve an IGA on the See Consent Agenda Goal 5 Fish & Consent Agenda relating to the organization and No. 3.3, which was Wildlife Habitat - function of the Tualatin Basin Natural Resources adopted by the City Tualatin Basin Coordinating Committee (IBNRCC) Council. Partners Associate Planner Igarta reviewed the background leading up to the IGA as proposed. Approval of the IGA will extend the partnership with Tualatin Basin Partners for Natural Spaces to implement the fish and wildlife habitat protection program. Councilor Harding is the elected official liaison to the TBNRCC. Metro Council formally approved the Basin Program complying with Tide 13 of the Regional Growth Management Functional Plan. Partners are now preparing to implement program elements to reach their goal of improving the Basin's environmental health and to comply with state and regional Goal 5 planning requirements. Tigard City Council Meeting Minutes Page 1 February 28, 2006 142 Agenda Item Discussion & Comments Action Items (follow u Hall Boulevard Staff Presenter: City Engineer Duenas Consensus of City Jurisdictional Council was that staff Transfer Information on this item is outlined in a February 22, should continue Discussion 2006 memorandum from City Engineer Duenas, discussions with ODOT which is on file in the City Recorders office. about transferring a portion of Hall The Oregon Department of Transportation has asked Boulevard to the City of local jurisdictions to consider the conditions under Tigard. which they would accept responsibility for the street. City Engineer Duenas noted Hall Boulevard is designated as a "road of interest" to the County. Local jurisdictions will be meeting with the Oregon Department of Transportation again in March. Council members discussed the potential transfer and suggested ideas for improvements before accepting jurisdiction: • address bridge issues over Fanno Creek (near City Hall and also at Oak Street) • clarify responsibility for the street between the City and the County • request full three-lane improvements to preserve an opportunity to for funding Hall Blvd./99W Staff Presenter: Senior Planner Nachbar Consensus of City Design Modi- Council was to support fications Staff recommended that the Hall/99W intersection be the proposed considered as part of the contract work to be amendment to the performed by OTAK for streetscape design work. agreement with OTAK The goal would be to make this intersection more to add Hall Blvd./ 99W pedestrian friendly and to establish the area as a to the list of projects in gateway to the downtown (green theme). The City the streetscape design Center Advisory Commission endorsed staff's work. recommendation at its February 23, 2006, meeting. Tigard City Council Meeting Minutes Page 2 February 28, 2006 143 Agenda Item Discussion & Comments Action Items (follow u Urban Services Staff Presenter: Senior Planner Nachbar Intergovern- mental Agree- This revision to the IGA is also on the Consent ment (IGA) with Agenda (Item No. 3.2). The revised IGA extends the cities of Tigard, term of the agreement from December 24, 2002 to Tualatin, December 31, 2008 and adds a section regarding the Beaverton, and relocation of utilities. TriMet, while not signing the Wilsonville, and IGA, is referred to as project manager. Senior Washington Planner Nachbar reported that Attorney Firestone County reviewed the IGA and found it acceptable. (Washington County - Wilsonville to Beaverton Commuter Rail Project) Executive Session The Tigard City Council went into Executive Session at 6:51 p.m. to discuss pending litigation under ORS 192.660(2)(h). Executive Session concluded at 7:08 p.m. Study Session ■ No Chamber of Commerce Representative will continued- attend tonight's meeting; Executive Director Administrative Monlux asked to be scheduled for an April City Items Council agenda. Letter from Mr. Bob Storer was distributed (Agenda Item No. 6 - Ash Creek Estates Public Hearing) • Distributed to the City Council samples of new forms: • Redesign of Testimony Sign in Sheets for Citizen Communication and Public Hearing Testimony • New form: "Are you interested in serving on a City of Tigard Board, Committee or Commission? The forms were prepared as a result of the City Council's February 21, 2006, discussion on improved communications. Tigard City Council Meeting Minutes Page 3 February 28, 2006 144 • Agenda Item Discussion & Comments Action Items (follow u ■ The March 14, 2006, City Council meeting is cancelled. Study Session concluded at 7:10 p.m. Business Meeting 1.1 Mayor Dirksen called the City Council and the Local Contract Review Board to Order at 7:31 p.m. 1.2 Council Present Mayor Dirksen, Councilors Harding, Sherwood, Wilson, and Woodruff. 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports • C ouncilor Harding announced a tree-planting event on March 4, Englewood Park, 9 a.m. • Councilor Harding announced Tigard-area CPO's are sponsoring a forum regarding 99W on Saturday, March 4, 9 a.m.- noon, Deb Fennell Auditorium • Mayor Dirksen announced there would be no City Council meeting on March 14, 2006. 1.5 Call to Council and Staff for Non-Agenda Items: None 2. Citizen John Frewmg, 7110 SW Lola Lane, Tigard, OR Communications 97223 referred to a City Council discussion last week about a performance audit of the Police Department. He suggested the City Council consider revisiting the idea of consolidating the Tigard Police Department with Washington County law enforcement. Mr. Frewing said there was potential for significant cost savings. Mayor Dirksen noted the City Council discussion last week was with the Financial Strategy Task Force. The Task Force reported that, after review, the City was providing the Tigard City Council Meeting Minutes Page 4 February 28, 2006 145 • Agenda Item Discussion & Comments Action Items (follow u services that it should be. The Task Force recommended performance audits of targeted programs in the General Fund to determine if services are being provided efficiently. ■ Linda Moholt, 19181 SW 55`'' Court, Tualatin, OR 97062, distributed information from the Tualatin Schoolhouse Pantry. She said the root cause of hunger stems from the need for affordable medical care as people must choose between paying for food or healthcare. She announced that in fall 2006, a free medical clinic will be available in the Washington County King City facility. The facility will be open one night a week staffed by volunteer doctors and nurses. Legacy and Providence are partners. A forum will be held April 25, 7 p.m. at Meridian Park Hospital. Essential Health Clinic information was also distributed. ■ Pat Whiting, 8122 SW Spruce Street, Tigard, OR 97223, announced a forum will be held on • March 4, 9 a.m. -12 p.m. at the Deb Fennell Auditorium. She noted state, county, and local officials would be present to discuss issues regarding 99W. Questions from the public, written on cards, will be submitted to the panel of speakers for response. If people are not able to attend, Councilor Harding suggested they write to the Oregon Department of Transportation with their concerns. Follow-Up - 5' City Manager Prosser reviewed issues that were Tuesday Meeting discussed at the last City Council Fifth Tuesday of January 31, Meeting 2006 • Height restrictions issues - radio tower. This was addressed in a February 23, 2006, memorandum from the City Attorney. The neighbors are considering addressing their issue through their development's code, covenants, and restrictions (CC&R's). • Investigate possibilities of a signal at Tigard and • Main Street. This will be affected by the commuter rail crossin ; it will be considered. Tigard City Council Meeting Minutes Page 5 February 28, 2006 146 • Agenda Item Discussion & Comments Action Items (follow u • Park and Recreation Board meeting agendas and minutes have been posted on the City's web page. Staff will mail this information to anyone who requests it. • Council could consider adding sidewalks to its next review of the street maintenance fee. The review is scheduled to take place in June 2007. • Committee for Citizen Involvement will have recommendations regarding meetings held in neighborhoods to inform residents about new developments. Issues noted included that it seems as if there is a disconnect between the neighborhood meeting and what actually gets developed. • The property owner responsible for clearing trees at Beef Bend/147`x'-150`h (approximately) complied with Code provisions. • • Burnham Street design is to be done in May and construction completed in fall 2008. • Use of franchise fees where collected is a City Council policy issue. • Creating a task force to improve Durham Road right of way would be a Council decision. • Notification to neighbors if there are substantial changes to a development should be incorporated in the Committee for Citizen Involvement recommendations. 3. Consent 3.1 Approve Council Minutes for January 17 and 24, Motion by Councilor Agenda 2006 Sherwood, seconded by 3.2 Approve First Amendment to Urban Services Councilor Woodruff, to Intergovernmental Agreement with Cities of approve the Consent Tigard, Tualatin, Beaverton, and Wilsonville, and Agenda. Washington County (Washington County - Wilsonville to Beaverton Commuter Rail Project) The motion was • 3.3 Approve Intergovernmental Agreement GA - approved b a Tigard City Council Meeting Minutes Page 6 February 28, 2006 147 • Agenda Item Discussion & Comments Action Items (follow u Organization and Function of the Tualatin Basin unanimous vote of Natural Resource Coordinating Committee Council present. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes Councilor Woodruff Yes 4. Public Hearing The purpose of the public hearing is to consider a Motion by Councilor (Quasi-Judicial): request by Larusso Concrete Company, Inc. and Harding, seconded by Vacation of An Richard Akerman & James Wathey concerning the Councilor Woodruff, to Un-Named proposed vacation involving an approximately 7,845 adopt Ordinance No. Public Right-of- square foot portion of an un-named public right-of- 06-01 with the Way East of SW way. amendment noted by 74d' Avenue and staff in Section 2. East of the S P The petition was filed with the City on November 15, & S Railroad 2005 and initiated by the City Council at the request of The motion was Right-of-Way, the applicant on December 20, 2005. Any interested approved by a North of person may appear and be heard for or against the unanimous vote of Durham Road proposed vacation of said Un-Named Portion of Council present. • (VAC2005- Public Right-of-way East of SW 74 h Avenue Vacation. 00003) Any written objections or remonstrances were to have Mayor Dirksen Yes been filed with the City Recorder by 7:30 p.m. on Councilor Harding Yes February 28, 2006. Councilor Sherwood Yes Councilor Wilson Yes Mayor Dirksen opened the public hearing. Councilor Woodruff Yes City Attorney Ramis reviewed the rules of procedure for this quasi-judicial hearing. Planning Manager Bewersdorff presented the staff report and noted the scope of the vacation request. The City did not pay for the right of way; the property was dedicated to the City when the property was platted. At that time, the subject property was considered to be needed for access; however, access is from SW 72"d Avenue. City Attorney Ramis noted the question before the City Council is whether it is in the public's interest to vacate the property. Tigard City Council Meeting Minutes Page 7 February 28, 2006 148 • Agenda Item Discussion & Comments Action Items (follow u There were no declarations or challenges regarding ex parte contact, the Council's jurisdiction to hear this matter, or participation of any Council member. Public testimony: • Ed Murphy, 9875 SW Murdock Street, Tigard, OR 97224, advised he represented the applicants for this vacation. The applicants have applied for a zone change. Mr. Murphy described the development plans. • Rich Ackerman and Jim Lang signed on the testimony sheets; however, they declined to testify. Mayor Dirksen closed the public hearing. Planning Manager Bewersdorff advised staff recommended that the City Council approve the proposed ordinance with a change to Section 2 to add that the City Recorder would record a certified copy of • the ordinance and using the usual effective date language for ordinances. City Council considered Ordinance No. 06-01. ORDINANCE NO. 06-01 - AN ORDINANCE VACATING AN APPROXIMATELY 7,845 SQUARE FOOT PORTION OF AN UN-NAMED PUBLIC RIGHT-OF-WAY WHICH LIES TO THE EAST OF SW 74T'-` AVENUE AND EAST OF THE S P & S RAILROAD RIGHT OF WAY, NORTH OF SW DURHAM ROAD, IN THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON (VAC2005- 00003) • Tigard City Council Meeting Minutes Page 8 February 28, 2006 149 • Agenda Item Discussion & Comments Action Items (follow u 5. Public Hearing The purpose of the public hearing is to consider a Motion by Councilor (Quasi-Judicial): request by Specht Development, Inc. concerning the Wilson, seconded by Vacation of Five proposed vacation involving five (5) small portions of Councilor Sherwood, to Small Portions of public right-of-way totaling 3,392 square feet adopt Ordinance No. Public Right-of- 06-02 with amendment Way Totaling The petition was filed with the City on September 9, to Section 2 as noted by 3,392 Square Feet 2005 and initiated by the City Council at the request of the staff. Along SW 68 h the applicant on January 10, 2006. Any interested Parkway and 69`h person may appear and be heard for or against the The motion was Avenue proposed vacation of said 68''' Parkway Public Right- approved by a (VAC2005-00004 of-Way Vacation and 69 Avenue Public Right-of-Way unanimous vote of & VAC2005- Vacation. Any written objections or remonstrances Council present. 00005) were to have been filed with the City Recorder by 7:30 p.m., February 28, 2006. Mayor Dirksen Yes Mayor Dirksen opened the public hearing. Councilor Harding Yes Councilor Sherwood Yes City Attorney Ramis noted the rules of procedure for Councilor Wilson Yes this quasi-judicial hearing were the same as the rules for Councilor Woodruff Yes Agenda Item No. 4. • Planning Manager Bewersdorff presented the staff report and noted the scope of the vacation request. Section 2 should be amended to reflect that the ordinance would take effect once the conditions are met and 30 days after its passage by the Council, using the usual effective date language for ordinances. There were no declarations or challenges regarding ex parte contact, the Council's jurisdiction to hear this matter, or participation of any Council member. There was no public testimony. Mayor Dirksen closed the public hearing. City Council considered Ordinance No. 06-02: ORDINANCE NO. 06-02 - AN ORDINANCE VACATING FIVE SMALL PORTIONS OF PUBLIC RIGHT OF WAY, TOTALING 3.392 SQUARE FEET ALONG 6e PARKWAY AND 69''' AVENUE IN THE CITY OF TIGARD, WASHINGTON COUNTY, OREGON (VAC2005- 00004 & VAC2005-00005). Tigard City Council Meeting Minutes Page 9 February 28, 2006 150 • Agenda Item Discussion & Comments Action Items (follow u 6. Public Hearing The State Land Use Board of Appeals (LUBA) has Motion by Councilor remanded for a second time the City Council's (Quasi-judicial) tY Sherwood, seconded by Land Use Board approval of a 29-lot Planned Development Councilor Wilson, to Subdivision on 9.3 acres and associated Zone of Appeals Change, Sensitive Lands, and Adjustment reviews to approve Resolution No. (LUBA) Remand address a single issue relating to tree preservation. 06-09, which is a - of Ash Creek As limited by LUBA, the issue remanded is whether tentative decision until Estates the tree plan preserves trees to the greatest extent staff returns to City possible, given that the second tree plan does not Subdivision (Sub) protect 23 trees designated for protection in the Council with additional 20003- ong nal tree plan, but not designated for protection findings. 00010/Planned in the revised tree plan previously approved On Development this second remand, the applicant has submitted a • The motion was Review (PDR) second revised tree plan that amends the first approved b a majori revised tree plan by designating for protection the 23 by 2003-00004/Zone trees specifically mentioned by LUBA. A full copy vote of Council present. Change (ZON) of LUBA's Final Opinion and Order can be 2003- obtained from City Hall at cost, or is also available Mayor Dirksen Yes 0003/Sensitive online at Councilor Harding No http://tuba.state.or.us/ndf/2005/septO5/05042.ht Councilor Sherwood Yes Lands Review m. LOCATION: 97 SW 74 Avenue; WCTM (SLR) 2003- 1S125DC, Tax Lots 300 and 400. ZONE: R-4.5: Councilor Wilson Yes 00005/Adjust- Low-Density Residential District. The R-4.5 Councilor Woodruff Yes ment (VAR) 2003- Zoning district is designed to accommodate • detached single-family homes with or without This matter will be before 00036/Adjustment accessory residential units at a minimum lot size of the Council again on March (VAR) 2003-00037 7,500 square feet. Duplexes and attached single- 28, 2006, for final action. family units are permitted conditionally. Some civic and institutional uses are also permutted conditionally. APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a.1, which requires that planned developments protect existing trees to the greatest degree possible. City Attorney Ramis reviewed a statement of the quasi-judicial land use hearing procedures. A copy of the text of the procedures is on file in the City Recorder's office. His remarks included the following: "Any person may offer testimony. This matter is on remand from the Land Use Board of Appeals on a single narrow issue and testimony wiT e limited to that issue. LUBA limited the scope of this hearing to the question of whether CDC 18.350.100B.3.a.1 relating to tree protection is met with respect to 23 trees specified in the LUBA decision." Mayor Dirksen opened the public hearing. Planning Manager Bewersdorff reviewed the history of this matter as outlined in the Agenda Tigard City Council Meeting Minutes Page 10 February 28, 2006 151 • Agenda Item Discussion & Comments Action Items (follow u Item Summary. He noted the proposed resolution contains an additional finding and an additional condition, No. 59. Planning Manager Bewersdorff referred to the memorandum before the City Council from the City Attorney's office that also outlines the case before the City Council. City Attorney Ramis clarified that this case has been to LUBA more than once. Current status is that the City's decision had been upheld in all respects except for one point for further explanation and treatment by the Council. LUBA identified in Footnote 16 of this case 23 trees and asked that the Council consider how those trees are being treated in the protection plan. LUBA said that the treatment of these trees needed to be explained under the City standard, which says, "Preserve to the greatest extent possible the trees on the site." Before the City Council is a letter from the applicant noting that each of the 23 trees identified by LUBA can and will be preserved in the final development plan. City Attorney Ramis advised that a letter had been submitted to the City Council from Bob Storer. This letter will be included in the Record; however, City Attorney Ramis advised the City Council should consider the testimony carefully and not go beyond the scope of the LUBA remand. He advised that he did not believe any of the points stated in Mr. Storer's letter address the issue that LUBA has remanded. The letter asks the City Council to broaden the scope of the hearing beyond LUBA's specified scope, but this would violate LUBA's decision. City Attorney Ramis said his advice would be to not broaden the scope of the hearing. Mr. Storer's letter also argues about preserving trees, other than the 23 trees that are at issue and, again, this would be beyond the scope of the heating. Mr. Storer's letter urges the City Council to deny the application even if the application meets the Code criteria; however, the City Council would not have such authority to do so in this proceeding. If the City Council wants to change the rules, it must be done within a process other than aquasi-judicial hearing. Mr. Storer's letter argues for the use of conservation easements, which are not at issue. The letter argues for compliance with laws of other jurisdictions which, again, is not before the City Council. Mr. Storer argues for the City to purchase the property and that issue is also not before the City Council. • Declarations and Challenges: Councilor Harding advised she att empted to visit the site; however, the prop rty is osted as "private property." Mayor Tigard City Council Meeting Minutes Page 11 February 28, 2006 152 Agenda Item Discussion & Comments Action Items (follow u Dirksen advised that he was well aware of the location of this site. John Frewing, 7110 SW Lola Lane, Tigard, OR 97223, challenged and reqquested clarification with regard to the adequacy ofdisclosure of ex parte contact between the decision makers and the applicant. A description of Mr. Frewing's objections is in writing and on file in the City Recorder's office. As outlined by Mr. Frewing, the alleged ex parte contact was evidenced in a newspaper column written by Rick Bella in the February 16, 2006, The Oregonian. This article quoted Mayor Dirksen commenting on donation of property to the City by the developers for Ash Creek Estates Subdivision. City Attorney Ramis advised that, under the proceedings used by the City of Tigard, now is the time to conduct the proceeding to determine whether there is bias or ex parte communications. City Attorney Ramis recommended against the continuance requested by Mr. Frewing unless it turns out during the process of examining that question, there is a need to do that. Before proceeding with City Council comments, City Attorney Ramis recommended the other parties to the case have an opportunity to comment on this request. Chris Koback, representing the applicant, and Dale Richards of Winwood Construction advised that they had no communications with the Tigard City Council members outside the hearing process. City Attorney Ramis asked the City Council members if there had been any discussion with the appli cant or with the applicant's representative about the subjects Mr.Frewing has raised and also whether there might be some open space, as part of this application, which would bias City Council and prevent them from making a fair decision based upon the criteria and facts presented. Councilor Wilson advised that he has not talked to the owner or the developer other than within the public meetings. In addition, he noted that acquisition of the property by the City would not bias his decision. He might, since the accusation has been raised, want to decline to accept donated property to make sure there is no hint c ;f impropriety or quid pro quo. • Councilor Sherwood advised she has not spoken to the applicant or applicant representatives other than in the meetin ; nor has she spoken to the Tigard City Council Meeting Minutes Page 12 February 28, 2006 153 Agenda Item Discussion & Comments Action Items (follow u press. She agreed with Councilor Wilson's statement if it was thought she would be biased if the property was accepted, then she would support turning it down. Council Woodruff said this process began before his term on City Council started. He said he has had no contact with any of the people involved. He advised he had no conflict. Councilor Harding advised that the process began before her term on Council began. She has had no contact with the developer, the attorney, or Mr. Frewing. City Attorney Ramis asked to clarify - Councilor Woodruff had indicated he had had no ex parte communications and asked if there was anything about the case that would bias him in one way or another. Councilor Woodruff said, "No." Mayor Dirksen noted that he was interviewed by Oregonian Columnist Bella and he did make a statement with regard to potential for a portion of this parcel, which he understood the acreage that might be donated to the City was not developable. The Mayor's comment in Mr. Bella's article was based on' n a discussion with Interim Community Development Director Coffee. In addition, he noted that the article might be incorrect insofar as he is not certain that a donation has taken place. Mayor Dirksen advised that the only discussion he has had regarding this matter has been with City of Tigard staff. He has not met or talked with anyone outside of the public hearing. He noted that he had, in fact, on previous occasions approved this Planned Development before there was any thought that land might be donated. City Attorney Ramis advised he had not heard anything that would indicate either there has been ex parte communication or that any Council member has found a reason that they could not, because of bias, hear the case. He recommended the City Council proceed with the hearing; any decision reached tonight be a tentative decision so that the City Attorney can come back with findings for the City Council to consider that would address the ex pane communication and bias issues as well as the substantive decision that the City Council renders. City Manager Prosser noted the City has not taken title to any land. He noted the possible land donation would be something to explore; this matter has been referred to the Parks and Tigard City Council Meeting Minutes Page 13 February 28, 2006 154 Agenda Item Discussion & Comments Action Items (follow u Recreation Advisory Board, which has been working on criteria for when and how the City might accept donated land. No action has been taken on this piece of property in any way whatsoever. Mayor Di.tksen also noted, with reference to the 23 trees under review at this hearing, he has no idea whether the trees are located in property that might be donated to the City; therefore, he did not see how this would have any impact on tonight's decision. City Attorney Ramis affirmed, upon a question from Councilor Woodruff, that the only issue before the City Council at this time is regarding the 23 trees per the LUBA remand; there is no choice before the City Council regarding whether or not the City should allow the project to move forward. Applicant's Statement Chris Koback, representing the applicant, noted that subsequent to the LUBA remand the applicant was to either justify removing the 23 trees or show a plan saving the 23 trees. They chose to save the 23 trees. Councilor Wilson asked whether an arborist was involved in the decision whether the trees could be saved or not? Mr. Koback said there was an arborist that prepared the report. An arborist was not involved in the decision to save the trees. It was not a question of whether the trees were dead or diseased; these trees were under 12-inches in diameter and were going to be removed because, the Code as they interpreted, allowed them to remove trees less than 12 inches. LUBA directed them to look at this again, they did and the trees will be saved. Public Testimony: Mayor Dirksen called upon Mr. Frewing to speak as an opponent and reminded Mr. Frewmg that the only issue before the City Council was with regard to the 23 trees. John Frewing, 7110 SW Lola Lane, Tigard, Oregon, commented that he believed the laws required him to register his objection on the adequacy of the ex parte disclosure. He said he does register an objection to keep his opportunity alive for an appeal. Mr. Frewin said his second objection was Tigard City Council Meeting Minutes Page 14 February 28, 2006 155 Agenda Item Discussion & Comments Action Items (follow u regarding the scope of the hearing. He noted the City Attorney has advised the City Council cannot consider anything other than the 23 trees without violating the LUBA order. Mr. Frewing said his understanding was that the City Council could, of its own will, change the scope of the hearing. Mr. Frewing reviewed his testimony regarding the 23 trees. He also submitted a document for the record, which outlined his testimony. He referred to the revised tree preservation location drawing dated September 22, 2005, and said the application materials fall short of compliance to preserve the 23 trees. He referred to a drawing an how the trees were marked and then returned to his prepared comments whereby he outlined how the application materials fall short of compliance. After reviewing comments relating to the 23 trees, Mr. Frewing then referred to his written comments and outlined his issues with regard to the decision process. City Attorney Ramis requested that Mr. Frewing keep his testimony tied to the issue of the 23 trees. Mr. Frewing explained his comments were in two parts: 1) 23 trees and the 2) the hearing process and his rights within the hearing process. City Attorney Rams said Mr. Frewing could continued but noted much of the testimony presented by Mr. Frewing appeared to be repetitive of issues already ruled upon by LUBA; therefore, these issues would not be before the City Council. Mr. Frewing said he did not think the issues had been addressed by LUBA. Mr. Frewing's written testimony was incorporated into the meeting record. Mr. Frewing requested that staff be asked to prepare findings to deny the application. In response to a question from Mayor Dirksen, Mr. Frewing advised he was in favor of the 23 trees being preserved but noted there were inconsistencies with the drawing regarding which trees are to be saved. Meeting recessed at 9:03 p.m. Meeting reconvened at 9:10 p.m. Rebuttal: Mr. Koback responded to Mr. Frewing's testimony and advised that the large tree plan was not revised. The applicant submitted a new drawing that they I Tigard City Council Meeting Minutes Page 15 February 28, 2006 156 Agenda Item Discussion & Comments Action Items (follow u thought was consistent with LUBA's dictate that showed that the 23 trees would be preserved. The Condition, as drafted by staff and agreed to by the applicant, specifically references that plan. Therefore, he does not think there is any confusion about how and what will happen. The applicant will guarantee the 23 trees will be preserved. The trees are not identified by species as noted by Mr. Frewing; this issue was raised at the Court of Appeals and the Court rejected the argument presented by Mr. Frewing on this issue. Mr. Koback said the argument referenced by Mr. Frewing dealing with tree protection; however, LUBA's dictate was very specific - it was on preserving trees to the extent possible. It did not talk about protection. Mr. Koback said evidence is in the record with regard to how the trees will be protected during construction. This was an issue that Mr. Frewing raised at LUBA and LUBA agreed with the applicant that what the applicant has submitted is adequate. Mr. Koback advised that new plans and standards raised by Mr. Frewing asre not applicable as the applicant is entitled to comply with the laws in place at the time the application for this development was filed. Mr. Koback said the plan now before the City Council was not prepared by an arborist; "x's" were taken off the 23 trees to show that they would be protected from removal. The fencepost argument raised by Mr. Frewing relates to tree protection, which is a separate issue and is not part of the LUBA remand. There was discussion on the 23 trees and the requirements by LUBA; these trees are marked and are a net increase in the amount of trees that will be saved. There is no requirement for a formal tree plan. Mr. Koback said his client has clearly identified the trees to be saved. Mr. Richards said he personally marked the trees to be saved. There was discussion about the penalty that could be applied during the construction phase if a tree is not saved, including a $500 fine plus the value of the tree and payment for mitigation requirements. Mr. Koback, in response to a question from Councilor Woodruff, said that nothing in the plan has been changed from the application. An arborist report was required; Terry Flanagan was the arborist. Tigard City Council Meeting Minutes Page 16 February 28, 2006 157 Agenda Item Discussion & Comments Action Items (follow u In response to a question by Mayor Dirksen, Planrung Manager Bewersdorff advised that to his knowledge the application has not been changed from the or' i application other than to protect an additional 23 trees. City Attorney Ramis noted the March 14 City Council meeting has been cancelled. He asked the applicant if they had any ob)ection to the final order being considered by the City Council at its March 28, 2006, meeting. The applicant did not object. In response to a question from Councilor Wilson and Councilor Harding regarding whether the staff was concerned about whether it was clear as to which 23 trees were to be saved, Planning Manager Bewersdorff advised the trees were marked on the plan and the trees were numbered; it was clear. Mr. Koback said that the previous report has not been changed. There is the new plan showing the 23 trees that are to be saved, but the large document originally submitted was not changed. Councilor Woodruff asked the City Attorney about the LUBA decision. City Attorney Ramis read the language from the LUBA decision: "We also caution that our remand does not obli gate the City to provide petitioner with another opportunity to identify additional trees that might be preserved. The City's obligation on remand is limited to the trees identified in note 16 of this opinion." Mayor Dirksen and Councilor Sherwood advised they had no desire to open the hearing to consider additional issues. Councilor Harding noted she would like to reopen for further review if there was any evidence that the K value had been increased (steepness of slope) and referred to the interpretation that can be made by the City Engineer. She said that she did not want to see the citizens and the City have to pay for repairs in the fixture due to things that may not hold over time. When she did the site visit she could not physically go on the property. She referred to the actual severity of the steepness of the slope. Mr. Frewing advised that new information was being discussed and he asked for an opportunity for rebuttal. City Attorne Ramis advised City Tigard City Council Meeting Minutes Page 17 February 28, 2006 158 Agenda Item Discussion & Comments Action Items (follow u Council to allow opportunity for additional comment and then allow the applicant to rebut. Mr. Frewing said that Mr. Richards advised the trees to be saved have been marked with numbers, but Mr. Frewing cannot go on the site. From what he has been able to observe, the tree markers and the tree numbering does not correspond to the drawing. There was no rebuttal. City Attorney Ratris noted the trees were identified in footnote 16 of the LUBA decision. The only comments germane to this hearing were that these trees are to be saved. Enforcement and saving of the trees comes later. Mayor Dirksen closed the public hearing. The City Attorney recommended that the City Council make a decision as framed by LUBA, which is to either explain why the trees can removed or rule that the trees must be preserved. It seems to be that the applicant is proposing to preserve the trees. City Council considered and adopted Resolution No. 06-09, which will be a tentative decision until staff returns with findings for Council consideration.: RESOLUTION NO. 06-09 - A RESOLUTION AND FINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003- 00004/ZONE CHANGE (ZON) 2003-00003/ SENSITIVE LANDS REVIEW (SLR) 2003- 00005/ ADJUSTMENT (VAR) 2003-00036/ ADJUSTMENT (VAR) 2003-00037/ - ON REMAND FROM LUBA; AND ADOPTING FINDINGS AND IMPOSING CONDITIONS. (City Recorder's note: Agenda Items were considered out of the order listed on the Agenda. The next item heard was Agenda Item No. 10.) Tigard City Council Meeting Minutes Page 18 February 28, 2006 159 Agenda Item Discussion & Comments Action Items (follow u 10. Consider Staff Presenter: City Engineer Duenas Motion by Councilor Establishing a Woodruff, seconded by Proposed Local The PowerPoint presentation overview is on file in Councilor Sherwood, to Improvement the City Recorder's office. adopt Resolution No. District (LID) as a 06-10. Project in the FY There was discussion on the process for this LID. 2005-06 Capital Property owners within the area will be notified of The motion was Improvement this potential Local Improvement District. A approved by a Program (CIP), favorable decision tonight to proceed will begin the unanimous vote of and Directing the study process. At a later meeting, the City Council Council present Preparation of a will consider a recommendation whether to proceed Preliminary or terminate the proceedings. There will be an Mayor Dirksen Yes Engineer's Report opportunity for public comment on whether to form Councilor Harding Yes for the Proposed this LID. Specht Development is funding the cost for Councilor Sherwood Yes LID in the Tigard the study regarding formation of the LID. If the LID Councilor Wilson Yes Triangle and moves forward, then the study expenses will be Councilor Woodruff Yes Authorizing the included in the final costs for the LID. Establishment of a Funding Greg Specht, President of Specht Development, Mechanism for identified the properties owned by Specht and the Preparation of reviewed the requirements associated with "floor area the Report ratios" (FAR). He described the type of development Specht decided it would like to place on the property, which requires a larger parcel of property to meet Code requirements. In addition, Ed Murphy (also representing Specht Development) referred to the LID procedures and that the City's preference is that an LID is not a single-owner LID. Approximately 60 percent of the property is owned by Specht Development. Mr. Specht noted that about 21 percent of the properties are owner occupied; these owners would be the most impacted with the formation of the LID. He pointed out that this property is within the MUE (Mixed Used Employment) and planned for future employment opportunities and transportation connectivity. Council and staff discussed that this was a preliminary step; more evaluation would take place later, including input from other property owners. Tigard City Council Meeting Minutes Page 19 February 28, 2006 160 Agenda Item Discussion & Comments Action Items (follow u Councilor Wilson noted ex parte contact in that he did speak with Mr. Specht previously about the FAR requirements. He advised that they did not talk about the formation of an LID. Councilor Wilson advised this conversation would not influence his decision in this matter. City Council considered Resolution No. 06-10 RESOLUTION NO. 06-10 - A RESOLUTION DIRECTING THE ENGINEERING STAFF TO ESTABLISH A PROPOSED LOCAL IMPROVEMENT DISTRICT (LID) AS A PROJECT IN THE FY 2006-06 CIP (CAPITAL IMPROVEMENT PROGRAM), DIRECTING THE PREPARATION OF A PRELIMINARY ENGINEER'S REPORT FOR THE PROPOSED LID IN THE TIGARD TRIANGLE AND AUTHORIZING THE ESTABLISHMENT OF A FUNDING MECHANISM FOR THE PREPARATION OF THE REPORT 11. Consider The proposed budget amendment is related to Agenda Motion by Councilor Budget Amend- Item No. 10. Specht development is depositing Sherwood, seconded by merit #10 to the $125,000 to fund the Preliminary Engineer's Report. Councilor Wilson, to FY 2005-06 While the total Preliminary Engineer's Report cost is adopt Resolution No. Budget to $125,000, it is anticipated that only $70,000 of this 06-11. Increase Appro- total cost will be incurred in FY 2005-06. priations in the The motion was Gas Tax Fund for City Manager Prosser noted that Specht approved by a Funding of the Development's deposit will be placed in the Gas Tax unanimous vote of Preliminary fund and will actually fund the cost of the report. For Council present. Engineer's Report budgetary purposes, it is necessary to do a for the Proposed contingency transfer of $70,000 from the Gas Tax Mayor Dirksen Yes Local Fund to the Gas Tax Capital Improvement Project Councilor Harding Yes improvement budget to appropriate the necessary funds. The City Councilor Sherwood Yes District (LID) for willinclude the cost of preparing the report in the Councilor Wilson Yes Infrastructure total cost of the LID if the City establishes the district. Councilor Woodruff Yes Improvements in If the LID is not formed, Specht Development's the Tigard deposit will be used to fund the report's cost. Triangle City Council considered Resolution No. 06-11. Tigard City Council Meeting Minutes Page 20 February 28, 2006 161 Agenda Item Discussion & Comments Action Items (follow u RESOLUTION NO. 06-11 - A RESOLUTION APPROVING BUDGET AMENDMENT #10 TO THE FY 2005-06 ADOPTED BUDGET TO INCREASE APPROPRIATIONS IN THE GAS TAX FUND FOR FUNDING OF THE PRELIMINARY ENGINEER'S REPORT FOR THE PROPOSED LOCAL IMPROVEMENT DISTRICT (LID) FOR INFRASTRUCTURE IMPROVEMENTS IN THE TIGARD TRIANGLE 7. Local Contract Staff Presenter: City Engineer Duenas Review Board - Post-Project The PowerPoint presentation overview is on file in Evaluation Report the City Recorder's office. of the CM/GC (Construction The post-pro)ect evaluation report should have been Manager/General submitted to the Local Contract Review Board within Contractor) 30 days of acceptance and final payment of the Contract for the project and that it be made available to the public. Tigard New The evaluation is intended to comply with the above Library Project requirement although the required submittal period has expired. The use of the CM/GC method ensured control of costs through the design and construction phases. Because of the collaborative nature of the process, the new library was constructed on time and within the budget set for the project. City Manager Prosser advised that this method of construction was used for the first time by the City of Tigard for the new library building. It would clearly be of benefit to use this process again. LCRB Chair Dirksen acknowledged the success of the project. 8. Consider an Staff presenter: Public Works Director Koellermeier Motion by Councilor Intergovernmental Sherwood, seconded by Agreement (IGA) Approval of the IGA would fund a water supply Councilor Harding, to for Joint Funding . system plan with the City of Lake Oswego. The City approve the of a Water Supply of Tigard has been a Lake Oswego water customer Intergovernmental System Plan with since the early 1960's. The IGA would set the Agreement the City of Lake groundwork for a future joint ownership of a water Oswego system with Lake Oswego. On February 8, the The motion was Tigard City Council Meeting Minutes Page 21 February 28, 2006 162 Agenda Item Discussion & Comments Action Items (follow u Intergovernmental Water Board recommended approved by a approval of the IGA. unanimous vote of Council present. City Manager Prosser noted the City of Lake Oswego's water source is the Clackamas River. Mayor Dirksen Yes Councilor Harding Yes Councilor Woodruff advised that the City is looking Councilor Sherwood Yes at a number of options for long-term water sources Councilor Wilson Yes and he was very much in favor of moving ahead with Councilor Woodruff Yes the IGA. There was discussion on the cost for the work to be done as outlined in the IGA, with Councilor Harding expressing her hope that it could be less expensive. Public Works Director Koellermeier reviewed that the high cost was driven by the level of engineering detail required. Councilor Woodruff acknowledged the high expense noting that this is a long-term investment for " multiple millions of dollars; the City is coming to the time where it will have to make long-term decisions. 9. Consider Staff Presenter: Interim Community Development Council consensus was Pursuing Design Director Coffee to direct staff to pursue Modification of the design modifications the Intersection at The design modification for this project would be to as outlined in the Hall Boulevard include pedestrian improvements, landscaping Agenda Item Summary. and 99W to enhancements, and a potential gateway. The Include Pedestrian amendment to the streetscape contract with OTAK Improvements, for $7-10,000 would provide design and engineering Landscaping services for intersection modifications. Washington Enhancements County is presently managing the design of and a Potential improvements to the intersection. There is an Gateway opportunity now as part of the design process for the City to potentially include these additional design modifications. Tigard City Council Meeting Minutes Page 22 February 28, 2006 163 Adjournment Council meeting adjourned: 10:21 p.m. Motion by Councilor Harding, seconded by Councilor Woodruff, to adjourn the meeting. The motion was approved by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes Councilor Woodruff Yes atherine Wheatley, City Recorder Attest: Mayor, Ci of Tigard Date: 0000 Tigard City Council Meeting Minutes Page 23 February 28, 2006 164 CITY OF TIGARD, OREGON RESOLUTION NO.06-0 A RESOLUTION AND FINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003-00010/PLANNED DEVELOPMENT REVIEW (I?)DR) 2003- 00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003- 00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) 2003-00037) - ON REMAND ' FROM LUBA;.AND ADOPTING FINDINGS AND IMPOSING CONDI'T'IONS. WHEREAS, the Planning Commission initially reviewed this case at a public hearing at its meeting on July 7, 2003; and WHEREAS, the Planning Commission made motions to both deny and approve the application, both of which failed-in a 4-4 tie vote; and WHEREAS, the by-laws of the Planning Commission and Robert's Rules of Order. specify that if an affirmative vote in favor of an application is not attained, the application is denied. Since the denial occurred de facto, no findings were adopted, and the denial is without prejudice; and WHEREAS, the City Council held a public hearing on the appeal of the denial on August 12, 2003 and September 9, 2003; and WHEREAS, the City Council adopted findings and conditions of approval that were prepared by the applicant, Winwood Construction, on October 28, 2003 by Resolution 03-58; and WHEREAS, the Resolution contained an erroneous date reference and was cqrrected by adopting the amended Resolution 03-61 on November 4, 2003; and WHEREAS, the City Council's decision was appealed to the State Land Use Board of Appeals (LUBA) on November 25, 2003 based on 25 alleged errors and sub errors in the decision; and WHEREAS, LUBA concluded in their Final Opinion and Order (LUBA No. 2003-194) on August 20, 2004 that 21 of those assignments of error were denied, but remanded the decisions back to the city on four issues; and WHEREAS, the City Council on February 22, 2005, after a duly noticed hearing approved the revised application on remand; and WHEREAS, the City's February 22, 2005 decision was appealed to LUBA, which remanded the decision on the very narrow issue whether CDC 18.350.100.B.3a(i) had been complied with as to those trees that were protected in the tree plan originally approved but not protected in the tree plan submitted on the first remand; and • RESOLUTION NO. 06 - Oq Page I- 165 WHEREAS, applicant has submitted a second revised tree plan that designates those 23 trees for protection but is otherwise the same as the revised tree plan; NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City. Council approves applications SUB2003-00010/PDR2003- 00004/ZON2003-00003/SL'82003-00005NAR2003-00036/VAR2003-00037 - Ash Creek Estates Subdivision - subject to the conditions of approval stated in the staff s January 25, 2005 report to Council, attached hereto as Exhibit A and incorporated herein by this reference and the. additional condition (Condition 59) stated in Section 3 of this resolution. The Council adopts the findings stated-in the January 25, 2005, staff report, and the additional finding stated in Section 2. SECTION 2: The Council adopts the following additional finding: CDC 18.350.100B.3.a(1) requires that in planned developments: (1) The streets, buildings and other-site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible; LUBA has remanded this matter on the narrow issue whether this standard has been met, given that the, original tree plan showed that trees would be protected . within certain areas and the revised tree plan showed that 23 trees would be removed within the area designated for protection in the original tree plan. The applicant has submitted a second revised tree plan, dated September 22, 2005, that protects all 23 trees that were the basis for the LUBA remand. ' The second revised tree plan is otherwise identical to the revised tree plan submitted after the first remand. LUBA explicitly stated that the remand issue was limited to consideration of those 23 trees. The Council finds that because the 23 trees at issue will be protected, the standard of CDC 18.350.100B.3.a.(i) is met. The site elements have been designed and located to preserve existing trees to the greatest extent possible. SECTION 3: The Council imposes the following additional condition of approval (Condition 59): Applicant shall comply with and implement the second revised tree plan (dated September 22, 2005). Applicant shall protect trees designated for preservation in the second revised tree plan as provided in Conditions 55 through 58 (Exhibit A). RESOLUTION NO. 06 - -1 Page 2 166 SECTION 4: The Tigard City Council incorporates resolutions 03-61 and 03-58 along with the related findings attached hereto. as Exhibit B. and Exhibit C respectively and incorporated herein by this reference to the extent that the findings contained therein do not conflict with the findings adopted in Sections 1 and 2. SECTION 5: This resolution is effective when notice of the decision is mailed. PASSED: This day of 2006. Mayor, ity of Tigard A ST: City Recorder - City of Tigard • RESOLUTION NO. 06 - C)Cj Page 3 - - - - 167 Entered into the Record on a_ -W. C" • Agenda Item # -V- Exhibit # - By ~ h n ~c.e cy' 9~---- ASH CREEK ESTATES TESTIMONY OF JOHN FREWING, FEBRUARY 28, 2006 • Thank you for receiving my testimony this evening. You know that I have spent considerable time and effort trying to obtain a compliant and beneficial development under the TCDC for Ash Creek Estates and appreciate your consideration of my neighbor points of view. I accept that you are indeed trying to do the best thing for Tigard and I hope that you see that I am trying to do the same thing making Tigard a great city. My comments build on material in, and I incorporate by reference, the records of prior local and LUBA proceedings for Ash Creek Estates. 23 TREES You have asked for comments on a certain 23 trees, which until now have been shown in application materials to be removed. A revised tree preservation location drawing of 9/22/05 has been submitted. I believe the application materials fall short of compliance regarding these 23 trees in the following four ways: jj while the application drawing has been revised to show saving of these trees, the text and referenced table of the actual tree plan itself (LUBA 2005-042, Record at 397-442) still shows at least some of these trees slated for removal (see for example tree 5289, a 29" bigleaf maple and tree 5283, a 31" western red cedar), 2) at least 10 of the 23 trees are not identified by species, as required by the Tigard code at 18.790.030B.I (this noncompliance is much more pervasive than my comment here reports, but I am commenting here only on the 23 trees of the LUBA remand), 3) the tree protection standards applied by the City Forester have evolved and improved from the time that this planned development was first reviewed by city staff; the latest tree protection standards (for the 23 trees to be saved and for all trees to be saved) should be incorporated in any approval of Ash Creek Estates, i and 4) there is no evidence that the revised tree preservation location plan and its content was prepared by a certified arborist (until this is done, the application should be denied). I ask that you direct applicant to comply with the Tigard code in a clean submittal of the tree plan for Ash Creek Estates. The applicant has provided new information in the 9/22/05 tree preservation location drawing, which deserves comment. Because most of the 23 trees are smaller than 12" diameter, the drawing is the only place in the application where they can be shown as trees to be saved or removed. The feature which shows these trees to be saved is a winding line on the drawing, with occasional marks indicating fence posts, identified on the drawing legend as a fence. I presume this fence is the permanent tree protection fencing which saves the 23 trees and defines the undisturbed area of stream buffer, but the legend does not say expressly that it is the tree protection fencing, beyond which (ie in a direction away from the proposed housing development) the tract will not be disturbed-for grading, construction, utilities, etc. I would ask that you direct applicant to confirm and document the purpose of the fencing added to this 9/22/05 drawing. • The tree protection conditions for the Longstaff Condominium proposal is provided as Attachment A. The file for Ash Creek Estates showed no notice or review by the City Forester as of Friday, February 24. 168 The tree protection fencing added to the 9/22/05 drawing does appear to indicate the 23 trees • mentioned in the LUBA remand will be saved. However, the drawing shows that a number of immediately adjacent trees, also beyond the tree protection fencing, will be removed; removal of these trees is a threat to the 23 trees promised to be saved. For example, I mention tree 5294 on lot 15 (a 33" Douglas fir), tree 5300 on lot 10 (a 15" western red cedar) and tree 5262 on lot 8 (a 12" Oregon red alder); there are others closer to the 23 trees promised to be saved. I count 24 such trees shown for removal on the new tree preservation location drawing. If the tree protection fencing is to mean anything, it means that the trees beyond the fencing are to be saved. I would ask that you direct applicant to confirm and document that all the trees beyond the tree protection fencing will be saved. The addition of tree protection fencing on the 9/22/05 drawing does not appear to protect tree 5804B, a 9" maple on lot 21, which is designated by a triangle indicating a tree less than 12" to be saved. An appropriately sized tree protection zone should be confirmed and documented on the new drawing. If applicant responds other than to confirm and document the above issues, I ask for the opportunity to comment on such response in a continued hearing. DECISION PROCESS A review of LUBA decisions on remand hearings indicates to me that the scope of remand • hearing must include at least the LUBA referenced issues but with city council approval can go beyond those issues. I have requested in writing that the scope of this hearing be broadened, and incorporate that request in this testimony, but have had no response.2 Materials prepared by your staff that were mailed out with this hearing notice indicate that the scope is limited to the 23 trees of LUBA remand, but additional information has been presented to the city regarding this development without opportunity for comment. Such information includes substantial modifications to the application. If your decision has been made to limit the scope to the 23 trees of LUBA remand, I have not seen/heard/read/been notified of your consideration or decision in a public process. The substantial modifications include: Changes submitted to city staff, but not identified to you include a) a completely different concept regarding stormwater retention and treatment,3 b) lot size reductions '4 c) significant new grading,5 (changing site topography) and d) the "K" value defining the steep dip in proposed SW 74'' Ave has been reduced even further (the dip is steeper and sharper that previous design) 2 See memo of December 23, 2005 from John Frewing to Tom Coffee, found in Ash Creek Estates file. 3 Attachment B to this testimony shows the changed stormwater detention and filtering concept. The application heretofore included a storm retention pond onsite, whereas the new concept relies on large diameter detention pipes buried both onsite and in the public street. The new concept also shows storm drainage from the end of the cul-de- sac being piped to discharge overland to the stream on Lot 14; this is contrary to the CWS requirement that storm drainage from the site be collected, retained and treated. 4 Attachment C to this testimony shows the lot sizes heretofore approved by city council. New engineering drawings submitted to City of Tigard show reduced lot sizes as follows: Lot 27 - 2961 sq ft, Lot 26 - 4585 sq ft, Lot 25 - 4829 sq ft and Lot 24 5325 sq ft. The changed lot sizes stem from a longstanding requirement that the • storm drainage retention and filtration facility be placed on a separate tract from any residential lot. s New engineering drawings submitted to City of Tigard show substantially all of Lot 1 graded to a level approximating the fronting street, whereas the grading plan heretofore left much of Lot 1 topography intact. 169 below the noncompliant value of 5.2 approved heretofore by an `adjustment'.6 Comment on these changes could not have been raised in earlier hearings on Ash Creek Estates. Substantial modifications or significant changes appear to require a new application (I 8.350.030E). Substantial modifications (see def in 18.350.020C) are identified in 18.350.030B and include any change that "increases the residential densities or increases lot coverage by buildings," and any change which involves a "major shift in site improvements". See TCDC 18.390.080D.4 for additional guidance regarding significant changes submitted after an application has been accepted by the city. The deadline for final city action, stated on this hearing notice as March 13 seems to be premature by my calculation; there is enough time for you and staff to consider the several issues of new information and changes presented by the developer, but not brought forward by your staff. The rule is that city consideration must be made within 90 days of remand, starting with applicant request to proceed (in this case, letter dated 2/9/06). See ORS 215.435. The resultant deadline for final city action would thus be April 21, 2006. It appears that the March 13 date was based on 12/7 Court of Appeals decision, but if so, the 90 day end date should be March 9 (not counting day of decision, counting 3/9). 1 respectfully ask that you ask staff to prepare findings for adoption at your next meeting in March, denying this application on the basis of factual noncompliance with approval criteria of the Tigard code, recognizing that your decision is to be made on an application "as received" and recognizing that a different application may be later received. I am happy to try and answer any questions you may have. You may want to ask questions on • the underlying need for canopy cover on hillside lots, you may want to ask questions on changes from previous applicant information, or you may want to ask either myself or staff why construction of SW 74 h across this stream is necessary, when no one has asked for it and it is possible that this transportation element might be served just as well by a less expensive foot/bicycle bridge adjacent to a Tigard open space. John rewing 7110 SW Lola Lane Tigard, OR Attachment A - City of Tigard City Forester conditions for tree preservation, Longstaff Condos Attachment B - Ash Creek Estates stormwater plans submitted to City of Tigard, August, 2005 Attachment C - Ash Creek Estates lot sizes, from LUBA 2003-194 record • 6 New engineering drawings submitted to City of Tigard show a "K" value of 5.11. 170 .Gary techer - LongstaffCondos.2-9-06.X' Entered into the Record on Page 1 By satin r Agenda Item # G' Exhibit # MEMORANDUM TO: Gary Pagenstecher FROM: Matt Stine, City Forester RE: Longstaff Condominiums DATE: February 9, 2006 As you requested I have provided some comments on the "Longstaff Condominiums" project. If you have any questions or concerns regarding my comments please contact me anytime. 1. LANDSCAPING AND SCREENING 18.745.030.C, Installation Requirements The installation of all landscaping shall be as follows: 1. All landscaping shall be installed according to accepted planting procedures. 2. The plant material shall be of high grade, and shall meet the size and grading standards of the American Standards for Nurberg Stock (ANSI Z-60, 1-1986, and any other future revisions); and 3. Landscaping shall be installed in accordance with the provisions of this title. • The accepted planting procedures are.the guidelines described in the Tigard Tree Manual. These guidelines follow those set forth by the International Society of Arboriculture (ISA) tree planting guidelines as well as the standards set forth in the American Institute of Architects' Architectural Graphic Standards, 101 edition. In the Architectural Graphic Standards there are guidelines for selecting and planting trees based on the soil volume and size at maturity. Additionally, there are directions for soil amendments and modifications. • In order to develop tree species diversity onsite it is recommended that the following guidelines be followed: o No more than 30% of any one family be planted onsite. o No more than 20% of any one genus be planted onsite. o No more than 10% of any one species be planted onsite. - - - 171 LGary•Pagenstecher - LongstaffCondos.2-9-0 6.DOC Page 2 18.745.030.E, Protection of Existing Landscaping. Existing vegetation on a site shall be protected as much as possible: 1. The developer shall provide methods for the protection of existing vegetation to remain during the construction process; and 2. The plants to be saved shall be noted on the landscape plans (e.g., areas not to be disturbed can be fenced, as in snow fencing which can be placed around the individual trees). See comments under "Tree Removal". 18.745.030.G, Conditions of Approval of Existing Vegetation. The review procedures and standards for required landscaping and screening shall be specified in the conditions of approval during development review and in no instance shall be less than that required for conventional development. See recommended conditions of approval at the end of this' memorandum. 18.745.040, Street Trees A. Protection of existing vegetation. All development projects fronting on a public street, private street or a private driveway more than 100 feet in length approved after the adoption of this title shall be required to plant street trees in accordance with the standards in Section 18.745.040.C. • The accepted planting procedures are the guidelines described in the Tigard Tree Manual. These guidelines follow those set forth by the International Society of Arboriculture (ISA) tree planting guidelines as well as the standards set forth in the American Institute of Architects' Architectural Graphic Standards, 101' edition. In the Architectural Graphic Standards there are guidelines for selecting and planting trees based on the soil volume and size at maturity. Additionally, there are directions for soil amendments and modifications. • In order to develop tree species diversity onsite it is recommended that the following guidelines be followed: o No more than 30% of any one family be planted onsite. o No more than 20% of any one genus be planted onsite. o No more than 10% of any one species be planted onsite. 172 Gary,Psgenstecher - LongstaffCondos. 2-9-06. DOC Page 3 2. TREE REMOVAL 18.790.030, Tree Plan Requirement A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. B. Plan requirements. The tree plan shall include the following: 1. Identification of the location, size and species of all existing trees including trees designated as significant by the city; 2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two-thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed; 4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. • As required, the applicant submitted a tree plan that was conducted by a certified arborist, Walt Knapp. The report contains the four required 173 Gary•Pagenstecher - LongstaffCondos.2-9-06.DOC Page 4 components, and is therefore acceptable. • The arborist report does show several trees taken from the mitigation calculations since they are in the future right-of-way. Two of those trees are larger than 12 inches so the applicant has to recalculate the mitigation numbers. • 1 suggest planting native species of trees as street trees such as bigleaf maple, cascara or Oregon white oak. Properly sized oaks can be found at River Oak Farm & Nursery. Call Diane at 503-357-2745. The species of street trees used in this development are not listed. The species must be approved before the trees can be planted. • The applicant has not submitted a final tree mitigation plan. In the event that the applicant chooses to plant trees in open areas within the project boundaries or in the back yards of the homes, I have attached a copy of my guidelines for planting mitigation trees on the development property as the applicant indicates he will be doing. Below are my suggestions for the applicant to follow for tree protection guidelines: • Prior to construction, a Tree Protection Plan shall be included with the proposed construction drawings conforming to the International Society of Arboriculture (ISA) guidelines for review and approval by the City Forester. All tree protection devices, along with their details and specifications, shall be shown on the Tree Protection Plan. This plan shall also include the building footprints shown in relation to the trees being preserved. Any tree that will not be removed onsite that is within the limits of disturbance of this project must be protected. Any tree that is located on property adjacent to the construction project that will have more than 15% of its root system disturbed by construction activities shall also be protected. • A note shall be placed on the final set of plans indicating that equipment, vehicles, machinery, grading, dumping, storage, burial of debris, or any other construction-related activities shall not be located inside of any tree protection zone or outside of the limits of disturbance where other trees are being protected. • All tree protection devices shall be: • Visible. ■ Constructed of 11 Gauge steel chain-link fencing supported on at least 2" O.D. steel posts. Each post shall be no less than four feet high from the top of grade. Each post shall be driven into the ground to a depth of no less than two and a half feet below grade. Each post shall be spaced no further apart than four feet. • Between each post, securely attached to the chain-link fencing, shall be a sign indicating that the area behind the fencing is protected and no 7 - - 174 Gary P -genstecher - LongstaffCondos.2-9-06. DOC Page 5 construction activity, including material storage, may occur behind the fencing. ■ Inspected and approved in the field by the project arborist and City Forester prior to clearing, grading, or the beginning of construction. ■ Remain in place and maintained until all construction is completed and a final inspection is conducted. To determine the size of the tree protection zone (TPZ) the project arborist should follow the guidelines listed below: ■ For individual trees follow the trunk diameter method. For every one-inch of diameter at breast height (DBH), or 4'/2 feet above the ground, allow 12 inches of space from the trunk of the tree. For example, a tree that is 15° at DBH must have at least 15' of tree protection zone around the entire canopy of the tree. ■ For groups of trees the tree protection zone must be outside of the drip line of the trees on the edge of the stand. If there are conifers with narrow crowns on the edge of the stand follow the trunk diameter method or the drip line method, whichever is greater. ■ Calculate and follow the Optimal Tree Protection Zone calculation as shown in "Trees and Development. A Technical Guide to Preservation of Trees During Land Development" by Nelda Matheny and James R. Clark. ■ The project arborist may propose an alternate method for the establishment of the TPZ, provided the effort is coordinated with the City Forester. • If it is necessary to enter the tree protection zone at any time with equipment (trucks, bulldozers, etc.) the project arborist and City Forester must be notified before any entry occurs. Before entering the TPZ, the project arborist and City Forester shall determine the method by which entry can occur, along with any additional tree protection measures. • Prior to issuance of any Certificates of Occupancy, the Project Arborist shall submit a final certification indicating the elements of the Tree Protection Plan were followed and that all remaining trees on the site are healthy, stable and viable in their modified growing environment. RECOMMENDED CONDITIONS OF APPROVAL: 1. Prior to commencing site work, the applicant shall submit a cash assurance for the equivalent value of mitigation required. If additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected through these stages by the same measures afforded to other protected trees on site, the amount of the cash assurance may be correspondingly reduced. Any trees planted on the site or off site in accordance - - - - - - 175 GaryfP genstecher - 1ongstaffCondos.2-9-06.DOC Page 6 with 18.790.060 (D) will be credited against the cash assurance, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the cash assurance as a fee in lieu of planting. 2. Prior to issuance of any Certificates of Occupancy, the applicant/owner shall record a deed restriction to the effect that any existing tree' greater than 12" diameter may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 3. Prior to commencing any site work, the applicant shall submit construction drawings that include the approved Tree Removal, Protection and Landscape Plan. The plans shall also include a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. 4. Prior to to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are performing adequately. Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. 5. Prior to any Certificates of Occupancy, the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, at least, once every two weeks, from initial tree protection zone (TPZ) fencing installation, through site work, as he monitors the construction activities and progress. These reports must be provided to the City Forester until the time of the issuance of any Certificates of Occupancy. The reports shall include any changes that occurred to the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arborist shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZ's or the Tree Protection Plan is not being followed by the contractor, the City can stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This inspection will be to evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. 6. Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved on the lot, 176 Gary.Pagenstecher - LongstaffCondos.2-9-66. DOC Page 7 j location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval from the City Forester, the tree protection measures may be removed. If you have any questions please call me anytime. Thank you for requesting my comments on this project. 177 • V 108" 1#4 °2 • DETE ALT " STORM FILTER VAULT PIPE 9.18LF 12-PVC STA 19+55.53. 30.3'RT. o 0.50X (74TH AVE.) WELD 1: A SDMHy2-2-1 (SEE SHEET g4) PIPE TC g 00 (60"FLOW CONTROL MH) SDMH#2-2-3' 1. MIN. j / STA 19+30.27. 31.1'RT. / 60"SPECIAL 8Y-PASS (74TH AVE) MANHOLE SDMH 3- i 12" SI' METAL J r $ - STfa t00 5'fM S I S 1<$ OQ- STM a 20 ~ 0 27.0 8LF 15"HDPE FERNCC I, .5 (SEE SHEET #4) COUPLII W W W W W W -L-C w r. W - W 12" PVC PIP • / SDMH#2 - i ' W.O. MANHOLE) COMECTK JUJOLEC" - g =///L 7-- - T° / 1+89 ~o 8.5LF 12" SOMH#3-2(60"CONTROL MH) .25 1 N PVC 3034 r TA 17+50.98, 37'97. 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I believe my evidence provides substantial reason to believe that ex parte contact or bias exists and such ex parte contact or bias would lead to reversal of approval of this land use proposal. As a foundation for my request and objection, let me simply state that a major goal of the City Council for 2005 was acquisition of open space and park land for the city. To date, no specific acquisition of new land has been announced by the city. However, in the February 16, 2006 Oregonian, columnist Rick Bella, in commenting on the regional need and prospect for greenspaces stated: In Tigard, city officials have worked with developers to allow smaller lot sizes in exchange for open space - but not without a big political fight. Developers of the 29-lot Ash Creek Estates Subdivision donated nearly five acres to the city. This came after intense negotiations between the city and the developer and a ruling by the Oregon Land Use Board of Appeals. "And no matter what you think of the decisions, free is a very good price for land," said Mayor Craig Dirksen. • This newspaper item is my sole knowledge of any transfer of land from Windwood Construction to City of Tigard. The ex parte contact between decisionmakers and developer may be or have been direct or indirect. I am concerned and assert that the referenced negotiations concern the ownership of the proposed tract and the area or amount of land having particular trees to be transferred, which issues are material to this land use proceeding. I do not know any of the negotiated terms of transfer. The TCDC at 390.050D.8.a states: Members of the Review Authority shall not 1) communicate, directly or indirectly, with any party or representative of a party in connection with any issue involved in a hearing, except upon giving notice, and an opportunity for all parties to participate; 2) take notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case unless the parties are afforded an opportunity to contest the materials so noticed. My position is that the decision on this planned development should be made based on information developed and documented during the public review process and not on negotiations or information or other arrangements made or received outside the public • review process. See ORS 192.610 to 192.690. The newspaper item noted above indicates 180 • that there have indeed been other city discussions with the developer, including persons on the city council. The bias stems from city council effort to gain at least one open space area this year, pursuant to the city goal; achievement of the city goal is an important part of coming election or reelection campaigns for the remunerated positions on the city council. I request that all material related to transfer of property from the developer or his representatives (Ash Creek Properties?) to the City of Tigard be produced for the record as part of the disclosure required by code ex parte rules. If such disclosure is not forthcoming, I request an evidentiary hearing to, through questioning and affidavits, deposition, or discovery, clarify the meaning of the newspaper statement by the mayor and establish the facts regarding negotiations and transfer of any Ash Creek Estates tracts. I believe a continuance of this hearing is necessary to develop such information and request such continuance. Participation of one or more biased decision makers and inadequate disclosure of ex parte contacts prevents this from being a full and fair hearing, prejudicing opponent's substantial rights. 181 ONO © VOICES Metro bond could blaze a path to greenspaces 4 t used to be a lot easier. Park - recently renamed Snyder change for open space - but not without a why I am very interested in what Metro will When city leaders want- Park- on a 21-acre site the city big political fight. put to a vote in November. = ed to develop a park, they originally bought for a reservoir. Developers of the 29-lot Ash Creek Estates The regional government last year com- a debated which area to tar- More common is what Sher- Subdivision donated nearly five acres to the pleted a 10-year program that placed in pub- wood did while working with Ar- city. This came after intense negotiations be. lic ownership 8,130 acres used for parks, get, then searched out property t owners and real estate brokers. bor Custom Homes, which devel- tween the city and the developer and a nil- greenspaces and open space. The program After they decided on a site, they oped the Arbor Terrace subdivi ing by the Oregon Land Use Board of Ap was fueled by a $136 million bond issue that either dipped into city coffers or RICK BEL~a sion. The city negotiated the de- peals. voters approved in 1995. asked voters to chip in. veto ment fan to include a Although details are not set, Metro plans P P "And. no matter what you think of the de- to ask voters in November to approve a $220 Things rarely are that straightforward any- "pocket park" within the subdivision. cisions, free is a very good price for land," million bond measure that probably could more, though we may have a chance to That neat little trick also has been put to said Mayor Craig Dirksen. protect another m5,300 easure acres. Although 1 want change that. work in Tualatin. I believe that parks are necessary for our to read the project list and learn•as much as I In recent years, population pressures have When Emery Zidell Commons was built, well-being, that they are a part of our quality driven up the cost of land, forcing most cities city officials offered a credit against develop can about cost benefits, the general idea has - of life. That belief leaves me more enter- me very interested. to break out all the tools in their kits to make ment fees to obtain 4.68 acres that are now tained than pleased by all the wrangling that Maybe it could mean an end to some of sure there are enough greenspaces. called the Sweek Pond Natural Area. When has produced many of our recent parks and the wrangling for what should be a given in "People can always make a good case for construction was completed, city officials much of our open space. the quality of our lives. more parkland," said Ross Schultz, Sher- helped the developer, Zian LP, see the wis- I prefer front-door planning, with public wood city manager. "In Sherwood, we've ' dom in donating 28 acres that became wet- comment to guide how we set community Rick Bella- 56.294-5114; done a fairly good job. But it isn't easy." land. goals, rather than being forced to use a bag rickbella@news.oregonian.com; Sherwood's also been lucky. In Tigard, city officials have worked with of legal tricks to bank land that is generally 15495 S. W. Sequoia Parkway, City officials were able to develop Sunset developers to allow smaller lot sizes in ex- too expensive to develop anyway. That's Suite 190, Portland, OR 97224 Entered into the Record on - W. DID By: &b Shy 6YpCc) in "CZ, d February 27, 2006 Agenda Item# (P Exhibit RECEIVED FEB 2 2000 Mayor Craig Dirksen and City Councilors City of Tigard QTY OF TIGARD 13125 SW Hall Boulevard PUMMEN VEERING Tigard, OR 97223 Dear Mayor Dirksen and City Councilors: RE: LUBA remand of Ash Creek Estates I will not be able to attend and testify at your February 28, 2006 public hearing on the above referenced subdivision, so I offer these comments and respectfully request your consideration. I urge you to take proactive bold steps and exercise political will to broaden the scope of the public hearing. Many issues have changed since this process began 2.5 years ago. It is hard to believe after all the time, resources, and energy on both sides of this issue that it has come down to protection of 23 trees. But, is it really just this issue that defines our differences? I don't believe so. I am not convinced that neither the developer nor their contractors will comply with all of the conditions of approval, especially conditions No. 54-58. Has the developer retained the Project Arborist through project completion and will reports really be submitted once every two weeks, from initial tree protection zone fencing installation, through site work? The 10-lot subdivision in back of our property and adjacent to Ash Creek Estates began more than 1.5 years ago, and no foundation has been constructed as yet? Will Ash Creek Estates take even longer for the "temporary" impacts to subside? Will the City Forester review these reports and inspect this site frequently or only on an as-needed basis? The Council should not adopt the new additional finding: CDC 18.350.100B.3.a (1) because the 23 trees will be protected. This standard is simply not being met. The site elements have not been designed and located to preserve existing trees to the greatest extent possible. More than 400 hundred trees will be removed on this site. Trees are one of the most important parameters and determinants of functioning stream corridors, habitat quality and watershed health. Just because the development meets all of the requirements in the code and your staff can make a finding in its favor, doesn't necessarily mean the development is sound, good for the community or that it should be approved. I implore you to set forth a path to examine the underlying issues and controversies of this development and all the others that are and will come before you. Please review and enact more up-to-date codes and ordinances to require sustainable developments and ease the cumulative impacts on our natural resources. I do not understand why the City Council won't take a visionary leadership role in balancing growth and development issues with their associated impacts on sensitive areas and our precious and threatened natural resources. I believe it is truly a sad period for all Tigard residents, customers, and stakeholders that the City Council appears to provide a more openness to developments and variances than in advocating for quality of life elements including community stewardship and in balancing the environmental issues. 183 I ' I LUBA Remand of Ash Creek Estates February 27, 2006 Page Two Please understand that we have not given up on this issue, and if approved, we will continue to watch over construction phases and enforce all appropriate conditions of approval through community complaints (by default as adjacent property owners and stakeholders). We truly want to work with all parties to preserve this property or at the very least, minimize its impact and preserve the sensitive areas' functions and values and its beneficial uses. The developer's offer of the approximately 4 acres of sensitive and riparian areas as open space to the City is misleading and not good public policy. This area is not developable, and the city should require developments to place these stream corridors and other sensitive areas on their property in a conservation easement as a development review element and condition of approval. By doing so, this would preserve options for the city and other stakeholder and volunteer groups to provide restoration, stewardship, and educational opportunities for all Tigard residents in the future. This development should not be approved until all local, state, and federal permits and other associated approvals have been obtained. To this end, an exceptions petition was filed on January 26, 2006 to the Director of the Department of State Lands concerning their removal/fill permit as it relates to the contested case proceeding. You had the amazing opportunity to protect and preserve the entire property and just not save the remaining 23 trees in dispute. Several private and local and regional governments were willing to provide funding and work with the City of Tigard to purchase this unique and very valuable property and protect it as open space for future generations. You still have that opportunity! In the March 2006, Mayors Corner Message he discussed the growth transition Tigard has experienced and the corresponding impacts that developments have had on our fragile natural environments and rapid loss of open spaces. And, the Mayor states it is his belief that some regional planning goals have led to unforeseen and undesirable results and need to be reviewed to respond to what's actually transpired. I believe the Mayor, City Council and staff in partnership with its citizen's need to look internally at their own planning goals and not utilize Metro as a scapegoat for our growth and development challenges and ongoing inability to build sustainable communities. The City Council will hopefully one day get it right and utilize this experience to adopt more stringent standards to balance growth and protect our natural resources. If you do not, you should expect more polarization of these issues between developments and neighborhoods, and more frequent, costly, and time consuming challenges. As a result, changes in leadership capacity will eventually follow. Every local community who has asked their customers and surveyed these issues finds generally the same conclusions. We expect you take action to enact programs, protect the environment, and balance these issues. Please do it now before the quality is taken out of the life in Tigard. Thank you for the opportunity to testify. Please call me at 503-244-5941 with any questions. Sincerely, f~~ &BALA,) Bob Storer cc: John Frewing 184 AGENDA ITEM NO.6 PUBLIC HEARING - ASH CREEK ESTATES LAND USE BOARD OF APPEALS REMAND Statement by City Attorney - Quasi-Judicial Land Use Hearing Procedures A copy of the rules of procedure for today's hearing is available at the entrance. The staff report on this hearing has been available for viewing at Tigard City Hall for the last seven days. In addition a paper copy has been available at the Tigard Public Library and an electronic copy posted for viewing or downloading on the City of Tigard's website. The Council's role in this hearing is to make a land use decision under existing laws. The Council cannot change the law for the land use application now under consideration. Any person may offer testimony. This matter is on remand from the Land Use Board of Appeals on a single issue, and testimony will be limited to that issue. The issues is whether CDC 18.350.100B.3.a.1 relating to tree protection, is met as to 23 trees specified in the LUBA decision. Please wait until you are asked to speak by the Mayor and try to limit your remarks to the applicable approval standards for the application. Members of the City Council will be asked whether they have any conflicts of interest. If a Council member has an actual conflict, the Council member cannot participate. Council members must declare any contacts about this case with a member of the public. Council . members must also declare if they have independent knowledge of relevant facts, such as from a visit to the site in question. A Council member who describes ex parte contacts or independent information may still participate in the decision. After the discussion of conflicts and ex parte contacts, any person may challenge the participation of a Council member or rebut any statements made. The Council member in question may respond to such a challenge. Tonight, City staff will summarize the written staff report. Then the applicant and those in favor of the application testify. Then witnesses who oppose the application or who have questions or concerns testify. If there is opposition or if there are questions, the applicant can respond. The Council members also may ask the staff and the witnesses questions throughout the hearing until the record closes. After all testimony is taken, including any rebuttal, the applicant can make a closing statement. After the record is closed, the City Council will deliberate about what to do with the application. During deliberations, the City Council may re-open the public portion of the hearing if necessary to receive additional evidence before making a decision. You must testify orally or in writing before the close of the public record to preserve your right to appeal the Council's decision to the' Land Use Board of Appeals. Failure to raise an issue clearly enough so that Council understands and can address the issue precludes an appeal on that issue. Failure to raise Constitutional or other issues related to proposed conditions of approval with sufficient specificity to allow a response precludes an action for damages in circuit court Please do not repeat testimony offered by yourself or earlier witnesses. If you agree with the statement of an earlier witness, please just state that and add any additional points of your own. 185 o ~ Please refrain from disruptive demonstrations. Comments from the audience will not be part of the record. When you are called to testify, please come forward to the table. Please begin your testimony by giving your name, spelling your last name, and give your full mailing address including zip code. If you represent someone else, please say so. If you have any exhibits you want us to consider, such as a copy of your testimony, photographs, petitions, or other documents or physical evidence, at the close of your comments you must hand all new exhibits to the City Recorder who will mark these exhibits as part of the record. The City staff will keep exhibits until appeal opportunities expire, and then you can ask them to return your exhibits. i:%adm\wcket'06=0228W"MemeMashueekremsM2.dm 186 r AGENDA ITEM No. 6 Date: February 28, 2006 PUBLIC HEARING (QUASI-JUDICIAL) TESTIMONY SIGN-UP SHEETS Please sign on the following page(s) if you wish to testify before City Council on: PUBLIC HEARING (QUASI JUDICIAL): PUBLIC HEARING (QUASI-JUDICIAL) LAND USE BOARD OF APPEALS (LUBA) REMAND OF ASH CREEK ESTATES SUBDIVISION (SUB) 20003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/ZONE CHANGE (ZON) 2003-0003/SENSITIVE LANDS REVIEW (SLR) 2003-00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) -2003-00037 The State Land Use Board of Appeals `(LUBA) has remanded for a second time the City Council's approval of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment reviews to address a single issue relating to tree preservation. As limited by LUBA, the issue remanded is whether the tree plan preserves trees to the greatest extent possible, given that the second tree plan does not protect 23 trees designated for protection in 'the original tree plan, but not designated for protection in the revised tree plan previously approved. On this second remand, the applicant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full copy of LUBA's Final Opinion and Order can be obtained from City Hall at cost, or is also available online at hag://Iuba.state.or.us/12df/2005/septO5/05042.htm. LOCATION: 9750 SW 74th Avenue; WCTM 1S125DC, Tax Lots 300 and 400. ZONE: R-4.5: Low-Density Residential District. The R-4.5 zoning district is designed to'accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet. Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are'also permitted conditionally. APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a.1, which requires that planned developments protect existing trees to the greatest degree possible. This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly available to all members of the public. The names and addresses ofpersons who attend or participate rn City of Tigard public meetings will be included in the meeting minutes, which is a public record. Due to Time Constraints City Council May Impose A Time Limit on Testimony AADM\Packet06\060228\Agenda Item 6 Sign-in Sheet AGENDA ITEM NO.6 This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. AY written and oral testimony become part of the public record. The names and addresses ofpersons who attend or participate in City of Tigard public meetings will be included in the meetiagminutes, which is a public record. Proponent (Speaking in Favor) Opponent (Speaking Against) Neutral NAME, ADDRESS & PHONE NAME, ADDRESS & PHONE NAME, ADDRESS & PHONE Please Print Please Print Please Print Name: /L; Z-_dh--/-D S Name: 5-'a Name: Also, please spell your name as it sounds, if it Also, please spell your name as it sounds, if it Also, please spell your name as it sounds, if will help the presiding officer pronounce: will help the presiding officer pronounce: it will help the presiding officer pronounce: Address 5cu 4f,,, Address ) S"' -S 1-P~ '~-PPV Address City --r city D4s9~ City State i2L Zip State 0(-' Zip State Zip Phone No. Q5-6-25--65-2C Phone No. Phone No. Name: ris a iezclC Name: Name: Also, please spell your name as it sounds, if it Also, please spell your name as it sounds, if it Also, please spell your name as it sounds, if will help the presiding officer pronounce: will help the presiding officer pronounce: it will help the presiding officer pronounce: Address Address Address City f City City State Zip State Zip State Zip o Phone No. 2 3 &b Phone No. Phone No. 00 I:\ADM\Packet06\060228\Agenda Item 6 Sign-in Sheet Kurahashi and Associates List of people mailed the 2/28/06 Council Attn: Greg Kurahashi and Melinda Wood Packet Item for Ash Creek Estates LUBA X15580 SW Jay Street, Suite 200 Remand (SUB2003-00010) 'wwBeaverton, OR 97006 Dale Richards Winwood Construction, Inc. 12655 SW North Dakota Street Tigard, OR 97223 Ernest E., Elda H., & Ray Senn & Connie Coleman & Karen Schuster 9750 SW 74th Avenue .Tigard, OR 97223 Walt Senn 13323 Meridian Avenue N Marysville, WA 98271-7090 Davis Wright Tremaine LLP Christopher P. Koback 1300 SW Fifth Avenue, Suite 2300 0Portland, OR 97201-5682 John Frewing 7110 SW Lola Lane Tigard, OR 97223 189 TIGARD CITY COUNCIL BUSINESS MEETING February 28, 2006 6:30 p.m. , TIGARD CITY HALL 13125 SW HALL BLVD TIGARD, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Manager. Tines noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30. p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the. Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (IDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside. service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling. 503-639-4171, ext. 2410 (voice) or 503-684-2772 (IDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - FEBRUARY 28, 2006 Page 190 AGENDA TIGARD CITY COUNCIL MEETING FEBRUARY 28, 2006 6:30 PM • STUDY SESSION > IGA - Goal S Fish & Wildlife Habitat - Tualatin Basin Partners o Staff Report: Community Development Department > Hall Blvd. Jurisdictional Transfer Discussion o Staff Report: Engineering Department > Hall Blvd./Highway 99W Design Modifications o Staff Report: Community Development Department > Urban Services Intergovernmental Agreement with Cities of Tigard, Tualatin, Beaverton, and Wilsonville, and Washington County (Washington County - Wilsonville to Beaverton Commuter Rail Project) o Staff Report: Community Development Department > Wildlife Refuge Opening Event o Staff Report. Community Development Department • EXECUTIVE SESSION: The Tigard City Council will go into. Executive Session to discuss pending litigation under ORS 192.660(2)(h). All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news. media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 730 PM 1. BUSINESS MEETING 1.1 Call to Order - City Council & Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items COUNCIL AGENDA - FEBRUARY 28, 2006 pag 191 2. CITIZEN COMMUNICATION (Two Minutes or Less, Please) Tigard Area Chamber of Commerce • Follow-up to Previous Citizen Communication 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion without separate discussion.. Anyone may request that. an item be removed by motion for discussion and separate action. Motion to: 3.1 Approve Council Minutes for January 17 and 24, 2006 3.2 Approve First Amendment to Urban Services Intergovernmental Agreement with Cities of Tigard, Tualatin, Beaverton, and Wilsonville, and Washington County (Washington County - Wilsonville to Beaverton Commuter Rail Project) 3.3 Approve Intergovernmental Agreement (IGA) - Organization and Function of the Tualatin Basin Natural Resource Coordinating Committee • Consent Agenda - Items Removed for Separate Discussion: Any items rrgmesled to be nmmed f om the Consent Agenda for separate discrisrion will be aonsidend immediately after the Counczl has anted on those items which do not need discussion. 4. PUBLIC HEARING (QUASI JUDICIAL): VACATION OF AN UN-NAMED PUBLIC RIGHT-OF-WAY EAST OF SW 74TH AVENUE AND EAST OF THE S P & S RAILROAD RIGHT-OF-WAY, NORTH OF DURHAM ROAD (VAC2005-00003) The purpose of the public hearing is to consider a request by Larusso Concrete Company, Inc. and Richard Akerman & James Wathey concerning the proposed vacation involving an approximately 7,845 square foot portion of an un-named public right-of-way. The petition was filed with the City on November 15, 2005 and initiated by the City Council at the request of the applicant oil December 20, 2005. Any interested person may appear and be heard for or against the proposed vacation of said Un-Named Portion.of Public Right-of-way East of SW 741h Avenue Vacation. Any written objections or remonstrances shall be filed with the City Recorder by 7:30 PM on February 28, 2006. a. Open Public Hearing - Mayor b. Staff Report: City Attorney and Community Development Staff C. Declarations or Challenges d. Public Testimony Proponents Opponents - Rebuttal e. Staff Recommendation f. Council Discussion. _ • g Close Public Hearing h. Council Consideration: Ordinance No. 06- COUNCIL AGENDA - FEBRUARY 28, 2006 pat 192 5. PUBLIC HEARING (QUASI JUDICIAL): VACATION OF FIVE SMALL, PORTIONS OF PUBLIC RIGHT-OF-WAY TOTALING 3,392 SQUARE FEET ALONG SW 68TH PARKWAY AND 69TH AVENUE (VAC2005-00004 & VAC2005-00005 ) The purpose of the public hearing is to consider a request by Specht Development, Inc concerning the proposed vacation involving five (5) small portions of public right-of-way totaling 3,392 square feet The petition was filed with the City on September 9, 2005 and initiated by the City Council at the request of the applicant on January 10, 2006. Any interested person may appear and be heard for or against the, proposed vacation of said 681h Parkway Public Right-of-Way Vacation and 6" Avenue Public Right-of-Way Vacation. Any written objections or remonstrances shall be filed with the City Recorder by 7:30 PM on February 28, 2006. a. Open Public Hearing - Mayor b. Staff Report City Attorney and Community Development Staff C. Declarations or Challenges d. Public Testimony Proponents Opponents Rebuttal e. Staff Recommendation f. Council Discussion g. Close Public Hearing h. Council Consideration: Ordinance No. 06- 6. PUBLIC HEARING (QUASI JUDICIAL) LAND USE BOARD OF APPEALS (LUBA) REMAND OF ASH CREEK ESTATES SUBDIVISION (SUB) 20003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-00004/ZONE CHANGE (ZON) 2003- 0003/SENSITIVE LANDS REVIEW (SLR) 2003-000051ADJUSTMENT (VAR) 2003- 00036/ADJUSTMENT (VAR) 2003-00037 The State Land Use Board of Appeals (LUBA) has remanded for a second time the City Counal's approval of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment reviews to address a single issue relating to tree preservation. As limited by LUBA, the issue remanded is whether the tree plan preserves trees to the greatest extent possible, given that the second tree plan does not protect 23 trees designated for protection in the original tree plan, but not designated for protection in the revised tree plan previously approved On this second remand, the applicant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full copy of LUBA's Final Opinion and Order can be obtained from City.Hall at cost, or is also available online at htW://Iuba.state-or.us/pdf/2005/sgptO5/05042.htm LOCATION: 9750 SW 741h Avenue; WCTM 1S125DC, Tax Lots 300 and 400. ZONE: R-4.5: Low-Density Residential District. The R-4.5 zoning district is designed to accommodate detached single-family homes with - or without accessory residential units at a minimum lot size of 7,500 square feet Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also _ permitted conditionally. APPLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is CDC 18.350.100.B.3.a1, which requires that planned developments protect existing trees to the greatest degree possible. COUNCIL AGENDA - FEBRUARY 28, 2006 pa€ 193 a. Open Public Hearing - Mayor b. Staff Report: City Attorney and Community Development Staff C. Declarations of Challenges d. a Public Testimony - Proponents Opponents Rebuttal e. Staff Recommendation f. Council Discussion g. Close Public Hearing h. Council Consideration: Resolution No. 06- 7. LOCAL CONTRACT REVIEW BOARD: POST-PROJECT EVALUATION REPORT OF THE CM/GC (CONSTRUCTION MANAGER/GENERAL CONTRACTOR) CONTRACT FOR THE TIGARD NEW LIBRARY PROJECT • Staff Report: Engineering Department 8. CONSIDER AN INTERGOVERNMENTAL AGREEMENT (IGA) FOR JOINT FUNDING OF A WATER SUPPLY SYSTEM PLAN WITH THE CITY OF LAKE OSWEGO • Staff Report: Public Works Department • Council Discussion • Council Consideration of IGA 9. CONSIDER PURSUING DESIGN MODIFICATION OF THE INTERSECTION AT HAIL BLVD AND 99W TO INCLUDE PEDESTRIAN IMPROVEMENTS, LANDSCAPING ENHANCEMENTS AND A POTENTIAL GATEWAY • Staff Report: Community Development Department • Council Discussion • Council Direction to Staff 10. CONSIDER A RESOLUTION TO ESTABLISH A PROPOSED LOCAL IMPROVEMENT DISTRICT (LID) AS A PROJECT IN THE FY 2005-06 CAPITAL IMPROVEMENT PROGRAM (CIP), AND DIRECTING THE PREPARATION OF A PRELIMINARY ENGINEER'S REPORT FOR THE PROPOSED LID IN THE TIGARD TRIANGLE AND AUTHORIZING THE ESTABLISHMENT OF A FUNDING MECHANISM FOR THE PREPARATION OF THE REPORT a • Staff Report: Engineering Department • Council Discussion • Council Direction to Staff COUNCIL AGENDA - FEBRUARY 28, 2006 pa€ 194 4. s 10. CONSIDER BUDGET AMENDMENT #10 TO THE FY 2005-06 BUDGET TO INCREASE APPROPRIATIONS IN THE GAS TAX FUND FOR FUNDING OF THE PRELIMINARY ENGINEER'S REPORT FOR THE PROPOSED LOCAL IMPROVEMENT DISTRICT (LID) FOR INFRASTRUCTURE IMPROVEMENTS IN THE TIGARD TRIANGLE • Staff Report Finance/Engineering Department • Council Discussion • Council Consideration: Resolution No. 06- 11. NON AGENDA ITEMS 12. EXECUTIVE SESSION: The Tigard City Council may go into Executive Session. If an Executive Session is called to order, the appropriate ORS citation will be announced identifying the applicable statute. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public- 13. ADJOURNMENT • COUNCIL AGENDA - FEBRUARY 28, 2006 pal 195 AGENDA ITEM # V • FOR AGENDA OF February 28, 2006 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Public Hearing Considering LUBA remand of Ash Creek Estates Subdivision (SUB2003-00010/ZON2003-00003/PDR2003-00004/SLR2003-00005NAR2003-00036NAR2003-00037) PREPARED BY: Dick Bewersdorff DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL This is a consideration of applicant's submittal to protect an additional 23 trees as a part of their subdivision application. STAFF RECOMMENDATION It is recommended that the City Council approve the attached Resolution approving the subdivision/planned development with the revised tree plan and the findings and conditions adopted as part of the City Council's February 5, 2005 decision. INFORMATION SUMMARY The Planning Commission reviewed this subdivision at its July 7, 2003 meeting. As a result of a tie vote, the Commission's action resulted in a defacto denial. The City Council held a public hearing on the appeal of the denial on August 12, 2003 and September 9, 2003. The Council adopted findings and conditions of approval on October 28, 2003. An erroneous date reference required adopting an amended resolution of November 4, 2003. This decision was appealed to LUBA and LUBA remanded the decision to the City based on 4 of 25 assignments of error on August 20, 2004. The City Council approved a revised application on February 22, 2005. This decision was appealed to LUBA. LUBA then remanded the decision to the City for consideration of only the issue whether CDC 18.350.100.B.3a(1) had been complied with as to trees that were protected in the original tree plan but not protected in the tree plan submitted on the first remand. -The applicant has submitted revised plans to protect the additional 23 trees. This is the only issue before Council consideration. OTHER ALTERNATIVES CONSIDERED Prepare findings to deny the request. COUNCIL GOALS AND TIGARD BEYOND TOMORROW VISION STATEMENT Growth and Growth Management - Goal #1, Accommodate growth while protecting the character and livability of ~e new and established areas. 196 ATTACHMENT LIST Attachment 1: Proposed Resolution Adopting Findings & Conditions Exhibit A - Staff report and conditions of approval of January 25, 2005 as adopted by the Council Exhibit B - Resolution 03-61 Exhibit C - Resolution 03-58 Attachment 2: City Attorney's Memorandum Attachment 3: Letter from Applicant's Attorney dated 2/9/06 including the Revised Tree Plan FISCAL NOTES Staff time, advertising costs and report analysis preparation are not reimbursable as a part of the L-UBA remand process. 197 CITY OF TIGARD, OREGON RESOLUTION NO. 06- A RESOLUTION AND FINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003- 00004/ZONE CHANGE (ZON) 2003-00003/SENSITIVE LANDS REVIEW (SLR) 2003- 00005/ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT (VAR) 2003-00037) - ON REMAND FROM LUBA; AND ADOPTING FINDINGS AND IMPOSING CONDITIONS. WHEREAS, the Planning Commission initially reviewed this case at a public hearing at its meeting on July 7, 2003; and WHEREAS, the Planning Commission made motions to both deny and approve the application, both of which failed in a 4-4 tie vote; and WHEREAS, the by-laws of the Planning Commission and Robert's Rules of Order specify that if an affirmative vote in favor of an application is not attained; the application is denied. Since the denial occurred de facto, no findings were adopted, and the denial is without prejudice; and WHEREAS, the City Council held a public hearing on the appeal of the denial on August 12, 2003 and September 9, 2003; and WHEREAS, the City Council adopted findings and conditions of approval that were prepared by the applicant, Winwood Construction, on October 28, 2003 by Resolution 03-58; and WHEREAS, the Resolution contained an erroneous date reference and was co_,rrected by adopting the amended Resolution 03-61 on November 4, 2003; and WHEREAS, the City Council's decision was appealed to the State Land Use Board of Appeals (LUBA) on November 25, 2003 based on 25 alleged errors and sub errors in the decision; and WHEREAS, LUBA concluded in their Final Opinion and Order (LUBA No. 2003-194) on August 20, 2004 that 21 of those assignments of error were denied, but remanded the decisions back to the city on four issues; and WHEREAS, the City Council on February 22, 2005, after a duly noticed hearing approved the revised application on remand; and WHEREAS, the City's February 22, 2005 decision was appealed to LUBA, which remanded the decision on the very narrow issue whether CDC 18.350.100.B.3a(l) had been complied with as to those trees that were protected in the tree plan originally approved but not protected in the tree plan submitted . on the first remand; and - RESOLUTION NO. 06 - Page 1 198 WHEREAS, applicant has submitted a second revised tree plan that designates those 23 trees for protection but is otherwise the same as the revised tree plan; NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: The Tigard City Council approves applications SUB2003-00010/PDR2003- 00004/ZON2003-00003/SLR2003-00005NAR2003-00036NAR2003-00037 - Ash Creek Estates Subdivision - subject to the conditions of approval stated 'in the staff's January 25, 2005 report to Council, attached hereto as Exhibit A and incorporated herein by this reference and the additional condition (Condition 59) stated in Section 3 of this resolution. The Council adopts the findings stated in the January 25, 2005, staff report, and the additional finding stated in Section 2. SECTION 2: The Council adopts the following additional finding: CDC 18.350.100B.3.a(1) requires that in planned developments: (1) The streets,. buildings and other -site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible; • LUBA has remanded this matter on the narrow issue whether this standard has been met, given that the original tree plan showed that trees would be protected within certain areas and the revised tree plan showed that 23 trees would be removed within the area designated for protection in the original tree plan. The applicant has submitted a second revised tree plan, dated September 22, 2005, that protects all 23 trees that were the basis for the LUBA remand.' The second revised tree plan is otherwise identical to the revised tree plan submitted after the first remand. LUBA explicitly stated that the remand issue was limited to consideration of those 23 frees. The Council finds that because the 23 trees at issue will be protected, the standard of CDC 18.350.100B.3.a(1) is met. The site elements have been designed and located to preserve existing trees to the greatest extent possible. SECTION 3: The Council imposes the following additional condition of approval (Condition. 59): Applicant shall comply with and implement the second revised tree plan (dated September 22, 2005). Applicant shall protect trees designated for preservation in the second revised tree plan as provided in Conditions 55 through 58 (Exhibit A). RESOLUTION NO. 06 - Page 2 199 SECTION 4: The Tigard City Council incorporates resolutions 03-61 and 03-58 along with the related findings attached hereto as Exhibit B and Exhibit C respectively and incorporated herein by this reference to the extent that the findings contained therein do not conflict with the findings adopted in Sections 1 and 2. SECTION 5: This resolution is effective when notice of the decision is mailed- PASSED: This day of 2006. Mayor, City of Tigard ATTEST: City Recorder - City of Tigard • • RESOLUTION NO. 06 - Page 3 200 EXHIBIT A Agenda Item: Hearin Date: Febnia 8 2005 Time: 7:30 PM -r7 F REPQRT T THE CM OF WAM -1 GO -CO 90 DAY REMAND PERIOD 3/13/2005 SECTION 1. APPLICATION SUMMARY FILE NAME:. REMAND of ASH CREEK ESTATES SUBDIVISION LUBA FILE NO: 2003-194 CITY CASE NO'S: Subdivision (SUB) SUB2003-00010 Zone Change (ZON) ZON2003-00003 Planned Development Review (PDR) PDR2003-00004 Sensitive Lands Review (SLR) SLR2003-00005 Adjustment (VAR) VAR2003-00036 Adjustment (VAR) VAR2003-00037 APPLICANT: Dale Richards OWNER: Ernest E. and Elda H. Senn Winwood Construction 9750 SW 74"' Avenue • 12655 SW North Dakota Street Tigard, OR 97223 Tigard, OR 97223 PROJECT Kurahashi and Associates CONTACT: Attn: Greg Kurahashi 15580 SW Jay, Suite 200 Beaverton, OR 97006 REQUEST: The State Land Use Board of Appeals (LUBA) has remanded.City Council's approval of a 29-tot planned development on 9.3 acres and associated sensitive lands and adjustment reviews for additional findings to support their decision. This hearing is limited to the four specific assignments of error which are generally: 1) the City's acceptance of lower `K" values in relation to the proposed vertical sag curve on SW 74"' and demonstration that the City Engineer is authorized to approve such deviations to adopted street standards, 2) the requirement that the applicant prepare and submit a tree plan that identifies the size, species, and location of trees on the site, provides a removal plan, protection plan, and mitigation program in accordance with TCDC18.790, 3) revised findings are required for the proposed curb tight sidewalks on SW 74"' to address the relevant criteria of TCDC 18.370.C.11., and 4) additional findings related to the landscape protection criteria of .TCDC 18.745.030.E. 4 _ NING SIGNATION: R-4.5: Low-Density Residential District. LOCATION: 9750 SW 74"' Avenue; WCTM 1 S125DC, Tax Lots 300 and 400. ASH CREEK ESTATES suBOMSION'RELmir STAFF REPORT (SUB200300010) 201 CITY COUNCIL HEARING ZW2005 J ,.APPLICABLE GINIEW RITERIA: Community Development Code. Chapters 18.370, 18.790, and 18.810 SECTION 11. STAFF RECOMMENDATION Staff - recommends that the City -Cou lal accept acrd.-adopt . Vie- additionat findings preserif iwthe applicant's submittal, as fufther elaborated on VArithin this -report -and -find that the proposed` Planned Development and. street adjustments will not-adversely affect the health; safety and welfare ,of:1hetity and meets the Approval Criteria outlined in this :report Therefore, . Staff recommends APPI'tOVAL, subject to- the Coriditions of Approval :and. Fih ings adopted.previously as Resolution 03=61 apfi :f rfi.'et refiined, and amended within this -report: CONDITIONS OF APPROVAL (Note, conditions #1-51 are from the original decision and are included for reference only _ THE FOLLOWING CONDITIONS SHALL : BE SATISFIED PRIOR Tb COMMENCING- ANY ONSITE 1MPI.0VEMENT8, INCLUDING GRADING, EXGAVAT1O. -AND/OR- kLL ACTIVITIES: Submit to the Planning Department (Morgan Tracy, 639-4171, ext. 2428) for review and approval: Prior to site work, the applicant shall submit an arborist report with tree protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of tree protection devices,-clearing, grading, and paving. 2. Prior to site work, the applicant shall submit a complete set of construction documents with the tree locations for the City Arborists review. The applicant will not cut any healthy trees within the designated open space tract Furthermore, the applicant shall not'cut any healthy trees in the tree preservation areas of Lots 1-18, which shall be defined as the area at least 15' from.:. the rear of the building footprints. However, if an arborist determines that trees in these areas are dead, diseased, or pose a safety hazard, then the applicant shall remove affected trees from those areas. 3. Prior to site work, the applicant shall notify the City Arborist at least 48 hours prior to commencing construction when the tree protection measures are in place so that he may verify that the measures will function properly. 4. Prior to site work, the applicant shall provide evidence of all necessary approvals for work within the wetlands from US Army Corps of Engineers and the Division of State Lands. 5. Prior to site work, the drainage tract must be clearly identified in the field with permanent (preferably with, minimum 4-foot-tall black chainlink) fencing so as to insure no grading or material is placed in this area. Any fencing that is damaged duri ng construction must be IS replaced prior to final building inspection. If the damage is such that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately. 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet 202 ASH CREEK ESTATES SI"WISION -REMAND' STAFF REPORT (SUB20M-"10) r-r"e-iva.rr-n ucaorwrr- )tarxvu Obmit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and approval: 7. Prior to approval of construction plans, the. applicant shall "pothole" the City of Tualatin's main water transmission line to determine the exact location and condition of the pipe. The applicant shall notify the City of Tigard and the City of Tualatin 48 hours prior to the pothole inspections and when any construction activity will impact the pipe (such as placement of fill and excavation in the immediate vicinity) so that a representative from both the Cities of Tualatin and Tigard can be present. 8. Prior to commencing onsite improvements, a Public Facility Improvement (PFI) permit is .required for this project to cover all.. infrastructure and any other work in the public right-of-way. Eight (8) sets of detailed public improvement plans shall be submitted for review to the 'Engineering Department. NOTE: these plans are in addition to any other drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement (PFI) permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.ci.tigard.or,us).. 9. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the "Permittee", and who will provide the financial assurance for the public improvements. For example, specify if the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. 10. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement construction phase. All construction vehicle parking shall be'provided on-site. No construction vehicles. or equipment will be permitted to park on the adjoining, residential public streets. Construction vehicles include the vehicles of any contractor-or subcontractor involved in the construction of site improvements or buildings proposed by this application, and shall include the vehicles of all suppliers and employees associates with the project. 11. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of 74"' Avenue. The improvements adjacent to this site shall include: A. City standard pavement section for a neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet; B. Pavement tapers needed to be the new improvement back into the existing edge of pavement shall be built beyond the site frontage; • C_ Concrete curb, or curb and gutter as needed; . D. Storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F. Street trees in -the planter strip spaced per TDC requirements; G. Street striping; 203 ASH CREEK ESTATES SUBDIVISION 'REMAND" STAFF REPORT (SUB2003-"10) CITY M INCIL HFARINr. MNWIA H. Streetlight layout by applicant's engineer, to be approved by City Engineer; 1. Underground utilities; J. Street signs (if applicable); K. Driveway apron (if applicable); - L. Adjustments in vertical and /or horizontal alignment to construct SW 7e Avenue in a safe manner, as -approved by the Engineering. Department, including reductions to the speed limit as necessary; and M. Right-of-way dedication to provide 27 feet from centerline. 12. The applicant's Public Facility Improvement permit construction drawings shall indicate that full width street improvements, including traffic control devices, mailbox clusters, concrete .sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street trees, streetlights, and underground utilities shall be installed within the interior subdivision streets. Improvements shall be designed and constructed to local street standards. 13.: A profile of 70 Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 14. The applicant's construction drawings shall show that the pavement and rock section for the proposed private street(s) shall meet the City's public street standard for a local residential street The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility improvement permit. 16. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department (Kim McMillan) as a part of the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved. by the City Engineer. The proposed facility shall.be dedicated in a tract to the City of Tigard on the final plat. As a part of the improvement plans submittal, the applicant shall , submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The facility shall be maintained by the developer for a three- year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed, the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition,-the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all -deficient planting at the next appropriate planting opportunity. 17. An erosion control plan shall be provided as part of the Public- Facility Improvement (PFI) • permit drawings. The plan shall conform to. the "Erosion Prevention and Sediment Control Design and Planning Manual, December 2000 edition 18. . A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to - ensure the surface drainage is directed to the street or a public storm drainage system-- - ASH CREEK ESTATES SUBDMS{ON -REMAW STAFF REPORT (SUB2003 W10) 204 " rrrv rrv uera ueeo~~r_ ~mntvK ' 1 f approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot'. 19. The applicant shall incorporate the recommendations from the submitted geotechnical report by GeoPacific Engineering, Inc., dated May 9, 2003, into the final grading. plan. The applicant shall have the geotechnical. engineer ensure that all grading, induding:cuts and fills, are constructed in accordance with the approved plan and Appendix Chapter 33 of the- UBC. A final construction supervision report shall be filed with the Engineering Department prior to issuance of building permits. 20. The design engineer shall indicate, on the grading plan, which lots will have natural slopes -between 10%. and 20%, as well as lots that will have. natural slopes in excess of 20%. This information will be necessary in determining if special grading inspections and/of permits:will .be necessary when the lots develop. 21. The final construction plans shall be signed by the geotechnical engineer to ensure that they have reviewed and approved the plans. The geotechnical engineer shall also sign the as-built grading plan at the end of the project. 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL OF THE`FINAL°PLAT: Submit to the Planning Department (Morgan Tracy, 639-4171, ext 2428) for review and approval: 23. Prior to approval of the final plat, the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. 24. Submit a revised street tree/tandscape plan that shows an alternative tree species used for the -public street to vary the streetscape. 25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and cause a statement to be placed on the plat limiting additional direct vehicular access to SW 74°i Avenue. 26. Provide a plat name reservation approval from Washington County. 27. Prior to final subdivision plat approval, the applicant shall convey title for the proposed open space to a homeowner's association in accordance with the requirements of Section 18.350.110.A.2.b of the Tigard Development Code. 9Dpp bmit to the Engineering Department (Kim McMillan), 639-4171, ext 2642) for review and proval: 28. Prior to approval of the final plat the applicant shall obtain a plumbing permit for the construction of the private storm line in the private street. 205 ASR CREEK ESTATES SUMMSION 'REMAND- STAFF REPORT (SUB200300010) r1TV *-rV iutru t=A04k9f'_7N/ WV%C Prior to approval of the final plat, the applicant shall pay an addressing fee in .the amount of $900.00 (Staff Contact: Shirley Treat, Engineering). 30. Prior to approval of the final plat, the applicant shall cause a statement to be placed on the final plat to indicate that the proposed private street(s) will be jointly owned and maintained by the private. property owners who abut and take access from it (them). 31: - Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and - Restrictions (CC&R's) for this project, to be recorded with the final plat, that dearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall . obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s). The CC&R's shall additionally establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the lots or tracts following completion of the subdivision improvements. Trees may only be allowed to be removed subject to a certified arborist's finding that the trees are dead; or in severe decline. The applicant shall submit a copy of the CC&R's to the Engineering Department (Kim McMillan) and the Planning Department (Morgan Tracy) prior to approval of the final plat. 32. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association. Prior to approval of the final plat, the applicant shall either place the existing overhead utility lines along SW 74"' Avenue underground as a part of this project, or they shall pay the fee in- lieu of under grounding. The fee shall be calculated by the frontage of the site that is parallel to the utility lines and will be $27.50 per lineal foot. If the fee option is chosen, the amount will be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior to approval of the final plat, the applicant shall provide a maintenance access road to the facility and any drainage structures within the facility to accommodate City maintenance vehicles. The access road shall be paved and have a structural section capable,of accommodating a 50,000-pound vehicle. The-paved width.shall.be a minimum of-10 feet wide, and there shall be two-foot rock shoulders provided on each side. If the maintenance roadway is over 150 feet in length, a turnaround shall be provided. 35. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system (GPS) geodetic control network (GC 22). These monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates can be established by: • GPS be networked to the City's GPS survey. • By random traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements: A_ Submit for City review four (4) paper copies of the final plat prepared by a land survevor licensed to practice in Oregon, and necessary date or narrative. 206 ASH CREEK ESTATES SUBDMSION -REMAW STAFF REPORT (SUB2003-00010) B. Attach a check in the amount of the current final plat review fee (Contact Planning/Engineering Permit Technicians, at (503) 639-4171, ext. 426). C. The final plat and date or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard. D. The right-of-way dedication for 74"' Avenue shall be made on the finat plat E. Note: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating that the City has reviewed the final plat- and submitted comments #o the applicant's surveyor. F, After the City and County have reviewed the final plat, submit two mylar copies of.the' final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures (for subdivisions). THE FOLtQWIN; G(1NDrTIONS: SHALL BE'SJ4TlSFIM.. . PRIO LT10-1 NCEOF BUILDING PERMITS: Submit. to the Planning Department (Morgan Tracy, 639-4171, ext. 2428) for review and approval:. 37. Prior to issuance of any building permits, re-plant any area where vegetation has, been removed as a result of grading in conformance with the Clean Water:Service s Standards as set forth in the site assessment file #2819, prior to obtaining building permits. Prior to issuance of any building permits, the applicant shall submit plans that show one (1) off- street parking space, which meets minimum dimensional requirements and setback requirements as specified in Title 18, provided on-site for each new. home. 39. At the time of application for building permits for individual homes, the applicant shall demonstrate that each site will be accessed by a minimum 10-foot-wide paved access. 40. Prior to the issuance of building permits, the developer shall sign acopy of the City's sign compliance agreement. 41. Prior to the issuance of building permits the applicant shall submit a revised plan that indicates the modified setbacks as set forth in this decision and record a copy of the approved setback plan with the deeds for each lot. 42. Prior to issuance of building permits for structures on the individual lots within this development, the applicant shall demonstrate compliance with the height requirement of the underlying zone. The requirement calls for 30-foot maximum height for primary units and 15 feet maximum for all accessory structures. 43. Prior to the issuance of building permits on any lot, the applicant must provide city staff with a letter from Clean Water Services that indicates compliance with the approved service provider- letter (#2819). Submit to the Engineering Department (Kim McMillan, 639-4171, ext 2642) for review and approval: 207 ASH CREEK ESTATES SUMMSION -REMAtJD" STAFF REPORT (SUB200300010) Prior to issuance of building permits the applicant's engineer shall provide a post-construction sight distance certification for the new intersection at 74'h Avenue. 45. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. 46. Prior to issuance of building permits, the City Engineer shall deem the public improvements substantially complete. Substantial completion'shall be when: 1) all utilities.are installed and inspected for compliance, including franchise utilities, 2) all local residential street have at least one lift of asphalt, 3) any off-street and/or utility improvements are substantially completed, and 4) all street tights are installed and ready to be energized. Note: The City apart from this condition, and in accordance with the City's model home policy may issue model home permits). 47. Prior to issuance of building permits, the applicant shall provide the City with as-built drawings-. of the public improvements as follows: 1) 3 mil mylar, 2) a diskette of the a§-builts in "DWG" format, if available; otherwise "DX" will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane Coordinates, referenced to NAD 83 (91). 48. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a "photo mylar" copy of the recorded final plat. 49. The applicant. shall provide signage at the entrance of each shared flag lot driveway or private street that lists the addresses that are served by the given driveway or street. . THE:FOLLOWING OONDITtONS. SHALL :BE .SATISFIED PRIOR TO iSSUANCE-:OF 1=1NAL .80LDING:INSPECTION: 50. The applicant shall install street trees and an evergreen hedge of Leyland Cypress spaced no greater than three feet on center along the norther property line of Lots IAO.and the eastern- property line of Lots 10-12. ADDITIONAL-CONDITIONS=OF APPROVAL FOR ASH CREEK-ESTATES: - 51. The applicant and future owners of lots within the development shall ensure that the requirements of Tigard Community Development Code (TCDC) 18.725, Environmental Performance Standards, are complied with at all times. • ASH CREEK ESTATES SUBMAS10 WMAW STAFF REPORT (SUB2003wOW10) 208 ADDITIONAL CONDM0'wt' - MpOSED tH 0UGH-REMAND FINDINGS ANID ANALYSIS 52. Prior to commencing site work, the applicant shall submit construction drawings that show advisor "15 mph" speed limit signs to be placed in advance of the crest and sag curves on SW 74 in accordance with the City Engineer's Memorandum of January 25, 2005, which . requires that the sag be monitored after construction to determine if any other measures need to be taken. The applicant shall be responsible for installation of additional measures within a year after construction of the street is accepted by the City if monitoring indicates that additional traffic control measures are needed. 53. Prior to commencing site work, the applicant shall submit a bond for the equivalent value of mitigation required (3,446 number of caliper inches times $125 per caliper inch). If additional . > trees are preserved through the subdivision improvements and construction of houses, and are properly protected through these stages by the same measures afforded to other protected trees on site, the amount of the bond may be correspondingly reduced. Any trees planted on the site or off site in accordance with 18.790.060 (D) will be credited against the bond, for two years following final plat approval. After such time, the applicant shall pay the remaining.value of the bond as a fee in lieu of planting. 54. Prior to issuance of building permits, the applicant/owner shall record a deed restriction for each lot to the effect that any existing'tree greater than 12" diameter may be removed.only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be • removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 55. Prior to commencing any site work, the applicant shall submit construction drawings that include the approved Tree Removal, Protection and Landscape. Plan. The Tree Protection Steps" identified in Teragan & Associates Letter of November 19, 2004. shall be reiterated. in the construction documents. The plans shall also include a construction sequence. including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified. on the approved Tree Removal plan are authorized for removal by this decision. 56. Prior to commencing any site work, the applicant shall.establish fencing as directed by the project arbodst to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are performing adequately. Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. 57. Prior to final plat approval, the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, once every two weeks, from initial tree protection zone (TPZ) fencing installation, through site work, as he monitors the construction activities and progress. These reports should include any changes that occurred to the TPZ as well as the _ condition and location of the tree-protection fencing. If the amount of TPZ was reduced then the Project Arborist_ shall justify why the fencing was moved, and shall certify that the construction activities to the trees did not adversely impact the overall, and long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the- scheduled intervals, and if it appears the TPZs or the Tree Protection Plan is not hnirnn ASH CREEK ESTATES SUBDMSION "RE~ STAFF REPORT (SU820034)0010) 209 MTV r'fV urrn L CAOa#lr ~nrfmM • followed by the contractor, the City shall stop work on the project until an inspection can be done by the City Forester and the Project Arborist. This. inspection will be to evaluate the tree protection fencing, determine if the fencing was moved at any point during construction, and determine if any partof the Tree Protection Plan-has been violated. 58. 'Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of. approval from the project arborist regarding the placement and construction techniques to be. employed in building the house. All proposed protection fencing shall be installed and -inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval from the City Forester, the tree protection measures may be removed.. THIS APPROVAL SHALL BE VALID ' P611118.0' ONTHS PROM `THE:fIFFECTIVE DATE.OF.THE CITY COUNCIL'S FINAL DECISION. SECTION 111. BACKGROUND INFORMATION Application History The property is currently developed with one single-family residence and a couple of small outbuildings. On July 7t', 2003, the Tigard Planning Commission held a public hearing to consider an - plication for a 29 lot subdivision and planned development on 9.36 acres. The property is located 09750 SW 7e Avenue. The proposal is to provide single-family detached housing on lots ranging between 4,702 and 11,616 square feet. The Planning Commission moved to deny the application, which failed in a 4-4 tie vote. The Commission then moved to approve the application, which also failed in a 4-4 tie vote. Based on the Commission's by-laws and Robert's Rules of Order, without a majority affirmative vote, the application is denied. Since no motion was approved, no findings in support or against.the. application were adopted. The applicant, Dale Richards of Windwood Homes, filed an appeal of the application denial on July 15, 2003. His stated grounds for the appeal are "That applicant contends that the Planning Commission should have adopted specific grounds for denial. The denial should have been based on the proposed plan not meeting the Development Code. All specific requirements of the'code were met. The applicant, therefore, proposes that the project should be approved through the appeal process.- On August 12, 2003, the City Council held a public hearing on the appeal to reconsider the application, de novo. _ Based on the large numbers of those in attendance wishing to testify, there was insufficient time to receive testimony from all interested parties. Therefore Council continued the public hearing to the September 9"` Council meeting to complete- the public testimony. the September 9, 2003 hearing, the applicant. offered rebuttal to the points raised. by the opponents: After.the hearing dosed, Council members indicated that they were persuaded the requirements of the Development Code had been met and approved a motion for tentative decision for approval of the application. Council directed the applicant to provide the written findings for this decision for final Council consideration at its October 28,'2003 meeting. Th e applicant submitted ASH CREEK ESTATES SUMMSION 'REMAND' STAFF REPORT (SUB200300010) 21 ndings along with modified conditions of approval to support the decision. At the October meeting, Wbuncil adopted resolution 03-58 approving the Ash Creek Estates Subdivision. In that resolution, a reference was made to. a letter dated September 26, 2003 from the applicant. That date was erroneous. The letter which established the Conditions of Approval for the project is dated October 10, 2003. The correct letter, and consequently the correct findings and conditions of . approval were incorporated in. the adopted resolution. Only the reference to the date of the letter in the resolution was in er or. As a result, on November 4, 2003, the City Council adopted a resolution (Resolution No. 03=61) correcting the reference. - Within the 21-day appeal period established for appeals to the State Land Use Board- of Appeals, John Frewing filed an -appeal with LUBA_ On August 20, 2004, the Land Use Board of Appeals (°LUBA"), issued a decision to remand the City's decision approving the application. LUBA's decision specified four instances where it found the City's findings insufficient. Vicinity Information: 'The site is located in the northwest comer of the City limits, south of SW Taylor's Ferry Road, on the . east side of SW 74th Avenue. The property is surrounded on all sides by single-family residences on lots that vary in size. There is a stream (Ash Creek) on the property that runs in an east west direction along the southern property boundary. This drainageway contains wetlands and areas of steep slopes. Proposat Information: e. applicant is proposing to subdivide the parcel into 29 lots for single-family residences. Because the trees, wetlands, and slopes on the site, the-applicant has requested a planned development to allow them.to vary the underlying zoning standards to develop around these features. The applicant is also requesting an adjustment to allow a curb tight sidewalk as opposed to a sidewalk separated from the travel surface by a planter strip, and an -adjustment to the cul-de-sac standards limiting the number of units on a cul-de-sac and the 200-foot maximum length permitted for a cul-de-sac. SECTION IV. DECISION MAKING PROCEDURES, PERMITS AND USE- USE CLASSIFICATION: SECTION 18.130.020 Lists the Use Categories. The applicant is seeking approval of a 29-lot subdivision on 9.3 acres. The lots are to be developed with detached single-family homes. Single family residential development is outright permitted in the R- 4.5 zone. The existing single-family home is to be demolished. Lot sizes .within the proposed development are between 4,702 and 11,616 square feet and average 6,424 square feet. The applicant is also proposing to set aside approximately 4.15 acres in an open space tract for the drainageway and wetland area. A private-street cul-de-sac is also proposed to extend from the public street stub into the property. The site is located within the R-4.5, Low Density Residential District Planned Developments are permitted, in all zoning districts. The applicant has applied for conceptual- and detailed planned development approval in conjunction with the subdivision- AJMMARY OF LAND USE PERMITS: CHAPTER 18.310 -Defines the decision-making type to which the land-use application is assigned. This is a, Planned Development/Subdivision, which is defined as a Type III-PC Application. The Planning Commission decision is appealable to the City Council. The City Council decision is the final ASH CREEK ESTATES suBDm&0N'REMAw STAFF REPORT (sumom4mio) 211 ~TV nni nano ucain ~rorv+nc - aSion at the local level. Appeals of City Council decisions are heard at the State level -by the Land Board. of Appeals (LUBA). LUBA may either affirm, reject, modify, or remand the decision back to the local decision making authority. In this case, LUBA remanded the-decision for further consideration. DECISION MAKING PROCEDURES: CHAPTER 18.390 Describes the decision-making procedures. Type III procedures apply to quasi judicial permits and actions that 'contain predominantly discretionary approval criteria. Type III-PC actions are decided by the Planning Commission with appeals to the City Council. Type III-HO actions are decided by the Hearings Officer with appeals to City Council. In cases where both the Hearings Officer and Planning Commission are involved, the Planning Commission has preferential jurisdiction, per Tigard Development Code (TDC) Section 18.390.080(D)(2)(a). SECTION Vi. APPLICABLE REVIEW CRITERIA AND FINDINGS As this case has been remanded from LUBA' based on four assignments of error related to insufficient, evidence to support the City's conclusions, the applicable review criteria are those related to the specific assignments of error. City Council has previously reviewed this proposed development, and provided - findings related to the other relevant portions of the review criteria. Those findings are memorialized by Resolutions 03-58 and 03-61. This review is limited to the criteria and issues that were raised by LUBA. The applicant provided a narrative and additional evidence to respond to the issues outlined in LUBA's Iffmand. The findings contained herein are intended to supplement the City's existing adopted findings ere consistent. In the case that the following findings conflict with the original findings, these findings shall govern. LUBA's opinion on the four assignments of error on which it remanded are reproduced in their entirety in the following sections (distinguished by a different typeface), followed by the applicant's additional findings and Staffs analysis, as applicable. 1. ASSIGNMENT OF ERROR 5(B) LUBA found that there was inadequate evidence to support the City's position that it has the authority to approve a street design that does not meet the standard design specifications, especially as it relates to the vertical sag curve on SW 74"' Avenue. The text of their discussion follows: B. Vertical Sag Curve SW 70.Avenue along the western border of the property is currently unimproved. To improve SW 74"' Avenue along the western border of the property a creek and wetlands -near the southwestern comer of the property must be crossed, which will create a vertical sag curve 2 With increased speed, the vertical sag curve needs to be more level -or gentle to allow traffic traveling at the road's design speed to travel across the vertical sag curve safely. With decreased speed, the vertical sag curve can be steeper, or more severe, and still be safely 0 ORS 197.835(9) states "In addition to the review under subsections (1) to (8) of this section, the board shall reverse or remand the d use decision under review if the board finds [that] the local government or special district made a decision not supported by substantial evidence in the whole record." 2According to respondent, a vertical sag curve is the opposite of the type of curve that must be negotiated to climb and crest a hill and descend the other side of the hillcrest. In traversing a vertical sag curve, one descends to the bottom of the curve and then climbs up the other side of the curve. 212 ASH CREEK ESTATES SLMOWM -REMAND' STAFF REPORT (SU62003-00010) i - javeled. The issue presented in this subassignment of error is whether the city approved construction of WN 74`' with a vertical sag curve that is too steep. (emphasis added) TCDC 18.81.0.020(B) provides that the City Engineer is to establish street construction standards.3 The parties apparently agree that the City Engineer has done so. Attached to the petition for review, as Appendix B, are two figures that petitioner and the city apparently agree are' street construction standards that have been adopted- by the City Engineer. The first figure shows a typical road pavement section, which indicates that the design speed for local roads is 25 miles per hour. The second figure shows vertical sag curve "K" values for roads with different design speeds. We do not-fully understand that table, but the vertical sag curve "K" values . clearly increase with design speed. For example a road with a design speed of 25 miles per hour must have a K value of at least 13.4. For a road with 'a design speed of 55 miles per hour, a 'K value of at least 65.1 is required. It appears that the smaller the "K" value the steeper the vertical sag curve. Conversely, the larger the "K" value the more gentle the curve. Rather than place fill in the area of the creek-to decrease the severity of the vertical sag curve to a "K" value of at least 13.4, the county [sic] approved a steeper vertical sag curve with a "K" value of 5.4 4 To allow the steeper vertical sag curve and maintain safety, the county [sic]. reduced the speed limit that would otherwise apply to this part of SW 74th Avenue to 15 miles per hour. The. county [sic] explained its decision as follows: "The applicant also requested that the speed limit be reduced to 15 miles per hour in the section where the 74`h Avenue crossing will occur. This speed limit was accepted by the City of Tigard Engineer. The city of Tigard standards are met by a 15 mile per hour vertical curve design, to a `K value' of greater than 5 (AASHTO)." Record 43. It may well be that a road with speed limited to 15 miles per hour with a vertical sag curve with a .."K" 0 lue of greater than 5 is just as safe as roads with the design speeds shown on the table with vertical sag curves th the "K" value that corresponds to the different design speeds. However, the city's street standards seem to call for roads with a design speed of at least 25 miles per hour. Roads with a design speed of 25 miles per hour may have vertical sag curves with a "K" value of no less than 13.4.. While avoiding the fill that will be necessary to achieve a vertical sag curve in this section of SW 7e Avenue might. make sense from both environmental impact and traffic engineering perspectives, and might result in no compromise in safety if the posted speed limit is reduced to 15 miles. per hour, the city's- findings identify no authority for simply deviating from the lowest "K" value that is specified in the city's standards, and reducing the speed on the street to maintain safety.5 (Emphasis added). If the City Engineer has retained discretion under the TCDC and any other related city regulations to simply deviate from the table and allow construction of a road with a lower "K" value and impose a speed limit to preserve safety, no party identifies such authority. The findings simply say the City Engineer has accepted the proposal. Neither the city's findings nor the response brief identify any place in the record that explains the City Engineer's reasoning in support of the lower "K" value or the city's engineer's authority to approve deviations from the adopted "K" values. Without that explanation, we must sustain this subassignment of error. ADDITIONAL FINDINGS AND ANALYSIS SW 74 h Avenue along the western border of the property is currently unimproved. The City required the applicant to make improvements to S.W. 74 as part of its approval (Conditions 10, 11, 13, 33, 45). jMCDC 18.810.020(B) provides: tandard specifications. The City Engineer shall establish [street and utility] standard specifications consistent with the application of engineering principles.- 'The findings explain that to achieve a "K" value of 13.4 a great deal of fill would be required in the wedand and that fill would have to be placed on top of an existing water line. The city wished to avoid placing this amount of fill on the water line. Record 84. 'Taken to an extreme, if the speed limit were reduced to a crawl, we assume almost any "K" value could be accommodated- ASH CREEK ESTATES swDmstm -REMANir STAFF REPORT (S1B200300010) 213 e applicant has accepted these conditions. The applicant notes that due to the topography and the Iistence of a stream, the improvements to S.W. 74 will, result in a fairly steep sag curve and a corresponding crest curve. There are standards that define how steep sag and crest curves can-be at various speeds. The steepness of the curves is expressed as a Or value. For example; at a speed of 25 miles per hour (mph), the typical standards require a vertical sag Or value of no less than 13.4. In . this case, the speed limit on S.W. 74th is 25 mph. To achieve a "W value of 13.4, the applicant would have to place a significant amount of fill in S.W. 74 to make the sag curve shallower and the crest curve lower. During the hearing process, the applicant provided evidence that significant fill would cause negative impacts to the resources adjacent to S.W. 74th and might. possibly damage an existing 36-inch . diameter water main serving the City of Tualatin that is in the street right of way- Also, in order to be able to maintain this line, the amount of earth over the line must be minimized. By designing the curves to meet the °KA values required for a 25 mile per hour design speed would result in fills greater than 35 feet deep. This would impede normal and' emergency maintenance and repairs as well as make a large failure have catastrophic results (i.e. loss of the road and loss of water service to the City of Tualatin). Also the fills would result in greater impacts to the creek with either larger footings for retaining walls or wider *fill slope areas, which would remove a meander in the creek, more wetland area, and additional large trees from the sensitive area. The applicant's engineer considered using a bridge as opposed to fill. The applicant's engineer concluded that a bridge would result in an unmaintainable water line that could not be repaired or rintained under the bridge deck and the line would be much too expensive to construct and Maintain. Relocating the waterline is not a viable option either since it would interrupt water service to the City of Tualatin. This would also increase the difficulty of maintaining the line as it would be in the waterway as well as have increased impacts to the sensitive resources. As the applicant had previously presented, allowing for a lower speed limit is the only reasonable solution to the waterline construction and maintenance issue. At 15 mph, Windwood could make the required improvements using only 21.63 ft. of fill. While that means that any repair will still require some excavation, it is 13.27 feet less than what is required if the sag curve is designed at 25 mph, and as a result, much more viable to maintain. Accordingly, the applicant proposed to lower the speed limit in the area of the, sag curve to 15 mph. At- that speed the sag curve °K" factor is no less than 5. The applicant could improve S.W_74th to meet that standard without significant fill. The City agreed with the applicant's proposal and, in the final findings, stated as follows: "The applicant also requested. that the speed limit be reduced to 15 mph in the section where the S.W 74 Avenue crossing will occur. This speed limit was accepted by the City of Tigard Engineer. The City of Tigard standards are met by a 15 mph vertical curve design to a "W value of greater than 5 (AASHTO).° The City Engineer has provided a memorandum expressly approving the modified design. by granting an exception to the standard. This exception is mitigated by the requirement for additional advisory - ~nage and street lighting, as further described in the memo- Section B (City of Tigard Standard Specifications) reads "The City Engineer shall establish standard specifications consistent with the application of engineering principles" The City's Public Improvement standards are based on AASHTO standards and the standards of Washington County. The preface.to the City's design standards states: "The form has been kept brief and no attempt has been made to ASH CREEK ESTATES SU80M ION'REMAND' STAFF REPORT (SUB20n=10) 214 ver all possible situations or to provide detailed explanations' In relation to sag curves -and crest ~rves, the Washington County standards, as set forth in tables, include speeds of less than 25 mph and speeds as low as 15 mph. Because the City's published tables are not intended to be. comprehensive and because they are based on Washington County standards, the applicant asserts, and the City agrees that the City Engineer has the authority to approve a design based on a 15 mph speed consistent with Washington County standards. The Washington County table. confirms that the applicant's proposed design meets AASHTO standards since Washington County designs conform to AASHTO. In fact, the applicant's proposed design exceeds. Washington County's. standards. Washington County's standard for both sag and crest curves require a "K" value of-at least 50 at 15 mph. The applicant's proposed design will result in a "K° value.of 5.3. . In order to clarify'the authority to "set" speed limits, the applicant's engineer contacted the State of Oregon. The speed limit is set by the State as 25 miles per hour as the normal speed limit on all- . residential streets. Where specific sections of streets cannot meet this standard, cities have authorization to provide design exceptions that allow for sections of streets that they are in ownership of to be constructed, reconstructed, or repaired that don't meet the speed limit standards. The-State administers design exceptions on its own highways as well. According to the State, design exceptions at the state level are mitigated by using advisory signs as well as other safety measures: Jurisdictions are, therefore, allowed to post special signs and take other measures to safely control traffic_ Y. The applicant proposes two options: • Option 1: Advisory Signage A_ Install "Bump" sign with 15 mph advisory sign below it. B. Install "DIP" sign with 15 mph advisory sign.below it. (Place sign in advance of crest or sag to allow safe "reaction and deceleration time.) Option 2: Three Way Stop Intersection A_ Install a "3 -Way Stop" at the intersection of the new public road access to S_W. 74 Avenue. B. Install "DIP" sign with 15 mph advisory sign below it. "(Place sign in advance of crest or sag to allow safe reaction and deceleration time.) Although -Option 2 would result in a stop sign on S.W. 74 which is a through street; this would remove the need to sign the street for 15 miles per hour at the crest since the stop sign will- slow traffic to an approach speed of 15 mph at the critical location. Although this would not meet warrants for a aneed° by ASSHTO standards, this would be a very effective "legal' mitigation for the crest not meeting speed design standards. These measures would-qualify as a mitigation for the sag and crest. The City Engineer has determined that neither option presented is desirable. Option 1 seemingly - Itlls for the installation of a speed bump, which could exacerbate the present deficient "r value, and ere is insufficient documentation in the record to indicate the effects of such a proposal. Option 2 - proposes to install stop signs on a designated through route (SW 70 Avenue), without sufficient - warrants to require the stop signs- The City Engineer has determined that placement of "15 mph" . advisory signage in advance of the crest and sag in each direction are appropriate mitigation ASH CREEK ESTATES SUBDMSION `REMAND' STAFF REPORT (SUB2004=10) 215 4 easures and are sufficient to address the deficient "K" value: The City Engineer has determined t the sag should be monitored to verify whether the signage is sufficient to slow traffic. If not e ective, the applicant will be required to install additional traffic control measures at the direction of the City Engineer within -a year following completion of the street construction. A condition to this effect will'be imposed: Recommended. Condition of Approval (#52): Prior to commencing site work, the applicant shall submit construction drawings that show . adviso "15 mph" speed limit signs to be placed in advance of the crest and sag curves on SW 74~in accordance with the City Engineer's Memorandum of January 25, 2005, which requires that the sag be monitored after construction to determine if any other measures need to be taken. The applicant shall be responsible for installation of additional measures within a year after construction of the.street is accepted by the City if monitoring indicates that additional traffic control measures are needed. 2. ASSIGNMENT OF ERROR 50) LUBA disagreed with the City's interpretation of the Development Code that would exempt properties with timber deferral status from filing a tree plan consisting of an inventory,. removal plan, protection plan, and mitigation program. The text of their discussion follows: 1. Completeness and Adequacy of the Applicant's Tree Plan One section of the TCDC is entitled "Tree Removal" TCDC 18.790. We recently discussed this of the TCDC at some length in Miller v. City of Tigard, 46 Or LUBA 536, 539-43 (2004). There are Otion, several sections of TCDC 18.790 that are relevant under this assignment of error. 1. Tree Removal Permits TCDC.790.050 identifies. circumstances where a permit is required from the city to remove a tree and identifies circumstances where a permit is not required to remove a tree. Under TCDC 18.790.050(A), a city permit is required to remove any trees growing on sensitive lands. But under TCDC 18.790.050(A), no permit would be required from the city to remove the trees from the -part of the subject property that falls outside the sensitive land area along the southern part of the property. TCDC 18.790.050(D)(4) appears to have been intended as 'a fiuther qualification of the TCDC 18.790.050(A) requirement for a permit to remove trees on sensitive lands. But if TCDC 18.790.050(D) was intended to qualify TCDC 18.790.050(A), the final clause of TCDC 18.790.050(D)(4) renders the exemption inapplicable in the only circumstance it could apply, Le., where land in Christmas tree or-forest, tax deferral is on sensitive lands. The TCDC 18.790.050(D)(4) exemption is unnecessary for trees that are not located on sensitive lands, because TCDC 18.790.050(A) does not require a permit to remove such trees in the first place. In summary, as far as we can tell, the applicant could remove all of the trees from the portion of the property that the applicant proposes to develop, without violating TCDC 18.790.050(A). That is because those 6As relevant, TCDC 790.050 provides: "A. Removal permit required. Tree removal permits shall be required only for the removal of any tree which is located on or in -a - itive land area as defined by Chapter 18.775. ~sss - D. Removal permit not required: A tree removal permit shall not be required for the removal of a tree which: "sssss - - "4_ is used for Christmas tree production, or [stands on] land registered with the Washington County Assessor's office as tax- deferred tree farm or small woodlands, but does not stand on sensitive lands." ASH CREEK ESTATES SUBDIVISION -REMAND- STAFF REPORT (SUBM034=10) 216 A&es are not located on sensitive lands, and TCDC 18.790.050(A) does not require a permit to remove trees less those trees are located on sensitive lands- 2. The Tree Plan Requirement TCDC 18.790.030 requires that a tree plan beprovided when property is developed_7 The precise nature of the obligation to protect trees through a tree- plan is somewhat ambiguous- TCDC18.7 90,030(A) states "[p]rotection is preferred over removal wherever possible." [See footnote 7]. But TCDC 18.790.010(C) expressly recognizes that trees may need to be removed to develop property,8 and TCDC 1-8.790.030(B)(2) anticipates that more than 75% of the trees on a site may be removed to accommodate development, subject to mitigation requirements. [See footnote 71. In addition to the somewhat ambiguous preference for preserving. trees, the city also relies on a series of incentives for tree preservation, which are set out in TCDC 18.790.040. 3. Petitioner's Arguments Petitioner challenges the adequacy of the applicant's tree protection plan.. The focus of petitioner's challenge is on the part of the subject property that is to be developed, where most of the trees will be removed.. It is not clear to what degree petitioner's arguments challenge the adequacy part of the plan that applies to the sensitive lands, where almost- all of the trees are to be preserved: But petitioner's argument includes an overriding complaint that the applicant's tree protection plan evolved significantly over the course of the local proceedings and that it is difficult or impossible-to determine with any degree of certainty precisely what the tree protection plan is- The. city and intervenor do not really respond to petitioner's arguments that the tree protection plan that the applicant submitted and the city, ultimately -approved is inadequate. to comply with a . umber of particular requirements of TCDC 18390.030. (emphasis added) Instead they rely on city 1uncil findings that no tree protection plan is required at all for the part of the property that lies. outside the sensitive -lands. part of the property and that the. plan to protect nearly all the trees on the sensitive lands is sufficient to comply with TCDC 18390.030. We turn to those findings. 7TCDC 18.790.030 provides: "A. Tree plan required A tree plan for the planting, removal and protection of trees prepared by a certified a,rborist shall be provided for any lot, parcel or combination of lots or parcels for which.a, development application for a subdivision, partition, site development review, planned development or conditional use is filed Protection is preferred over removal wherever possible- "B. Plan requirements. The tree plan shall include the following. "1. Identification of the location, size-and species of all existing trees including trees designated as significant by the city; "2. Identification of a program to save existing trees or mitigate tree removal over-12 inches in caliper- Mitigation must-follow the replacement guidelines of Section 18.790.060D; in accordance with the following standards and shall. be exclusive of trees required by-other development code provisions for landscaping, streets and parking lots: "a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.0601) of no net loss of trees; "b. Retention of from 25% to 501/o of existing trees over 12 inches in caliper requires that two-thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; "C- Retention of from 501/o to 751/6 of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; "d Retention of 75% or greater of existing trees over 12. inches in caliper requires no mitigation- "3. Identification of all trees which are proposed to be removed; A protection program defining standards and methods that will be used by the applicant to protect trees during and after Onstruction- grmc 18.790.010(C) provides: "Recognize. need for exceptions-- The City recognizes that, s ; * at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development-" 217 ASH CREEK ESTATES SUBDMSION -REMAND- STAFF REPORT (SUBWO-00010) 4. The City's Findings • Simply stated the city council found that w tree protection plan is not required for the part of the subject property where the applicant proposes to develop houses, notwithstanding the express requirement in TCDC 18.390.030 that a tree plan must be provided "for any lot, parcel or combination of lots or parcels for which a development application for a subdivision * * * [or] planned development * * * is filed" The city council reached this conclusion based in large part on the TCDC 18.390.050(D)(4) exemption for tree removal permits discussed above. The city council recognized that if TCDC 18.390.050 is read by itself, the TCDC 18,390.050(Dx4) exception serves no purpose, for the reasons we have already explained. To give TCDC 18390.050(Dx4) some effect, the city council concluded it should be read to exempt proposals to develop lands that are not sensitive lands from the TCDC 18.390.030 requirements for a tree plan and for mitigati on in certain circumstances. The fatal problem with that interpretation is that TCDC.18.390.050(D)(4) does not say anything about tree plans or mitigation; it is an unnecessary exception to the TCDC 18.390.050(A) requirement for a tree permit. We review a local governing body's interpretation of its land-use regulations under the standard set out at ORS 197.829(1) and the Court of Appeals' decision in Church v Grant County.9 Even if interpreting TCDC . 18390.050(DX4) in the way the city did here might have survived the more deferential standard of review that was required before Church, it cannot be affumed under Church. Contrary to the city's argument, the city's interpretation does not merely clarify "the scope of the exemption" provided by TCDC 18.390.050(D)(4), it applies it to a tree plan requirement .that it clearly does not apply to. The city council's interpretation is inconsistent with the express language of TCDC 18.390.050(D)(4). The city council's policy reason for the interpretation it applied here presents only a slightly closer' question. The city council concluded that no permit is necessary from the city to harvest trees outside sensitive -lands. If the city is right about that, the applicant in this case could remove all of the trees in. the area proposed ~fQr development and then submit the application, thereby avoiding any requirement to produce a tree. plan for t area of the property. If that is true, there may be a loophole in the city's tree removal ordinance that in some circumstances may effectively eviscerate the TCDC 18.390.030 requirement' for a 'tree plan and mitigation. Even if the applicant could take advantage of that loophole, as far as we know it has not done so, and the trees remain on the area of the property. to be developed. It is also important to note that the possibility that the applicant in this case could utilize the loophole to remove the trees before submitting an application does not render the requirement for a tree plan nonsensical. If the portions of a proposed development site that are not sensitive lands are not completely logged before development even though they could be logged, as will frequently be the case for a variety of reasons, there is- nothing nonsensical about requiring a tree plan to protect those trees on lands to be developed, during and after the construction phase, and requiring mitigation for the trees that will be removed. It may be that the tree plan that the applicant has proposed comes far closer to a tree plan for the entire property that complies with TCDC 18390.030 than petitioner argues. However, without some assistance from the city and intervenor, we cannot conclude that the approved tree plan is consistent with TCDC 18.390.030. We reject the city's attempt to' interpret TCDC 18390.030 with TCDC 18390.050(D)(4) to conclude that no tree plan is required for the part of the site that does not qualify as sensitive lands. (Emphasis added) This subassignment of error is sustained ADDITIONAL FINDINGS AND ANALYSIS. 9ORS 197.829(1) provides: - I UBA) shall affirm a local government's interpretation of its comprehensive plan and land use regulations, unless the board MWAenniaes that the local government's interpretation: "(a) Is inconsistent with the express language of the comprehensive plan or land use regulation; "(b) Is inconsistent with the purpose for the comprehensive plan or land use regulation; "(c) Is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation; or "(d) Is contrary to a state statute, land use goal or rule that the comprehensive plan provision or land use regulation implements." 218 .ASH CREEK ESTATES SUBDMSM -REMAND' STAFF REPORT (SUB2003-00010) j n its decision, City Council interpreted its code to require a tree plan only in situations where the plicant was required to obtain a tree cutting permit to remove trees. The City reasoned that cause the applicant in this case was not required to obtain a tree cutting permit for the majority of its site as it was in timber deferral, a tree plan for the entire site was not required. A tree plan was submitted for the balance of the site where sensitive lands were present. LUBA rejected the City's interpretation. Accordingly, the applicant has submitted a tree plan encompassing the entire site and. which includes all of the information required in TCDC 18.790.030. The City Forester has reviewed the plan and has agreed that it is acceptable, as noted in his Memorandum of January 24, 2005. The proposed attached. tree plan and arborist's report establishes the trees to be saved and those to be cut. As reflected in that plan, there are 893 total trees on site that are larger than 12° diameter. Of those, 115 are deemed hazardous and are not subject to the mitigation requirement. From the remaining 778 net viable trees, 321 are proposed, for removal. This constitutes a 59% retention. - Since the total number of trees that will be retained is greater than-50%; one-half of the caliper inches being removed is required to be mitigated. A total of 6892 caliper inches are to be removed, so 3,446 caliper inches will be required to be replanted. This may be accomplished by either planting trees on-site, off-site or payment of a fee in lieu. To assure - that mitigation is accomplished and that subsequent tree removals are undertaken in accordance with the requirements of this chapter, staff recommends that the following conditions be imposed: Recommended Conditions of Approval (#53 and #54): Prior to commencing site work, the applicant shall submit a bond for the equivalent value of mitigation required (3,446 number of caliper inches. times $125 per caliper inch). If additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected.through these stages by the same measures afforded to other protected :trees on site, .the amount of the bond may be correspondingly reduced. Any trees planted on the site or off site in accordance with 18.790.060 (D) will be credited against the bond, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the bond as a fee in lieu of planting. Prior to issuance of building permits, the applicant/owner shall record a deed restriction to the effect that any existing tree greater than 12" diameter may be removed only-if the tree. dies or is hazardou's according. to a certified arbonst. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree. 3. ASSIGNMENT OF ERROR 5(J) LUBA found that the City erred in its decision to grant adjustments to the street improvement standards (number of units on a cul de sac, length of a cul de sac, and curb tight sidewalks on SW 70) by not providing sufficient findings to respond to the adjustment criteria. The text of their discussion follows: J. Special Adjustments The challenged decision grants an adjustment to street improvement sidewalk construction standards. to w a curb-tight sidewalk where SW 70 Avenue crosses the drainageway. The challenged decision also Ato is two adjustments to allow construction of the proposed cul-de-sac. Those adjustments allow the cul-de- sac to exceed 200 feet in length and to serve 23 houses.'" 1OUnder the TCDC, cul-de-sac streets may. provide access to no more than 20 houses. The adjustment allows the cul-de-sac to serve 23 houses. Apparently the first 200 feet of the cul-de-sac will provide access to lots I and 2 and lots 20-23 The adjustment to the ASH CREEK ESTATES SUSUMSION 7XMAND- STAFF REPORT (SUBMLU 1)010) 219 The city council's decision does not apply the special adjustment criteria set out at TCDC ~370.020(C)(11), even though the adjustments all appear to be directed at street improvement rejuirements.tt Instead, the city council applied the special adjustment criteria at TCDC 18.370.020(C)(1). No party questions that choice by the city, and we therefore do not question it either. The city's findings addressing the TCDC 18.370.020(C)(1)(a) requirement that there be special circumstances are set'out below: * * The applicant is requesting an adjustment to the 5-foot planter strip along 70 Avenue to reduce 1,100 additional square feet of impact to the drainageway and wetland area. The applicant proposes this curb tight sidewalk for the special circumstance where the development is required to cross the stream. Outside the resource area, the sidewalk will meet the required public street standards. "Due to the presence of the sensitive lands, the development width of the property makes a looped street unfeasible. Also, because of existing development patterns adjacent to the site, the. cul-de-sac could not be extended to the site's east property line. The applicant was able to extend a new public street to the north property line for future connectivity. The length of the cul-de-sac is the primary reason to exceed the 20 home maximum standard on this private street. Because of the special circumstances affecting this property, this criterion has been satisfied." Record 30a. The city council's findings explaining why the adjustments are necessary for proper design and functioning of the subdivision under TCDC 18.370.020(C)(1)(b) are as follows: 200-foot length limitation is necessary to provide access to lots 3 through 19. Otherwise a loop road would be required and it would appear that such a loop road would almost certainly have to encroach on the wetland and drainage area that is protected under the proposed plan- "TCDC 18.370.020(C)(I 1) provides: "Adjustments for street improvement requirements (Chapter 18.810). By means of a Type II procedure, as governed by Section 18:390:040, the Director shall approve, approve with conditions, or deny a request for an adjustment to the street improvement requirements, based on findings that the following criterion is satisfied: Strict application of the standards will result in an unacceptably adverse impact on existing development, on the proposed development, or on natural features such as wetlands, steep slopes or existing mature trees. In approving an adjustment to the standards, the Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards." 12TCDC 18370.020(C)(1) provides: "Adjustments to development standards within subdivisions (Chapter 18.430). The Director shall consider the application for adjustment at the same time he/she considers the preliminary plat. An adjustment may be approved, approved with conditions, or denied provided the Director finds: "a. There are special circumstances or conditions affecting the property which are unusual and peculiar to the land as compared to other lands similarly situated; "b. The adjustment is necessary for the proper design or fi action of the subdivision; "c. The granting of the adjustment will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property, and "d The adjustment is necessary for the preservation and enjoyment of a substantial property.right because of an extraordinary hardship which would result from strict compliance with the regulations of this title." The adjustment criteria at TCDC 18370.020(0)(1) in some respects resemble traditional variance criteria, which are exceedingly - Acult to satisfy. Lovell v Independence Planning Comm., 37 Or App 3, 586 P2d 99 (1978); Wentland v. City ofPordand, 22-Or A 15, 24-26 (1991); Patzkowski v. Klamath County, 8 Or LUBA 64, 70 (1983). However as the Court of Appeals made clear in deBardelaben v Mlamgok County, 142 Or App 319, 325-26, 922 P2d 683 (1996), LUBA is to extend appropriate deference to the city's interpretations of its own adjustment criteria. Under Church v" Grant County, the city is not entitled to the highly deferential standard of review that was required at the time deBardelaben was decided, but it strll is entitled to appropriate deference under ORS 197.829(1) and Church. 220 ASH CREEK ESTATES WWMSION'REMAN[r STAFF REPORT (SUB203400010) ~ f "The adjustment request for the curb tight sidewalk is necessary . to reduce impacts to the drainageway and wetlands. The adjustment for the cul-de-sac length is necessary to provide access to Lots 3-19 and to allow a turn around for emergency equipment and garbage trucks. The adjustment to allow more than 20 units to access the cul-de-sac is a result of both the length of the resulting cul-de-sac, and the desire to eliminate the need for a second redundant access serving three lots. Providing this second access would have reduced the amount of area available for buildings, with the result of eliminating the lots being served by it. Therefore, this criterion is satisfied." Record 3W-31. The city council's finding regarding the TCDC 18.370.020(C)(1)(c) public health safety. and welfare criterion is as follows: "The Fire District has reviewed the proposed street design and has provided no objections to these adjustments. There is no evidence that these adjustments will be detrimental to the health safety or welfare to other property owners surrounding the site." Record 31. Finally, the city council's finding regarding the- TCDC 18.370.020(C)(1)(d) extraordinary hardship standard is as follows: "Due to existing development patterns, the natural- resources, and the shape of the site, the adjustment is necessary for the applicant to. make use of substantial property rights. The applicant is proposing to build within the density prescribed for this site. The criteria -for granting these adjustments to the street design, cul-de-sac length, and sidewalk standards have been satisfied." Id. Petitioner assigns error to the city's findings concerning the TCDC 18.370.020(C)(1)(c) public health lefety and welfare criterion and the TCDC 18.370.020(C)(1)(d) extraordinary hardship standard. We have set out the other city findings, on the first two criteria, because they have some bearing on the last two criteria. Petitioner first contends that, contrary to the city's funding that there is no evidence that these adjustments will be "detrimental to the health safety or welfare to other property owners surrounding the site," there is a great deal of evidence to that effect. The city appears to be correct that some of the evidence-cited by petitioner relates more to the development itself rather than the three adjustments that are at issue under this subassignment of error. However, some of the evidence cited by petitioner clearly does address this criterion, and the city's finding that there is no such evidence is in error. (Emphasis added) This part of -subassignment of error 5(n is sustained. Petitioner also argues the city's finding that the adjustments are needed to preserve a substantial property right.due to extraordinary hardship that would result from strict-compliance with the adjusted standards are inadequate and are not supported by the evidentiary record. Reading the city's- findings concerning TCDC 18.370.020(C)(lxa) and (d) together, we reject petitioners challenge to the findings regarding the cul-de-sac adjustments under.TCDC 18.370.020(C)(1)(d). It is reasonably clear from those findings that if the applicant were forced to provide access to the proposed lots without the adjustments, much more of the property would have to be developed with roads, at a significant additional expense and with the potential loss of lots that would otherwise be approvable. It is reasonably clear that the city -considers those impacts to constitute a hardship. We cannot say the city misinterpreted TCDC 18.370.020(C)(1)(d) or that its findings are inadequate to demonstrate that the cul-de-sac adjustments comply with that criterion. The city's findings concerning TCDC 18.370.020(C)(1)(d) and the curb tight sidewalk are a different story. - Although it appears that granting the adjustment would serve the desirable purpose. of minimizing fill in r 221 ASH CREEK ESTATES SUBMISION'REMANO" STAFF REPORT (SUB20M-00010) MTin/I MIM. •~.~...l. nII. M/Af wetland and drainage area, the city does not explain why it would be a hardship on the applicant to construct JWnforming sidewalk-13 To summarize, the city's findings concerning TCDC 18.370.020(C)(lxc) are inadequate for all three adjustments. The city's findings concerning TCDC 18.370.020(C)(1)(a) and (d) are sufficient to demonstrate that the cul-de-sac adjustments comply with TCDC 18.370.020(C)(1)(d). The city's findings concerning TCDC 18.370.020(C)(1)(d) . are inadequate to demonstrate that the curb tight sidewalk adjustment satisfied that criterion. ADDITIONAL FINDINGS AND ANALYSIS The City Council addressed the applicant's requested adjustment request underTCDC 18.370.020(C)(1), which is a general adjustment standard and not under TCDC 18.370.020(.C)(11), which is specific to street improvements. The applicant has acknowledged that in its application material it too addressed the requested adjustments under the general standard as opposed to the specific standard. In.its decision, LUBA concluded that the City's findings related to the health.safety and welfare impacts of the three adjustments were insufficient. LUBA also concluded that the extraordinary hardship criterion to allow the curb tight sidewalk had not been sufficiently addressed. Staff asserts that the adjustment for the curb tight sidewalk was not necessary based on the strict criteria in Chapter 18.810, and provides findings for such a conclusion below. Nevertheless, the. . applicant has provided additional findings related to both the general adjustment standard as well as the specific street adjustment criteria: Staff agrees that the specific criteria related to street improvements are. more appropriate to this decision than the more general criteria. Staff therefore e 0 ieves that the specific criteria of TCDC 18.810.070(C), and 18.370.020(C)(11) apply rather than general criteria of TCDC 18.370.020(C)(1). In the event that the Council or a reviewing entity take the position that the general criteria apply, findings relating to those criteria.are also provided. Planter Strip Requirement 18.810.070 (C) A planter strip separation of at least five feet between the curb and the sidewalk shall be required "in. the design of streets except where the following conditions exist: there is inadequate right-of-way_ ; the. curbside sidewalks already exist on predominant portions of the street; it would conflict With the utilities there are significant natural features (large trees water features etc) that would be destroyed if the sidewalk were located as required or where there are existing structures in dose proximity to the street (15 feet or less)Additional consideration for exempting the planter strip requirement may be given on a case by case basis if a property abuts more than one street frontage. There is adequate right of way to accommodate the required planter strip, and sidewalks do not"yet exist on predominant portions of the street There are some potential conflicts with utilities, but not on the side where the planter strip is required. There are also no existing structures that would be in such dose proximity to the new sidewalk. However, additional large trees and water features would be destroyed if the sidewalk were required to be moved five feet further east into the sensitive lands resource. Staff interprets the term "destroyed" to mean that additional trees would be removed, and' additional area within the sensitive resource area would be disturbed by grading activity, vegetation removal and possible stream bank rechanneling. Although it is acknowledged that in some instances, ese areas can be restored by the planting of new trees, or through revegetation and-redirection of "We note that there is no extraordinary hardship criterion tike TCDC 18.370.020(C) (1)(d) in the special adjustment criteria for sheet improvement standards at TCDC 18.370.020(CX 11). See n 48. However, as previously noted, the city applied the qrk-mat adiustment criteria. at TCDC 18.370.020(C)(1) rather than the TCDC 18370.020(C)(11) criteria. ASH cREW MATES Sl1BONISION `REMAND- STAFF REPORT (SUB2003r00010) 222 i e stream channel, it is the general preference and the expressed intent of this exemption to avoid e impact in the first place. Specific Adjustment Criteria 18.370.020(0)(11) "Strict application of the standards will result in an unacceptably adverse impact on.existinq development, on the proposed development, or on natural features such as wetlands, steep slopes-or, existing mature trees. In approving an adiustment to the standards, the Director shall determine that . the potential adverse impacts exceed the public benefits of strict application of the standards." Findings for Length of Cul de Sac (TCDC 18.810.030(Q) Strict application of the 200 foot limitation on cul de sac length would result in an unacceptable adverse impact on the proposed development and natural features for the following .reasons. Preexisting development surrounds a majority of the site to the north and east.. Ash Creek cuts - across the property from.the southeast to the northwest. The only undeveloped area borders the 968 foot deep site for the first 490 feet. The last 478 feet -could either be served by along cul de sac, or a. loop street. A loop street could not.retum to SW 74"' without a high degree of encroachment into the stream and wetland resource. This near doubling of pavement would serve no additional units, and would likely result in the loss of the two lots on the south side of the stream. The other possible option would be to propose a street that would extend through the developed properties and, ultimately connect with an adjacent public street. This would have adverse impacts upon existing development however. As described previously, there are no impacts to the. public health safety or welfare from granting such an adjustment, so it follows that the impacts raised here exceed any enefit to the public from a strict adherence to this standard. indings for Number of Units served By a Cul de Sac Strict application of the 20 unit maximum limitation on a cul de sac would result in an unacceptable adverse impact on the proposed development and natural features for the following reasons. Similar to the findings for the length of the cul de sac, it follows that with a cul de sac of this length, the number of units served by it will exceed the maximum allowed. In this case, there are three.additional units on the private cul de sac. By strictly complying with this standard, the applicant would either have to lose three lots, an adverse impact on the proposed development, or reconfigure the through public street to accommodate the three additional units. Staff examined the future streets plan to asses what impact would result if the public street in Ash Creek Estates were extended to encompass the three additional lots presently on the cul de sac. Staff found that if the, street were extended to encompass. the three additional units, the extension of the public street north would either not align with SW Shady Place (thus requiring an adjustment to street spacing) or would not meet geometric curve requirements. to make the alignment (thus requiring an adjustment to street improvement standards), or would need to terminate in a second cul de sac (thus requiring further adjustments to cul de sac length and number of units served). As noted previously, staff found that safety will not be impacted by the three additional units as the cul de sac street and intersection is in all other manners conforming-with- design requirements and capable of handling the additional vehicle trips. Also, TVF&R has determined that length does not affect safety with respect to the number-of lots to be served by a _cul-de-sac. The public welfare is moreover unaffected by the three additional houses on this cul de sac since the standard is intended-to limit the use of lengthy cols-de sac and promote - nnectivity and transportation options. In this case, there are no available points to connect-to, apart m what is already proposed by the future street plan- The existing development pattern and presence of resources prevent the development from complying with the block length standards. Accordingly, there are only two options to access the eastern lots in the proposed subdivision: one is . a cul-de-sac and one is a looped street within the subdivision. A looped street would have to be constructed in environmentally sensitive land and would require significant excavation and/or fill. 223 ASH CREEK ESTATES SUBDMStON'REMAND' STAFF REPORT (SUB2003-"10) ith the proposed cul de sac, preservation of the stream bed and stormwater conveyance system will achieved. This will serve to benefit the general welfare of the public at large. Therefore, staff finds at the potential adverse impacts exceed the public benefits of strict application of the standards. Findings for Curb Tight Sidewalk TCDC 18.810 030(L) Strict application of the.5 foot wide planter strip requirement would result in an unacceptable adverse impact on the proposed development and natural features for the following reasons. If a 5=foot planter strip was required, then an approximate 1,100 additional square feet of impact to the drainageWay and wetland areas would occur. While this would not have an. adverse impact on existing development, it would have some impact to the proposed development in, terms of additional landform disturbance and cost_ This would also certainly have an additional adverse impact to existing natural features including the stream, wetlands, and likely additional trees. The public benefit of a planter strip is the additional aesthetic amenity of breaking the hardscape mass. "The presence of the large open stream channel behind the road and sidewalk will serve a similar purpose. Therefore, staff finds that the potential adverse impacts exceed the public benefits of strict application of the standards. General Adjustment. Criteria 18.370.020(C)(1) . °c. The granting of the adjustment will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of propeq)C findings for Length of Cul de Sac (TCDC 18.810.030(L)) nting the requested adjustment will not be detrimental to the public health, safety and welfare of e public. Nor will it be injurious to the rights of other property owners. The length of a cul-de-sac is a planning issue relatedto an attempt to geometrically control block sizes from becoming too long. This standard allows continuity of blocks without. having. long dead-end streets affecting block sizes. The applicant's engineer has evaluated this issue as part of a team whose responsibility it is to evaluate the methods set by Metro to. control block geometry to increase connectivity. By limiting the length of cul de sacs, developers are encouraged to provide more through streets, thereby enhancing connectivity: This enhanced welfare is balanced by increased through traffic which may disturb residents. From a safety standpoint, cuts-de-sac are vulnerable from the standpoint of only having one available ingress/egress. In certain situations, this access could become blocked preventing residents. access to or from their homes. This is also balanced from a public safety perspective by the fact that cuts-de-sac are more defensible spaces from burglary, and- are generally less prone. to break-ins and vandalism. The .length of a cul de sac has no bearing on public health. Additionally, neither the Tigard Police nor TVF&R raised any safety concerns over the length of the proposed cul-de-sac. Extending the length of the cul-de-sac reduces the number of intersections and the safety risks associated with intersections. Opponents testified generally that the adjustments allowing a longer cul-de-sac that would serve more than 20 residences would. increase the amount of traffic and nearby streets and then concluded with no further evidence'that an increase in traffic will automatically result in decreased safety. The City finds that the amount of traffic is a function of the number of proposed units, not the arrangement of streets. It may be the case that more traffic will use the single point of access, than if there were entries into the street, but the net difference from a conforming cul de. sac is approximately 30 91ps, per day (see the following findings related to 3 extra units on the cul de sac). This limited number of additional vehicles that will result from the adjustments as opposed to the development - itself will not automatically result in decreased safety as the streets within and adjacent to the proposed subdivision are capable of handling the full amount of traffic from this. development. 224 ASH CREEK ESTATES SUBDIVISION -REMAND- STAFF REPORT (SU6200340010) 1 1 ~oreover, when the property to the north is developed, a new street will connect to the proposed bdivision and serve to offset the traffic impact at SW 74th and the Ash Creek Estates public street intersection. Findings for Number of Units served By a Cul de Sac In examining the detrimental impacts to the public health, safety, and welfare, it is important to consider that a conforming cul de sac is limited to 20 units. The subject application represents an increase of 3 units. Many of the findings presented previously with regard to the length of the cul de sac are still relevant to these findings. However this request. will result in a net increase of approximately 30 vehicle trips per day moving through the intersection of the public street and private cul de sac. There has been no evidence to suggest that. the public health dill be impacted by this additional traffic, as the total number of units is still within the permitted range of density on the site. In evaluating injury to the rights of other owners of property, the only adjacent property that may be affected by the proposed addition of,3 lots on the cul-de sac is tax lot 200 (immediately north.of the subject site). Staff examined the future streets plan to asses what impact would result'if the, public . street in Ash Creek Estates were extended to encompass. the three additional lots presently on the cul de sac. Staff found that if the.street were-extended to encompass the three additional units, the extension of the public street north would. either not align with SW Shady Place (thus requiring an adjustment to street spacing) or would not~meet geometric curve requirements to make the alignment (thus requiring an adjustment to street improvement standards), or would need to terminate in a second cul de sac (thus requiring adjustments to cul de sac length and number of units served). With the requested adjustment, the property rights of the adjacent owner are preserved. Staff found that 0fety will not be impacted by the three additional units as the cul de sac street and intersection is in I other manners conforming with design requirements and capable -of handling the additional vehicle trips. Also, TVF&R has determined that length does not affect safety with respect to the number of lots to be served by a cul-de-sac. TVF&R makes the determination of whether the number of lots poses a safety concern. According to Eric McMullin, TVF&R requires two (2) accesses for safety .when more than 25 residential houses are on a street. Here, that standard is met because only 23 houses will be served. The public welfare is moreover unaffected by the three additional houses on this cul de sac since the standard is intended to limit the use of lengthy cuts-de sac and promote connectivity and transportation options. In this case, there are no available points to connect to, apart from what is already proposed by the future street plan. The'existing development pattern and presence of resources. prevent the development from complying with the block length standards. However, where the block length standards incorporated an .exemption for these types of constraints, the cul de sac standards did not. Moreover, due to these prior development patterns, there is no way to connect the private street serving the lots to adjacent streets. Accordingly, there are only two options to access the lots in the proposed subdivision: one. is a cul-de-sac and. one is a looped street within the subdivision. A looped street would have to tie constructed in. environmentally sensitive land and would require significant excavation and/or fill. With the proposed cul de sac, preservation of the stream bed and stormwater conveyance system will be achieved. This will serve to benefit the general welfare of the public at large. Therefore, staff finds no. basis to determine any detriment will occur to the public health, safety, or welfare nor does staff find that there is any injury to neighbors :as a result of allowing the three additional units on this cul de*sac..-No additional conditions -are warranted in this case. _ dings for Curb Tight Sidewalk TCDC 18 810 030(L) Curti tight sidewalks in the area proposed will not be detrimental to the public health, safety and welfare or injurious to the rights of other property- owners. (The curb tight sidewalk can be considered safe because the area behind the sidewalk has a flat spot which allows pedestrians to keep to the outside while walking.) Curb tight sidewalks are used often and are an alternate tocatinn in manv 225 ASH CREEK ESTATES SUMMSION -REMAND' STAFF REPORT (SUB2003-00010) imilar public streets throughout the city.'This is not a safety concern. Instead, this detail is used ere only a few curb cuts are proposed. Planting strips provide for street furniture and places to put mailboxes, power poles, streetlights, telephone pedestals, and power pedestals. This area does not have many of these features. In addition, as discussed above, the traffic in the area of the proposed adjustment will be traveling relatively slowly due to the topography of the road. With a normal sized sidewalk, there will not be pedestrian/vehicle conflicts. The curb-tight sidewalks result in less impact to the stream, and a healthy environment contributes to. public health. "c. The adjustment is necessary for the preservation and enioyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the regulations of this title. Findings for Curb Tight Sidewalk TCDC 18 810 030(L) Without granting the adjustment, the applicant would be required to amend the Division of State Lands and Army Corps joint wetland permit. One aspect these agencies seek in Wetland fill/encroachment permits is minimization of disturbance to the resource. It is conjecture to speculate that the applicant would not be able to obtain' such an amendment to their permit; however, it is important to consider the possibility. Without the DSL/Army Corps approval, the project would not be allowed to proceed, depriving the applicant of the ability to develop the property at the allowed density. The other hardship that would be encountered is the.additional cost associated with either additional fill-, or. larger retaining walls. Since the value of the exaction for the roadway stream crossing is already disproportionate, additional costs placed on this crossing result in an exceeding hardship on the applicant. The applicant would therefore be denied the rights to develop his property ithin the normal limits of takings law. As the findings for granting the adjustments have been met, no additional conditions of approval are warranted. 4. ASSIGNMENT OF ERROR 5(K) Lastly, LUBA found that since there had been no tree plan filed to establish the methods and extent of tree protection requirements, it was premature to determine whether sufficient protection had been afforded to plant materials. The text of their discussion follows: K. Landscaping One of the specific planned development criteria is TCDC 18.350.100(B)(3)(g)(1).14 Petitioner contends that-the city eired in counting the 44 percent of the site that will be included in the open space and drainage tract on the site, which will be - left in its current undeveloped state, in applying the TCDC 18.350.100(B)(3)(g)(1) landscaping requirement. Petitioner contends that TCDC 18.350.100(B)(3)(g)(1). requires more proactive landscaping efforts on the part of the applicant. The city's interpretation of TCDC 18.350.100(B)(3)(g)(1) to allow the open space area that is to be left in its natural state to be counted toward the TCDC 18.350.100(B)(3)(g)(1) 20% landscaping requirement is implicit. Record 29. The city contends- that it is a sustainable interpretation under ORS 197.829(1) and Church. We agree with the city. 14TCDC 18350. I OO(B)(3)(g)(1) imposes the following requirement: Residential Development: In addition to. the requirements of subparagraphs (4) and (5) of section a of this subsection, a minimum of 20 percent of the site shall be landscaped[]" ASH CREEK ESTATES SUBDMSM -R~ STAFF REPORT (SUB2009-OMO) 226 i Petitioner also cites TCDC 18.745.030(E) and TCDC 18.350.100(B)(3)(a)(5) and argues that the plicant's landscape plan fails to protect existing vegetation "as much as possible." or replace trees,'-5 The city Des not respond to petitioner's contention concerning preservation of vegetation during construction under TCDC 18.745.030(E). Accordingly, we sustain that part of subassignment of error 5(K-). (Emphasis added). Petitioner's contention regarding TCDC- 18.350.100(B)(3)(a)(5) is not clear. We have already sustained petitioner's subassigntent of error 5(1).' Until that deficiency is considered by the city on remand, it is premature to consider whether there is any obligation to replace any trees in the- area to be developed, beyond the replacement trees that are already proposed. This subassignment of error is sustained in part. ADDITIONAL. FINDINGS AND ANALYSIS LUBA had found that since the applicant had not prepared a tree plan, there. was inadequate evidence to evaluate the petitioner's claim that vegetation was not being protected. The applicant has submitted the required tree plan, including a protection program. Apart from the areas that will be disturbed to construct the infrastructure (sewer, water, storm drainage, streets, etc.) and the lots that will be graded for soil stability and proper drainage, the remainder of the site will be required to be protected from disturbance. The applicant will be required to erect protection fencing. around each tree or group of trees to be retained. To ensure that the remaining vegetation is protected as much as possible, the following conditions should be required. Recommended Conditions of Approval (#55, 56, 57, 58): Prior to commencing any site work, the applicant shall submit -construction drawings that include the approved Tree Removal, Protection and Landscape Plan. The "Tree Protection Steps" identified in Teragan & Associates Letter of November 19, 2004 shall be reiterated in the construction documents. The plans shall also include a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. Prior.to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall.allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to verify that the tree protection measures are.performing adequately: Failure to follow the plan, or maintain tree protection fencing in the designated locations shall be-grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. Prior to final plat approval, the applicant shall ensure that the Project Arborist has submitted written reports to the City Forester, at least, once every two weeks, from initial tree protection zone (TPZ) fencing installation, through site work, as he monitors the construction activities "'TcDC 18.745.030(E) provides: tection of existing vegetation- Existing vegetation on a site shall be protected as much as possible. The developer shall provide methods for the protection of existing vegetation to remain during the construction process; and The plants to be saved shall be noted on the landscape plans (e.g., areas not to be disturbed can be fenced, as in snow fencing which can be placed around individual trees)- TCDC 18350.100(B)(3)(a)(5) provides: "Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal-" ASH CREEK ESTATES SUBOMSION'REMAND' STAFF REPORT (SUB2003.00010) 227 JTY M ►MCH HFAR[W. 2IRam.S and progress. These reports should include any changes that occurred to the TPZ as well as the condition and location of the tree protection fencing. If the amount of TPZ was reduced then the Project Arbonst shall justify-why the fencing was moved, and shall certify that the construction activities, to the trees did not adversely impact the overall and long-term health and stability of the tree(s). If the reports are not submitted or received by the City Forester at the scheduled intervals, and if it appears the TPZs or the Tree Protection Plan is not being followed by the contractor, the City shall stop work on the project until an inspection can be done by the City Forester and the Project ArborisL This inspection will be to evaluate the tree protection fencing, determine if the fencing was.moved at any point during construction, and determine if any part of the Tree Protection Plan has been violated. Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to* commencing. construction, and shall remain in place through the duration of home building. After approval. from the City Forester, the tree protection measures may be removed. SECTION VII. CONCLUSION In conclusion, the City asserts that the applicant has adequately responded to the errors identified by UBA, and has supplemented the record with additional information and evidence with which to evaluate findings. Staff concurs with the applicant on these findings, and has recommended several additional conditions of approval to ensure that these standards and practices are.implemented as part of this final decision. Staff therefore recommends *approval of the Ash Creek Estates Subdivision, case file SUB2003-00010/ ZON2003-00003/ PDR2003-00004/ SLR2003-00005/ VAR2003-00036/ VAR2003- 00037. January 25, 2005 PREPARED BY: Morgan Tracy DATE Associate Planner January 25, 2005 APPROVED BY: Dick Bewersdorff DATE Planning Manager 228 ASH CREEK ESTATES SUBDIVISM IZEINAND' STAFF REPORT (SUB2003-00010) MTV rni x~a ucenwr_ ~rarxvK EXHIBIT B • CITY OF TIGARD, OREGON RESOLUTION N0. 03-k A RESOLUTION TO AMEND RESOLUTION 03-58, APPROVING THE ASH CREEK ESTATES PLANNED DEVELOPMENT, TO CORRECT Tim REFERENCED DATE OF THE APPLICANT'S LETTER ESTABLISHING THE CONDMONS OF APPROVAL. WHEREAS, the Planning Commission reviewed the Ash Creek Estates Planned Development proposal at a public hearing at its meeting of July 7, 2003; and WHEREAS, the Planning Commission made motions to both deny and approve the application, both of which failed in a 4-4 tie vote; and FA , the by-laws of the Planning Commission and Robert's Rules of Order specify that if an ' VWI affirmative vote in favor of an application is not attained, the application is denied Since the denial occurred de facto, no findings were adopted, and the denial is without prejudice; and WHEREAS; the City Council held a public hearing on the appeal of the denial on August 12, 2003 which A-as continued to September 9, 2003 to take additional testimony; and WHEREAS; the City Council reviewed the testimony, submittals, and staff report on August 12, 2003 and September 9, 2003, and reviewed findings and conditions of approval that were prepared by the applicant, Winwood Construction; on October 28,2003; and WHEREAS, the City Council concluded that the proposed development with the conditions of approval as prepared by the applicant; would be in compliance with all applicable decision criteria; and WHEREAS, the City Council adopted a resolution approving the Ash Creek Estates Subdivision that included a reference to Exhibit A, the applicant's letter dated September 26; 2003, where the correct date of that letter and Exhibit as included with the previous resolution was in fact October 10, 2003, and Council wishes that the record reflect the accurate date; NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that SECTION l: The Tigard City Council approves applications SLM2003-0 lONDR2003- 00004/ZON2003-000031SLR2003-000051`VAR2003-00036/VAP,2003-0OU37 - Ash Creek Estates Subdivision, subject to the conditions of approval stated in the letter dated October 10. 2003, from Steve Kay of Kurahashi Associates to the City of Tigard, attached with Resolution 03-58 and incorporated herein by this reference. RESOLUTION NO. 03 - (fl Pagel 229 • SECTION 2: The Tigard City Coancnl adopts tlne Endings stated in the Staff Report to the Planning Common, attached wifh ResohAm 03-58 (as Exhibit B) and incorporated hen~ia by this refumnm The Council f dher adopts the findings stated in the applicant's October lOm 2003 letter, attached with ResohWon 03-58 (as Extnbit A) and incorporated,herem by this reference. . SECTION 3: This resolution is effcctive nmnediately upon passage- PAS SED: Ibis dayof R/Wem&it) 2003_ o - >gard EST: _ . City Recorder - City of Tigard • RESOLD IONNO. 03 - Page 2 230 EXHIBIT C CITY OF TIGARD OREGON RESOLUTION NO. 03- A RESOLUTION AND FINAL ORDER APPROVING THE ASH CREEK ESTATES SUBDIVISION (SUBDIVISION (SUB) 2003-00010/PLANNED DEVELOPMENT REVIEW (PDR) 2003-008047LONE CHANGE (ZON) 2003-00 NSENSITIVE LANDS REVIEW (SIR) 2003-00WYADJUS MEW (VAR) 2003400361ADJUSTMENT (VAR) 2003-00037), ADOPTING FINDINGS AND mposlm CONDITIONS. WHEREAS, the Planning Commission reviewed.this case at a public heating at its meeting of July 7, 2003; and WHEREAS, the Planning Commission made motions to both deny and approve the application, both of which farted in a 44 tie vote; and WHEREAS, the by-laws of the Planning Commission and Robert's Rules of Order specify that if an affumative vote in favor of an application is not attained, the application is denied. Since the denial occurred de facto, no findings were adopted, and the denial is without prejudice; and WHEREAS; the City Council held a public hearing on the appeal of the denial on August 12, 2003 which • was continued to September 9, 2003 to take additional testimony, and WHEREAS, the City Council reviewed the testimony, submittals, and staff report on August 12, 2003 and September 9, 2003, and reviewed findings and conditions of approval that were prepared by the applicant, Wimvood Construction, on October 28, 2003; and WHEREAS, the City Council concluded that the proposed development with the conditions of approval as prepared bydhe applicant, would be in compliance with all applicable decision criteria; NOR', THEREFORE, BE IT RESOLVED by the Tigard City Council that: SECTION 1: - The Tigard City Council approves applications SUB2003-Ml-0/PDRM3- 00004,/ZON2003-00003/SLR2003-00005/VAR2003-000361VAR2003-00037 - Ash Creels Estates Subdivision, subject to the conditions of approval stated in the letter dated September 26, 2003, from Steve Kay of Kurahashi Associates to the City of Tigard, attached hereto as Exhibit A and incorporated herein by this reference. SECTION 2: The Tigard City Council adopts the findings stated in the Staff Report to the Planning Commission, attached hereto as Exhibit B and incorporated herein by this reference. The Council f rthei adopts the findings stated in the above-referenced Exhibit A. • RESOLUTION NO. 03 Page l 231 4 onism~ "vet notice o-e dec►$' 2003• ~i~xon is f L 't £~jOls 3= om 6k, da►`I of POSED CAI 2? OL[JTi0 pate?, • Exhibit A Steve Kay Kurahashi and Associates 15580 SW Jay Street, Ste 200 Beaverton, OR 97006 October 10, 2003 City ofTigard City Council Members 13125 SW Hall Blvd. Tigard, OR 97223 Re: Findings For Ash Creek Estates Subdivision, SUB20034)0010 Dear City Council Members: On September 9, 2003, the City Council approved the application for the Ash Creek Estates Subdivision, SUB2003-00010. On behalf of the applicant, Windwood Construction; we are submitting findings that demonstrate how the applicant has met the approval criteria identified in the Staff Report. Applicable development criteria, responses to those criteria, and additional suggested Conditions of Approval are provided below. APPLICABLE REVIEW CRITERIA AND FINDINGS: CHAPTER 18350: PLANNED DEVELOPMENTS The Planned Development Process: Section 18350.030 states that there are three elements to the planned development approval process, as follows: • The approval of the planned development overlay zone; • The approval of the planned development concept plan; and • The approval of the detailed development plan. Findings: As required, the applicant has followed the Planned Development process for this application. This application has been submitted for approval of the planned development overlay zone, concept plan, and detailed plan. Applicability of the Base Zone Standards: Section 18350.070 requires compliance to specific development standards: The provisions of the base zone are applicable as follows: Lot dimensional standards: The minimum lot size, lot depth and lot width standards shall not apply except as related to the density computations under Chapter 18.715; 233 -r. 0 • Findings: As allowed under the planned development process, the applicant has requested smaller lot sizes than required by the R-4-5 zone. Proposed lot widths are 50 feet or wider and lot depths are 68-153 feet deep. As required by the Conditions of Approval, the applicant will be required to modify Lot 29 so that it meets frontage standards. The applicant has met the density requirements as discussed later in these findings. Site coverage: The site coverage provisions of the base zone shall apply; Findings: The R4.5 zone does not have site coverage requirements, therefore'this standard does not apply. Building height: The building height provisions shall not apply; Findings: The applicant has not proposed an alternative height standard with this application, therefore the application is subject to the standards of the base zone. Structure setback provisions: Front yard and rear yard setbacks for structures on the perimeter of the project shall be_ the same as that required by the base zone unless otherwise provided by Chapter 18360; Findings: The applicant has met this standard by submitting a site plan illustrating building envelopes within the development. Perimeter setbacks are as required by the base zone, and are further described as a 15-foot rear yard setback on Lots 1-13, a 20-foot front yard setback for Lots 24-27, and a 10-foot south side yard for Lot 29, a flag lot. In the interior of the site, the applicant proposes an 8-foot front yard setback to primary structures and porches. Setbacks to the face of the garage is proposed to remain at 20 - feet from the front property line of Lots 12-26. Setbacks to the garage on Lots 1-11 are proposed to be 22.5 feet, where sidewalks are 4.5 feet on to those lots. The side yard setback provisions shall not apply except that all detached structures shall meet the Uniform Building Code (UBC) requirements for fire walls; Findings:-The applicant proposed to reduce the side yard setback from 5 to 3 feet, which is the minimum separation required for UBC compliance. No projections including bay windows or chimneys, shall be allowed into the side areas. Therefore, this criterion has been met. Front yard and rear yard setback requirements in the base zone setback shall.not•apply to structures on the interior of the project except that: (1) A minimum front yard setback of 20 feet is required for any garage structure which opens facing a street; (2) A minimum front yard setback of 8 feet is required for any garage opening for an attached single-family dwelling facing a street as long as the required off-street parking spaces are provided. Findings: As mentioned previously, the applicant proposes an 8-foot front yard setback to primary structures and porches and setbacks to the face of the garage is proposed to. remain at 20 to 22.5 feet. However, several of the rear setbacks have been modified with this application. Staff has recommended that the rear yard setbacks for lots with depths of 100 feefor more (e.g. lots 13 through 18) not be reduced As required by the staffs Conditions of Approval, the applicant is required to maintain a 20- foot rear yard setback for Lots 27 and 28. With the'Condition of Approval, this criterion has been met. - 2 234 1 i Other provisions of the base zone: All other provisions of the base zone shall apply except as modified by this chapter. Findings: Required provisions of the base zone have been satisfied by the applicant. All other provisions of the base zone will be met during the budding permit phase. PD Approval Criteria: 18350.100 Specific planned development approval criteria. The Commission shall make findings that the following criteria are satisfied when approving or approving with conditions, the concept plan. The Commission shall make findings that the criteria are not satisfied when denying an application. AD the provisions of the land division provisions, Chapters 18.410,18.420 and 18.430, shall lie met; Findings: The applicant has requested to subdivide the property concurrently with the planned - development approval, therefore this criterion has been met. The applicant's compliance with Chapters 18410, 18.420 and 18.420 is discussed below. Except as noted, the provisions of the following chapters shall be utilized as guideline. A planned development need not meet. these requirements where a development plan provides alternative designs and methods, if acceptable.to the Commission, that promote the purpose of this section. In each case, the applicant must provide fmdings to justify the modification of the standards in the chapters listed on Subsection 3 below. The developer may. choose to provide or the commission may require additional open space dedication and/or provision of additional amenities, landscaping or tree planting. Chapter 18.715, Density Computation and Limitations. Unless authorized below, density shall be governed by the density established in the underlying zoning district. The Commission may further authorize a density bonus not to exceed 10% as an incentive to increase or enhance open space, architectural character and/or site variation incorporated into the development. These factors must make a substantial contribution to objectives of the planned development. The degree of distinctiveness and the desirability of variation achieved shall govern the amount of density increase which the Commission may approve according to the following: • A maximum of 3% is allowed for the provision of undeveloped common space. • A maximum of 3% is allowed for landscaping; streetscape development; developed open spaces, plazas and pedestrian pathways and related amenities; recreation area development, and/or retention of existing vegetation; • A maximum of 3% is allowed for creation of visual focal points; use of existing physical amenities such as,topography, view, and sun/wind orientation; . • A maximum of 3% quality of architectural quality and style; harmonious use of materials; innovative building orientation or building grouping; and/or varied use of housing types. Findings: The applicant has not requested any modifications to the density standards, therefore this - 235 standard has been met. Density will be fiuther discussed under Chapter 18.715 below. Chapter 18.730: Exceptions To Development Standards Findings: The applicant has requested modifications to the lot standards under the planned development process, therefore this criterion is not applicable. Chapter 18.795: Visual Clearance Areas Findings: As required, the applicant has submitted' plans which show that visual clearance areas at street intersections will be maintained free from obstructions taller than 3 feet in height. The applicant's plans identify that vision clearance areas and sight distance requirements will be met at the intersection of Uh Avenue and Street `A', as well as at the intersection of the proposed Street `A' and the new private street. Compliance with vision clearance requirements will be confirmed by a post improvements-construction sight distance certification and through the building permit process for all homes'to be constructed within the development. 'therefore, this criterion has been met by the applicant. Chapter 18.745: Landscaping And Screening Findings: There is no landscaping buffer requirementbetween the proposed detached single-family. development and the adjacent detached single-family developments. However, the applicant is required to landscape 20% of the site because: of the request fora Planned Development. The applicant has provided a street tree plan for 7e Avenue and has proposed to leave the open space tract in its natural state to meet this criterion. The open'space accounts for 44% of the site, which already contains more than the 201/6 gross site area of landscaped areas, therefore this'criterion is met Chapter 18.765: Off-Street Parldng And Loading Requirements Findings: The minimum requirement for household living is one space for every dwelling unit the applicant has proposed 2-car garages and another 2 spaces into each of each garage for every lot within the development, therefore this criterion is satisfied. Chapter 18.705: Access, Egress And Circulation Findings: The applicant has provided access to every lot through a minimum 10-foot wide driveway that connects to a public or private street The proposed street improvements are evaluated later in this report. Chapter 18.780: Signs Findings: No signs are requested with this application: There has been a proliferation of sign violations from marketing new subdivisions. In accordance with a policy adopted by the Director's Designee, all new subdivision developers must enter into a sign compliance agreement to facilitate a more expeditious court process for citations The applicant has been required to sign this compliance agreement through a condition of approval - 4 236 1 In addition, the following criteria shall be met: Relationships to the natural and physical environment: The streets, buildings and other site elements shall be designed and located to preserve the existing trees, topography and- natural drainage to the greatest degree possible; . Findings: The applicant has proposed to remove the trees within the developable area and retain all trees in the open space tract, except where they are impacted by public facility improvements. Removal of these trees is allowed due to the site's forest.timber deferral status. Since the open space tract also contains the natural drainage way, it will be preserved by the proposal. The drainageway will only be slightly impacted by the City required extension of 70 Avenue, but-this impact will be minimized by utilizing curb tight sidewalks to limit fill encroachment. During the hearing, the applicant further proposed to retain trees within a 15 foot perimeter where proposed lots abut existing homesites on the north and east boundaries of the site (Lots 1-13). Additionally, the applicant proposed enacting a CC&R related to continued preservation of trees left on site following development. An erosion control and grading plan will be required during the engineering approval process to ensure sensitive areas will not be impacted by sedimentation or erosion, as well as to mitigate off-site impacts. The erosion control plan will ensure that areas where landform alteration takes place.will be replanted. The applicant has also submitted a geotech report, which indicates which areas should and should not be developed. As a Condition of Approval, the applicant will be required to undertake firther geotechnical investigations in for Lots 13-15, 22 and 23. The applicant, is also conditioned to have the geotechnical engineer review the proposed building placement.grading plans prior to final plat approvaL Therefore, as required, the applicant has met this criterion.to the greatest extent possible. Structures located on the site shall not be in areas subject to ground slumping and sliding; Findings: The applicant's geotech report indicates areas of slumping and sliding in the proposed open space tract, where development is not proposed. Lots 13-15 and between lots 22 and 23 have steep slopes and groundwater that was encountered during digging of the test pits. As a Condition of Approval, the applicant will be required to undertake further investigations in these areas. There shall be adequate distance between on-site buildings and other on-site and.off-site buildings on adjoining properties to provide for adequate light and air circulation and for fire protection; Findings: The applicant does not propose to reduce the rear setbacks for Lots 1-12. For the interior of site, the street and front yard setbacks will establish ample distance between the homes. The applicant also proposes 3-foot side yards between interior lots, which complies with UBC standards. Therefore, this criterion has been satisfied. The structures shall be oriented with consideration for the sun and wind directions, where possible; and Findings: The applicant has oriented proposed structures in a north-south direction to the extent possible to provide for opportunities to maximize southern glazing exposure. 5 237 Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal. Findings: As mentioned previously, removal of trees outside the sensitive land area is allowed due to the site's forest timber deferral status. Some trees within the open space tract will require removal to account for utility construction and for the street crossing, but these have been design to minimize impacts on trees. The applicant has preserved trees in the open space tract to the maximum extent possible. Buffering, screening and compatibility between adjoining uses; Buffering shall be provided between types of land uses, e.g., between single-family and multi-family residential, and residential and commercial uses; Findings: The applicant is proposing a detached single-family residential development and adjacent properties are also detached single-family residential developments. Therefore, according to the development code, this criterion is not applicable to this application. In addition to the requirements of the buffer matrix (Table 18.745.1), the following factors shall. be considered in determining the adequacy and extent of the buffer required under Chapter 18.745: • The purpose of the buffer, for example to decrease noise levels, absorb air pollution, filter dust, or to provide a visual barrier; . The size of the buffer needs'in terms of width and height to achieve the purpose; • The direction(s) from which buffering is needed; • The required density of the buffering; and • Whether the viewer is stationary or mobile. Findings: There are no buffering requirements between the proposed single-family homes and the existing single-family homes; therefore this criterion is not applicable. On-site screening from view from adjoining properties of such activities as service areas, storage areas, parking lots and mechanical devices on roof tops shall be provided and the following factors shall be considered in determining the adequacy of the type and extent of the screening: (a) What needs to be screened; (b) The direction from which it is needed; and c) Whether the screening needs to be year-round. Findings: There are no service areas, storage areas, parking lots or mechanical devices proposed with this development,. therefore this criterion is not applicable. Privacy and Noise: Non-residential structures which abut existing residential dwellings shall be located on the site or be designed in a manner, to the maximum degree possible, to protect the private areas on the adjoining properties from view and noise; Private outdoor area - multi-family use: Shared outdoor recreation areas - multi-family use: Findings: The applicant is proposing single-family dwelling units- These criteria relate to non-residential or multi-family structures- - 6 238 Access and Circulation: The number of allowed access points for a development shall be provided in Chapter 18.705; Findings: Lots 1-27 have direct frontage to a local public or private street in the interior of the site. As a Condition of Approval, Lots 28 and 29 will share a common driveway to 7e Avenue, a Neighborhood Route. All circulation patterns within a development must be designated to accommodate emergency vehicles; and Findings: Tualatin Valley Fire and Rescue have reviewed the proposal and indicated that the proposed circulation system is acceptable if certain conditions are addressed. To satisfy these conditions, the applicant must satisfy the following conditions before by the applicant is issued building permits: 1. FIRE APPARATUS ACCESS ROAD WIDTH AND VERTICAL CLEARANCE: Fire apparatus access roads shall have an unobstructed width of not less than 20 feet (15 feet forone . or two dwelling units and out buildings), and an unobstructed vertical clearance of not less than 13 feet 6 inches. (UFC Sec. 902.2.2.1) Where fire apparatus roadways are less than 28 feet wide, "NO PARKING" signs shall be installed on one side of the roadway and in turnarounds as needed. Where fire apparatus roadways are 32 feet wide or more, parking is not restricted. (UFC Sec. 902.2.4) 2. NO PARKING SIGNS: Where fire apparatus roadways are not of sufficient width to accommodate parked vehicles and 20 feet of unobstruted driving surface, "No Parking" signs shall be installed on one or both sides of the roadway and in turnarounds as needed. (UFC Sec. 902.2.4) Signs shall conform to the City if Tigard engineering-standards. 3. TURNING RADIUS: The inside turning radius and outside turning radius shall not be less than 25 feet and 45 feet respectively, measured from the same center point. (UFC Sec. 902.2.2.3) 4. GRADE: Private fire apparatus access roadway grades shall. not exceed as average grade of 10 percent with a maximum grade of 15 percent for lengths of no more than 200 feet. Intersections and turnarounds shall be level (maximum 5%) with the exception of crowing for water run-off. Public streets shall have a maximum grade of 15%. (UFC Sec. 902.2.2.6) 5. SINGLE FAMILY DWELLINGS AND DUPLEXES - FIRE HYDRANTS: Fire hydrants for single family dwellings, duplexes and subdivisions, shall be placed at each intersection. Intermediate fire hydrants are required if any portion of a structure exceeds 500 feet from a hydrant at an intersection as measured in an approved manner around the outside of the structure and along approved fire apparatus access roadways. Placement of additional fire hydrants shall be as approved by the Chief_ (UFC Sec. 903.4.2.2) 6. FIRE HYDRANT DISTANCE FROM AN ACCESS ROAD: Fire hydrants shall be located not more than 15 feet from an approved fire apparatus access roadway. (UFC Sec. 903.42.4) 7. REFLECTIVE HYDRANT MARKERS: Fire hydrant locations shall be identified by the installation of reflective markers. The markers shall be blue. They shall be located adjacent-and - 7 239 to the side of the centerline of the access road way that the fire hydrant is located on. Incase that there is no center line, then assume a centerline, and place the reflectors accordingly. (UFC Sec. 901.4.3) 8. SINGLE FAMILY DWELLINGS - REQUIRED FIRE FLOW: The minimum available fire flow for single family dwellings and duplexes shall be 1,000 gallons per minute. If the structure(s) is (are) 3,600 square feet or larger, the required fire flow shall be determined according to UFC Appendixx Table A-III-A-1. (UFC Appendix III-A, Sec. 5) 9. ACCESS AND FIRE FIGHTING WATER SUPPLY DURING CONSTRUCTION: Approved fire apparatus access roadways and fire fighting water supplies shall be installed and operational prior to any other construction on the site or subdivision (UFC Sec. 8704) Provisions shall be made for pedestrian and bicycle ways if such facilities are shown on an adopted plan. Findings: SW 74's Avenue, which fronts the development, is a Neighborhood Route but has not been designated for bike lanes- This criterion does not apply- Landscaping and open space: Residential Development: In addition to the requirements of subparagraphs (4) and (5) of section a of this subsection, a minimum of 20 percent of the site shall be landscaped; Findings: The open space and drainage tracts of this proposal account for 44% of the site area That in combination of the landscaping on the site will exceed the minimum 20% landscape criteria. Much of the open space area will remain in its natural state, however, areas of steep slopes that are disturbed must be replanted according to the geotech report. Additionally, areas within the drainageway and wetlands will require mitigation replanting per Clean Water Services and the Division of State Lands requirements- Therefore, this criterion has been met. Public Transit: Provisions for public transit may be required where the site abuts a public transit route. The required facilities shall be based on: • The location of other transit facilities in the area; and • The size and type of the proposed development The required facilities shall be limited to such facilities as: • A waiting shelter, • A turn-out area for loading and unloading; and • Hard surface connecting the development to the waiting area Findings: The site does not abut a public transit route, there fore this criterion is not applicable. Signs: Findings: No signs are proposed with this development. There has been a proliferation of sign violations from marketing new subdivisions. In accordance with a policy adopted by the Director's Designee, all new - 8 240 subdivision developers must enter into a sign compliance agreement to facilitate a more expeditious court process for citations. The applicant has been required to sign this compliance agreement through a condition of approval Parking: All parking and loading areas shall be generally laid out in accordance with the requirements set forth in Chapter 18.765; Up to 50% of required off-street parking spaces for single-family attached dwellings may be provided on one it more common parking lots within the planned development as long as each single-family lot contains one off-street parking space. Findings: The applicant has proposed that the homes will have minimum 2-car garages and another 2 spaces in front of each garage in the driveway for every lot within the development, therefore this criterion is satisfied- Drainage: All drainage provisions shall be generally laid out in accordance with the requirements set forth in Chapter 18.775, and the criteria in the adopted 1981 master drainage plan;. Findings: The applicant's engineer has prepared preliminary calculations which indicate that meeting storm water drainage standards is technically feasible, as it has been shown on the submitted preliminary plans. To ensure that standards for storm water drainage will be met, the applicant has been conditioned to comply with applicable City of Tigard and Clean Water Services storm water requirements. Floodplain dedication: Where landfill and/or development is allowed within or adjacent to the 100-year floodplain, the City shall require consideration of the dedication of sufficient open land area for a greenway adjoining and within the floodplain. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway with the floodplain in accordance with the adopted pedestrian bicycle pathway plan. Findings: Ther e are no areas within the 100-year floodplain on the site. Therefore, this standard is not applicable. Shared Open Space: Requirements for shared open space: Where the open space is designated on the plan as common open space the following applies: • The open space shall be shown on the final plan and recorded with the Director, and • The open space shall be conveyed in accordance with one of the following- methods: . By dedication to the City as publicly-owned and maintained as open space. Open space proposed for dedication to the City must be acceptable to it with regard to the size, shape, location, improvement and budgetary and maintenance limitations; By leasing or conveying title (including beneficial ownership) to a corporation, home association or other legal entity, with the City retaining the development rights to the _ 9 241 property. The terms of such lease or other instrument.of conveyance must include provisions suitable to the City Attorney for guaranteeing the following: • The continued use of such land for the intended purposes; • Continuity of property maintenance; • When appropriate, the availability of funds required for such maintenance; • Adequate insurance protection • Recovery for loss sustained by casualty and condemnation or otherwise. By any method which achieves the objectives set forth in Subsection 2 above of this section. Findings: As a condition of approval, the applicant will be required to convey title of the proposed open space as a separate tract to a Homeowner's-Association in accordance with the requirements of the Tigard Development Code and Clean Water Services requirements for buffers. CHAPTER 18.370: SPECIAL ADJUSTMENTS Adjustments to development standards within subdivisions (Chapter 18.430). The Director shall consider the application for adjustment at the same time he/she considers the preliminary plat. An adjustment maybe approved, approved with conditions, or denied provided the Director finds: Findings: The applicant is requesting an adjustment to the street improvement standards on SW 74th Avenue and an adjustment to the cul-de-sac standards. On 7e Avenue, the applicant is requesting an adjustment to allow the sidewalk to be curb tight in order to reduce the amount of fill required in the drainageway area. The applicant has also requested that the cul-de-sac design standards be adjusted-to allow 23 homes access to the cul-de-sac verses the allowed standard of 20 homes, and to allow a:cul-de- sac longer than 200 feet. These adjustments are addressed below. There are special circumstances or conditions affecting the property, which are unusual and . peculiar to the land as compared to other lands similarly situated; Findings: The applicant is requesting an adjustment to the 5-foot planter. strip along 7e Avenue to reduce 1,100 additional square feet of impact to the drainageway and wetland area. The applicant proposes this curb tight sidewalk for the special circumstance where the development is required to cross the stream- Outside the resource area, the sidewalk will meet the required public street standards. Due to the presence of the sensitive lands, the development width of the property makes a looped street unfeasible. Also, because of existing development patterns adjacent, to the site, the cul-de-sac could not be extended to the site's east property line. The applicant was able to extend a new public street to the north property line for future connectivity. The length of the cul-de-sac is the primary reason to exceed the 20 home maximum standard on this private street. Because of the special circumstances affecting this property, this criterion has been satisfied. The adjustment is necessary for the proper design or function.of the subdivision; Findings: The adjustment request for the curb tight sidewalk is necessary to reduce impacts to the 10 . 10 242 .l 1 • drainageway and wetlands- The adjustment for the cul-de-sac length is necessary to provide access to ~azY Lots 3-19 and to allow a turn around for emergency equipment and garbage tricks. The adjustment to allow more than 20 units to access the cul-de-sac is a result of both the length of the resulting cul-de-sac, and the desire to eliminate the need for a second redundant access serving three lots. Providing this second access would have reduced the amount of area available for buildings, with the result of eliminating the lots being served by it. Therefore, this criterion has been satisfied. The granting of the adjustment will . not he detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property; and Findings: The Fire District has reviewed the proposed street design and has provided no objections to these adjustments. There is no evidence that these adjustments will be detrimental to the health safety or welfare to other property owners surrounding the site. The adjustment is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship, which would result from strict compliance with the regulations of this title. Findings: Due to existing development patterns, the natural resources, and the shape of the site, the adjustment is necessary for the applicant to make use of substantial property rights.. The applicant is proposing to build within the density prescnbed for this, site. The criteria for granting-these adjustments to the street design, cul-de-sac length, and sidewalk standards have been satisfied CHAPTER 18.330: ZONE CHANGE: A recommendation or a decision to approve, approve with conditions or to deny an application for a quasi-judicial zoning map amendment shall be based on all of the following standards: Demonstration of compliance with all applicable comprehensive plan policies and designations; Findings: This application has been reviewed under the standards of the Tigard Development Code, which is implemented under the comprehensive plan. This criterion has been satisfied Evidence of change in the neighborhood or community or a mistake or inconsistency in the comprehensive plan or zoning map as it relates to the property which is the subject of the development application. Findings: The applicant satisfies the criteria for a zone change to place the Planned Development Overlay zoning onto the property. CHAPTER 18.430: SUBDIVISIONS Preliminary Subdivision Plat Approval Criteria: 18.430.040 Approval criteria: The approval Authority may approve, approve with conditions or deny a preliminary plat based on the following approval criteria: _ I1 11 243 • a The proposed preliminary plat complies with the applicable zoning ordinance and other applicable and regulations; Findings: As illustrated by this report, the proposed plat complies with all applicable ordinances and regulations. The proposed plat name is not duplicative or otherwise satisfies the provisions of ORS Chapter 92; Findings: As required, the applicant will provide an approved plat name reservation prior to final plat approval. The streets and roads are laid out so-as to conform to the plats of subdivisions and maps of major partitions already approved.for adjoining property as to width, general direction and in all other respects unless the City determines it is in the public interest to modify the street or road pattern; and Findings: As mentioned previously, site conditions and existing development limit the applicant to provide street stubs to the east and south, however, a street stub has been provided to the property to the north. The applicant is also proposing to extend 7e Avenue to the south. This criterion has been met. An explanation has been provided for all common improvements. Findings: The applicant has provided an explanation for all common improvements. As-required, the applicant will provide an approved plat name reservation prior to final plat approvaL CHAPTER 18.510: RESIDENTIAL ZONING DISTRICTS Residential Zoning District: Section 18510.020 The R4.5 zoning district is designated to accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet. Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also permitted conditionally. Findings: This Planned Development is permitted in this district as long as the applicant satisfies all applicable criteria. Development Standards: Section 18510.050 States that Development standards in residential zoning districts are contained in Table 18.510.2: Findings: The proposed development is a Planned Development and is allowed to very from the standards of the base zone. Therefore, the applicant has satisfied these criteria. CHAPTER 18.705: ACCESS AND EGRESS Minimum access requirements for residential use: Section 18.705.030H. . 12 . 12 244 • Access Management (Section 18.705.030JI) Section 18.705.030.H.1 states that an access report shall be submitted with all new development.proposals which verifies design of driveways and streets are safe by meeting adequate stacking.needs, sight distance and deceleration standards as set by ODOT, Washington County, the City and AASHTO. Findings: The applicant's engineer indicates that sight distance will be met. The engineer is required to .provide a post-construction sight distance certificate to ensure that this standard is met. Section 1&705.030.H.2 states that driveways shall not be permitted to be placed in the influence area of collector or arterial street intersections. Influence. area of intersections is that area where queues of traffic commonly form on approach to an intersection. The minimum driveway setback from a collector or arterial street intersection shall be 150 feet, measured from the right-of--way line of the intersecting street to the throat of the proposed driveway. The setback may be greater depending upon the influence area, as determined from City Engineer review of a traffic impact report submitted by the applicant's traffic .engineer.. In a case where a project has less than 150 feet of street frontage, the applicant must explore any option for shared access with the adjacent parcel: If shared access is not possible or practical, the driveway shall be placed as far from the intersection as possible. Findings: The proposed new intersection of Street 'A' and 70 Avenue, a Neighborhood Route, is not within the influence area of Taylor Ferry Road, a collector street. This criterion has been met. Section 18.705.030.H3 and 4 states that the, minimum spacing of driveways and streets along a collector shall be 200 feet. The minimum spacing of driveways and streets along an arterial shall be•600 feet. The minimum spacing of local streets along a local street shall be 125 feet. Findings: The proposed intersection is over 280 feet away from the intersection of 7e Avenue and Barbara Lane. This standard has been met. Vehicular access and egiess. for single-family, duplex or attached single-family dwelling units on individual lots and multi-family residential uses shall not be less than as provided in Table 18.705.1 and Table 18.705.2; Fmdings: As a condition ofapproval, the applicant will be required to provide a minimum 10-foot wide paved accessway for each single-family lot. Vehicular access to multi-family structures shall be brought to within 50 feet of the ground floor entrance or the ground floor landing of a stairway, ramp, or elevator leading to the dwelling units. Findings: Since this is a proposal for a single-family development, this standard does not apply. Private residential access drives shall be provided and maintained in accordance with the provisions of the Uniform Fire Code. Findings: Individual homeowners will maintain the access drives once the property is developed. The - 13 13 245 . Fire District has already reviewed and provided comments on the proposed development, therefore this criterion has been satisfied. Access drives in excess of 150 feet in length shall be provided with approved provisions for the turning around of fire apparatus by one of the following: • A circular, paved surface having a minimum turn radius measured from center point to outside edge of 35 feet; A hammerhead-configured, paved surface with each leg of the hammerhead having a:minimum depth of 40 feet and a minimum width of 20 feet; The maximum cross slope of a required turnaround is 5%. Findings: Since there are no access drives that exceed 150 feet in length, this-criterion does not apply. Vehicle turnouts (providing a minimum total driveway width of 24 feet for a distance of at least 30 feet),.maybe required so as to reduce the need for excessive vehicular bacidng i motions in situations where two vehicles traveling in opposite directions meet on driveways in the excess of 200 feet in length. Findings: There are no access drives that exceed 200 feet in length, therefore this criterion does not apply- Where permitted, minimum width for driveway approaches to arterials or collector streets shall no less than 20 feet so as to avoid traffic turning from the street having to wait for traffic exiting the site. Findings: This site is not adjacent to a collector or arterial, therefore this standard does not apply. To provide for increased traffic movement on congested streets and to eliminate turning movements problems, the Director may restrict the location of driveways on streets and require the location of driveways be placed on adjacent streets, upon the finding that the proposed access would cause or increase existing hazardous conditions to exist which would constitute a clear and present danger to the public health, safety, and general welfare. Findings: The proposed development can comply with all applicable requirements of Chapter 18.705. As a condition of approval, the applicant will provide joint access. with an easement or tract to Lots 28 and 29. In addition, the applicant will be conditioned to demonstrate that all lots can be accessed by a minimum 10-foot wide paved accessway. CHAPTER 18.715: DENSITY COMPUTATIONS Density Calculation: 18.715.020 Definition of net development area. Net development area, in acres, shall be determined by subtracting the following land area(s) from the gross acres, which is all of the land included in the legal description of the property to be developed: 14 14 246 • All sensitive land areas: a. Land within the 100-year floodplain; b. Land or slopes exceeding 25%; c. Drainage ways; and d. Wetlands. • All land dedicated to the public for park purposes; • All land dedicated for public rights-of--way. When actual information is not available, the following formulas may be used: Single-family development: allocate 20% of gross acreage; Multi-family development: allocate 15% of gross acreage.' • All land proposed for private streets; :and • A lot of at least the size required. by the applicable base zoning district, if an existing dwelling is to remain on the site. Calculating maximum number of residential units. To calculate the maximum number of residential units per net acre, divide the number of square feet in the net acres by the minimum number of square feet required for each lot in the applicable zoning district. Findings: The density calculations for the site are as follows: Gross lot area: 407,721 square feet Public Street dedication 17, 828 square feet Private Street dedication 22,670 square feet Drainageway 70,862 square feet Steep Slopes 107,556 square feet • Wetlands (contained in drainageway) Net Developable Area: 188,805 square feet Number of Lots Allowed in Net Developable Area: 25 Lots Residential Density Transfer Rules governing residential density transfer. The units per acre calculated by subtracting land areas listed in Section-18.715.020 A. la - c "from the gross acres may be transferred to the remaining buildable land areas subject to the.following limitations:. 1. The number of units which can be transferred is limited to the number of units which would have been allowed on 25 percent of the unbuildable area if not for these regulations; and 2. The total number of units per site does.not exceed 125 percent of the maximum number of units per gross acre permitted for the applicable comprehensive plan designation. Findings: According to the rules of density transfer, the applicant is able to utilize 25% of the drainageway and steep slopes as part of the net developable area- To calculate the maximum allowed density, the net developable area is divided by the- minimum allowed square footage of the site's zone. Drainageway and steep slopes =178,418. 25% of this constrained area = 44,604 Net Developable area =178,418+44,604 = 233,409 square feet R-4.5 Zone: 233,409 (net developable area)n,500 (minimum allowed s.f for this zone) = 3ldwelling units 15 15 247 • The total number of units allowed is: 125% (gross acreage) x 25 Lots = 31 Lots Therefore, the proposed 29 dwelling units do not exceed the maximum density of the net developable area. This criterion has been met. Calculating minimum number of residential units. As required by Section 18510.040, the minimum number of residential units.per net acre shall be calculated by multiplying the maximum number of units determined in the Subsection B above by 80% (0.8). Findings: The required minimum density is calculated as follows: 25 Lots x 0.80 = 20 Lots The applicant has met this standard. CHAPTER 18.725: ENVIRONMENTAL PERFORMANCE STANDARDS Noise. For the purposes of noise regulation, the provisions of Sections 7.41.130 through 7.40.210. Of the Tigard Municipal Code shall apply. • Visible Emissions. Within the commercial zoning districts and the industrial park (IP) zoning district, there shall be no use, operation or activity which results in a stack or other. pointsource emission, other than an emission from space heating, or the emission of pure uncombined water (steam) which is visible from a property line. Department of Environmental Quality (DEQ) rules for visible emissions (340-21-015 and 340-28-070) apply- Vibration. No vibration other than that caused by highway vehicles, trains and aircraft is permitted in any given zoning' district which is discernible without instruments at the. property line of the use concerned. Odors. The emissions of odorous gases or other matter in such quantities as to be readily detectable at any point beyond the property line of the use creating the odors in prolu'bited. DEQ rules for odors (340-028-090) apply. Glare and heat. No direct or sky reflected glare, whether from floodlights or from high temperature processes such as combustion or welding, which is visible at the lot line shall be permitted, and 1) there shall be no emission or transmission of heat or heated air which is disconcernible at the lot line of the source; and 2) these regulations shall not apply to signs or floodlights in parking areas or construction equipment at the time of construction or excavation work otherwise permitted by this title. • 16 248 Insects and rodents. All materials including wastes shall be stored and all grounds shall be maintained ina manner which will not attract or aid the propagation of insects or rodents or create a health hazard. Findings: Adherence to these standards will be assured through the on-going review of the City of Tigard Code Enforcement Officer after individual lots are purchased by homeowners. A condition will be, imposed to require ongoing compliance with this standard from the applicant and future owners of lots. With this condition,. these standards have been met_ CHAPTER 18.745: LANDSCAPING AND SCREENING Establishes standards for landscaping, buffering and screening to enhance the aesthetic . environmental quality of the City. Findings: There are no landscaping standards that apply to the R4S zone. However, the open s]Zace and drainage tracts constitute approximately 441/o of the site area. Additional landscaping will be planted within lots by individual homeowners. Section 18.745.040. states that all development projects fronting on public street, private street, or a private driveway more than 100 feet in length after the adoption of this title shall be required to plant street trees in accordance with the standards in Section 18.745.040C. Findings: As a condition of approval, the applicant will be required to submit a revised street tree plan that identifies an alternative tree species for either the public or private street to vary the streetscape. Individual lot owners will not be issued a certification of occupancy until the landscaping requirements of .18.745.040 have been met. The applicant agrees that varying the street trees is feasible and that this condition can be met_ Buffering and Screening - Section 18.745.050 Buffering and Screening is required to reduce the impacts on adjacent uses which are of a different type in accordance with the matrices in this chapter (Tables 18.745.1 and 18.745.2). Findings: The applicant has been conditioned to comply with Landscaping and Screening requirements of Chapter 18.745. However, single-family developments are adjacent to the subject site so there are no buffering and screening requirements for this project. During the application appeal process, the applicant proposed the installation of a Leyland cypress hedge along the rear of lots 1-12 for additional privacy screening for existing abutting homes. This is memorialized as a condition of approval. CHAPTER 18.755: NIDMD SOLID WASTE AND RECYCLABLE STORAGE Findings: Waste Management, the correct service provider has reviewed the applicant's proposal and has found it to be acceptable for the removal of solid waste and recyclables. 17 249 CHAPTER 18.765: OFF-STREET PARKING AND LOADING REQUIREMENTS" This chapter is applicable for development projects when there is new construction expansion ofexisting use, or change of use in accordance with Section 18.765.070 Minimum and Maximum Off-Street Parking Requirements. Findings: As mentioned previously, the applicant has proposed 2-car garages and another 2 spaces in front of each garage for every lot within the development, therefore this criterion is satisfied. To ensure that the development complies with this standard, the developer has been'conditioned to submit materials demonstrating that at least one off-street parking space, which meets minimum dimensional requirements and setback requirements as specified in Title 18, will be provided on-site for each new home. CHAPTER 18.775: SENSITIVE LANDS Jurisdictional wetlands. Landform alterations or developments which are only within wetland areas that meet the jurisdictional requirements and permit criteria of the U.S. Army Corps of Engineers, Division of State Lands, CWS, and/or other federal, state, or regional agencies, and are not designed as significant wetlands on the City of . Tigard. Wetland and Streams Corridors.Map., do not require a sensitive lands permit. The City shall require that all necessary permits from other agencies are obtained. All . other applicable City requirements must be satisfied, including sensitive land permits for areas within the 100-year floodplain, slopes of 25% or greater or unstable ground, • drainageways, and wetlands which are not under state or federal jurisdiction. Findings: The wetlands on this site,are not designated as significant by the City. However, as a condition of approval, the applicant will be required to obtain all the necessary permits from the Army Corp, Division of State Lands, and Clean Water Services_ Steep slopes. The appropriate approval authority shall approve, approve with conditions or deny an application request for a sensitive lands permit on slopes of 25% or greater or unstable ground based upon findings that all of the following criteria have been satisfied: 1. The extent and nature.of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for the use; 2. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off -site effects or hazards to life or property; 3. The structures are appropriately sited and designed to ensure structural stability and proper drainage of foundation and crawl space areas for development with any of the following soil conditions: wetthigh water table; high shrink-swell capability; compressible/organic; and shallow depth-to-bedrock; and 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. Findings: As mentioned previously, the applicant has attempted to reduce the area that the development 18 250 impacts the steeps slopes and natural areas of the site. An erosion control and grading plan will be required during the engineering approval process to ensure sensitive areas will not be impacted by sedimentation or erosion, as well as to prevent off-site impacts. The erosion control plan will ensure that areas where landform alteration takes place will be replanted. The applicant has also submitted a geotech report, which indicates which areas should and should not be developed As a Condition of Approval, the applicant will be required to undertake further geotechnical investigations in for Lots 13-15, 22 and 21 The applicant is also conditioned to have the geotechnical engineer review the proposed building placement grading plans prior to final plat approval. Within drainageways. The appropriate approval authority. shall approve, approve with conditions or deny an application request for a sensitive land permit within drainageways based upon findings that all of the following criteriahave been satisfied: 1. The extent and nature of the-proposed land form alteration or development will not create site disturbances to an extent greater..than-that required for the use; Findings: The applicant has proposed to extend 7e Avenue to meet the objectives of the City's Transportation Plan and to serve two lots in the southern portion of the site. The applicant has proposed a curb tight sidewalk to minimize the amount of fill in the stream corridor. The extent of the disturbance is not greater than the proposed use, therefore this criterion has been met. 2. The .proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or. other adverse o"ite and off-site effects or hazards to life or property; • Findings: An erosion control and grading plan will be required during the engineering approval process to ensures sensitive areas will. not be impacted by sedimentation or erosion, as well. as to prevent off-site impacts- The applicant is also conditioned to have the geotechnical engineer review the proposed building placement prior to City approval of construction plans. 3. The water flow capacity of the drainageway is not decreased; Findings: The applicant has submitted a stormwater report that includes using an oversized box culvert to ensure that upstream properties are not affected by the development 4. Where. natural vegetation has been removed due to land form alteration or development, the areas not covered by'structures or impervious surfaces will-bg replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening; Findings: The applicant has been conditioned to submit an erosion control and grading plan which will require areas to be replanted prior issuance of final budding permits.. In addition, the applicant is required to replant per the requirements of the Clean Water Services letter.. 5. The drainageway will be replaced by a public facility of adequate size to accommodate maximum flow in accordance with the adopted 1981 Master Drainage Plan; Findings: The 1981 Master Drainage Plan does not identify any public facilities for this portion of Ash - 19 251 Creek. 6. The necessary U.S. Army Corps of Engineer and State of Oregon Land Board, Division of State Lands, and CWS approvals shall be obtained; Fmdings: The applicant has submitted approvals from Clean Water Services- As a condition of approval, the applicant will be required to show approvals from the Corps of Engineers and the Division of State Lands. 7. Where land form alterations and/or development are allowed within and adjacent to the 100-year floodplain, the:City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the Comprehensive Plan. This area shall include portions of a suitable elevation for the construction of.a pedestrian/bicycle pathway within the floodplain in. accordance with the adopted pedestrian bicycle pathway plan. Findings: There is no 100-year fluodplain within the proposed development site, therefore this standard is inapplicable. In order to receive a sensitive lands permit, the applicant has been conditioned to meet the following:. . • Prior to the issuance of final occupancy on any building, the applicant must provide City staff with a letter from Clean. Water Services that indicates compliance with the approved service provider letter. . • Prior to any site work, the applicant shall provide evidence of all necessary approvals from Army Corps of Engineers and the Division of State Lands. • Prior to any site work; the drainage tract must be clearly identified in the field with permanent fencing so as to insure no grading or material is placed in the area. Any fencing that is damaged during construction must be replaced prior to final building inspection. • Prior to final plat approval submit and receive approval for an erosion control and.grading plan for alteration on slopes exceeding 25%. • Re-plant any area where vegetation has been removed as a result of grading in conformance with the Clean Water Services Standards as set forth in the site assessment file, prior to obtaining permits- Prior to commencing on-site improvements, the applicant shall have the geotech engineer review and 'approve the construction plans for the City's review and approval CHAPTER 18.790: TREE REMOVAL A tree plan for the planting, removal and protection of tees prepared by a certified arborist shall be provided with a site development review application. The tree plan shall include identification of all existing trees, identification of a program to save existing trees or mitigate tree removal over'12 inches in caliper, which trees are to be removed, protection program defining standards and methods that will be sued by the applicant to protect tress during and after construction. Findings: CDC 18.790.050 provides exemptions from the requirement to obtain tree removal permits. One of those exemptions is stated in CDC 18.790.050(D)(4). The City Council has interpreted this exemption as being applicable to the requirement to develop a tree plan and to provide mitigation for trees 20 252 I • removed at the time of development imposed by CDC 18.790.030. This interpretation is based on the Council's understanding- of the intent of the exemption. The exemption was intended to recognize that when trees have been planted or maintained with the goal that they ultimately be used for timber or pulp, it is reasonable to allow the property owner to harvest them without requiring mitigation. Allowing the harvest of trees intended for timber or pulp without requiring a tree plan or mitigation is a good policy because. it respects the reasonable expectations of property owners. Furthermore, if the exemption did not apply at the time of development, property owners with tax-deferred timber property would cut all the timber on the property so that they could develop in the future without being required to mitigate.. This is not desirable because it would lead to widespread harvesting of trees that have environmental benefits and that contribute to the character of City of Tigard. The interpretation is also based on the language of CDC 18.790.050. That section requires tree removal permits only for trees on sensitive lands. CDC 18.790.050(A) The exemption only applies to trees that are not on sensitive lands. CDC 18.790.050(D)(4). If the exemption in CDC 18.790.050(DX4) applied only to the requirement of CDC 18.790.050 and not to the tree plan and mitigation requirement of CDC 18.790.030, it would have been totally unnecessary because it would not exempt anything - it doesn't apply.to sensitive lands and the permit requirement only applies to sensitive lands. Separate provisions in laws or ordinances should be interpreted as having separate effects. The only way to give separate effect to CDC 18.790.050(D)(4) is to apply it to the tree plan and mitigation requirement of CDC 18.790.030. As applied to this application, some of the property is considered to be a sensitive land, so a tree plan is required for that area. The applicant has provided a tree plan for the entire area, and so has complied with the requirement. The applicant does not propose removal of more than 25 percent of trees over 12 caliper inches from the sensitive land area, so no mitigation is required under 18.790.030. As mentioned previously, this site is in tax-deferred timber property status, therefore the applicant may harvest all the trees outside of the sensitive land areas without having to comply with the mitigation requirements of this Chapter. The applicant's tree removal plan indicates that approximately 74 trees within the sensitive land areas will be removed. During the application appeal process, the applicant proposed retaining additional trees within the developable portion of the site. A 15' wide area in the rear of the perimeter of the northern and eastern lots is proposed to retain all healthy and viable trees, subject to a certified arborists review and determination. To ensure that the trees are preserved according to the tree removal plan, the following conditions will apply: • The applicant shall submit an aborist report with tree. protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. • Prior to site work, the applicant shall submit a complete setof construction documents with the tree locations for the City Arborist review. The construction documents shall show the open space tract trees protected (with the exception of trees that require removal for utility construction) and a 15' wide area of trees protected along the rear of the perimeter lots(with the exception of any trees that are dead, dying, diseased, or deemed dangerous). • The applicant shall notify the City Arborist when tree protection measures are in place so that he may verify that the measures will function properly prior to construction. • The applicant shall submit CC&R's that additionally.establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the lots or tracts following completion of the subdivision improvements. Trees may only be allowed to be removed subject to a certified arborist's finding that the trees are dead, or in severe decline. _ 21 253 CHAPTER 18.795: VISUAL CLEARANCE AREAS .Clear vision area shall be maintained on the corners of allproperty adjacent to intersection of two streets, a street and a railroad, or a driveway providing access to a public or private street. A clear vision area shall contain no vehicle hedge, planting, fence, wall structure, or temporary or permanent obstruction exceeding three (3) feet in height, measured from the top of the curb, or where no curb exists, from the street center grade, except the trees exceeding this height may be located in this area, provided all branches below eight feet are removed. For arterial streets the visual clearance shall not be less than 35 feet on each side of the intersection. Findings: The applicant has illustrated clear vision areas at the street intersections and has indicated that no obstructions will be placed in those areas. Compliance with vision clearance requirements wi71 be confirmed through the building permit process for all homes to be constructed within the development. This standard has been met. CHAPTER 18.390: DECISION MAKING PROCEDURES G. Impact Study: Section 18390.040.B.e Requires that the applicant shall include an impact study.. The study shall address, as a minimum, the transportation system, including bikeways, the drainage system, the parks . system, the water system, the sewer system, and the noise impacts of.the development. For each pubic facility system and type of impact of the development on the public at large, public facilities systems, and affected private property users. In situations where the Community Development Code requires the dedication of real property interests, the applicant shall either specifically concur with the dedication of real property interest, or provide evidence which supports the conclusion that the real property dedication requirement is not roughly proportional to the projected impacts of the development. Findings: The applicant submitted an impact study, satisfying the required elements above: Rough Proportionality Analysis Findings: The Analysis has been calculated as follows: Full Impact of the Development= 73,370 (TIF of $2,530 x 29 DU) / 0.32 (TIF's Coverage Citywide) _ $229,281 Less TIF Assessment= (TIF of $2,530 x 29 DU)= -$73,370 Less Mitigated costs of 74`h Avenue Improvement -$250,000 Estimate of Unmitigated Impacts -$94,089 Although the costs of the improvements is greater than the level of impact, the improvements have been proposed by the applicant. The required dedication of right-of-way is clearly proportionate to the impact of the creation of the 29 lots. Therefore, the applicant has satisfied this criterion. • 22 254 i CHAPTER 18.810: STREET AND UTILITY MI PROVEMENTS STANDARDS Chapter 18.810 provides construction standards for the implementation of public and private facilities and utilities such as streets, sewers, and drainage. The applicable standards are addressed below: Streets: Improvements: Section 18.810.030.A.1 states that streets within a development and streets adjacent shall be improved in accordance with the TDC standards. Section 1.8.810.030.A.2 states that any new street or additional street width planned as a portion of an existing street shall be dedicated and improved in accordance with the TDC. Minimum Rights-of-Way and Street Widths: Section 18.810.030(E) requires a neighborhood route street to have a 54-foot right-of-way width and a 32-foot paved section. Other improvements required may include on-street parking, sidewalks and bikeways, underground utilities, street lighting, storm drainage, and street trees. Findings: Due to the unimproved nature of 74`b Avenue, the applicant met with representatives from the City of Tigard Engineering Department and the City of Tualatin Water District (who has a water transmission line within the 74`h Avenue right of way) to discuss several issues regarding the extension of this street. All parties agreed that the applicant should be permitted to construct 7e Avenue with a steeper grade in order to minimize the amount of fill over the water line and in the wetland area. Therefore, the applicant requested an adjustment to the grade standard. However, since the proposed street grade does not exceed 15% for over 250 feet, an adjustment is not required. The applicant also requested the speed limit be reduced to 15 miles per hour in the section where the 74'h avenue crossing will: occur. This speed limit was accepted by the City of Tigard Engineer. The City of Tigard standards are met by a 15 mile per hour vertical curve design, to a "K value" of greater than 5 (AASHTO). The applicant also requested an adjustment to the sidewalk standards at the stream crossing location on 74'h Avenue. By moving the sidewalk to the curb line, five fewer feet of width into the stream corridor is avoided. Staff has recommended approval the sidewalk adjustment. Future Street Plan and Extension of Streets: Section 18.810.030(F) states that a future street plan shall be filed which shows the pattern of existing and proposed future streets from the boundaries `of the-proposed land division. This section also states that where it is necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street. These street stubs to adjoining properties are not considered-to be cul-de-sacs since they are intended to continue as through streets at such time as the adjoining property is developed. A barricade shall-be constructed at the end of the street by the property owners which shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost. Temporary hammerhead turnouts or temporary cut-de-sac-bulbs shall be constructed for stub streets in • 23 - 255 M excess of 150 feet in length. Findings: The applicant has proposed to stub the new public street to the parcel to the north- As mentioned previously, site conditions and. existing development limit the applicant to provide street stubs to the east and south. The applicant is also proposing to extend 74h Avenue to the.south_ This criterion has been met Street Alignment and Connections: Section 18.810.030. (G) sates that staggering of streets maldug the 1" intersections at collectors and arterials shall not be designed so that jogs of less than 300 feet on such streets are created, as measured from the centerline of such street. Spacing between local street intersections shall have a minimum separations of 125 feet. All local streets which abut a development site shall be extended within the site to provide through circulation when not precluded by environmental or topographical constraints, existing. development patterns or strict adherence to other standards in this code. A street connection or extension is precluded when itis not possible to redesign, or reconfigure the constraints, the mere presence of a constraint is not sufficient to show that a street connection is not possible. The applicant must show why the constraint precludes some reasonable street connection. Findings: As mentioned previously, the drainageway precludes extension of an interior public or private street to the south- No street connections are possible to the east due to the existing development patterns adjacent to the site.. This criterion has been satisfied CuWe-sacs: 18.810.030.K states that a cal-de-sac shall be no more than.200 feet long, shall r not provide access to greater than 20 dwelling units, and shall only be used when environmental or topographical constraints, existing development pattern, or strict adherence to other standards in this code preclude street extension and through circulation: • All cul-de-sacs shall terminate with a turnaround. Use of turnaround configurations other than circular, shall be approved by the City Engineer; and • The length of the cul-de-sac shall be measured along the centerline of the roadway from the near side of the intersecting street to the farthest point of the cul-de-sac. • If a cut--de-sac is more than 300 feet long, a lighted direct pathway to an adjacent street may be required to be provided and dedicated to the City. Findings: The applicant has requested an adjustment to allow a private street cul-de-sac of approximately 500 feet in length. The site is over 967 feet deep and the stream to the south makes it too narrow to accommodate a looped street In addition, steep slopes, the creek and existing development preclude any connections to. the south or east. The applicant has demonstrated that there are no practicable alternatives to provide reasonable and efficient access to the entire property- This adjustment is justified by the shape of the property, natural features, and pre-existing development_. Grades and Curves: Section 18.810.030.M states that grades shall not exceed ten percent on arterials, 12% on collectors streets, or 12% on any other street (except that local or residential access streets may have segments with grades .up to 15% for distances of no greater than 250 feet) and Findings: Staff review revealed that the proposed street grade does not exceed 15% for over 250 feet- 24 256 t Therefore, the applicant's request for an adjustment is not required- Private Streets: Section 18.810.030.5 states that design standards for private streets shall be established by the City. Engineer. The City shall require legal assurances for the continued maintenance of private streets, such as recorded maintenance agreement. -Private streets serving more than six dwelling units are permitted only within planned developments, mobile home parks and multi-family residential developments. Findings: The applicant is proposing to serve a total of 23 lots (lots 1-23) with the proposed private street. Since this development is proposed as a planned development, a private street is acceptable- Block Designs - Section. 18.810.030.5 states that the length, width, and shape of-blocks shall be designed with due regard to providing adequate building. sites for the sue contemplated, consideration of needs for convenient access, circulation, control and safety of street traffic and recognition of limitations and opportunities of topography.. , Block Sizes: Section 18.810.040.B.1 states that the perimeter of blocks formed by streets shall not exceed 1,800 feet measured along the right-of-way line except: - Where street location is precluded by. natural.topography, wetlands or other bodies of water or pre-existing development or; - For blocks adjacent to arterial streets, limited access highways,. major collectors-or railroads. - For non-residential blocks in which internal.public circulation provides equivalent access. Findings:. As mentioned previously, the existing development, steep slopes, and stream corridor do not allow connections other than the proposed connection to the north. The proposed street stub to the north will eventually provide a block measuring approximately 1,250 feet. This criterion has been met. Section 18.810.040.B.2 also states that bicycle and pedestrian connections on public easements or.right-of--ways shall be provided when full street connection is not possible. Spacing between connections shall be no more than 330 feet, except where precluded by environmental or topographical constraints, existing development patterns, or strict adherence to other standards in the code. Findings: The applicant proposes to serve the site with a sidewalk on one side of the private street and a public street stub with sidewalks on both sides to the north property boundary. There are no opportunities for bicycle and/or pedestrian connections to the east or south because of topography and natural features. Therefore, this standard has been satisfied. Lots - Size and Shape: Section 18.810.060(A) prohibits lot depth from being more than 2.5 . times the average lot width, unless the parcel is less than 1.5 times the minimum-lot size of the applicable zoning district. Findings:-Only one of the proposed lots (#13) exceed 1-5 times the minimum lot size. This lot is 69 feet. in average lot width and 170 feet in lot depth. Two and a half times, the proposed lot width is 1.72:5 feet:. Since 170 feet is less than 2S times the lot width, this criterion has been satisfied 25 257 Lot Frontage: Section 18.810.060(B) requires that lots have at least 25 feet frontage on - public or private streets, other than an alley. In the case of a land partition,18A20.050.A.4c applies, which requires a parcel to either have a minimum 15-foot frontage or a minimum .15-foot wide recorded access easement. In cases where the lot is for an attached single- family dwelling unit, the frontage shall be at least 15 feet. Findings: Lots 9, 11, 12, land 29 do not have 25 feet of frontage.on a public or private street. Therefore the applicant will be-conditioned to revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. Since there is greater than 25 fed of average lot frontage available for the lots.along the proposed streets, it is feasible to modify the final plat to meet this condition. Sidewalks: Section 18.810A70.A requires that sidewalks be constructed to meet City design standards and be located on both sides of arterial, collector and local residential streets. Findings: The applicant is proposing to construct sidewalks with other street improvements- This criterion has been satisfied. Sanitary Sewers: Sewers Required: Section 18.810.090.A requires that sanitary-sewer be installed to serve each new development and to connect developments to emoting mains in accordance with the provisions set forth in Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 1996 and including any future revisions or amendments) and the adopted policies of the comprehensive plan. Over-sizing: Section 18.810.090.C states that proposed sewer systems shall include consideration of additional development within the area as projected by the Comprehensive Plan. Findings: There is an existing sewer manhole in 7e. Avenue- The applicant is proposing to extend the 8 inch line north in 7e Avenue and then east in the new public and private streets to serve all lots- As mentioned previously, the applicant is proposing to stub a line to the north for extension with future street improvements- Storm Drainage: General Provisions: Section 18.810.100.A states requires developers to make adequate provisions for storm water and flood water runoff. Accommodation of Upstream Drainage: Section 18.810.1000 states that a culvert or other drainage facility shall be large enough to accommodate potential runoff from itS,entire upstream drainage area, whether inside or outside the development. The City Engineer shall approve the necessary size of the fac0ty, based on the provisions of Design and Construction Standards for Sanitary and Surface Water Management (as adopted by the Clean Water Services in 2000 and including any future revisions or amendments). Findings: The applicant's engineer has done preliminary calculations to size the new box culvert under 74`h Avenue so that it accommodates upstream drainage. The 5 -foot by 10-foot box culvert has been slightly oversized for easier fish passage. The applicant has also proposed to protect the' condition of the -existing creek by moving the development away from the sensitive area boundary. Therefore, in - 26 258 accordance with City and Clean Water Services standards, the capacity of the existing drainageway will not be impacted by the proposeddevelopment. Effect.on Downstream Drainage: Section 18.810.100.D states that where it is. anticipated by the City Engineer that the additional runoff resulting from the development will overload an existing drainage facility, the Director and Engineer shall withhold approval of the - development until provisions have been made foi improvement of the potential condition of until provisions have been made for storage of additional runoff caused by the development m accordance with the Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Service in 2000 and including any future revisions or amendments). Findings: The site generally slopes towards Ash Creek- The applicant has proposed a storm system in the new public and private streets, including the in the street stub to the north property. The storm system is proposed to outlet into a pond that will provide water quality and quantity measures before it is discharged into Ash Creek, as required by Clean Water. Services. As required, the applicant will provide access to the pond for maintenance. In addition the applicant has proposed to construct an oversized culvert under 7e Avenue to accommodate the Ash Creek Crossing. With these improvements there. is sufficient detention capacity to meet the Clean Water Services standards. Bikeways and Pedestrian Pathways: Bikeway Extension: Section-18.810.110.A statesthat developments adjoining.proposed . . bikeways identified on the City's adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the dedication of easements or right-of- way. Findings:7e Avenue is not classified as a bike facility, therefore this criterion is inapplicable. Cost of Construction: Section 18.810.110B states that development permits issues for planned unit developments, conditional use permits, subdivisions, and other developments. which will principally, benefit from such bikeways shall be conditioned to include the cost of . construction of bikeway improvements Findings: This standard is not applicable to this proposal. Minimum Width: Section 18.810.110.C states that the minimum width for bikeways within the roadway is five feet per bicycle travel lane. Minimum width for two-way bikeways separated from the road is eight feet. Findings: This standard is not applicable to this proposal. Utilities: Section 18.810.120 states that all utility lines, but not limited to those required for electric communication, lighting and cable television services and related facilities shall be placed underground, except for surface mounted transformers, surface mounted connection boxes and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high rapacity electric lines operating at 50,000 volts or above, and 27 259 • The developer shall make all necessary arrangements with the serving utility to provide the underground services; • The City reserves the right to approve location of all surface mounted facilities; • All underground utilities, including sanitary sewers and storm drains installed in streets by the developer, shall be constructed prior to the surfacing of the streets; and • Stubs for service connections shall be long enough to avoid disturbing the street improvements when service connections are made. Exception to Under-Grounding Requirement: Section 18.810.120C states that a developer shall pay a fee in-lieu of under-grounding costs when the development is proposed to take place on a street where existing utilities which are not underground will serve the development and the approval authority determines that the cost and technical difficulty of under-grounding the utilities outweighs the benefit of under-grounding in conjunction with the development. The determination shall be on a case-by-case basis. The most common, but not the only, such situation is a short frontage development for which under-grounding would result in the placement of additional poles, rather than the removal of above-ground utilities facilities. An applicant for a development which is served by utilities which are not underground and which are located across a public right-of-way from the applicant's property shall pay a fee in-lieu of under-grounding. Findings: All newly constructed utilities are to be placed underground. There are existing overhead lines along the frontage of SW 74`h Avenue. The applicant` shall either place these utilities underground or pay the fee in lieu. If the fee in-lieu is proposed by the applicant, it is equal to $27.50 per lineal foot of street frontage that contains the overhead lines. The frontage along the site is 421 lineal feet; therefore the fee would be $11,518. CONDITIONS OF APPROVAL: THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO COMMENCING ANY ON-SITE IMPROVEMENTS, INCLUDING GRADING, EXCAVATION AND/OR FILL ACTIVITIES: Submit to the Planning Department (Morgan Tracy, 6394171, Ext. 2428) for review and approval: 1. Prior to site work, the applicant shall submit an arborist report with tree protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. 2. Prior to site work, the applicant shall submit a complete set of construction documents with the tree locations for the City Arbodsts review. The applicant will not cut any healthy trees within the designated open space tract_ Furthermore, the applicant shall not cut any healthy trees in the tree preservation areas of Lots 1-18, which shall be defined as the area at lust 15 from the rear of the building footprints. However, if an arborist determines that trees in these areas are dead, diseased, or pose a safety hazard, then the applicant shall remove affected trees from those areas. 3. Prior to site work, the applicant shall notify the City Arborist at least 48 hours prior to commencing construction when the tree protection measures are in place so that he may verify 28 260 that the measures will function properly. 4. Prior to site work, the applicant shall provide evidence of all necessary approvals for work within the wetlands from US Army Corps of Engineers and the Division of State Lands. 5. Prior to site work, the drainage tract must be clearly identified in the field with permanent (preferably with minimum 4-foot-tall black chainlink) fencing so as to insure no grading or. material is placed in this area. Any fencing that is damaged during construction must be replaced prior to final building inspection- If the damage is such that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately. 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet. Submit to the Engineering Department (Kim McMillan, 6394171, ext. 2642) for review and approval: 7_ Prior to approval of construction plans, the applicant shall "pothole" the City of Tualatin's main water transmission line to determine the. exact location and condition of the pipe: The applicant shall notify the City of Tigard and the City of Tualatin 48 hours prior to the pothole. inspections and when any construction activity will impact the pipe (such as placement of fill and excavation in the immediate vicinity) so that a representative from both the Cities of Tualatin and Tigard can be present. 8_ Prior to commencing onsite improvements, a Public Facility Improvement (PFI) permit is required for this project to cover all infrastructure and any other work in the public right-of-way. Eight (8) sets of detailed public improvement plans shall be submitted for review to the Engineering Department, NOTE: these plans are in addition to any other drawings required by the Building Division and should only include sheets relevant to public improvements. Public Facility Improvement (PFI) permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.ci.tigard.or,us). 9_ The PH permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the "Permittee", and who will provide the financial assurance for the public improvements- For example, specify if the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. 14. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose'of this plan is for parking and traffic control during the public improvement construction. phase. All construction vehicle parking shall be provided on-site. No construction vehicles or-equipment will be permitted to park on the adjoining residential public streets. Construction vehicles include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings.proposed by this application, and shall include the vehicles of all suppliers•and employees associates with the project- 11. The applicant shall submit construction plans to the Engineering Department as a part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of 70 Avenue. The improvements adjacent to this site shall 29 261 include: . A. City standard pavement section for a neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet; B. Pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C. Concrete curb, or curb and gutter as needed; D_ Storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff, E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F. Street trees in the planter strip spaced per TDC requirements; G. Street striping; H. Streetlight layout by applicant's engineer, to be approved by City Engineer, 1. Underground utilities; J. Street signs (if applicable); - K Driveway apron (if applicable); L_ Adjustments in vertical and /or horizontal alignment to construct SW 74"' Avenue in a safe manner, as approved by the Engineering Department, including reductions to the speed limit as necessary; and M. Right-of-way dedication to provide 27 feet from centerline. 12. The applicant's Public Facility Improvement permit construction drawing's shaffindicate that full width street improvements, including traffic control devices, mailbox clusters, concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement, sanitary sewers, storm drainage, street trees, streetlights, and underground utilities shall be installed within the interior subdivision -streets- Improvements shall be designed and constructed to local street standards. 13. A profile of 74`h Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 14. The applicant's construction drawings shall show that the pavement and rock section for the proposed private street(s) shall meet the City's public street standard for a local residential street- 15. The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility improvement permit. 16. Final design plans and calculations for the proposed public water quality/detention facility shall be submitted to the Engineering Department (Kim McMillan) as a part of the Public Facility Improvement plans. Included with the plans shall be a proposed landscape plan to be approved by the City Engineer. The proposed facility shall be dedicated in a tract to the City of Tigard on the final plat. As a part of the improvement plans submittal, the applicant shall submit an Operations and Maintenance Manual for the proposed facility for approval by the Maintenance Services Director. The facility shall be maintained by the developer for a three-year period from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance. by the City. Once the three-year maintenance period is completed, the City will inspect the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility- In addition, the City will not take over maintenance of the facility unless 80 percent of the landscaping is established and healthy- If at any time during the - 30 262 } -maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 17. An erosion control plan shall be provided as part of the Public Facility Improvement (PFI) permit drawings. The plan shall conform to the "Erosion Prevention and. Sediment Control Design and Planning Manual, December 2000 edition." ` 18. A final gradi.ng.plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to ensure the surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department. For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. 19. The applicant shall incorporate the recommendations from the submitted geotechnical report by GeoPacific Engineering, Inc., dated May 9, 2003, into the final grading plan- The applicant, shall have the geotechnical engineer ensure that all grading, including cuts and fills, are constructed in accordance with. the approved plan and Appendix Chapter 33 of the UBC. A final construction supervision report shall be filed with the Engineering Department prior to issuance of building permits. 20. The design engineer shall indicate, on the grading plan, which lots will have natural slopes between I0% and 20%, as well as lots that will have.natural slopes in excess of 200/o. This information will be necessary in determining if special grading inspections and/ofpermits will be. necessary when the lots develop- 21." The final construction plans shall be signed by the geotechnical engineer to ensure that they,have reviewed and approved the plans- The geotechnical engineer shall also sign the as-built grading plan at the end of the project. 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO APPROVAL-OF THE FINAL PLAT: Submit to the Planning Department (Morgan Tracy, 6394171, ext 2428) for review and approval: 23. Prior to approval of the final plat, the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. 24. Submit a revised street tree/iandscape plan that shows an alterative tree species used for the public street to vary the streetscape. 25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and cause a statement to be placed on the plat limiting additional direct vehicular access to SW 74's Avenue_ 26. Provide a plat name reservation approval from Washington County. • 31 263 27. Prior to -final subdivision plat approval, the applicant shall convey title for the proposed open - space to a homeowner's association in accordance with the requirements of Section 18.350.1 I O.A.2.b of the Tigard Development Code. Submit to the Engineering Department (Kim McMillan), 6394171, eat. 2642) for review and approval: 28. Prior to approval of the final plat the applicant shall obtain a plumbing permit for the construction of the private storm line in the private street_ 29. Prior to approval of the final plat, the applicant shall pay an addressing fee in the amount of $900.00 (Staff Contact: Shirley Treat, Engineering). 30. Prior to approval of the final plat, the applicant shallcause a statement to be placed on the final plat to indicate that the proposed private street(s) will be jointly owned and maintained by the private property owners who abut and take access from it (them). 31. Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&R's) for this project, to be recorded with the final plat,. that clearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s). The CC&R's shall additionally establish restrictions regarding the removal of trees greater than 12 inches in diameter from any of the lots or tracts following completion of the subdivision improvements. Trees may only be allowed, to be removed subject to a certified arborist's finding that the trees are. dead, or in severe decline. The applicant shall submit a copy of the CC&R's to. the Engineering Department (Kim McMillan) and the Planning Department (Morgan Tracy) prior to approval of the final plat. 32. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association. 33. Prior to approval of the final plat, the applicant shall either place the existing overhead utility lines along SW 7e Avenue underground as a part of this project, or they shall pay the fee in-lieu of under grounding. The fee shall be calculated by the frontage of the site that is parallel to the utility lines and will be $27.50 per lineal foot_ If the fee option is chosen, the amount will be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior to approval of the final plat, the applicant shall provide a maintenance access road to the facility and any drainage structures within the. facility to accommodate City maintenance vehicles. The access road shall be paved and have a structural sectibn capable of accommodating a 50,000-0ound vehicle. The paved width shall be a minimum of 10 feet wide, and there shall be two-foot rock shoulders provided on each side. If-the maintenance roadway is over 150 feet in length, a turnaround shall be provided. 35. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the City's global positioning system (GPS) geodetic control network (GC 22). These monuments shall be on the same line and shall be of the same precision as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements-to grid measurements and the angle from north to grid north. These coordinates - 32 264 can be established by: • GPS tie networked to the City's GPS survey. • By random traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements A. Submit for City review four (4) paper copies"of the final plat prepared by a land surveyor licensed to practice in Oregon, and necessary date or narrative. B. - Attach a check in the amount of the current final plat review fee (Contact Planning/Engineering Permit Technicians, at (503) 639-4171, ext. 426). C. The final plat and date or narrative shall be drawn to the a inimum standards set forth by the Oregon Revised Statutes (ORS 92.05), Washington County, and by the City of Tigard_ D. The right-of-way dedication for 70 Avenue shall be made on the final plat. E. Note: Washington County will not begin their review of the final plat until they receive notice from the Engineering Department indicating that the City has reviewed the final plat and, submitted comments to the applicant's surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final plat for City Engineer signature (for partitions), or City Engineer and Community Development Director signatures (for subdivisions). THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF BUILDING PERMITS Submit to the Planning Department (Morgan Tracy, 6394171, ext. 2428) for review and approval: . 37. Prior to issuance of any building permits, re-plant any area where vegetation has been removed as a result of grading in conformance with the Clean Water Services Standards as set forth in the site assessment file #2819, prior to obtaining building permits. 38. Prior to issuance of any building permits, the applicant shall submit plans that show one (1) off- street parking space, which meets minimum dimensional requirements and setback requirements as specified in Title' 18, provided on-site for each new home. 39. At the time of application for building permits for individual homes, the applicant shall demonstrate that'each site will be accessed by a minimum 10-foot=wide paved access. 40. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. 41. Prior to the issuance of building permits the applicant shall submit a revised plan that indicates the modified setbacks as set forth in this decision and record a copy of the approved setback plan with the deeds for each lot_ 42. Prior to issuance of building permits for structures on the individual lots within this development, the applicant shall demonstrate compliance with the height requirement of the underlying zone. The,requirement calls for 30-foot maximum height for primary units and '15 feet maximum for all accessory structures. _ 33 265 43: Prior to the issuance of building permits on any lot, the applicant must provide city staff with a letter from Clean Water Services that indicates compliance with the approved service provider letter (#2819). Submit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and approval: 44. Prior to issuance of building pernuts the applicant's engineer shall provide a post-construction sight distance certification for the new. intersection at 70 Avenue. 45. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. .46- Prior to issuance of building permits, the City Engineer shall deem the public improvements substantially complete. Substantial completion shall be when: 1) all utilities are installed and inspected for compliance, including franchise utilities, 2) all local residential street have at least one lift of asphalt, 3) any off-street and/or utility improvements are substantially completed, and 4) all street lights are installed and ready to be energized. Note:.The City apart from this condition, and in accordance with the City's model home policy may issue model home permits). 47. Prior to issuance of billing permits, the applicant shall provide the City with as-built drawings of the public improvements as follows: 1) 3 mil mylar, 2) a diskette of the as builts in "DWG" . . format, if available; otherwise "DXF" will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network The applicant's engineer shall provide the City with an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other. water system features) in the development, and their respective X and Y State Plane Coordinates, referenced to NAD 83 (91). 48. Prior to issuance of building permits, the applicant shall provide the Engineering Department with a "photo mylar" copy of the recorded final plat 49. The applicant shall provide signage at the entrance of each shared flag lot driveway or private street that lists the addresses that are served by the-given driveway or street. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF FINAL BUILDING INSPECTION: 50. The applicant shall install street trees and an evergreen hedge of Leyland Cypress spaced no greater than three feet on center along the northern property line of Lots 1-10 and the eastern property line of Lots 10-12. ADDITIONAL CONDITIONS OF APPROVAL FOR ASH CREEK ESTATES: 51. The applicant and future owners oflots within the development shall ensure. that the requirements of CDC 18.725 (Environmental Performance Standards) are complied-with at all times. We hope the findings provided above can be included in the Final Order of the City Council regarding the - • 34 266 i0for~ation additional if is any eel free to con Creek Etes S~,nsion F ~roval of A repo rt. required for your Sincerely, Steve" 20d'Nssoclates an Tracy cc- M -at, ASSOC, City of Tigard ' r 35 261 • Exhibit B Agenda Rem: 5. Hearing Date: July 7; 2003 Time: 7:00 PM STAFf IEPORT-10" NE P NN NG 4MMISSION MY Of i1GAR0 _ i•s =tY E.' ) win Tod fOR" CIE Et.OfIGARD :.OREGON , 120 DAYS =1012/2003 SECTION 1. APPLICATION SUMMARY - FILE NAME: ASH CREEK ESTATES SUBDIVISION CASE NOS.: Subdivision (SUB) SUB2003-00010 Zone Change (ZON) ZON2003-00003 Planned Development Review (PDR) PDR2003-00004 Sensitive Lands Review (SLR) SLR2003-00005 Adustment AR VAR2003-00036 Adjustment (VAR) VAR2003-00037 APPLICANT: Dale Richards OWNER: Ernest E. and Elda H. Senn Winwood Construction 9750 SW 74 Avenue 12655 SW North Dakota Street Tigard, OR 97223 Tigard, OR 97223 PROJECT Kurahashi and Associates ~ONTACT: Attn: Greg Kurahashi 15580 SW Jay, Suite 200 Beaverton, OR 97006 REQUEST: Approval of a 294ot Subdivision and Planned Development on 9.3 acres. The lots are proposed to be developed with detached single-family homes. Lot sizes within the development are proposed to be between 4,702 and 11,616 square feet. Sensitive Lands Review is required as the project includes areas of steep (>25%) slopes, a drainageway and wetlands. The applicant is also seeking an Adjustment to the cul-de-sac length standard, maximum number of units permitted on a ZONING cul-de-sac, as well as an Adjustment to the street grade on SW 74 Avenue. DESIGNATION: R-4.5: Low-Density Residential District., The R-4.5 zoning district is designed to accommodate detached single-family homes with or without accessory residential units at a minimum lot size of 7,500 square feet. Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also permitted conditionally. LOCATION: 9750 SW 7e Avenue; WCTM 1S125DC, Tax Lots 300 and 400. APPLICABLE REVIEW -CRITERIA: Community Development Code Chapters- 18.350, 18.370, 18.380, 18.390, 18.430, 18.510, 18.705, 18.715, 18.725, 18.745, 18.755, 18.765, 18.790, 18.795 and 18.810. SECTION IL STAFF RECOMMENDATION St t`f it s.: That tEie : Planciing Commission find that the Proposed .'Plan ued_ Ueveloptne t grid ::street adjtmerits tniill riot >edversely affectt".the health, "safety acid-.welfare of : C and meets the °App ual. arattards :as outfined in is.-:report" Therefore, Staff:recaomrmends AP'R VAL, stib eet-to -e.fopo~nngorArneizded Conditions of.Approval and Finding s-ith'in.fhe-staff report: ASH CRM ESTATES SUMMON STAFF REPORT (SUB2003-MIO) PLANNING COMMISSION HEARING 7172003 268 CONDITIONS OF APPROVAL QLLQ1t1 NC'°COND[TIOIYS SHAIL: BE . SATISFIED. RtOR`70 'COII~IMENCING AN' ( UISITE C ~VIE[rRSa 1NCLUDW6 GRADING_ , _1EXCAyAno :AND_ /OR FIL ; ACT ,V- -MES b .a 1. Submit tote Planning epartment organ racy, 639-4171, ext. or review an approval: 1. Prior to site work, the applicant shall submit an arborist report' with tree protection recommendations, and shalt provide the City Arborist with a construction sequence inducing installation and removal of tree protection devices, clearing, grading, and paving. 2. Prior to site work, the applicant shall submit a complete set of construction documents with the tree locations for the City Arborists review. 3. Prior to site work, the applicant shall notify the City Arborist at least 48 hours prior to commencing construction when the tree'protection measures are in place so that he. may verify that the measures will function properly. 4. Prior to site work, the applicant shalt provide evidence of all necessary approvals for work within the-wetlands from US Army Corps of Engineers and the Division of State Lands. 5. Prior to site work, the drainage tract must be dearly identified irf~ the field with permanent (preferably with minimum 4-foot-tall black chainlink) fencing so as to insure no grading or material is placed in this area. Anyy fencing that is damagge~d. during construction must be replaced prior to final building inspection. Iflthe damage is such. that it will no longer effectively identify the tract, it shall be replaced/reinstalled immediately. 6. Prior to site work, a signed approval shall be included with the City's construction drawing packet. submit to the Engineering Department (Kim McMillan, 6394171, ext. 2642) for review and approval: 7. Prior to approval of construction plans, the applicant shall pothole the City of Tualatin's main water transmission line to determine the . exact location and condition of the pipe. The applicant shall notify the City'of Tigard and the City of Tualatin 48 hours prior to the pothole inspections and when any construction activity will impact the pipe (such as. placement of fill and excavation in the immediate vicinity) so that a representative from the City can be present. 8. Prior to commencing. onsite. improvements, . a. Public Facility Improvement (PFI) permit is required for I s pro1eet to cover all infrastructure and any other work in the public n~ht-of=way. Eight (8) sets of detailed public improvement plans shalt be submitted for review. to the Engineering Department. NOTE: these plans are to addition to any drawings required by the Building Division and should only include sheets relevanFto uublic improvements. Public Facility Improvement (PFI) permit plans shalt conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page (www.ci.tiard.or.us). 9. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the -individual"or corporate entity who will Be designated as the "Permittee°, and who will pxovide the financial assurance for the ppublic improvements. For example, specify if the entity is a corporation, limited partnership, t1C, etc. Also spedfy the state wrthln which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of-project documents. 10. The applicant shalt provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of- this-plan- is for parking and traffic control during the public improvement contraction phase. Al construction vehicle parking shall be provided on-site. No construction vehicles or equipment W11 be permitted to park on the adjoining residential public - streets. Construction vehicles include the vehicles of any contractor or subcontractor involved in the construction of site improvements or buildings-proposed by this application, and shalt include the vehicles of all suppliers and employees associated with the project ASH (rr=Ek ESTATES SUMVISION STAFF REPORT (SUB2003-OW10) PLANNING COMMISSION HEARING 717/2003 269 1. The applicant shall submit construction plans to the Engineering Department as a -part of the Public Facility Improvement permit, which indicate that they will construct a half-street improvement along the frontage of 74 Avenue. The improvements adjacent to this site 'shall include: A. City standard pavement section fora neighborhood route, without bike lanes, from curb to centerline equal to 16 feet, with a minimum pavement width of 24 feet; B. pavement tapers needed to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage; C: concrete curb, or curb and gutter as needed; D. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; E. 5-foot concrete sidewalk with a planter strip (unless adjusted); F. street trees in the planter strip spaced per TDC requirements; G.' street strip"rig; H. streetlight layout by applicant's engineer, to be approved by City Engineer., 1. underground utilities; J. street signs (if applicable); K. driveway apron (if applicable); L. adjustments in vertical and/or horizontal alignment to construct SW 740, Avenue in a ,safe manner, as approved by the Engineering Department; and M. right-of-way dedication to provide 27 feet from centerline. 12. The applicants Public Facility Improvement permit construction drawings shall indicate that full width street improvements, .including traffic control devices, .mailbox clusfers, .concrete sidewalks, driveway aprons, curbs, asphaltic concrete pavement,- sanitary sewers, storm. drainage, street trees, streetlights, and underground utilities shall be installed within the interior subdivision streets. Improvements shall be designed and constructed to local street standards. •13. A profile of 74"' Avenue shall be required, extending 300 feet either side of the subject site showing the existing grade and proposed future grade. 14. The applicants construction drawings. shall show that the pavement and rock section for the proposed private street(s) shall meet the City's public street standard for a local residential street. 15. The applicant shall obtain approval from the Tualatin Valley Water District for the proposed water connection prior to issuance of the City's Public Facility Improvement permit. 16. Final design plans and calculations for the pro sed public water quality/detention facility shall be submitted to the Engineering Department r win McAAiIlan) as a ppart of the. Public Facility Improvement plans. Included with the plans s all be a proposed landscape plan to be approved by-the City Engineer. The proposed facility shall be dedicated in a tract to the City of T~gand on the final plat. As a part of the improvement plans submittal, the applicant shall submit. an Operations and Maintenance Manual for the proposed facility for ap roval by the Maintenance Services Director. The facility shall be maintained by the developer fpir a three-year_ped0d from the conditional acceptance of the public improvements. A written evaluation of the operation and maintenance shall be submitted and approved prior to acceptance for maintenance by the City. Once the three-year maintenance period is completed, the City will -inspect -the facility and make note of any..problems that have arisen and require them to be resolved before the City will takeover maintenance of the facility. In addition, the City will not takeover maintenance of the fatality unless Tce ecent of the landscaping is established and healthy. If at any time during the mantenperiod, th e landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. 17. An erosion control plan shall be provided as part of the Public Facility Improvement Eesign FQ permit drawings. The plan shall conform to the "Erosion Prevention and Sediment. Control and Planning Manual, December 2000 edition ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SU8200300010) PLANNING COMMISSION HEARING 717/ZoW 270 1 ~8. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the. provisions for surface drainage of all lots, and show that they.will be graded to ensure that :surface drainage is directed to the street or a public storm drainage system approved by the Engineering Department For situations where the back portions of lots drain away from a street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot o 19. The applicant shall incorporate the recommendations from the submitted geotechnical report by GeoPacific Engineering, Inc., dated Ma 9, 2003, into the final grading plan. The applicant shall have the geottech engineer review and.approve the construction plans for the City's-review and approval : The geotechnical engineer shall be employed by the applicant throughout the entire construction period to ensure that all grading, including cuts and fills, are constructed in accordance with the approved plan and Appenx Chapter 33 of the UBC: A final construction "supervision report shall be filed with the Engineering Department prior to issuance* of building permits'. 20. The design engineer shall indicate; on the grading plan, which lots will. have natural slopes between 10% and 20%, as well as lots that will have natural slopes in excess of 20%.. This in determining if special "grading inspections and/or permits will be information will be n=lop. necessary when the 21. The final construction plans shall be signed by the geotechnical engineer to ensure that-they have reviewed and approved the plans. The geotechnical engineer shall also sign the as-built grading Plan at the end of the project. 22. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740. and the Federal Clean ater Act. THE-FOLLOWING CONDITIONS SHALL BE SATISFIED: PRIOR TO APPROVAL OF- THE FINAL PLiAT: . Submit to the Planning Department organ racy, 639-4171, ext. 2428). or review an approval: 23. Prior to' approval of the final plat, the applicant shall revise the plat 'to accommodate a minimum of 25 feet of frontage for all lots within the development. 24. Submit a revised street tree/landscape plan that shows an alternative tree species used for either the public or private street to vary the streetscape. 25. The applicant shall provide joint access within an easement or tract to Lots 28 and 29 and catise a statement to be placed on the plat limiting additional direct vehicular access to SW 74 Avenue. 26. Provide a plat name reservation approval from Washington County. 27. Prior to final subdivision plat approval, the applicant shall convey title for the proposed open space to a homeowner's association in accordance with the requirements of Section 18.350.110.A.2.b of the Tigard Development Code. Submit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and approval: 28. Prior to approval of the final plat the applicant shall obtain" a plumbing permit for the construction of the private storm fine in the private street. 29. Prior to approval of the fina{ plat, the applicant. shall pay an addressing fee in the amount of $900.00. (STAFF-CONTACT: " Shirley Treat, Engineering). Prior to approval of the final plat, the applicant shall cause a. statement to be aced on the final plat to indicate that "the proposed private street(s) will be jointly owned and. maintained by the private property owners who abut and take access from it (them). ASH CREEK ESTATES SUBDMSION STAFF REPORT (SU820034=10) PLANNING COMMISSION HEARING 7172003 271 01. Prior to approval of the final plat, the applicant shall prepare Conditions, Covenants and Restrictions (CC&R's) for this project, to be recorded with the final plat, that dearly lays out a maintenance plan and agreement for the proposed private street(s). The CC&R's shall obligate the private property owners within the subdivision to create a homeowner's association to ensure regulation of maintenance for the street(s).. The applicant shall submit a copy of the CC8Hs to the Engineering Department (tGm McMillan) prior to approval of the final plat. 32. Prior to approval of the final plat, the applicant shall demonstrate that they have formed and incorporated a homeowner's association. T 33. Prior to appproval of the final plat, the applicant shall either place the existing overhead utility lines along SW 74 Avenue-undergground as apart of this project, or they shall pay the fee in4ieu of undergrounding. The fee shall be .calculated by the frontage of the site that is parallel to the utility lines and will be $27.50 per lineal foot If the fee option rs chosen, the amount ~nnll be $11,578.00 and it shall be paid prior to final plat approval. 34. Prior to approval of the final plat, the applicant shall provide a maintenance access road to: the facility and any drainage structures within the facility to accommodate Crty maintenance vehicles. The access road shall be paved and have a structural section capable of accommodating a 50,000-pound vehicle. The paved width shall be a minimum of 10 feet wide, and there shalt be two-foot rock shoulders provided on each side. If the. maintenance roadway is over 150 feet in length, a turnaround shall be provided. 35. The applicant's final plat shall contain State Plane Coordinates on two monuments with a tie to the Cis global positioning system (GPS geodetic control network (GC 22). These monuments shall'be on the same line and shall be of)the same precision. as required for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates • can be established by: GPS tie networked to the City's GPS survey. By random traverse using conventional surveying methods. 36. Final Plat Application Submission Requirements: A. Submit for City review four (4) paper copies of the final plat prepared by a land surveyor licensed to practice in Oregon, and necessary data or narrative. B. Attach -a check in the amount of the current . final plat review fee (Contact Planning/Engineering Permit Technicians, at ((503) 639-4171, exL 426). C. The final plat and data or narrative shall be drawn to the minimum standards set forth by the Oregon Revised Statutes (OIS 92.05),. Washington County, and by the -City of Tigard. D. The right-of-way dedication for 74' Avenue shall be made on the finaVallauntil- L E. NOTE: Was hington County will not begin their review of the final they receive notice from the Engineering Department indicating that the City has reviewed the final plat and submitted comments to the -applicants surveyor. F. After the City and County have reviewed the final plat, submit two mylar copies of the final ppl1aat for City Engineer signature (for partitions), or City. Engineer and Community bevelopment Director signatures (for subdivisions). . - : ~THE•FOLLOWING:.CONDMiDNS-SHALL BE SATISFIED - _ : - PRIOR TO :ISSU_ ANCE 'OF BUILDING PERMITS: Submit to the Planning Department organ racy, 639-4171 , ext. or review an approval: 37. Prior to issuance of any building pemuts,- re-plant any area Where vegetation has been • removed -as a result of grading in conformance with the Clean Water Services Standards -as- set forth in the site assessment.file #2819, prior to obtaining building permits. 38. Prior to issuance of any building permits, the applicant shall submit plans th at show one (1) off-street parking space, which meets minimum dimensional -requirements and setback requirements as specified in Title 18, provided on-site for each new home. AsH cRE x EsTATEs summsm STAFF REPORT (suwow-owio) PLMN NG COMSSION HEARING 7/72003 2 72 •39. At the time of application for building permits for individual homes, the applicant shall demonstrate that each site will be accessed by a minimum 10-foot-wide paved access. 40. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. 41.. Prior to the issuance of building ppeermits the applicant. shall submit a revised plan that indicates the modified setbacks as set forth in this decision (page 11) and record a copy of the approved setback plan with the deeds for each lot. 42. Prior to issuance of building permits for structures on the individual lots within this development, the applicant shall demonstrate. compliance with the height requirement of the underlying zone. - The requirement calls for a 30-foot maximum height for primary, units 15 feet maximum for all accessory structures. 44. Prior to the issuance of building permits on any lot, the applicant must provide city staff with a letter.from Clean Water Services that indicates compliance with the approved service provider letter (#2819). Submit to the Engineering Department (Kim McMillan, 639-4171, ext. 2642) for review and- approval: 45. Prior to issuance of building permits the applicant's enc,ineer shall provide a post-construction sight distance certification for the new intersection at 74 Avenue. 46. The City Engineer may determine the necessity for, and require submittal and approval of, a construction access and parking plan for the home building phase. If the City Engineer deems such a plan necessary, the applicant shall provide the plan prior to issuance of building permits. •47. Prior to issuance of building permits, the City Engineer shall deem the public improvements substantially complete. Substantial completion shall be when: 1) all utilities are installed and inspected for compliance; including franchise utilities, -2) all local residential streets have at least one lift of asphalt, 3) any off-site street and/or utility improvements are substantially completed, and 4) all street lights are installed and ready to be energized. (NOTE: the City apart from this condition, and in accordance with the City's model home policy may issue model home permits). 48. Prior to issuance of-building: ermits, the applicant shall provide the City with as-built drawings of the public improvements as follows: 1).3 mil mylar, 2 a diskette of the as-builts in "DWG" format, if available; otherwise "DXF' will be acceptable, and 3) the as-built drawings shall be tied to the City's GPS network. The applicant's engineer shall provide the City with an electronic file with points for each structure (manholes, catch basins, water valves, hydrants and other water system features) in the development, and their respective X and Y State Plane Coordinates, referenced to NAD 83 (91). 49. Prior to issuance of building permits, the aicant shall provide the Engineering Department with a "photomylar" copy of the recorded final plat.' 50. The applicant shall provide signage at the entrance of each shared flag lot driveway or private street that lists -the addresses that are served by the given driveway or street. ~I ADDITION p. C{ MMUNITIr'DEVELOPMENT CODE; THIS IS-:NOT-:AN EXCLUSIVE LIST:: 18.430.080 Improvement agreement: 95ore y al approv is certmed on the final plat, and before approved construction plans are issued by :the City, the Subdivider shall: 1. Execute and file an agreement with the City Engineer s evil ing the period within which all required improvements and repairs shag be completed; ' and ASH CREEK ESTATES SUBOMSION STAFF REPORT (SU8WW-00010) PLANNING COMMISSION HEARING W MAW 273 Include in the agreement provisions that if such work is not completed within the period specified, the City may complete the work and recover the full cost and expenses from the subdivider. The agreement shall stipulate improvement fees and deposits as may be required to be paid and may also provide for the construction of the improvements in stages and. for the extension of time under specific conditions therein stated in the contract. 18.430.090 Bond:. required by -Section 18.430.080, the subdivider shall file with the agreement an assurance of perfom~iance supported by one of the following: 1. An irrevocable letter of credit executed by a financial institution authorized to transact business in the State of Oregon; 2. A. surety. bond executed by a surety company authorized to transact: business in the State of Oregon which remains in force unfit the surety company is notified by the City in writing that it may be terminated; or 3. Cash. The subdivider shall furnish to the City . Engineer an itemized improvement estimate, certified by a registered civil engineer, to assist the City Engineer in. calculating the amount of the performance assurance. The subdivider shall not cause termination of nor allow expiration of said guarantee without having first secured written authorization from the City. 18.430.100 Filin and Recordin : Within 60 days o the . City .review and approval, the applicant shall submit the final plat to the County for signatures of County officials as required by ORS Chapter 92. Upon final recording with the County, the applicant shall submit to the City a mylar copy of the recorded nal plat. 18.430.070 Final Plat A lication Submission Requirements: Three copies o the Subdivision plat prepay by a an surveyor licensed to practice in Oregon, and necessary data or narrative. The subdivision Vat and data or narrative shall be drawn tothe minimum standards set forth by the Oregon Revised tatutes (ORS 92.05), Washington County, and by the City of Tigard. STREET CENTERLINE MONUMENTATION SHALL BE PROVIDED AS FOLLOWS: Centerline Monumentation. In accordance with Oregon Revised Statutes 92.060, subsection (2), the centerline of all street and roadway rights-of-way shall be monumented before the City accepts a street improvement. The following centerline monuments shall be set: 1. All centerline-centerline intersection points; 2- All cul-de-sac centerpoints; and 3. Curve points, beginning and ending points (PC's and PT's). All centerline monuments shall beset during the first lift of pavement Monument Boxes Re uired Monument oxes conforming to City standards will be required around all centerline intersection points, cul-de-sac center points, ancurve points. The tops of all monument boxes shall be set to finished pavement grade. - ASH CREEK ESTATES SUBQNIMN STAFF REPORT (SU82W3-00010) PLANNING COMMISSION HEARING 7170003 274 Agk,18.810 Street & Utility Improvement- Standards: 18.810.120 Utilities All utility lines i9 , ing, but not limited to those required for electric, communication, lighting and cable television services and related facilities shall be placed underground, except fore surface-mounted transformers, surface-mounted connection boxes, and meter cabinets which may be placed above ground, temporary utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above. 18.810.130 Cash or nd Required rmprovemen installed by the subdivider shall be guaranteed as to workmanship and material for a period of one year following acceptance by the City. Such guarantee ' shall be secured by cash deposit or bond in. the amount of the value of the improvements as set by the City Engineer. The cash or bond shall comply with the terms and conditions.of Section-18.810.180. 18.810.150 Installation Prerequisite No n ivision improvemen , induding sanitary sewers, storm sewers, streets, sidewalks;:: curbs, lighting or others urrements shall be undertaken except after the plans, therefore, have been approved by the City, permiee paid and permit issued. 18.810.180 Notice to Ci Required o shall not begin until the City as been notified. in advance. If work is discontinued for any reason, it shall not be resumed until the City is noted. 18.810.200 En gineer's Certification e an. dividers engineer shall provide written certification of a form provided by the City that all improvements, workmanship and materials are in accord with current and standard engineering and construction practices, and are of high grade, prior to the City acceptance of the subdivision's improvements or any portion thereof for operation and maintenance. THIS APPROVAL SHALL BE VALID-FOR. 19 MONTHS FROM THE EFFECTIVE DATE :QF; .THE . `PLANNING COMMISSION`S DECISION: = SECTION JIL BACKGROUND INFORMATION Site History he property is currently developed with one single-family residence and a couple of small outbuildings. An effort by surrounding neighbors to acquire this property for open space purposes was unsuccessful. A search of city records found no previous land use cases associated wl this . . parcel. Vicinity Information: "t`ie site is oTcated~in the northwest corner of the City limits, south of SW Taylor's Ferry Road, -on:the east side of SW 74 Avenue. The property is surrounded on all sides by single-family residences on lots that vary in size. There is a stream (Ash Creek) on the property that runs in an east west direction along the souther property boundary. This drainageway contains wetlands and areas of steep slopes. Proposal Information: The applicant is proposing to subdivide the parcel into 29 lots for single-family residences. - Because of the trees, wetlandds, and slopes on the site, the applicant has requested a planned development to- allow them to vary the underlying zoning standards to develop around these features. The applicant is ISO requesting an adjustment to allow a curb tight sidewalk as opposed to a sidewalk separated from etravel surface by a planter strip, and an adjustment to the cul-de-sac standards fimiti ng the number of units on a cul-de-sac and the 200-foot maximum lengthpermitted for a cut-de-sac. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003-00010) - PLANNING COMMISSION HEARING 717200 275 SECTION IV. DECISION MAKING PROCEDURES. PERMITS AND USE USE CLASSIFICATION: SECTION 18.130.020 Lists the Use Categories. The applicant is seeking approval-of a 29-lot subdivision on 9.3 acres. The lots are to be developed with detached single-family homes. The existing single-family home is to be demolished. Lot sizes within the development are between 4,702 and 11,616 square feet The applicant is also proposing to set aside an approximate 4.15 acre open space tract for the drainageway and wetland area. A private. street cul-de-sac is also proposed to extend from the public street stub into the property. The site is located within the R-4.5, Low Density Residential District. Planned Developments are permitted in all districts. The applicant has applied for conceptual and detailed planned development approval in conjunction with the subdivision. .SUMMARY LAND USE PERMITS: CHAPTER 18.310 Defines the decision-making type to which the land-use application is assigned. This is a Planned Development/Subdivision, which is defined as a Type III-PC Application. Adjustments are typically Type II Administrative decisions and Type 111 sensitive lands decisions are heard by the Tigard Hearings Officer; however, when applications 'are heard concurrently, the highest decision making body will make the decision on all matters, as described below. DECISION MAKING PROCEDURES: CHAPTER 18.390 Describes the decision-making procedures. Type III procedures apply to quasi- udicial permits and actions that contain predominantly discretionary approval criteria. Type 111-PC actions are decided by the Planning Commission with appeals to the City Council. Type 11-HO actions are decided by the Hearings Officer with appeals to City Council. In cases where both the Hearings Officer and Planning Commission. are involved, the Planning Commission has preferential jurisdiction, per Tigard Development Code (TDC) Section . ,18.390.080(D)(2)(a). SECTION V. NEIGHBORHOOD COMMENTS The Tigard Community Development Code requires that property owners within 500 feet of the subject site be notified of the proposal, and be given an opportunity for written comments and/or oral testimony prior to a decision being made. In addition, the applicant is required to post the site with notice of the public hearing. Staff has verified that the site- is posted. Staff has not received any written comments from any neighbors about this application.. A number of nearby neighbors have expressed interest and concern about the subject proposal; however, no comments have been received since the application was received. SECTION VI. APPLICABLE REVIEW CRITERIA AND FINDINGS GENERAL PLANNED DEVELOPMENT STANDARDS: CHAPTER 18.350 The applicant has requested a Planned Development (PD) overlay zone change- for the subject property. The PD -overlay requires developers to follow the Planned Development process for any proposal on affected sites. The Planned Development chapter provides for flexibility in development design and allows deviation from certain standards of the base zone: The following addresses compliance with the process and applicable base zone standards. The Planned Development Process: Section 18.350.030 es a ere are three elements to-the planned development approval process,. as follows: The approval of the planned development overlay zone; - The, approval of the planned development concept plan; and The approval of the detailed development plan. AS1H PLANNING chi ESTATES HEARING roM 17r= REPORT (sus2003 000l0) 276 This application is for all three elements of the planned development process, overlay zone, concept Ilan, and detailed plan. Applicability Of The. Base Zone.Development Standards: Section 13.35U.070 equires comp lance to specific eve opment standards:: The provisions of the base zone are applicable as follows:. Lot dimensional standards: The minimum lot size, lot depth and lot width standards shall not apply except as-related to the density computation under Chapter 18:715; The lot sizes range between 4,702 and 11,616. square feet, and there are two tracts proposed to accommodate the private street and the proposed open space.' The. required lot size for the .R-4.5 zoning district is 7,500 square feet unless an applicant specifically requests different lot sizes through the Planned Development (PD) process, as is the case for this proposal. The proposed lot widths have been varied, but all are 50 feet or wider on the building 'portion of the lots. Average lot depths range from approximately 68-153 feet deep. One of the lots (#29) does not have adequate frontage, and will be conditioned to be modified as described later in this report. The applicant has identified and. detailed the requested lot dimensional standards for this development, and the minimum and maximum density requirements have been satisfied as. discussed later in this report. Site coverage: The site coverage provisions of the base zone shall apply; There is no site coverage requirement in the R4.5 zone; therefore, this criterion is not applicable. Building height: The building height provisions shall not apply; and AftThe height restriction does not apply within a Planned -Development as long as the developer roposes an alternative that is approved. In this case, the developer has not requested an alternative eight requirement, but has indicated that the lots will be developed with single-family residences. Because it is not proposed to the contrary, development within this development will be subject to the height requirements of the underlying zone. Structure setback provisions: Front yard and . rear yard setbacks for structures on the perimeter of the project shall be the same as that required by the base zone unless otherwise provided by Chapter 18.360; The applicant has provided a site plan that illustrates building envelopes withimthe development. The applicant has proposed to maintain a 15-foot rear yard for all structures on lots 1-13, on the perimeter of the project Lots 24-27 will require a 20-foot front yard, and proposed lot 29 will require a 10-foot south side yard, as it is considered a flag lot. The applicant has proposed specific reduced front yards on the interior of the project to reduce the need for deeper lots and to reduce the grading necessary to accommodate the homes. The applicant has requested that the required front yards. within the development be adjusted to 8 feet for primary structures and porches. They have indicated that the setback to the face of garage is proposed to remain at 20 and 22.5 feet. This criterion is satisfied. The side yard setback provisions shall not apply except that all, detached structures shall meet the Uniform Building Code (UBC) requirements for fire walls; The applicant has proposed reducing the side yard setbacks from 5 to 3 feet- Three. feet is the minimum separation required for UBC compliance. It should be noted that no projections, such as chimneys or bay windows, shall be permitted to encroach into this side yard area. This criterion has been met. Front yard and rear yard setback requirements in the base zone setback shall not apply to structures on the interior of the project except that: (1) A minimum front yard setback of 20 - Weet is required for any garage structure which opens facing a street; ( A minimum front yard setback of eight feet is required for any garage opening for an attach single-family dwelling facing a private street as long as the required off-street parking spaces are provided ASH CREEK ESTATES SUBDMSION STAFF REPORT (SUB20034=10) PLANNING COMMISSION HEARING 71772003 277 described above, the lots provide a minimum 20-foot setback to the garage. The front and rear Wards have been modified *as shown in the applicant's plans, however, there are several setbacks that require modification to comply with the code standards as they are perimeter setbacks. Lot 27 is shown with a storm drainage easement. This will need to be set aside in a.separate tract, and as such, Lot 27 will no longer front on SW 74th, making the front yard on the new public street A 20-foot front yard setback will be required on this side, as it is a perimeter setback. Lot 29 is a flag lot and is subject to 10-foot side yard setbacks on the perimeter of the project. Additionally, staff recommends thaf standard rear yard setbacks be applied to the lots that have depths of 100 feet or more (#13-19) as a suitable building envelope has been provided through reduced front yard setbacks, and to further protect the sensitive land resource. A summary of these changes is shown in the following table: Table 1. Modified Setbacks for Ash Creek PD ront ear i. e Lot Garage Front ear Side o ara e Front Rear Side 6 22.5 8 5 15'/3' 8' . -7r5' 373' • 15' 373' 20' 8" -JTT5' 3'/3' 7" • 15' 3'13' 3'-15' 3'13' 15' 373' 20' 81 3' 15' 373' 223' 15' 3'/3' 81 3' 373' 15' 373' 3` 3'/3' 7 22.5' 15' 373' 22 8' 3' - 3'/3' 8 22.5'. 15' 3'13' X 15' 373' 24 20' 20' 9 2 15' 8' 15' 3'/3' 3' 31/3' . 15' 3'/3' S 3' 373' 15' 373' 3' 373' _W20' -45720' 2 15' 7 X- 3'13' 3 3' 15' 3'/3'' 0 3' 373' 2 3' 37910' 373' R 20' X 15- 3'13' With the changes outlined in the above table, this criterion has been met FINDING: Several perimeter setbacks do not meet standard code criteria. Staff recommends. against the proposed reduced rear yard setbacks on several lots where lot depths exceed 100 feet. CONDITIONS: • Prior to the issuance of building permits on the individual -structures within this development, the applicant shall demonstrate compliance with the setbacks outlined. in the above table. Moreover, the applicant shall submit a revised plan that indicates the modified setbacks and record a copy of the setback plan with the deeds. for each. lot • Prior to issuance of buildingg ppermits for structures on the individual lots within this development, the applicant shall demonstrate compliance with the height requirement of the uinderl ing zone. The requirement calls for a 30-foot maximum height for primary units and 15 feet maximum for all accessory structures. Other rovisions of the base zone: All other* provisions o the ase zone shall apply except as modified by this chapter. Any additional provisions of the base zone are discussed within the body of this report or will be reviewed during the building permit phase. 0 FINDING: The base zone standards that are related to the previously discussed criteria have been satisfied. AsH CREEK ESTATES summsIoN STAFF REPORT (swm3-mio) PLAHNM COMMISSION HEARING 717!2003 278 4WD Approval Criteria: 18.350.100 S etc Manned development a roval criteria. The Commission shall make findings that the 0 owing criteria are satisfied when approving or approving with conditions, the concept plan. The. Commission shall make :findings that the criteria are not satisfied when denying an. application. All the provisions of the land division provisions, Chapters 18.410; 18.420 and 18.430, shall be met; The applicant has applied to subdivide the property concurrently with the planned development . approval; therefore, all subdivision- criteria must be satisfied. Compliance with the subdmsion approval criteria is discussed in.greater detail in Chapter 18.430. The application has met or can be conditioned such that the subdivision provisions are satisfied. This criterion is satisfied.. Except as noted, the provisions of the following chapters shall be utilized as guidelines. A planned development need not meet these requirements where a development plan provides alternative.designs and methods, if acceptable to the Commission, that promote the purpose: of this section. In each case; the applicant must provide findings to j'ustify the modification: of the standards in the .chapters listed in Subsection 3 below. The developer may choose to . provide 'or the commission may require additional open space dedication and/or provision -of additional amenities, landscaping or tree planting. Chapter 18.715, Density Computation and Limitations. Unless authorized below, density shall be governed by the density established in the underlying zoning district The Commission may further authorize a density bonus not to exceed 10% as an incentive to increase or enhance open space, - architectural character and/or . site variation incorporated into the development. These factors must make a substantial contribution to. objectives of the kliann?d development. The degree of distinctiveness and the desirability of variation achieved all overn the amount of density increase which the Commission may approve according to e fo lowing: A maximum of 3% is allowed for the provision of undeveloped common space; A maximum of 3% is allowed for -landscaping; streetscape development; developed' open spaces, plazas and. pedestrian pathways and related amenities; recreation area development; and/or retention of existing vegetation; A maximum of 3% is allowed for creation of visual.focal points; use of existing- .physical- amenities such as topography, view, and sun/wind orientation; A maximum of 3% quality of architectural quality and style; harmonious use of materials; innovative building orientation or building grouping; and/or varied use Of housing types. The applicant has not requested any density bonuses. Density will be discussed later in this report under Chapter 18.715. Chapter 18.730, Exceptions to Development Standards; None apply. This criterion is not applicable'. Chapter 18.795; Visual Clearance Areas; The applicants plans show the areas-for visual clearance at street intersections. These areas, as well as the areas at the intersection of the driveways and the street will need to be maintained free from obstructions taller than three feet in height. Any violations of this chapter will be remedied through code enforcement. Chapter 18.745, Landscaping and Screening; This is a detached single-family- proposal adjacent to detached single-family homes. As such, there - ftre no requirements for screening or bufferin from neighboring,propesties. However as discussed ater in this report, the applicant is recLuited .fo landscape at least ZD°/a the site within a Planned Development. The applicant has ,provided a. street tree plan for SW 74 Avenue and proposes to leave the open space tract in its natural state. ASH CREEK ESTATES SUBDMSION STAFF REPORT (SUB200MM10) 279 PLANNING COMMISSION HEARING 7/7/2003 ~hapter 18.765, Off-street Parking and Loading Requirements; The applicant has proposed that all homes will be provided with 2-car garages and at least 20 feet in front of the garages; which. should provide more than. enough parking for the development. The applicant has also designed the street with adequate Width- to allow parking on one side of the street. The minimum requirement for household living is one space for every unit. This criterion is satisfied. -Chapter 18.705, Access, Egress and Circulation; and The applicant has indicated in the narrative that each lot will be served by a driveway to.a public or private street. The minimum required width fora driveway-is 10-feet, which will be assured at time of building permit review. The proposed private street improvements are evaluated under discussion of compliance with street and utility standards in Chapter 18.810 later in this report. Chapter 18.780, Signs. No signs are proposed in conjunction with this development. Any future signage will be subject to the sign permit requirements in Chapter 18.780: There..has been a proliferation .of sign violations from new subdivisions. In accordance with a new policy adopted b : the Director's Designee, all new subdivisions must enter into a. sign compliance agreement to facilitate a. more expeditious court process for citations. FINDING: Staff finds that the proposed development is consistent with the guidelines listed in the Planned Development Section 18.350:100:6.2. To expedite enforcement of sign violations, a.sign compliance agreement will be required. CONDITION: Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. ~n addition, the following criteria shall be, met: Relationship to the natural and physical environment: HE- streets , ui rugs an other sr e e emen s s a e.designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible; The site is constrained naturally by steep slopes, wetlands, and the drainsgeway that bisects the property along the southern property boundary. The property is in forest Timber deferral through Washington County and is, therefore, not subject to the tree removal ordinance with the exception of the trees in the sensitive lands areas. The applicant has proposed to remove all the trees within the developable area, and retain the- vast majornY of trees in the open space tract, except where public facility improvements necessitate tree removal. While this is permissible under existing rules and no mitigation is required by the code, it is unclear to staff how the above standard is being met when opportunities exist to preserve several trees outside the building envelopes and grading areas. The Planning Commission will need to determine whether the preservation of the trees within the open space tract satisfies this standard. With regard to preservation of topography and natural drainage its dear that effort was taken to preserve as much as possible of these features in their natural state. The road width has been reduced in coni'unction with public easements and reduced setbacks to minimize the degree of ggradi reqquired to accommodate the roadway, for both the private street and the extension of SW 74 lie drainageway area will be slightly impacted by the proposed (and City required) crossin of SW 74 . This impact will be minimized by uti lizing oversized culverts and retaining walls to limit the amount of fill encroachment into the corridor. Structures located on the site shall not be in areas subject to ground slumping and sliding; The site is characterized with several areas of slopes ,greater.than 25%, and in limited cases up to 50% slope From the applicant's geotech report, there is one area where previous land slumping has -occurred, southwest of the existing residence in the open space tracL The applicant's geotech re rt_ notes the locations of construction -limits where no further geotechnical study is required which enerall coincide with the rear lot -fines of lots 13-27. There are two notable exceptions, on lots 13, 4, and-15 and between - lots 22 and 23 where the slo pes are steeper, • and groundwater was encountered for one of the test pits. `:The ggeotech recontains recommendations to address stability of structures and fill on the project site, and requires further study in -those two areas. The recommendations of that report will be required as a recommended condition of approval. ASH CREEK ESTATES MMNIISION STAFF REPORT (SUB2003-00010) PLANNING COMMISSION HEARING 7!1/2003 280 j 3 There shall be adequate distance between on-site buildings and other on-site and off-site buildings on adjoining properties to provide for adequate light and air circulation and for fire protection; The current proposal does not call for any reduced setbacks along the rear yards of lots -1-12. The open space tract provides ample se aration for air circulation and light penetration. The street and front yard setbacks will establish a 46-foot separation between the fronts of the homes. The side yard setbacks have been to be reduced to 3 feet which complies with the UBC without the need. for additional rated fiewalls. Due to the reduced side yards, no protections into the amended side yards will be allowed. This criterion is satisfied. The structures shall be oriented with consideration for the sun and wind directions, where possible; and The proposed structures will be oriented with considerations for sun and wind to the extent practical. The majority of the lots are oriented in a north-south-direction providing for opportunities to maximize southern glazing exposure. Trees preserved to the extent possible. Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal. Trees are preserved in the open space tract to the maximum extent possible for this proposal. Trees outside the sensitive lands area are exempt from the tree removal standards as the property is subject to a forest deferral. Bufferin screening and compatibility between ad'oinin uses: Buttering shall provided een different peso an uses, e.g., between single-family and multi-family residential, and residential and commercial uses; Because the proposed development is for single-family homes in an area characterized by single-family development, the Tigard Development Code (TDC) does not require any, additional buffering. This criterion is inapplicable. In addition to the requirements of the buffer matrix (Table 18.745.1), the following factors shall be considered in determining the adequacy and extent of the buffer required under Chapter 18.745: The purpose of the buffer, for example to decrease noise levels, absorb air pollution, filter dust, or to provide a visual barrier; The size of the buffer needs in terms of width and height to achieve the purpose; The direction(s) from which buffering is needed;. . The required density of the buffering; and Whether the viewer is stationary or mobile. As stated previously, there is no requirement for buffering between existing single-family homes and new single-family homes. This criterion is inapplicable. On-site screening from view from adjoining properties of such activities as service areas, storage 'areas, parking lots and mechanical devices on roof tops shall be provided and the following factors shall be considered in determining the adequacy of the type and extent of the screening (a) What needs to be screened; (b) The direction from which it is needed; and (c) Whether the screening needs to be year- round. There are no specific service areas, storage areas, parking lots or mechanical devices proposed with this development. No additional. screening is required. This criterion is satisfied. Privacy and noise: Non-residential structures which abut existing residential dwellings shall be located on the - site, or be designed in a manner, to the maximum degree possible, to protect the private areas ~an the adjoining. properties from-view and noise; Private outdoor area multi-family use: Shared outdoor recreation areas - multi-family use: ASH CREEK ESTATES SUMVISION STAFF REPORT (SUS2003-MIO) 281 PLANNING caNl4 WON HEARING 7!7/2003 These criteria relate to non-residential or multi-family structures and are not applicable to the. roposed single-family-development. Access and circulation: The number o a owe - access points for a development shall be provided in .Chapter 18.705; Each lot will have direct front71g to a public or private street. Staff recommends that to reduce the . number of driveways on SW 7 - a Neighborhood Route, lots 28 and 29 should share access. This will be discussed later in this report . All circulation pattems within a development must be designed to accommodate emergency. vehicles; and Comments from Tualatin Valley Fire and Rescue (TVF & R) indicate that the proposed circulation system for the development is acceptable if their conditions are addressed. See Section Vill of this report for more details. Provisions shall be made for pedestrian and bicycle ways if such facilities are shown on an adopted plan. The project fronts on SW 74th Avenue, which is a neighborhood route but has not been designated for bike lanes. This criterion does not apply. Landsca m and open space: Residential Development n addition to the requirements of subparaggraphs (4). and (5) of section a of this subsection, a minimum of 20 percent of the site shall belandscaped; The open space and drainage tracts of this proposal constitute approximately 44% of the site area. The. applicant has indicated that landscaping on the lots will be accomplished by each homeowner Spe fo parately. The project will exceed the minimum 20% landscape criteria.- There is no landscape plan for the open space tract, however, areas of steep slopes that are disturbed are required to be replanted per the recommendations of the applicant's geotech report. Areas within the drainageway and wetlands will require mitigation replanting per the requirements of Clean Water Services and the Division of State Lands. This criterion has been met. Public transit: Provisions or public transit may be required where the site abuts a public transit route. The required facilities shall be based on: The location of other transit facilities in the area; and The size and type of the proposed development The required facilities shall be limited to such facilities as: A waiting shelter; A turn-out area for loading and unloading; and Hard surface paths connecting the development to the waiting area This site does not abuta public transit route and, therefore, this criterion is not applicable:. Signs.* No signage is proposed with this application- Any future signage will require a permit in compliance with the sign code. Parki a mg and loading areas shall be generally laid out in accordance with the requirements set Vorth in Chapter Chapter 18.765; *Up to 50% of required -off-street parking spaces for single-family attached dwellings. may be provided on one or more common parking lots within- the planned development as. long as. each single-family lot contains one off-street parking space. ASH C REEK ESTATES SUBDIVISION STAFF REPORT (SU82003-00010) 282 PLANNING C OMAISSION HEARING 717200.3 arking can comply with all applicable requirements of Chapter 18.765. Drainage: All drainage provisions shall be generally laid out in accordance with the requirements set- forth in Chapter 18.775, and the criteria in the adopted 1981 master drainage plan; Storm drainage complies, or will be conditioned to comply with applicable City of Tigard and Clean Water Services (CWS). requirements. For a more detailed discussion of storm drainage, see the discussion of compliance with the requirement of Chapter 18.810 later in this report. Flood lain dedication: . Where an i and/or development is allowed-within or adjacent to the 100-year floodplain, the City shall require consideration of the dedication of sufficient open land. area fora greenway adjoining and within the floodplain. This area shall include portions of a suitable elevation for the construction of a pedestnan/bicycle pathway with the floodplain in accordance with the adopted pedestrian. bicycle pathway plan. No areas within the 100-year floodplain exist on the site. The applicants narrative erroneously refers to areas of `100-year floodplain' but this is in fact areas of 25-year floodplain used to identify the extent of the drainageway. Since there are no-100-year floodplains on the property, -this criterion is not applicable. FINDING: The- proposed development complies, or can be conditioned-to comply with all planned development approval criteria contained in Section 18.350.100 of the Tigard Development Code. Shared Open Space: Requirements-for shared o n space: MWhere the open space is designated on the plan as common open space the following applies: . The open space area shall be shown--on the final plan and recorded with the Director; and The open space shall be conveyed in accordance with one of the following methods: By dedication to the City as publicly-owned and. maintained as open space. Open space proposed for dedication to the City must be acceptable to it with regard to the size, shape, location, improvement and budgetary and maintenance limitations; By leasing or conveying title (including beneficial ownership) to a corporation, home association or other legal entity., with the City retaining the development rights to the property The.terms of such leasor othr instrument of conveyance must include provisions suitable to the.City Attorney for guaranteeing the following: The continued use of such land for the intended"-purposes; Continuity of property maintenance- . When 'appropriate, the availability of funds required for such maintenance; Adequate insurance protection; and Recovery for loss sustained by casualty and condemnation or otherwise. By any method which achieves the objectives set forth in Subsection 2 above of this section. The. applicant' has indicated that the open space areas on the site will be conveyed to the developments: Homeowner's Association. To ensure compliance with City of Tigard standards, the following- condition shall apply: CONDITION: Prior to final subdivision plat approval, the applicant shall convey tnie 1`4 the proposed open space to a Homeowners Association in accordance. with the requirements of Section 18.350.110.A.2.b of the Tigard Development Code. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB200300010) PuwNINC cow Atssm HEAwNC 7/7r"3 283 AWpecial adjustments 18.370: qWdjustments to eve opment standards within subdivisions (Chapter 18.430). The Director shall consider the application for adjustment at the same time he/she considers the preliminary plat An adjustment may be approved, approved with conditions, or denied provided the Director fin: The applicant is requesting an adjustment to the street improvement standards on SW 70 Avenue, and an adjustment to the cul-de-sac standards. Under the new Transportation System Plan, the development is required- to provide a planter strip between the curb and sidewalk. The applicant is requesting an adjustment to the standard to allow the sidewalk to be curb fight in order to reduce the amount of fill required in the drainsgeway area. Also, the applicant has requested an adjustment to allow the proposed private street cul-de-sac to exceed the 200-foot length standard by 420 feet, and to permit .23 homes . on the cul-de-sac as opposed to the code maximum of 20 homes. These adjustments are discussed simultaneously in the following discussion. There are special circumstances or conditions affecting the property, which are unusual and peculiar to the land as compared to other lands similarly situated; In the case. of the curb tiht sidewalk, the site plan indicates the areas of sensitive resources, including Ash Creek, and the associated wetlands. If a 5-foot. planter strip was required, then an approximate 1,100 additional square feet of impact to the drainageway and wetland areas would occur. The unusual circumstance for this property is the presence of the stream and the fact that the development is required to cross the stream for street connectivity. In areas outside of the resource corridor, the sidewalk will meet the public street standards for sidewalks. This criterion is satisfied. In reference to the adjustment to allow the cul-de-sac length to exceed 200 feet as opposed to the proposed 620 feet, the presence of the sensitive lands and stream corridor limit. the developable width of the property, such that a looped street system is not feasible. The presence of existingg development to the south (Washington Square Estates), east (Washington Square Estates 11), and orth (the Razberry Patch) predudes future street extensions. The applicant's plans propose a public treet that vIn'll terminate at approximately 1/3 the total depth of the development site. While' a connection further east could be accommodated, the applicant's proposal provides: for future development potential of the northern lot, as well as, creates a better alignment for ultimate extension 0f SW 73 Avenue. There are specific topography constraints, as well as existing development patterns that limit the ability of the applicant to extend a road all the way through the development to eliminate the cul-de-sac. The resulting length of this cul-de-sac is the pnmary reason for the need to exceed the 20 home maximum on the cul-de-sac to a total of 23 homes. This criterion is satisfied. The adjustment is necessary for the proper design or function of the subdivision; The adjustment for: the curb tight sidewalk standard.is necessary for the design of this subdivision to reduce impacts on the natural resources on the site. This criterion is satisfied. The adjustment requested for the cul-de-sac length is necessary to provide access to lots 3-19 of this subdivision. A standard dimensioned cul-de-sac bulb has been proposed to serve emergency equipment and garbage trucks. This criterion is satisfied. The granti n of the adjustment will not be detrimental to the public health, safety, and welfare or injurious lo the rights of other owners of 'property; and Grantinq of the adjustments would not be detrimental to the health, safety and welfare, nor, is there any evidence to- suggest that the adjustments would be injurious to the rights of other owners of property surrounding the site. The Fire. District has reviewed and commented and offered no objection to these adjustments. The private street will be required to meet fire district standards for width and construction. The adjustment is necessary for the preservation and enjoyment of a substantial propeffw right because of an extraordinary hardship, which would result from strict compliance with the regulations of this title. - On order to develop the o erty in the. proposed manner, the applicant would need to. request the adjustments to the standa ds for street improvements and the cuf-de-sac length. These adjustments are necessary in order to develop the property as proposed. ASH MEEK ESTATES SUBDMSM STAFF REPORT M022003-00010) 284 PLANNM COMMISSION HEARING 71712003 i J INDING: The criteria for granting the adjustments to the street design and the cul-de-sac length standards havebeen satisfied. The adjustments are requested to accommodate this development specifically because of the natural resources and shape of the resultin buildable area of the t; as well as the consideration of pre-existing development patterns in the area that would not permit compliance with the applicable. chapters of the TDC. Zone Change: Standards for Makin Quasi-Judicial Decisions: Chapter 18.380 recommendation or a decision to approve,. approve with conditions or o eny an application for a quasijudicial zoning map amendpment shall be based on all of the following standards: Demonstration of compliance with all applicable comprehensive plan policies and map designations; The Development Code implements the goals and. policies of the, Comprehensive -Plan and planned developments. are permitted in all districts when they meet the code criteria of the Development Code. This criterion is satisfied. Demonstration of compliance with all applicable standards of any provision of this code or other applicable implementing ordinance; and According to the analysis of sections below, the proposed zone change is, or has been conditioned .to ensure compliance with the requirements for planned development (PD) in Section 18.350.020 and all other applicable requirements. Evidence of change in -the neighborhood or community or a -mistake or inconsistency in the comprehensive plan or zoning. map as it relates to .the property which is the subject of the development application. There is no change in circumstances or inconsistencies to the Comprehensive Plan or Zoning Map Aftthat warrants a zone change from the underlying zone. However, a zone change is necessary to lace the PD overlay designation on the property. This criterion is inapplicable. FINDING: The proposal. satisfies the criteria for a zone change to place the Planned Development. Overlay zoning onto, the property. Preliminary Subdivision Plat Approval Criteria: 18.430.040 Approval criteria: He Approval uthority may approve, approve with conditions or deny a preliminary plat based on the following approva criteria: The proposed preliminary plat complies with the applicable zoning ordinance and other applicable ordinances and regulations; As illustrated in this report, the proposed plat complies with the zoning ordinance and other applicable ordinances and regulations. The proposed plat name is not duplicative or otherwise satisfies the provisions of ORS Chapter 92; The applicant has not provided documentation of a plat name reservation; therefore, the applicant will- need to provide an approved plat name reservation prior to final plat approval: The streets and roads are laid out:so as to conform to the plats of subdivisions, and maps of major partitions already approved-foe adlioinin property as to width, general direction and in all other respects unless the City determines it is in the public. interest to modify the street or road pattern; and There are no street stubs to this -property from adjacent properties. - Existing development and topography limits the ability for this applicant to provide stubs for future road service to adjacent - roppeerties to the east and south; however, a street §tub has been provided. for the property. to the- . orth,- and extension of the improvements to- SW 74 avenue to the south is -also proposed. This criterion has been met. ASH CREEK ESTATES suBwAsKm STAFF REPORT (sumoo3U0om 285 PLANNING COMMISSION HEARING 7!7/2003 ~n explanation has been provided for all common improvements. The-applicant has provided an explanation for all common improvements. FINDING; The proposed development complies with all preliminary subdivision criteria, however, the applicant will need to provide evidence that the plat name is not duplicative of others in Washington County. CONDITION: Provide a plat name reservation approval from Washington County. ZONING DISTRICT Residential Zonin District: Section 18.510.020 e zoning is n is designed to accommodate detached single-famil homes with or without accessory residential units at a minimum lot size of 7,500 square fee Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also permitted conditionally. Planned Developments are permitted in all districts provided the application satisfies all applicable criteria. Development Standards: Section 18.510.050 States that Development standards in residential zoning is c are contained in a e .2 below: The subject site and the surrounding properties are all designated R-4.5, Low-Density Residential. EXCERPT FROM TABLE 18.510.2 DEVELOPMENT STANDARDS IN RESIDENTIAL ZONES .STANDARD. R-4.5 PROPOSED PD Minimum Lot Sae - Detached unit 7,500 sq.fL 4,702='11,616 sq. fL. - Duplexes 10,000 sq.fL N/A - Attached unit 1 N/A Average Minimum Lot Width - Detached unit lots 50 ft. Varies 58 ft.+ - Duplex lots 90 ft. N/A - Attached unit lots N/A Maximum Lot Coverage - - Minimum Setbacks - Front yard 20 ft. 8 ft_ - Side facing street on comer & through lots 15 ft. 15 fL - Side yard 5 ft. .3 ft. . - Rear yard 15 ft. 15 ft. and 3 ft. - Side or rear yard abutting more restrictive zoning district - N/A - Distance between property line and front of garage 20 ft. 20 ft. and 22.5 ft. Maximum Height 30 ft. 30 ft. Minimum Landscape Requirement - 20% For PD Overta Ill Single-family attached residential units permitted at one dwelling per lot with no more than rive attached units in one grouping- [21 Lot coverage induces all twldings and impervious surfaces. FINDING: Since the proposed development is a Planned Development, these standards can be altered to fit a specific design. It should be noted that,the applicant's narrative includes a table listing the various lot widths for each- lot. The.methodology utilized to establish these lot widths was incorrect. The width is measured at the front and rear yard setback and averaged to obtain the code specified lot width. In any case the lot' widths exceed the minimum requirement, and are authorized through the Planned Development process. ACCESS AND EGRESS: CHAPTER 18.705 inimum access requirements or resi ential use: Section18.705.030H. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SLIMM-00010) 286 PLANNING COMMISSION HEARING 7!1/2003 f ! ccess Management Section 18.705.030.H ec on states a an access report shall be submitted with all new development proposals which verifies design of driveways and streets are safe by meeting adequate stackin needs, sight distance and deceleration standards as set fy ODOT, Washington Coun y, the City and AASHTO. The applicants. engineer indicates that sight - distance will be met. Staff recommends that the applicant's engineer provide a post-construction sight distance certification. Section 18.705.030.H.2 states that driveways shall not be permitted to be, placed in the influence area of collector or arterial street intersections. Influence area of intersections is that area where queues of traffic commonly form on approach to an intersection: The .minimum driveway setback from a collector or arterial street intersection shall be150 feet, measured from the right-of-way line of the intersecting street to the throat of the, Proposed driveway. The setback may be greater depending upon the influence area, as detennined from City Engineer review of a traffic impact report submitted by the applicant's traffic engineer. In a case where a project has less than 150 feet of street frontage, the applicant must explore any option for shared access with the adjacent parcel. If shared access is not. possible or practical, the driveway shall be placed as far from. the intersection as possible. - 74th Avenue is classified as a "Neighborhood Route°. Taylor's Ferry Road. is classified as a "Collector" street. The proposed new intersection of 74"' Avenue and Street 'A' is not within the influence area of the 74 Avenue and Taylor's Ferry Road intersection. Section 18.705.030.H.3 and 4 states that the minimum spacing of driveways and streets along a collector shall be 200 feet The minimum spacing 'of driveways and streets along an arterial shall be 600 feet The minimum spacing of local streets: along a local street shall be 125 feet The proposed intersection is over 280 feet away from the intersection of 70 Avenue and Barbara Lane. Therefore, this standard is met. Vehicular access and egress for single-family, duplex or attached single-family dwelling units on individual lots and multi-family residential uses shalt not be. less than as provided in Table 18.705.1 and Table 18.705.2; TABLE. 18.705.1 VEHICULAR ACCESS/EGRESS REQUIREMENTS: RESIDENTIAL USE 6 OR FEWER UNITS DWellingUnits Minimum . Number. of; -minimum Access Width ' . Minimum Pavement.Width Driveway s Re . wired . or2 .15 feet feet The applicant has indicated in the narrative that each lot within the subdivision will have access to a public or private street and that each access will meet the 15-foot access requirement. It should be noted that staff will recommend a condition requiring joint access for lots 28 and 29, as discussed later in this report. FINDING: All proposed lots will meet the required 15 feet of access frontage '.required for single-family dwellings. To ensure that the minimum width pavement requirement is met at the time of development of each parcel, the following condition shall apply: CONDITION:At the time of.application for building permits for.individual homes, the applicant shall demonstrate that each site will be accessed by-a minimum 10-foot-wide paved access. Vehicular access to multi=family structures shall be brought to within 50 feet of the ground floor entrance or the ground floor landing of a stairway, ramp, or elevator leading to the dwelling units. - - Whis -is a proposal for a single-family development. This standard does not apply. Private residential access drives shall be provided and maintained in accordance with the provisions of the Uniform Fire Code. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUBM0,0W10) PLANNING COMMISSION REARM 7172003 287 40TThe individual homeowners will maintain the access drives once the property is developed and sold. e Tualatin Valley. Fire and Rescue District.has reviewed the proposal and the comments have been incorporated where necessary. This criterion is satisfied. Access drives in excess of 150 feet in length shall be provided with. approved provisions for the turning around of fire apparatus by one of the following: A circular, paved surface having a minimum turn radius measured from center point to outside edge of 35 feet; A hammerhead-configured, paved surface ,with each leg of the. hammerhead having a minimum depth of 40 feet and a minimum width of 20 feet;. The maximum cross slope of.a required turnaround is 5%. There are no* access drives proposed that would exceed 150 feet in length. This criterion has been. met. Vehicle turnouts, (providing a .minimum total.driveway width of 24 feet for a distance of at least 30 feet), may be required so 'as to reduce. the- need for. excessive vehicular backing. motions in situations where two vehicles traveling in opposite directions meet on driveways in - excess of 200 feet in length. There are. no proposed driveways in this development that exceed 200 feet in length. The deepest lot. in the proposed development is .165 feet, therefore, this criterion does not apply. Where permitted, minimum width for driveway; approaches to arterials or collector streets shall be no less than 20 feet so as to avoid traffic turning from the street having to wait for traffic exiting the site. The site is not adjacent to a collector or arterial. This standard does not apply. To provide for increased traffic movement on congested streets and 'to eliminate . turning movement problems, the Director may restrict the location of driveways on streets. and'requiire the location of driveways be placed on adjacent streets, upon the finding that :the proposed access would cause or increase existing hazardous traffic conditions; or provide inadequate access for emergency vehicles; or cause hazardous conditions to exist which would constitute a clear and present danger to the public health, safety, and general welfare. Since SW 740i is designated a neighborhood route, and will eventually be extended to connect to SW Locust Street, it is anticipated that traffic volumes will increase on this presently dead-ended road. To minimize traffic conflicts in this area where driveways may be difficult to see due to the vertical curves near the stream crossing, staff recommends that-the two southern lots, #28 and 29 share access through one driveway approach. This driveway is required to be a minimum of 10 feet of paved width within a 15-foot easement or tract. FINDING: The proposed development can comply with all applicable access, egress, and circulation requirements of Chapter 18.705. Joint access for lots 28 and 29 will improve traffic safety by reducing the number of access points onto this neighborhood route street. CONDITIONS: • The applicant.shall provide joint access within an easement or tract to Lots 28 and 29 and cause a statement to be placed on' the plat restricting additional direct vehicular access to SW 740i Avenue. • At the time of application for building permits for individual homes, the applicant - shall demonstrate that each site will be accessed by a minimum 10-foot-wide- paved access. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB200"M10) 2 gg PLANNING COMMISSION HEARING 7!712003 E y IMENSITY COMPUTATIONS: CHAPTER 18.715 Density. Calculation: 18.715.020 Definition of net development area. Net eve opmen area, in acres, shall be determined by subtracting the following land area(s) from the gross acres, which is all of the land included in the legal description of the. property to be developed: All sensitive land areas: a. Land within the 100-year floodplain; b. -Land or slopes exceeding 25%; c. Drainage ways; and d. Wetlands. All land dedicated to the public for park purposes; All land dedicated for public rights-of-way. When actual information is not available, the following formulas may be used: Single-family development: allocate 20% of gross acreage; Multi-family development: allocate 15% of gross acreage. All land proposed for private streets; and A lot of at least the size required by the applicable base zoning district, if an existing . dwelling is to remain on the "site. Calculatin maximum number of residential units. To-calculate the maximum :num er o residential units per net acre, divide, the number of square feet in the net acres by the minimum number of square feet required for each lot in the applicable zoning district. The net development area. is determined by subtracting from the gross area, the land needed for public and private streets as well as areas for sensitive lands. The calculations are as follows: Gross lot area 407,721 square feet Public Street dedication 17,828 square feet nvate Street dedication 22,670 square feet WhDrainageway 70,862 square feet Steep Slopes 107,556 square feet Wetlands (wholiv contained in drainagewav) NET DEVELOPA13LE AREA: 188,805 square feet (Before Density Transfer) NUMBER-OF LOTS: 25 lots Residential Density Transfer u es governing resia~ial density transfer. The units per acre calculated b subtracting land- areas fisted in Section 18.715.020 A. 1a - c from the gross acres may be transferred to the remaining buildable land areas subject to the following, limitations: 1. The number of units which can. be transferred is limited to the number of units which would have been allowed on 25, percent of the unbuildable area if not for these regulations; and 2. The total number of units per site does not exceed 125 percent of the maximum number of units per gross acre permitted for the .applicable comprehensive. plan designation. Based on the rules for density transfer, the applicant is, able to utilize 25% of the. constrained lands as part of the net developable area. In this case, the drainageway and steep.slopes constitute a total of 178,418 square feet. Twenty-five percent of this ' area is 44,604 square feet, for a total net developable. area of 233,409 square feet. To calculate the maximum allowed density, net'developable area is divided by the minimum allowed square footage within the zone, as follows: R-4.5 zone 23347,500 = 31 dwelling units. The total number of units based on 125% of the gross site acreage would be 25 lots x 125%, or 31 ~ots FINDING: The proposed 29 dwelling units do not exceed maximum density of the net developable area. This standard is met ASH CREEK ESTATES SUMMSION STAFF REPORT (SUB"X=10) 289 PLANNING COMMISSION HEARING 7172003 o • Calculatin minimum number of residential units. required by ec ion 18.510.040, the minimum number of residential units per net acre shall be calculated by multiplying the maximum number of units determined in Subsection B above by 80% (0.8). ° The minimum required density is determined by the following calculation: 25 X 0.80 = 20 FINDING: The standard for minimum density is met. ENVIRONMENTAL PERFORMANCE STANDARDS: CHAPTER 18.725 Thesestandards require that federal and state environmental laws, rules and regulations be applied to development within the City of Tigard, Section 18.725.030 (Performance Sfandards) regulates: Noise, visible emissions, vibration and odors. Noise. For the ppurjposes of noise regulation, the provisions of Sections 7.41.130 through 7.40.210 of the Tigard Municipal Code shall apply. Visible Emissions. Within the commercial zoning districts and the industrial park (IP) zoning district, ere s a be no use, operation or activity which results in a stack or other point- source emission, other than an emission from space heating, or the emission of pure uncombined water (steam) which is visible from a property line. Department of Environmental. Quality-(DEQ) rules for visible emissions (340-21-015 and 340-28=070) apply. Vibration. No vibration other than that caused by highway vehicles, trains and aircraft is pew in any given zoning district which is discernible without instruments at the property line of the use concerned. *-Odors. The emissions of odorous gases or other matter in such quantities as to be readilIyy efeWabte at any point beyond the property line of the use creating the odors is prohibited. DEQ rules for odors (340-028-090) apply. Glare and heat. No direct or sky reflected glare,. whether from floodlights or from high empera ure processes such as combustion or welding, which is visible at the lot line shall be - permitted and; 1) there shall be no emission or transmission of heat or heated air which is discernible at the lot line of the source; and 2) these regulations shall not apply to signs or floodlights in parking areas or construction equipment at the time of construction or excavation work otherwise permitted by this title. Insects and rodents. All materials- including wastes shall be stored and all. grounds -shall be maintained in a manner which will not attract or aid the propagation of insects or rodents or create a health hazard. This is a detached single-family project, which is permitted within planned developments in the R-4.5 zone. There is nothing to indicate that these standards will not be met. However, ongoing . maintenance to meet these standards shall be maintained and any violation of these standards will-be addressed by the City of Tigards' Code Enforcement Officer. FINDING: The Environmental Performance standards are met. LANDSCAPING AND SCREENING: CHAPTER 18.745 Establishes standards or an scaping, buffering and screening to enhance the aesthetic environmental quality of the City. The R-4.5 zoning district does not require any landscaping, however, planned developments require that a minimum of 20/o of the site be landscaped. As discussed previous, the common areas that are to be ndsca constitute 27% of the site, and additional landscaping will be planted with the development f each lot Am CREEK tmATEs summa ON STAFF REPORT (SUB2003.00010) PLANNING COMMISSION HEARING 717rAM 290 Section 18.745.040. states that all development projects fronting on a public street, -private • street, or a private driveway more than 100. feet in length after the adoption of this title shall be required to plant street trees in accordance. with the standards in Section 18.745.040C. The applicant has provided a street tree plan for the development to. include the planting of 62 Red Sunset Maples along Pe front of the lots facing the public and private street and. along the site frontage along SW T4 Avenue. The .proposed street trees are acceptable species; however, staff recommends a greater variety of trees be used by utilizing an alternate species along either the public or private street. This will further distinguish the private from- the public street as well. With the change outlined above, this criterion is satisfied. FINDING: The proposed street tree plan should offer a greater diversity of tree species. CONDITION: Submit a revised street tree/landscappe plan that shows an altemative tree- species used for either the public or private street to vary the streetscape. Bufferin .and Screenin - Section 18.745.050 n eng an screening is. =red ore uce the impacts on adjacent uses which. are of a. different type in accordance he matrices in this chapter (Tables 18.745.1 and 18.745.2). The subject site is surrounded by single-family developments; therefore, there is no requirement<for buffering and screening for this project. FINDING: As conditioned, the proposed development will comply with all applicable Landscaping and Screening requirements of Chapter 18.745: MIXED SOLIDWASTE AND RECYCLABLE STORAGE: CHAPTER 18.755 oog listed as a review criterion or is application-,- this chapter is only applicable to multi-unit residential buildings containing five or more units and non-residential construction. Therefore; this chapter is inapplicable. The applicant has stated that they intend to serve the site as any other .single-family development would be served, and Pride Disposal has signed off on the site. plan for serviceability. OFF-STREET PARKING AND LOADING REQUIREMENTS: CHAPTER 18.765 is Chapter is applicable or development projects when there is new construction; expansion of existing use, or change of use in accordance with Section 18.765.070 Minimum and Maximum Off-Street Parking Requirements. The proposed project will create 29 lots for single-family dwellings. Submittals of detailed plans for the construction of homes within the development are not necessary. at this time. Table 18.765:2 requires that one (1) off-street parking- space be provided per detached dwelling unit. There is no maximum limit on parking allowed for detached single-family dwellings. There is also no bicycle parking requirementfor' single-family dwellings. Staff -notes that there is a 20-foot required setback from the face of garages to property fines in all residential zones. To ensure that homes constructed in this development comply . with these standards, the following condition shall apply: CONDITION: At the time of submittal for building permits for individual homes within the development, the developer shall submit materials demonstrating that one (1) off-street parking space, which meets minimum dimensional requirements and setback requirements as spedfieed'in` Title 18, will be provided on-site for each new home. SENSITIVE LANDS: CHAPTER 18.775 e development site in u es area of drainageways; associated wetlands, and steep slopes. . Development of sites that include these areas requires review -through the sensitive lands criteria as described below. Jurisdictional wetlands. Landform alterations or developments which are only within wetland areas that meet the jurisdictional requirements and permit criteria of the U.S. Army Corps of- AWngineers, Division of State Lands, CWS, and/or other federal, state, or regional agencies, and re not designated as significant wetlands on the City of Tigard ..Wetland .ands Streams Corridors "Map.; do not require a sensitive lands permit. The City shall require that all necessary -permits from other agencies are obtained. All other applicable City requirements ASH CREEK ESTATES SUBDNISION STAFF REPORT (SUB200300010) PLANNING COAAMISSION HEARING 71772003 291 must be satisfied, including sensitive land permits for areas within the 100-year floodplain, slopes of 25% or greater or unstable ground, drainageways, and wetlands which are not under state or federal jurisdiction. The wetlands within this site do not appear as significant wetlands on the City's map,: but are regulated by CWS and state agencies. A condition of approval will be imposed requiring the necessary permits from Army Corps, Division of State Lands, and CWS be obtained. Steep slopes. The appropriate approval authority shall all rove, . approve with conditions or eny an application request for a sensitive lands ppermon slopes of 25% or greater or unstable ground based upon findings that all of the following criteria have been satisfied: 1. The extent and nature of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for-the use; 2. The proposed land form. alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off-site effects or hazards to life or property; 3. The structures are appropriately sited and designed to ensure structural stability and proper drainage of foundation. and crawl space- areas for development with any. of the following . soil. conditions: - , wetthigh, water table; high shrink-swell capability; compressible/organic; and shallow depth-to-bedrock; and 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. The proposed land form alteration is limited to the extent necessary to provide for a street, sidewalk, and utilities. The applicant has attempted to limit the land alteration by narrowing the street, eliminating the sidewalk on one side of the private street, and reducing front yard setbacks. The predominance of the landform alteration will occur outside the stream corridor and drainageway. Also, a geotechnical report has been performed: - An erosion control and grading plan will be required as part of the engineering approval process to insure that grading within the steep slope areas will not result in sedimentation or erosion, as well as avoid on. or off-site adverse effects. Furthemhore,. the City will require the applicant's engineer to submit the proposed construction plans to the geotechnical engineer for review and approval prior to City approval of the construction plans. A geotechnical report has been conducted to evaluate the suitability of the lots for. building placement. The geotech report provides a designated area where no further geotechnical evaluation is -necessary, and areas where a more- detailed analysis will be required. This designation affects a portion of the private street and lots 13, 14, 15, 22, and 23. A condition is required further in this report to have the geotechnical engineer review the proposed grading and building placements prior to if nal plat approval for these areas. To address. erosion concerns and removal of vegetation, the applicant will be required to submit an erosion control, plan prior. to any grading. The applicant has not indicated that areas affected by landform alterations will be re-planted if not covered by structures or impervious surfaces, however, this will be insured by the erosion control plan and a condition requiring areas to be re-planted prior to final building permits will be required as part of this approval, and is furthermore required through the CWS service provider letter. Within drains ewa s. The appropriate approval authority shall approve, approve with. con r ions or deny an application request for a sensitive lands permit within drrainageways based upon-findings that all of the following criteria have been satisfied: - 1. The extent and nature of the proposed rand form alteration or development will not create site disturbances to an extent greater than that required for the use; In this case, the landform alteration will include a stream crossing to extend SW 74"' Avenue. This is a requirement of the City to improve the site frontage, provide access to the two proposed. lots, ang further implement the objectives of the City's Transportation System Plan which designates SW 74 as a neighborhood route. The applicant has proposed a small retaining wall to minimize the amount of fill in the stream corridor.. The extent of the disturbance is no greater than that required for the roadway. No disturbance within the drainageway is proposed to accommodate the lots or internal streets. The proposed land- form alteration -or development will not result in erosion, stream.. - Osedimentation, ground instability, or other adverse on'-site and off-site effects or hazards to. life or property; ASH CREEK ESTATES SUBDWUON STAFF REPORT (SUB2003-00010) 292 PLANNING COMMISSION HEARING 7!1!2003 As described previously, an erosion control and grading plan will be required as part of the engineering approval process to insure that grading within the steep slope areas will not result in sedimentation or erosion, as well as avoid on or off-site adverse effects. Furthermore, the City will require the applicant's engineer to submit the proposed construction plans to the geotechnical engineer for review and approval prior to City approval of the construction plans. 3. The water flow capacity of the drainageway is not decreased; The applicant has submitted a stormwater report that shows that the capacity of the drainageway is not affected. The applicant has proposed using an oversized box culvert to ensure that upstream properties are not affected. 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces. will be replantedto prevent-erosion in. accordance with Chapter 18.745,:Landscaping and Screening; To address erosion concerns and removal of vegetation, -the applicant will be required to submit an erosion control plan prior to any grading. The applicant has not indicated that areas affected by landform alterations will be re-planted if not covered by structures or impervious surfaces; however; this will be insured by the. erosion control plan and a condition requiring areas to be re-planted prior to final building permits will be required as part of this approval, and is furthermore required through-the CWS service provider letter. 5. The drainageway. will be replaced by a 'public facility of adequate size to accommodate maximum flow in accordance with the adopted 1981 Master Drainage Plan; The 1981 Master Drainage Plan does not identify any public facilities for this portion of Ash Creek. 6. The necessary U.S. Army Corps of Engineers and State of Oregon Land Board, Division of State Lands, and CWS approvals shall be obtained; .The applicant has shown approvals from Clean Water Services but has- not et obtained U.S. Arm Y Y Corps of. Engineers, and Division of State Lands approvals. These will be required prior to commencing any site work. 7. Where land form alterations and/or development are allowed within and adjacent to the. 100- year floodplain, the City shall require the consideration of dedication of sufficient on land area within and adjacent to the floodplain in accordance with the Comprehensive Ppelan. This area shall include portions of a suitable elevation for the construction- of a :pedestrian/bicycle pathway within the floodplain in accordance with'-the adopted pedestrian- bicycle pathway plan. There is no 100-year floodplain within or adjacent to the proposed development. This standard is inapplicable. FINDING: Provided the applicant complies with the following conditions, the proposal can meet the criteria necessary to issue a sensitive lands permit on this particular site. CONDITIONS: • Prior to the issuance of final occupancy on any building, -the -a plicant. must provide City :staff with . a letter from Clean Water .Services. that indicates -compliance with the approved service-provider letter (#2819). • Prior to any site work, the applicant. shall -provide evidence of: all necessary. approvals from US Army Corps of Engineers and the Division of State tands. • Prior to any site work, the drainage tract must be clearly identified: in the field. with - • permanent (preferably with minimum 4-foot-t6ll black chainlink) fencing so as to insure no grading or material is placed in this area. Any fencing that is damaged during construction must be replaced prior to final building inspection. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003.00010) PLANNING COMMISSION HEARING 717/2003 293 t - • Prior to final plat approval submit and receive apppproval for an erosion control and grading plan for alteration on slopes exceeding 25%. • Re-plant any.area where vegetation has been removed as a result of grading-in conformance with the Clean Water Services Standards as set forth in the site assessment file #2819, prior to obtaining building permits- Prior to commencing on site improvements, the applicant shall have the geotech engineer review and approve the construction plans-for the City's. review and approval. TREE REMOVAL: CHAPTER 18.790 tree p an for a planting, removal and protection of trees prepared by a certified arborist shall be provided with a site development review application. The tree plan shall include identification of all existing trees, identification of a program to save existing trees ar m"ate tree removal over 12 inches in caliper, which trees are to be removed, protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. The applicant indicates in his narrative that the property is subject to a timber deferral status and the owner has elected: to remove all of the trees on the property that are outside the sensitive lands areas as provided for in the Development Code, Section 18.7050 (D)(4). There, are several trees that' are indicated for removal within the sensitive lands areas, and ese trees will require separate tree removal permits. Staff estimates that there are 74 such trees. The applicant should note that a separate fee is required for each tree removal in a sensitive land area and based on the estimate and current permit fees, this equates. to $4,200. The applicant will need to demonstrate compliance with the removal criteria in Section 18.790.050(A). The applicant has not submitted an arborist report regarding the protection of the trees that will remain on site. WINDING* The applicant has provided a tree removal plan indicating the trees proposed for removal. There are approximately 74 trees in sensitive land areas that will require tree removal permits. No arborist report to address the protection of the remaining trees on site has- been submitted. To ensure that the trees are preserved according to the tree removal plan, the following conditions shall apply: CONDITIONS: The applicant shall submit an arborist report with tree protection recommendations, and shall provide the City Arborist with a construction sequence including installation and removal of free protection devices, clearing, grading, and paving. Prior to site work, the applicant shall submit a complete set of construction documents. with the tree locations for the City Arborists review. The applicant shall notify the City Arborist when tree protection measures are in place so that he may verify that the measures will function property prior. to construction. Visual Clearance Areas: Section 18.795 Clear vision shall be maintained on the -comers of all property adjacent to intersection of two streets, a street and a railroad, or a driveway providing access-to a public or private street A clear vision area shall contain no vehicle, hedge, planting, fence, wall structure, or temporary or permanent obstruction exceeding three. (3) feet in height, measured-from the top of the curb, or where no curb exists, from the street center grade, except the trees exceeding this height may be located in this area, provided all branches below eight feet are removed. For arterial streets the visual clearance shall not be less than 35 feet on each side of the intersection. ASH CREEK ESTATES St MNISM STAFF REPORT (SUB20M-00010) PLANNM COMMISSION HEARING 717r20ai 294 iNo specific plans for the construction of structures are required through the subdivision process. JrGompliance with vision clearance requirements shall be confirmed through the building permit process for all homes to be constructed within the development. The applicant has illustrated the dear vision areas on the plans and-included,details at a larger scale fob the intersection of the private street at the new public street, and at the new public street and SW 74 Avenue, and has indicated in the narrative that there will be no obstructions-placed within these areas. This standard is met. G. IMPACT STUDY: SECTION 18.390.040.B.e ecjuires at a applicant shall include an impact study. The study shall address, at a . mirumum, the transportation -system, including bikeways, the' drainage system, 'the parks system, the water system, the sewer system, and the noise impacts of the development. For each public facility system and type of impact of the development on the public at large, public facilities systems, and affected private property users. In situations where the Community Development Code requires the dedication of real property interests, the applicant shall either specifically concur with the dedication of real property interest, or provide evidence which supports the conclusion- that the :reap property dedication requirement is not roughly proportional to the projected impacts of the development The applicant has submitted an impact'study.addressing the required elements above. ROUGH PROPORTIONALITY ANALYSIS An reeqquired street improvements to certain .~collector or higher volume streets and the Washington County Traffic Impact Fee (TIF) are mitigation measures that a=for red at the time of development. Based on a transportation impact study prepared by Mr. David the A-Boy Expansion/Dolan II/Resolution 95-61, TIF's are expected to recapture 32 percent of the traffic impact of 'new development on the Collector and Arterial Street system. Effective July 1. 2003, the TIF . for a detached, single-family dwelling is $2,530. Upon completion of this development, the future builders of the residences will be required.to pay T1F's totaling approximately $73,370($2,530 x 29 dwelling units). Based on. the estimate that total TIF fees cover 32 percent of the impact on major street improvements citywide, a fee that would cover 100 percent of this protects traffic impact is $229,281 $73:370 divided by.32). The difference between the TIF paid and the full impact, is considered as unmitigated impact. The internal streets within the subdivision are needed to allow the subdivision to develop and the need for-these streets is created by the subdivision. Because the need for the internal streets is created - by the development, the impact of the development is directly proportional to the cost of, dedication and construction of the internal streets and not considered as mitigation for the development impact. With . regard to off site mitigation measures, -the applicant is proposing to make % -street improvements and provide a grossing over Ash Creek. The applicant s estimated cost of these street improvements along SW 74 Avenue is $250,000. Using the City's standard methodolooggy, the amount -of mitigation provided through the applicant's street improvements exceeds the ,estimated value of, the full impact from this development by approximately. $94,000. This is not roughly proportionate to the impact of the development; however, it is required for the proper function of the applicant's subdivision, to provide access to the lots within the subdivision, and the applicant has proposed this improvement. ° With regard to the dedication of real,property interests, the applicant will be required "to dedicate. an additional 2 feet of right of way totaling 842 square feet for a total value of approximately $2,526. This amount of real property dedication is roughly proporti onate to the full $229,281 impact. Although the cost of the physical improvements exceed the full impact, the applicant has proposed these improvements and is required to- provide them in order to satisfy .the standards of the street improvement chapter. Full Impact )$229,281 Less TIF Assessment ~29 lots x $2,530) -$73,370 Less mitigated costs 74 Street Im rovement - $250000 - Wstimate of Unmitigated Impacts _ AsH cREEK ESTATES sumpmm srAFF REPORT (suwom-owio) PLAPAVtMG COMMISSiOM HEAPJNG 71712M 295 FINDING: The applicants proposed street improvements are required to address the standards of Chapter 18.810 and to allow the subdivision to function properly. While the cost of these improvements is not proportionate to the level of impact, fine improvements have been proposed by the applicant. The required dedication of right of way is dearly proportionate to the impact of the creation of these 29 lots. Therefore, the conditions are either roughly proportionate to - the impacts sustained or required to meet the code standards and are thereby justified. STREET AND UTILITY IMPROVEMENTS STANDARDS: CHAPTER 18.810 Chapter 18.810 provides construction sn ar s or the implementation of public and private facilities and utilities such as streets, -sewers, and drainage. The applicable standards are addressed below: Streets: Improvements: Section 18.810.030.A.1 states that streets within: a development and streets adjacent shall be improved In accordance with the TDC standards. Section 18.810.030.A.2 states that any new street or additional street width planned. as a portion of an existing street shall be dedicated and improved in accordance with the TDC. -Minimum Rights-of-Way and Street Widths: Section 18.810.030(E) requires a neighborhood route street to have a 54-foot right-of way : width and a 32-foot . paved section. Other- improvements required may include on-street parking,, sidewalks and bikeways, underground utilities, street lighting, storm drainage, and street trees. SW 70 Avenue is site lies adjacent. to SW 740' Avenue, which.is classified as a Neighborhood Route on the City of Tigard Transportation Plan Map. At present, there is approximately 25 feet of ROW from centerline, ccording to the most recent tax assessor's map. The applicant is proposing to dedicate additional gWOW to provide 27 feet from centerline. SW 70 Avenue is currently unimproved. There is an existing drainage way that crosses 740' Avenue just south of the proposed intersection. There is also a 36-inch water transmission line, owned and operated by -the. City of Tualatin. The applicant's engineer found that if he designed the roadway to meet Tiigard's standard for a sag vertical curve it would require significant fill to be placed over the water line. The City of Tualatin was not in favor of this amount of.fill. Another issue is the.fact that the more fill that is placed in the sag curve the more impact the fill has on the drainage way wetland area. The applicant and his engineer met with representatives from Tigard, Tualatin and Tualatin Valley WaterDistrict to discuss this issue. All parties agreed that the applicant should be permitted to construct 74" Avenue with a steeper grade than the standard in. order to minimize the impact on the water line and.the wetlands. The applicant would -be required to apply for an adjustment to the grade standard. This discussion will be covered later, in this report. The result of the applicant's design proposal is that they will be constructing a 3/4-street improvement along the frontage of their site. Adjustment for Curb-ti ht Sidewalk ecaule o the stream com or an associated wetlands that traverse the proposed street crossing of SW 74 Avenue, the applicant would like to move the sidewalk to curb-tight to reduce the width of the street and the resulting amount of fill required to build the street. By placing the sidewalk curb tight, 5 fewer feet of width into the stream corridor is avoided.. Adjustments to street standards are covered under TDC 18.370.020.C.11, where the Director-must find that the following criterion is satisfied: 'Strict application of the standards will result in an unacceptably adverse impact on existing. development on the proposed development; or on natural features such as wetlands, steep slopes or existing mature trees. - In approving an adjustment to the standards, the Director shall determine that the potential adverse impacts exceed the -public benefits of strict application of the standards." ASH CREEK ESTATES SUBDMSKM STAFF REPORT (SUB2=0 OW1O) 296 P(At, MNG COMMISSION HEARING 7!/2003 j ;i The drainageway and wetlands in Tract A adjacent to the roadway cannot be avoided while still providing for the street connection. The applicant has reduced the street section to the minimum width of 24 feet and has proposed a -retaining wall to limit the amount of fill and protect the roadbed from undermining and erosion. By moving the sidewalk to the curb line, the required planting stripp is eliminated; however, additional preservation of wetlands, the stream corridor, and existing mature trees will result. Staff finds that the adjustment would not adversely affect the public benefits, as citizens often comment that they do not like to see mature trees being removed with development. The applicant has proposed planting street trees on the outside of the sidewalk to maintain the street tree plaiting scheme. Staff recommends approval of this adjustment. Future Street Plan and Extension of Streets: Section 18.810.030(F) states that a future street plan shall be. filed which shows the pattern of existing and proposed future streets from the boundaries of the proposed land division. This section also states that where, it is necessary to give access or permit a satisfactory future division of adjoining land, streets shall be extended to the boundary lines of the tract to be developed and a barricade shall be constructed at the end of the street These street stubs to adjoining properties are not considered to be cul-de=sacs'since -they are intended to continue as through streets at such time as the adjoining property is developed A barricade shall be constructed at the end of the street by the property owners . which- shall not be removed until authorized by the City Engineer, the cost of which shall be included in the street construction cost Temporary- hammerhead turnouts`or temporary cu"We- sac bulbs shall be constructed for stub-streets in excess of 150 feet in length. The applicants plan shows that they will stub a public street to the parcel to the north. The location of .this street stub will accommodate effective development of this parcel. Staff concurs with the proposed plan. Street Alignment and Connections: Section 18.810.030(G) states that staggering of streets makingg."T" intersections at collectors and arterials shalt not be designed so that dogs of less than 300 feet on such streets are created, as measured from the centerline of such- street. . Spacing between local street intersections shall have a minimum separation of 125 feet. All local streets which abut a development site shall be extended within the site to provide through. circulation when not precluded by environmental or topographical constraints; existing. development patterns or strict adherence to other standards m this coder A 'street connection or extension is precluded when it is not possible to redesign, or reconfigure the street pattern to provide required extensions. In the case of environmental or topographical constraints, the mere presence of a constraint is not sufficient to show that'- a street connection is not possible. The applicant must show why the constraint precludes some reasonable street connection. As was stated above, the steep slopes and creek to the south preclude extension of a public or - private roadway further to the west. No public street connection is proposed to the east due to the fact that all parcels around that part of the site are fully developed with no street -extensions available to this site. Cul-de-sacs: 18.810:030.K states that a cul-de-sac shall be no more than 200 feet long, shall not provide access to,greater than 20 dwelling units, and shall only be used when environmental- or topographical constraints, existing development pattern, or. strict adherence to other standards in this code-preclude street extension and through circulation: All cul-de-sacs shall terminate with a turnaround. Use of turnaround configurations other than circular, shall be approved by the City Engineer; and The length of the cul-de-sac shall be measured along the centerline of the roadway from the near side of the intersecting street to the farthest point of the cul-de-sac. ff a cul-de-sac is more than 300 feet long, a lighted -direct. pathway -to an adjacent street may be required to be provided and dedicated to the City. The applicant is proposing a private street cul-de-sac that will be approximately 600 feet long. The applicant-has.-asked for an adjustment to the standard. Adjustments to provisions under 18.810 are -covered under 18.370.020.C.11, whi states: ASH CREEK ESTATES SUBDMSION STAFF REPORT (SUB2003-=10) PLANNING COWAISSM HEARING 7172003 297 `The director shall approve, approve with conditions, or deny a request for an adjustment to, the street improvement requirements, based on findings that the adverse impact on existing development, on the proposed development, or on natural features such- as wetlands, steep slopes or existing-mature trees. In approving an adjustment to the standards, the. Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards" The applicant states that no practical alternatives are available to provide reasonable and efficient access to the entire property. The applicant proposes a private street that would have a length of approximately 5001 feet. Again, the adjustment criteria found in TDC 18.370.020.C.1 I applies: aStrict application of the standards will result in an unacceptably adverse impact on existing. development, on.the proposed development, or on natural features such. as wetlands, steep. slopes or existing mature trees. In approving an adjustment to the standards; the Director . shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards. The site is over 967- feet deep, which. poses a challenge immediately when it comes to serving developable lots with street frontage. In addition, as was mentioned before, the steep slopes-and: creek to the south preclude any connection to the south. Existing development to the north and east also preclude street connections. Therefore, in order to serve the developable portion of this site, a street of over 200 feet is necessary. The impacts to the steep slopes. and creek channel would exceed any perceived public benefit. of a through street, especially when this street will only serve a. total of 29 homes. Staff supports this adjustment. Grades and Curves: Section 18.810.030.M states that grades shall not exceed ten percent-on arterials, 121/6 on collector streets, or 12% on any other street (except .that local or=residential access: streets may have segments with grades up to 15% for distances of no greater than 250 feet), and: - The applicant has applied for an adjustment to this standard, but review of their submittal shows that the proposed street grade does not exceed 15% for-over 250 feet. Therefore, an adjustment is not required. Private. Streets: Section 18.810.030.S states that design standardsfor private streets shall be. established by the City Engineer. The City shall require legal assurances for the continued maintenance of private streets, such as a recorded maintenance agreement. Private streets serving more than six dwelling units are permitted only within planned developments, mobile home parks, and multi-family residential developments. The applicant is proposing to - serve lots 2-23 with a private street. Because this development is proposed as a planned development a private street is acceptable. The applicant shall-place a statement on the face of the final plat indicating the private street(s)-will be owned and maintained by the properties that will be served by ittthem: In addition, the applicant shall record Conditions, Covenants and Restrictions (CC&R's) alon UST. the final plat that wil l clarify how the private property owners are to maintain the private steee These. CC&R's shall -be reviewed and approved by the City prior to approval of the final plat : City's public improvement design standards require private streets to have a pavement section equal to a public local street. The applicant will need to provide this type of pavement section. Block Designs - Section 18.810.040A states that the length, width and shape of blocks shall be designed with due regard to providing adequate bi. ding sites for the use contemplated, consideration of needs for convenient.access, circulation, control and safety of street traffic and recognition of limitations and opportunities of topography. Block Sizes: Section 18.810.040.$.1 states that the perimeter of blocks formed by-streets. shall not exceed 1,800 feet measured along the right-of-way line except: Where-street location is precluded by natural topography, wetlands or other bodies of water or, pre-existing development or ASH CREEK ESTATES SUBDNt M STAFF REPORT (SUB2W3-"10) PLANNING COMMISSION FEARING 717r AM 298 • . For blocks adjacent to arterial streets, limited access highways, major collectors or railroads. For non-residential blocks in which internal public circulation provides equivalent access. Because of pre-existing adjacent development and the stream corridor, there are no further opportunities for connections. The applicant's proposed street stub to the north will eventually provide a block measuring approximately 1,250 feet. This standard is met. Section 18.810.040.B.2. also states- .that- bicycle 'and pedestrian connections on public easements or right-of-ways shall. be provided. when full street connection is not . ssible. Spacing between connections shall be no more than 330 feet, except where precluded by environmental or topographical constraints,, existing development patterns, or. strict adherence to other standards in the code. The applicant has proposed to serve the site with a sidewalk on one side of the private street, and to stub a. pedestrian connection with the street stub to. the north. There are no opportunities for a pedestrian connection to the east or south due to pre existing development patterns. This standard is satisfied. Lots - Size and Shape: Section 18.810.060(A) prohibits lot depth from being more than 2.5 times .the average lot width, unless the parcel is.-less than 1.5 times the minimum lot size of the applicable zoning district Only one lot exceeds .1.5 times the minimum lot size,. however this lot (#13) is 69 feet in average width which is less that 2.5 times the lot depth of 170 feet. This standard is satisfied. Lot Frontage: Section 18.810.060(B) requires that lots have at least 25 feet of frontage on public or private streets, other than an alley. In the case of a land partition, 18.420.050A.4.c applies, which requires a parcel to either have a minimum 15-foot frontage or a minimum 15-foot wide recorded access easement in cases where the lot is for an attached single-family dwelling unit, the frontage shall beat least 15 feet. There are several lots around the cul-de-sac that have less than 25 feet of frontage. This will need to be revised on the final- plat so that all lots meet the. minimum 25-foot standard. All other lots with the exception of lot 29 have 25 feet of.frontage onto a public or private street. This is not a standard that. can be deviated from through the planned development process. This criterion is not satisfied.. FINDING: Lots 9, 11, 12, and 29 do not have 25 feet of frontage on a public or private street. CONDITION:Prior to approval of the final plat, the applicant shall revise the plat to accommodate a minimum of 25 feet of frontage for all lots within the development. Sidewalks: Section 18.810.070.A requires that sidewalks be constructed to meet City design standards and-be located on both sides of arterial, collector and local residential streets. The applicant is proposing to construct sidewalks with their street improvements. This meets the standard. Sanitary Sewers: Sewers Required: Section 18.810.090.A requires that-sanitary sewer be installed to serve each new development and to connect developments to existing mains in accordance with the provisions set forth in Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 1996 and including any future revisions or amendments) and the adopted policies of the comprehensive plan. Over-sizing: Section 18.810.090.C states that proposed sewer systems shall include consideration of additional development within the area as projected by the Comprehensive Plan. ASH CREEK ESTATES SUBDIVISION STAFF REPORT PUB2003-00010) PLANNING COMMISSION HEARING 717003• 299 There is an exiting sewer manhole in 70 Avenue. The applicant is proposing to extend the 8 inch line north .in 74 Avenue and then east in the new public and private streets to serve all lots. They are stubbing a fine to the north for extension with future street improvements. Storm Drainage. General Provisions: Section 18.810.100.A states requires developers to make adequate provisions for storm water and flood water runoff. Accommodation of Upstream Drainage: Section 18.810.100.0 states that a culvert or other drainage facility shall be large enough to accommodate potential runoff from its entire upstream drainage area, whether inside or outside the development. The City Engineer shall approve the necessary size of the facility, based on the provisions of Design and Construction Standards for Sanitary and Surface Water Management (as adopted by Clean Water Services in 2000 and including any future revisions or amendments). There is a creek on the south portion of the property. The applicant is protecting that creek" by setting the development away from the sensitive area boundary in accordance with CWS standards: The drainage way will have no impact on the proposed new lots. Effect on Downstream Drainage: Section 18.810.100.13states that where it is anticipated by the City Engineer that the additional runoff resulting from the development will overload an existing drainage facility, the Director and Engineer shall withhold approval of the development until provisions have been made for improvement-of the potential condition or until provisions have been made for storage of additional runoff caused by the development In. accordance with the Design and Construction Standards for Sanitary. and Surface Water Management (as adopted by Clean Water Services in 2000 and including any future revisions or amendments). In 1997, :Clean Water Services (CWS) completed a basin study of Fanno Creek -and adopted the Fanno Creek Watershed Management Plan. Section V of that plan includes a recommendation -that local governments institute a stormwater detention/effective impervious, area reduction program resulting in no net increase in storm peak flows up to.the 25-year event The City will require that all new developments resulting in. an increase of impervious surfaces provide onsite detention facilities, unless the development is located adjacent to Fanno Creek. For those developments adjacent to Fanno Creek, the storm water runoff will be permitted to discharge without detention. The site slopes to the south towards Ash Creek. The applicant has shown a new public storm system located within the proposed public and private streets. They have also shown that a stub for future connection will be provided to the north, serving the future north-south street. The storm. system will outlet to a pond that will provide both water quantity and quality measures, in accordance with CWS standards, prior to discharging to Ash Creek. The applicant will need to provide access to the pond 'for maintenance. The applicant is also proposing to construct a 5-foot by 10-foot box culvert under 74~' Avenue to accommodate the crossing of Ash Creek. Bikeways and Pedestrian Pathways: Bikeway Extension: Section 18.810.110.A states that developments adjoining proposed bikeways identified on the Citx's adopted pedestrian/bikeway plan shall include provisions for the future extension of such bikeways through the dedication of easements or right-of-way. 74"' Avenue is not classified as a bike facility. Cost of Construction: Section 18.810.110.13 states that development pennits issued for -planned unit developments, conditional use permits, subdivisions, and other developments" - which will principally benefit from such bikeways shall be conditioned to include the cost or construction of bikeway improvements. • This standard is not applicable. ASH CREEK ESTATES SUBDMSION STAFF REPORT (SUB200-00010) PLANNING COMMtS M HEARING waom3 300 inimum Width: Section 18.810.110.C states that the minimum width for bikeways within the ladway is five feet per bicycle travel lane. Minimum.width for two-way bikeways separated from the road is eight feet This standard is not applicable. Utilities: - Section 18.810.120 states that all utility lines, but not limited to those required for electric, communication, .lighting and .cable television services and.-.related -facilities shall.be placed underground, except for surface mounted transformers, surface mounted connection boxes and meter cabinets which may be placed above ground, temporary. utility service facilities during construction, high capacity electric lines operating at 50,000 volts or above, and: The developer shall make all necessary arrangements with. the serving utility to provide the underground services; • The City reserves the right to approve location of all surface mounted facilities; • All underground utilities, including. sanitary sewers and storm drains, installed -in streets by the developer, shall be constructed prior to the surfacing- of the streets; and • Stubs for service connections shall be long enough to. avoid disturbing the. street improvements when service connections are made. Exception to Under-Grounding Requirement: Section 18.810.120.C.-states that a developer shall pay a fee in-lieu of-.under-grounding costs when the development.is.proposed to.take- place on a street where existing utilities which are not underground will serve. the. development and the approval authority determines that the cost and:. technical.. difficulty- of under-grounding the utilities outweighs the benefit of under-grounding in conjunction with the development. The determination shall be on a case-by-case basis. The most common, but... not the only, such situation is a-short frontage development for which under=grounding would result in the placement of additional poles, rather than. the removal of above-ground utilities acilities. An applicant for a development which is served by utilities which are not wunderground-and which are located across a public right-of-wayfrom the applicant's property shall pay a fee in-lieu of under-grounding. There are existing overhead utility lines along the frontage of SW 7e Avenue. - If the fee in4ieu is proposed, it is equal to $27.50 per lineal foot of street frontage that contains the. overhead.-lines. The . frontage along this site is 421 lineal feet; therefore the fee would be $11;578. ADDITIONAL CITY AND/OR AGENCY CONCERNS WITH STREET AND UTILITY IMPROVEMENT Traffic Stu Findings: A -1 ra c impact epo was submitted by CTS Engineers, Inc., dated April 30,• 2003. CTS analyzed the intersections at 74 Avenue and Cedarcrest Street and 74 Avenue and Taylors Ferry Load. CTS found that under existing conditions these intersections operate at Level of Service. (LOS) B or better. When this project is developed it will generate approximately 278 vehicle trips during an average week day, with 29 trips occurring during the PM peak hours and 22 trips occurring. during the - AM peak hours. CTS found that with the build out of this site.and 2005. traffic conditions that these intersections will continue to operate at LOS B or better. CTS found that the vehicle trips will slightly increase traffic volumes on surrounding: streets,. but will.: have little impact on traffic operations along 74 Avenue, including the study intersecbons. Based on the findings of the traffic impact report,- staff finds that this project will. not have a .negative. impact on the transportation system. Public Water System: ere is an existing WD water main in 74th Avenue. The applicant will extend a public water main- thin the proposed streets. The applicant will need to obtain a permit from T)/WD prior to construction. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUBM3- 0010) 3~ I PIANNMG COMMISSION HEARING 7/72003 torn Water Quali : _ he City -has agreed to enforce Surface Water Management (SWM) regulations established by Clean Water Services (CWS) Design and Construction Standards (adopted by Resolution and Order No. 00-7) which require the construction of on-site water quality facilities. The facilities shall be designed to remove 65 percent of the phosphorus contained in 100 percent of the storm water runoff generated from newly created impervious surfaces. In addition, a maintenance plan shall be submitted indicating the frequency and method to be used in keeping the facility maintained through the year. Prior to construction, the applicant shall submit plans and calculations for a water qualityJacility that will meet -the intent of the CWS Design Standards. In addition, the . applicant shall- submit a maintenance plan for the facility that must be reviewed and approved by the -City prior to construction. The applicant is Droposing to provide a pond that will provide both water quantity and quality for th is project. The applicant has indicated that the pond has been designed per CWS standards. Prior to the City accepting this facility as a public facility, the developer shall maintain it for a'minimum of three years after construction is completed. The pond shall. be placed in a tract and -conveyed to the City on the final plat: The developer will be required to submit annual reports to the City which show what maintenance operations were conducted on the facility for that year. Once the th ree=year maintenance period is completed, the City will inspect- the facility and make note of any problems that have arisen and require them to be resolved before the City will take over maintenance of the facility. In addition, the City will not take over maintenance of. the facility unless 80 percent ofthe landscaping is established and healthy. If at any time during the maintenance period, the landscaping falls below the 80 percent level, the developer shall immediately reinstall all deficient planting at the next appropriate planting opportunity. Grading and Erosion Control: Ign an ons ion Standards also regulate erosion control to reduce the amount of sediment and other pollutants reaching the public storm and surface water system esulting from development, construction, grading, excavating, clearing, and any other activity which accelerates erosion. Per CWS regulations, the applicant is required to. submit an erosion control plan for City review and approval prior to issuance of City permits. The Federal Clean Water Act requires that a National Pollutant Discharge Elimination System (NPDES) erosion control permit be issued for any development that will 'disturb one or more acre of land. Since this site is over five acres, the developer will be required to obtain an NPDES permit from the City prior to construction. This permit will be issued along with the site andlor building permit. A final grading plan shall be submitted showing the existing and proposed contours. The plan shall detail the provisions for surface drainage of all lots, and show that they will be graded to insure that surface drainagge is directed to the street or a public storm drainage system approved by the Engineering m a Department. For situations where the back portions of lots drain away fro street and toward adjacent lots, appropriate private storm drainage lines shall be provided to sufficiently contain and convey runoff from each lot. A geotechnical report was submitted .by GeOPacifiC Engineering, Inc:, dated May 9, 2003. The geotechnical engineer :indicates that the proposed development is likely. geotechnically feasible provided the geotechnical recommendations in his report are incorporated into the design and construction phases of the project. The recommendations of the report will need to be incorporated into the final grading plan and a final construction supervision report must be filed with the Engineering Department prior to issuance of building permits. The design engineer shall also indicate, on the grading plan, which lots will have natural slopes 'between 10% and 20%, as well as lots that will have natural slopes in excess of 20%. This information will be necessary in determining if special,grading inspections and/or permits will be necessary when the lots develop. Since the site is over 1 acre-in size an NPDES permit will be required. ASH CREEK ESTATES SUBDIVISION STAFF REPORT (SUB2003.00010) 302 PLANNiNG COMMISSION HEARING 71rrZM Address Assi nments• The i y of I igard is responsible for assigning addresses for parcels within the City of Tigard and within the Urban Service Boundary (USB). An addressing fee in the amount of $30A0 per address shall be assessed. This fee shall be paid to the City prior to approval of the final plat. . For this project, the addressing fee will be $900.00 (30 lots and/or tracts X $30/address = $900.00). The developer will .also be required to provide s'ignage at . the entrance of each shared flag lot driveway or. private street that lists the addresses that are served by the given driveway or street. This-will assist emergency services personnel to more easily find a particular home. Surve Re uirements he applicant's final plat shall contain State Plane Coordinates [NAD 83.(91)] on two monuments with a tie to the City's global positioning. system (GPS) geodetic control network (GC 22). These monuments shall be on the same line and shall be of the same precision as required "for the subdivision plat boundary. Along with the coordinates, the plat shall contain the scale factor to convert ground measurements to grid measurements and the angle from north to grid north. These coordinates can be established by: • GPS be networked to the City's GPS survey. • By random traverse using conventional surveying methods. In addition, the applicant's as-built drawings shall be tied to the GPS network. The plicant's engineer shall provide the City with an electronic file with points- for each structure (manhapoles, catch basins, water valves, hydrants and. other water system features in the. development.-. and their respective X and Y State Plane Coordinates, referenced to NAD 83 (91). SECTION VII. OTHER STAFF COMMENTS OThe Tigard Building Division has reviewed this proposal but did not provide any additional comments. The City of Tigard Arborist has reviewed the proposal, and notes that tree protection fencing will be required for the, trees to remain. The City of Tigard Long Range Planning Division has reviewed this proposal but.did not provide . any additional comments. The City of Tigard. Crime Prevention Officer has reviewed the proposal and recommended that a monument be placed at the start of the private street identifying house addresses to reduce delays in delivery of.emergencyservices. RESPONSE: The private street will be named separately from the public street. Houses will be addressed off that private street and, therefore, separate addressing identification (as is typical for flag lots) Is not required. The developer may choose to install such signage, however, staff believes that with the separate street name; this signage is unnecessary. SECTION Vlll. AGENCY COMMENTS The Tualatin Valley Fire and Rescue has reviewed the proposal and offered the following comments: FIRE APPARATUS ACCESS ROAD WIDTH AND VERTICAL CLEARANCE: Fire apparatus access roads dwelling shall have an uno nn o no ess an a 115-feet-for one or two units an- d out build' s) and an unobstructed vertical clearance o not` less than 13 feet. 6., inches. ((UFC Sec. 902.2.2. WI/here-fire apparatus roadways are less than 28. feet wide, "NO- PARKING . " signs shall be installed on -both sides of the roadwa~yy and in turnarounds as needed-' Where fire apparatus roadways "are more than - 28 feet wide but less than 32 feet wide, "NO PARKING" signs shall be installed on one side of the roadway and in turnarounds as needed. Where fire apparatus roadways are 32 feet wide or more, parking is not restricted. (UFC Sec. 902.2.4) ASH CREEK-ESTATES SUSUMSION STAFF REPORT (SU62003MMO) PLANNING COMMSION HEARING 7/7/2= 303 a . The private street shall conform to Fire District standards. '02) NO PARKING SIGNS: Where fire apparatus roadways are not of sufficient width to accommodate I parked ve r es an 0 feet of unobstructed driving surface, "No Parking" signs shall be installed on one or both sides of the roadway and in turnarounds as needed. (UFC Sec. 902.2.4) Signs shall conform to the City of Tigard engineering standards. 3) TURNING RADIUS: The inside turning radius and outside turning radius shall be not less than 25 eet.an eet respectively, measured from.the same center point. (UFC Sec. 902.2.2.3) 4) GRADE: Private fire apparatus access roadway grades shall not exceed an average grade of 10 percenFwith a maximum Trade of 15 percent for lengths of no more than 200 feet.. Intersections and turnarounds shall be .evel (maximum 5%) with the exception of crowning for'water run-off. Public streets shall'have a maximum grade of 15%. (UFC Sec. 902.2.2.6) SINGLE FAMILY DWELLINGS AND DUPLEXES - FIRE HYDRANTS: Fire hydrants for single ami y dwellings; up i xes an sub-divisions, shall placed at. ea intersection. Intermediate fire hydrants. are required if any portion of a structure exceeds 500 feet from a hydrant at an intersection as measured in an approved manner around the outside of the structure and along approved fire apparatus access roadways. Placement of additional fire hydrants shall be as approved by the Chief. (UFC Sec. 903.4.2.2) 6) FIRE HYDRANT -DISTANCE FROM AN ACCESS ROAD: Fire hydrants shall be located not more an 15 feet from an approve re apparatus access roadway. (UFC Sec. 903:4.24) 7) REFLECTIVE HYDRANT MARKERS: Fire hydrant locations shall be identified by the installation . . o reflective markers. The ma ers s all be. blue. They shall be located adjacent and to the side - of the centerline of the access road way that the fire hydrant is located on. In case that there is no center line, then assume a centerline, and place the reflectors accordingly. (UFC Sec. 901.4.3) a) SINGLE FAMILY DWELLINGS - REQUIRED FIRE FLOW: _ The -minimum available fire flow for • sing e family dwellings an up exes shall a ons per minute. If the structure(s) is(are) 3,60 square feet or larger, the required fire flow shall be determined according to UFC Appendix . Table A-III-A-1. (UFC Appendix III-A, Sec. 5) 9) ACCESS AND FIRE FIGHTING WATER SUPPLY DURING. CONSTRUCTION: Approved fire apparatus access roadways an re fighting water supplies shall be installed a operational prior to any other construction on the site or subdivision. (UFC Sec. 8704) Tualatin Valley Water District has reviewed the proposal and had no objections to it. Clean Water Services has reviewed the proposal and offered the following comments: • Root drains from all new homes shall be collected in a public storm system and conveyed to a water quality facility for treatement in accordance with R.O.03-11. • Proposed modifications to flood plain elevations may have impact on development. • Design must include requirements of Service Provider Letter #2819, issued May 13, 2003. The City of Tualatin has reviewed the proposal ;td offered the following comments: The City of Tualatin owns a water main in SW 74 Avenue. The proposed grade of the street means that our line will have between 15 and 18 feet of cover. The City would like to request that before construction plans are approved, the developer be required to pot-hole-the line to determine the exact location and condition of the pipe. Additionally, the City should be informed 48 hours prior to construction so that a representative from the City can be present when they are impacting our pipe. RESPONSE: This will be required as a condition of approval. Washington County, Portland General Electric, Tigard Tualatin School District, NW "Natural Gas, Verizon; Comcast Cable, and AT&T Cable were additionally notified of the- proposal but did not respond with formal comments. - June,30 2003 PREPARED BY: Morgan racy AT Associate Planner ASH CREEK ESTATES SUMNIMN STAFF REPORT (SUB2003-00010) - PLAr M COWALWON HEARING 7/7[1003 304 ATTACHMENT 2 RANUS MEMORANDUM CREW CORMAN ti To: Tigard City Council From: Gary Firestone, City Attorney's Office ATTORNEYS AT LAW Date: January 10, 2006 for February 28, 2006 Meeting 1727 N.W. Hoyt Street Pordand. Oregon 97209 Re: Ash Creek Estates - Hearing on Remand (503) 222-0402 Fax (503) 243-2944 BACKGROUND This matter is before the Council on remand from the Oregon Land Use Board of Appeals for the second time. The Council originally approved the subdivision and related land use applications. On the first appeal to LUBA, LUBA held in favor of the opponents of the project on a few of the many "issues that had been raised. On the first remand, the Council addressed the issues remanded by LUBA and again approved the application. A second appeal was filed. In that appeal, LUBA held in favor of the petitioner on a very narrow issue. The original tree plan had designated protection by area, and the tree plan presented in the . first remand specified protection on a tree-by-tree basis. Some of the trees in the area designated for protection in the first tree plan were designated for removal in the second tree plan. LUBA held that because some trees were shown for removal that apparently could be preserved, the City's standards for planned development approval, which require maximum protection of trees, had not been shown to be met. LUBA explicitly limited the remand to the question of whether the 23 trees shown as protected in the first tree plan but not protected in the second tree plan could be protected. The LUBA decision has been affirmed without opinion by the Court of Appeals. In response -to the LUBA decision, the applicant submitted a second revised tree plan, dated September 22, 2005, that designates all 23 trees on which the remand was based for protection. RECOMMENDATION Staff and the City Attorney's Office recommend that the application, with the revised tree - plan, be approved. We recommend that the findings and conditions adopted as part of the City Council's February 5, 2005 decision be readopted and re-imposed. We further recommend adopting the following additional finding and imposing the following additional condition. 305 Additional Finding CDC 18.350.10013.3.a(1) requires that in planned developments: (1) The streets, buildings and other site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible; LU13A has remanded this matter on the narrow issue whether this standard has been met, given that the original tree plan showed that trees would be protected within certain areas and the revised tree plan showed that 23 trees would be removed within the area designated for protection in the original tree plan. The applicant has submitted a second revised tree plan, dated September 22, 2005 that protects all 23 trees that were the basis for the LUBA remand. The second revised tree plan is otherwise identical to the revised tree plan submitted after the first remand. LU13A explicitly stated that the remand issue was limited to consideration of those 23 trees. The Council finds that because the 23 trees at issue will be protected, the standard of CDC 18.350.100B.3.a(l) is met. The site elements have been, designed and located to preserve existing trees to the greatest extent possible. • Additional Condition (Condition 59) Applicant shall comply with and implement the second revised tree plan (dated September - 22, 2005). Applicant shall protect trees designated for preservation in the second revised tree . plan as provided in Conditions 55 through 58. 306 s ATTACHMENT 3 'LAWYERS Davis Wright Tremaine LLP ANCHORAGE BELLEVUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C_ CHRISTOPHER P. KOBACK Direct (503) 778-5382 SUITE 2300 TEL (503) 241-2300 chrizkoback®dmt-com 1300 SW FIFTH AVENUE FAX (503) 778-5299 PORTLAND, OR 97201-5630 www.dwt.com February 9, 2006 Dick Bewersdorff Planning Manager City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: 2129 Ash Creek Estates PUD LUBA No. 2005-042, Remand Dear Mr. Bewersdorff. I have enclosed a copy of a letter dated py September 28, 2005 that I submitted to you in response to LUBA's remand in LUBA No. 2005-042 involving Windwood Construction's application to develop property in Tigard. Now that-the Court of Appeals has affirmed LUBA's decision, I am resubmitting that letter to you at this time so that you can place it in the record for the upcoming February 28, 2006 hearing before City Council on LUBA's remand. As set forth in my September 28, 2005 letter, , I believe the enclosed material establishes that Windwood Construction is complying with LUBA's remand directive. As such, Windwood Construction respectfully requests. that. City Council grant final approval for its application for the Ash Creek Estates PUD. Thank you for your attention to. this matter. Very truly yours, Davis Wright Tremaine LLP tt t'opL Christopher P. Koback CPK/lkt _ Enclosure cc: . Dale Richards, Windwood Construction Gary F. Firestone, Attorney for Respondent PDX 1384817v1 44727-22 61402-3 307 LAWYERS Davis Wright Tremaine LLP ANCHORAGE BELLEVUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C. CHRISTOPHER P. KOBACK SUITE 2300 TEL (503) 241-2300 Direct (S03) 778-S382 1300 SW FIFTH AVENUE FAX (503) 778-5299 chriskoback@dwt.com. OR. 97201-5682 www.dwt.com September 28, 2005 RECEIVED PLANNING - SEP 2 9 2005 Dick Bewersdorff - - - CITY QF TIGARD Planning Manager City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: 2129 Ash Creek Estates PUD LUBA No. 2005-042, Remand Dear Mr. Bewersdorff As you no- doubt have been advised, the Land Use Board of Appeals C'LUBA') remanded the above-referenced case for the City to consider one specific issue. Beginning on page 20 of LUBA's Final Opinion and Order, dated September 20, 2005, LUBA discusses the Applicant's obligation to preserve trees. On page 22, the Board identifies 23 specific trees that the current submission shows as being removed. LUBA believes on remand the Applicant must explain why those specific trees cannot be preserved. LUBA expressly stated that neither the Applicant nor the City was required to explain the necessity for removing any trees other than those expressly identified by LUBA in footnote 16 of its opinion. The Applicant has decided that each of the 23 trees identified by LUBA can and will be preserved in the final development plan. Accordingly, I have attached for the City's records and as asupplement to the application, a copy of a Revised Tree Plan, which illustrates the preservation of each of those 23 trees- Pursuant to LUBA's opinion, there are no additional issues the Applicant must address on remand. Accordingly, pursuant to ORS 227.181(2), the Applicant is requesting that the City proceed with this application on remand and set it for hearing before City Council at the earliest possible date. M PDX 132%29v1 44727-22 61402-3 308 Dick Bewersdorff M City of Tigard September 28, 2005 Page 2 Thank you in advance for your continued cooperation with this matter. Very truly yours, D .s Wright Tremaine LLP Christopher P. Koback CPK/lkt Enclosure cc: Dale Richards, Windwood Construction Gary F. Firestone, Attorney for Respondent 309 PDX 1329829vi 44727-22 O M I I f i n, x♦ }(y " _ `xW .2~-•ar.px. ` :°'1-. +i - .1°. xw. x w . _A.. .•~ta x., J .~X. 1 x 'raj Gp~ ` Ax -Z , J i I I , _ o--._~,_~_-.__o• X. X x xfT _ Wx r ;'ua L~ 7 x yx~~{ x L.UT 400 __lel,1HND _ _-1 _+.,pa° 7 at}(a w•+ ` .ri?n, ` ' r p,,, -°.r `l w I{~ 0 I ,~~t .m v.a un » i w. ;~s'r. ; i+. W ~y y(,. " X j[ xe. /dam (yO 7 L,p s'v'mn .1. 1 1 I I . Y.... 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P P s xE ►x xg ~.---------per f ~i 'ia a d 1° ►~(E Xf V p ► IBC )OK 4~ ; a 1 -a "j_ _P f x. ft P EX !x' P P 1'i` xt: Ix ► Ix ►x j'. ► `1. xs Ix xE' to g P % f X° ' I~ a ~ a ~ ~ 'oE P . . d d ca xa3t iya$i-t f 2¢E Y'a t' $ iii 9~ 0 •QR gE. 3; { a JB! FSTATES F.D. ASH CREEK I OREGON 1 i NTY CITY OF HARD, WASFa 1G70N COL ~ t; M o~ waves - S t 311 CITY OF TIGARD PUBLIC ARING ITEM The following will be considered by the Tigard City Council on A A ,~T7~ Tuesday February 28. 2006 at 7:30 PM at the Tigard Civic Center CO1V ►1V lV1V 11 Y - Town Hall, 13125 SW Hall Blvd., Tigard, Oregon Both public oral ral and written testimony is invited. The public hearing NEWSPAPERS M~ will be wndu ; accordance with the Tigard Municipal Code and the rules of of procedure adopted by the Council and available at City Hall or the rules of procedure set forth in 6605 SE Lake Road, Portland, OR 97222 • PO Chapter 18.390. Testimony may be submitted in writing prior to or at Box 22109 • Portland, OR 97269 the public hearing or verbally at the public hearing only. Failure to Phone: 503-684-0360 Fax: 503-620-3433 raise an issue in person or by letter at some point prior to the close of Email: the hearing accompanied by statements or evidence sufficient to legaladvertising@commnewspapers.com afford the decision-maker an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeal based on that issue.. Failure to specify the criterion from the Community AFFIDAVIT OF PUBLICATION Development Code or Comprehensive Plan at which a comment is State of Oregon, County of Washington, SS directed precludes an appeal based on that criterion. A copy of the application and all documents and evidence submitted by or on behalf of the applicant and the applicable criteria are I, Charlotte Allsop, being the first duly sworn, available for inspection at no cost A copy of the staff report will be depose and say that I am the Accounting made.available for inspection at no cost at least seven (7) days prior Manager of The Times (serving Tigard, to the hearing, and copies for all items can also be provided at a Tualatin & Sherwood), a newspaper of reasonable cost general circulation, published at Beaverton, in Further information may be obtained. from the Planning Division (staff contact: Dick Bewersdor/n at 13125 SW Hall Blvd., Tigard, the aforesaid county and state, as defined by Oregon 97223, by calling 503-639-4171 or by email to dic _ ' ard- ORS 193.010 and 193.020, that ornov. SUBDIVISION (SUB) 2003-00010/PLANNED City of Tigard DEVELOPMENT _REVIEW_LPDR)2oo3~1(mmw Public Hearing-Ash Creek ZONE CHANGE F&4;2003-00003/SENSITIVE LANDS TT10736 REVIEW (SLR) 2003-00005/ ADJUSTMENT (VAR) 2003-00036/ADJUSTMENT a copy of which is hereto annexed, was (VAR) 2003-00037 published in the entire issue of said > ASH CREEK ESTATES SUBDIVISION LUBA REMAND < newspaper for ITEM ON REMAND: The State Land Use Board of Appeals 1 (LUBA) has remanded for a second time the City Council's approval of a 29-lot Planned Development Subdivision on 9.3 acres and associated zone Change, Sensitive Lands, and Adjustment reviews to successive and consecutive weeks in the address a single issue relating to tree preservation. As limited by following issues LUBA, the issue remanded is whether the tree plan preserves trees to February 9, 2006 the greatest extent possible, given that the second tree plan does not protect 23 trees designated for protection in the original tree plan, but not designated for protection in the revised tree plan previously approved On this second remand, the applicant has submitted 'a second revised tree plan that amends the first revised tree plan by y' `lM IN lr~~p designating for protection the 23 trees specifically mentioned by Charlotte Allsop (Accounting Ma ager) LUBA. A full copy of LUBA's Final Opinion and Order can be obtained from City Hall at cost, or is also available online at httn //luba date.orus/Ddf/2005/sent05/05042.htm. LOCATIOIS: Subscribed and sworn to before me this 9750 SW 74 1 Avenue; WCTM iS125DC, Tax Lots 300 and 400. ZONE: R-4.5: Low-Density Residential District The R4.5 zoning district is designed to accommodate detached single-family homes F , ruary , 200 with or without accessory residential units at a minimum lot size of 7,500 square feeL Duplexes and attached single-family units are NOTA PUBLIC FOR OREGON p~!~ conditionally. Some civic and institutional uses are also permitted c My commission expires onditionally. APPLICABLE REVIEW CRITERIA: ~ The only applicable criterion on the issue on which LUBA remanded is CDC. 18.350:100.11.3.a.1, which requires that planned developments protect existing trees to the greatest degree possiblb. Acct #10093001 Publish 2/9/2006 T F10736 Patricia Lunsford KNOT, City of Tigard 13125 SW Hall Boulevard m mm ao Tigard, OR 97223 VXMS4M Size 2 x 10 I 11201114M Amount Due $167.00 at>E t • remit to address above IFIIirD ' ~It r 312 AFFIDAVIT OF MAILING CITY OFTIGARD • Community 'Devefopment ShvingA Better Community I, (Patricia L. L Q being first duly swom/affirm, on oath depose and say that I am a SeniorAdministrativeSpeciafstfor the City of 2iganC Wash*ton County, Oregon and that I served the following: (Check Appop t3W SC45) BdO.) NOTICEOF PUBLIC HEARING FOR: k~7 SUB2003-00010/PDR2003-00004/i0N2003-00003/SLR2003-00005/VAR2003-00036 & 31 ASH (REEK ESTATES SUBDIVISION LUBA REMAND 2 AMENDED NOTICE (File NoMame Reference) 10 HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer ❑ Tigard Planning Commission ® Tigard City Council (2/28/2006) A copy of the said notice being hereto attached, marked EXhibit"A and by reference made a part hereof, was mailed to each named person(s) at the address(s) shown on the attached list(s), marked Exhibit "B", and by reference made a part hereof, on FEbmarll 6, 2006, and deposited in the United States Mail on FcbmarY 6, 2006, postage prepaid. 0 a (Person ed Notice) S A2q~ OF OUCO5V' ~ County 4aard `Gt~as *ton ) ss. City of 7_h Subscribed and sworn/affirmed before me on the day of , 2006. OFFICIAL SEAL SUE ROSS _y NOTARY PUBLIC-OREGONS ~p"`~'~//~ryg~}g C01~17~!1r9!_SSION NO.. 3/+75152 •FI Y~Jiu f`!{1~JIL11 C..i ,*IF:S L M 1, 202. 313 NOTICE TO MORTGAGEE, LIENHO. ER; VENDOR OR SELLER: THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER. CRY OF TIGARD Community 'Devekpment SkapingA Better Community PUBLIC HEARING NOTICE. NOTICE IS HEREBY GIVEN THAT THE TIGARD CITY COUNCIL, AT A MEETING ON TUESDAY. FEBRUARY 28, 2006 AT 7:30 PM, IN THE TOWN HALL OF THE TIGARD CIVIC CENTER, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 WILL CONSIDER THE FOLLOWING APPLICATION: FILE NOS.: SUBDIVISION (SUB) 2003-00010 PLANNED DEVELOPMENT REVIEW (PDR) 2003=00004 ZONE CHANGE 8ZONJ~2003-00003 SENSITIVE LAN S R VIEW~SLR) 2003.00005 ADJUSTMENT (VAR) 2003-0 036 ADJUSTMENT (VAR) 2003-00037 FILE NAME: ASH CREEK ESTATES SUBDIVISION LUBA REMAND APPLICANT: Dale Richards APPLICANT'S Kurahashi and Associates, Inc. Winwood Construction REPRESENTATIVE: Attn: Greg Kurahashi 12655 SW North Dakota Street 15580 SW Jay Street, Suite 201 Tigard, OR 97223 Beaverton, OR 97006 OWNERS: Ernest E. ang Elda H. Senn 9750 SW 74 Avenue Tigard, OR 97223 ITEM ON REMAND: The State Land Use Board of Appeals (LUBA) has remanded for a second time the City Council's approval of a 29-lot Planned Development Subdivision on 9.3 acres and associated Zone Change, Sensitive Lands, and Adjustment reviews to address a single issue relating to tree preservation. As limited by LUBA, the issue remanded is whether the tree plan preserves trees to the greatest extent possible, given that the second tree plan does not protect 23 trees designated for protection in the on inal tree plan, but not designated for protection in the revised tree plan previously approved. On this second remand, the applicant has submitted a second revised tree plan that amends the first revised tree plan by designating for protection the 23 trees specifically mentioned by LUBA. A full copy of LUBA's Final Opinion and Order can be obtained from City Hall at cost, or is also available online at http:Hluba.state.or.us/pdf/2005/septO5/05042.htm. LOCATION: 9750 SW 74th Avenue; WCTM 1S125DC, Tax Lots 300 and 400. ZONE: R-4.5: Low-Density Residential District. The R-4.5 zoning district is designed to accommodate detached single-family homes with or without accessory, residential units at a minimum lot size of 7,500 square feet. Duplexes and attached single-family units are permitted conditionally. Some civic and institutional uses are also permitted conditionally. AJMLICABLE REVIEW CRITERIA: The only applicable criterion on the issue on which LUBA remanded is 18.350.100.B.3.a.1, which requires that planned developments protect existing trees to the greatest de ree possible. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390 OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD CITY COUNCIL AND AVAILABLE AT CITY HALL. 314 ASSISTIVE LISTENING DEVICES ARL :VAILABLE FOR PERSONS WITH IMPr...(ED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL (503) 639-4171, EXT. 2438 (VOICE) OR (503) 684-2772 (TDD - TW"COMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE NGEMENTS. ANYONE WISHING TO PRESENT WRITTEN TESTIMONY ON THIS PROPOSED ACTION MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE CITY COUNCIL WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRITTEN TESTIMONY. THE CITY COUNCIL MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON THE APPLICATION. IF A PERSON SUBMITS EVIDENCE OR DOCUMENTS LESS THAN 7 DAYS PRIOR TO THE PUBLIC HEARING DATE, THE HEARINGS AUTHORITY MAY ALLOW A CONTINUANCE OF THE HEARING, SUBJECT TO ORS 215.428 OR 227.178. IF THERE IS NO CONTINUANCE GRANTED AT THE HEARING, ANY PARTICIPANT IN THE HEARING MAY REQUEST THAT THE RECORD REMAIN OPEN FOR AT LEAST SEVEN (7) DAYS AFTER THE HEARING. A REQUEST THAT THE RECORD REMAIN OPEN CAN BE MADE ONLY AT THE FIRST EVIDENTIARY HEARING (ORS 197.763(6). INCLUDED IN THIS NOTICE- IS A LIST OF APPROVAL CRITERIA APPLICABLE TO THE REQUEST FROM THE TIGARD COMMUNITY DEVELOPMENT CODE AND THE TIGARD COMPREHENSIVE PLAN. APPROVAL OR DISAPPROVAL OF THE REQUEST BY THE CITY COUNCIL WILL BE BASED UPON THE CRITERIA LISTED OR OTHER CRITERIA IN THE COMPREHENSIVE PLAN OR DEVELOPMENT CODE WHICH THE PERSON BELIEVES TO APPLY TO THE DECISION. AT THE HEARING IT IS IMPORTANT THAT COMMENTS RELATING TO THE REQUEST PERTAIN SPECIFICALLY TO THE APPLICABLE CRITERIA IN THE COMPREHENSIVE PLAN OR THE DEVELOPMENT CODE. FAILURE TO RAISE AN ISSUE IN PERSON OR BY LETTER AT SOME POINT PRIOR TO THE CLOSE OF THE HEARING ON THE REQUEST, ACCOMPANIED BY STATEMENTS OR EVIDENCE SUFFICIENT TO ALLOW THE HEARINGS AUTHORITY AND ALL PARTIES TO RESPOND PRECLUDES AN APPEAL, AND FAILURE TO SPECIFY THE CRITERION FROM THE COMMUNITY DEVELOPMENT CODE OR COMPREHENSIVE PLAN AT WHICH A COMMENT IS DIRECTED PRECLUDES AN APPEAL TO THE LAND USE BOARD OF APPEALS BASED ON THAT ISSUE. 460CUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25C) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. IF YOU WANT TO INSPECT THE FILE, PLEASE CALL AND MAKE AN APPOINTMENT WITH EITHER THE PROJECT PLANNER OR THE PLANNING TECHNICIANS. AT LEAST SEVEN (7) DAYS PRIOR TO THE HEARING, A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECTION AT NO COST, OR A COPY CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25G) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER DICK BEWERSDORFF AT 503-639-4171, TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223 OR BY EMAIL TO dick@tigard-or.gov. muQITY MAP r SUB2003-00010 PDR2003-00004 7ON2003-M3 AR20034= VAR2003-=36 VAR2003-OW37 ASH (REEL ESTATES SUBDRISM EUBA REMAND e i cq.rrpa lOQ/Si ST °"'315 1 25DC-05 0 136AA-0~F"ARTITION 0 ` 19 74 PLAT OWN F LOTS 1 & 2 1 Szo IS125DA-06500 ADKINS NORMAN J & TAMI JO 9600 SW 69TH AVE.. TIGARD, OR 97223 125DC-0 0 1S125DC-04400 ALLEGRETTO RICHARD L 7108 SW BARBARA LN TIGARD, OR 97223 e 1 25DC-OS 0 1S125DD-05301 ALLEN JAMES & KATHLEEN 9810 SW VENTURA CT TIGARD, OR 97223 1 7 0 1S125DG03900 ALLEN MICHAEL L 7023 SW BARBARA LN TIGARD, OR 97223 0-125DC-057 0 1S125DA-06400 ANDERSON JAMES C & GENEVIEVE E 9580 SW 69TH TIGARD, OR 97223 1 17-05800 1 S125CD-05000 ARRUFAT DEBRA J 7540 SW ELMWOOD ST PORTLAND, OR 97223 1 25DC-05 D 1S125DC-00300 ASH CREEK PROPERTIES LLC 12655 SW NORTH DAKOTA ST TIGARD, OR 97223 1 125DC-054 0 1 5DC-00200 ASH EK P PERTIES LLC 12655 ftOR TH DAKOTA ST T R7223 1012 5 f SDC-00400 AS REEK PERTIES LLC 12655 NORTH DAKOTA ST T ARD, O 97223 316 1 S 125DD-02600 1 S125DC-03000 ATTIA FARAG A & PEGGY C BITTE STEVEN J & MIRIAM F TRS 6885 SW VENTURA DR 7173 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 0 1 S125CD-04200 1 S125DC-03300 BACKARDJIEV ALEXANDER & BLANCO EDWIN A AND RUMIANA MARIE BLAKESLEE DE 7505 SW LANDAU 7105 SW BARBARA LANE TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-02200 1 S136AB-00701 BAIRD THOMAS E & ELLEN E BLAND BARBARA J 6965 SW VENTURA DR 10095 SW 72ND TIGARD, OR 97223 PORTLAND, OR 97223 1 S136AA-08600 1 S125DD-07900 BARRY DESBIENS INC BOLANZ FAMILY TRUST 15840 S POPE LN BY KARL E & GAYLE C BOLANZ TRS OREGON CITY, OR 97045 9 MALLARD CT RINCON, GA 31326 4 136AA-08700 1S136AB-00500 BA D NS INC BOUDREAU PETER & 158 PE LN BROWN-BOUDREAU GRETCHEN EGON CI , OR 97045 7320 SW LANDAU PORTLAND, OR 97223 4 136AA-0900 1 S 125DD-02500 BA Y SBIENS INC BOYER THOMAS L & 15 OPE LN FULLERTON ANN 6REGON ITY, OR 97045 6905 SW VENTURA DR TIGARD, OR 97223 136AA-08500 1 S125DD-07800 BA Y BIENS INC BRAICH PATRICK M AND ROSEMARY M 15 OPE LN 9685 SW VENTURA CT EGON TY, OR 97045 TIGARD, OR 97223 T A80 1S125DD-08500 36A-0 BA BIENS INC BROOKS ROBIN D 158 S PE LN 9720 SW VENTURA CT erREGON CKY, OR 97045 TIGARD, OR 97223 1 S125DC-02500 1 S125DC-04500 BERENTSEN DIANE G BROOKS ROBIN D 7050 SW VENTURA DR 7130 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 D-09000 1 S125DC 02400 O6RGLUND 25D JOHN A JR & JUDITH A BROWN RONALD & 78 8 SW VENTURA CT MELGREEN MELISSA TIGARD, OR 97223 7020 SW VENTURA DR TIGARD, OR 97223 317 1 S125DD-02700 1S125DC-02700 BUI CHUC VAN & CRAWFORD TERRY N LIVING TRUST & NGUYEN NHU-CAM T CRAWFORD MARGARET K LIVING TRUST 5 SW VENTURA DR 7100 SW VENTURA DR wRTLAND, OR 97223 TIGARD, OR 97223 1 S125DD-04900 1 S125DD-08100 BURD DANIEL E & MARGARET J CROSLEY DAVID G & DIANE N 9755 SW VENTURA CT 9725 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-05100 1 S125DD-04300 CAMERON RONALD G AND CULLISON GERALD L & WHITEWOLF CELESTE C MUSAEUS LINDA J 9770 SW VENTURA CT 9815 SW VENTURA CT PORTLAND, OR 97223 TIGARD, OR 97223 1 S136AA-08300 1 S136AB-03900 CAPSOUTO SAM & BRENDA DAHME BRENDA D 10013 SW 70TH PL 10034 SW 71ST PL TIGARD, OR 97223 TIGARD, OR 97223 1 S 125DB-11300 1 S125DB-03900 CARLSON LIVING TRUST DAHME KENNETH W & LISA A BY CARLSON CAROLEE T TR 9635 SW 74TH AVE 7440 SW ELMWOOD ST PORTLAND, OR 97223 TIGARD, OR 97223 OS125OD-04400 1 S125D8-04001 CASSIDY ROBIN DAHME KENNETH W & LISA A 9805 SW VENTURA CT 9635 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1 S 125DC-00600 1 S125DB-03805 CHAMBERLIN ALLEN LINLEY DEGROFF PETER B 9777 SW 74TH 9640 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S 125 DB-03702 1 S 136AA-07600 COLE EDWIN J & ELIZABETH LEE DEL ROSARIO DANIEO E AND BY JAMES COLE MARIA ELENA 9540 SW 74TH 7025 SW LOCUST ST TIGARD, OR 97223 TIGARD, OR 97223 1 S136AA-08900 1 S125DD-05400 CORNELL-DONALD R & ELIZABETH A DIETZ THOMAS PATRICK & CYNTHIA 10022 SW 70TH PL' 9840 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 F 125DD-08300 1 S136AA-08200 TLEUR KEVIN M & ANNE M DIXON HEATHER L & 6925 SW BARBARA LN PERILLOUX THOMAS R TIGARD, OR 97223 10009 SW 70TH PL TIGARD, OR 97223 318 1 S125DC-03100 1 S125DG-04000 DOW DARRIN M & KAREN S GARLAND ROGER J AND 7151 SW BARBARA LN PATRICIA A TIGARD, OR 97223 7022 SW BARBARA LANE TIGARD, OR 97223 1 S1250D-04200 1 S125DC-01700 DWYER THOMAS & NANCY GARRETSON RALPH/JUANITA 10004 SW QUAIL POST RD 7105 SW VENTURA DR PORTLAND, OR 97219 TIGARD, OR 97223 125CD-07 1 S125DD-04700 EL D PARK OWNERS OF LOTS GATES CHARLES A/PATRICIA K 9775 SW VENTURA CT PORTLAND, OR 97223 1 S 125 DC-03200 1 S 136AB-03800 FIELDHOUSE MICHAEL R & GERR KEITH R & - JOANNE S ABRAHAM WENDY R 7129 SW BARBARA LN 10008 SW 71ST PL TIGARD, OR 97223 TIGARD, OR 97223 1 S 125DC-02600 1 S125DC-01500 FINLEY-ZEHNTBAUER TRUST A REVOCA GONDEK CORY R BY ERIC EPPERSON TR 7145'SW VENTURA DR PMB 175 TIGARD, OR 97223 25 NW 23RD PL STE #6 0ORTLAND, OR 97210 136AB-04100 1 S125DB-03803 FISH STEVEN F & ELISABETH GRIFFITHS MICHAEL R & JULIA K 10088 SW 72ND AVE 9620 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S136AB-06100 1 S125DA-06800 FITZGERALD NEAL J & CALISTA L HAACK WILLIAM H & MICHELLE N 7453 SW GORDANA CT 9585 SW 69TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-00202 1 S125DC-04300 FLANAGAN JOHN C HALSTED SCOTT L 525 SW JACKSON ST 7090 SW BARBARA LANE PORTLAND, OR 97201 TIGARD, OR 97223 1S125DB-11200 1S136AB-06000 FOX BRUCE J/MARTHA J HARDINGE LIVING TRUST 7460 SW ELMWOOD ST BY HAL W & KRISTEN J HARDINGE TRS PORTLAND, OR 97223 7431 SW GORDANA CT TIGARD, OR 97223 ,glg125DB-10000 1 S 125DD-04100 NCONE THOMAS M & LYNN F HARMON KATIE 198 SW LOLA LN 9835 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 319 1 S136AB-00200 1 S125CD-04201 HARRINGTON CLAYTON & TERESA JACKSON WOODS LLC, 10006 SW 72ND AVE 7501 SW LANDAU ST TIGARD, OR 97223 PORTLAND, OR 97223 1 S 136AB-03500 1 S 125DB-09500 HARS-WALTER JASON JEFFERY JAMES T & 10097 SW 71ST PL TANAKA NAOKO PORTLAND, OR 97223 7060 SW LOLA LN TIGARD, OR 97223 1 S125DA-06600 1 S125DC-00500 HOAGLAND DEAN GUY AND ZOLA JEFFS JERRY L AND PAUL I 9625 SW 69TH 9655 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-01200 1 S125DC-04700 HOBBS RONALD E AND JUNE E JOHNSTON MICHAEL R & MARY ELLEN 7205 SW VENTURA DR 7160 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 1 S125DA-06700 1-5kl25DC-02900 HOENER MELODY L 571~ TRETURA HAEL R & MARY ELLEN 9605 SW 69TH DR TIGARD, OR 97223 223 0125DD-08200 1 S125DB-09700 HURT JOHN C AND TERESA A KAUFFMAN GAYLE I & 9735 SW VENTURA CT FREWING JOHN L TIGARD, OR 97223 7110 SW LOLA LN TIGARD, OR 97223 0 1 S125DD-05200 1 S125DD-04500 IRON WILLIAM Z & KEEVER MOJDEH B MEADS KATHERINE B 9795 SW VENTURA CT 9780 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S136AB-00401 1 S136AA-08400 IRVIN DARRELL B KEIDEL JEREMEY & TRICIA R 7280 SW LANDAU 10025 SW 70TH PL TIGARD, OR 97223 TIGARD, OR 97223 1 S 125D B-09400 1 S 125DB-09600 ISAACS RONALD R AND DONNA KELLY JOHN R & ELIZABETH A 7042 SW LOLA LANE 7080 SW LOLA LN TIGARD, OR 97223 TIGARD, OR 97223 S125DC-03500 1 S136AB-00600 ~CKSON SCOTT M & RHONDA A KOHLMAN BRIAN H & SHAUNNA L 7071 SW BARBARA LN 7307 SW LOCUST ST TIGARD, OR 97223 PORTLAND, OR 97223 320 1 S125DD-03800 1 S125DD-05500 KOSTUR CHARLES J & DIANNE M MCLELLARN PALMIRA B 9865 SW VENTURA CT 9860 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S136AA-07700 1 S125DB-03703 LEE REYNOLD GEORGE MINETTO STEVEN L & JAN V 7047 SW LOCUST ST 9510 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S125DB-09800 1S125DC-02200 LESNICK EDWARD C JR & MONROE JAMES E FERRARA MERILYN 7005 SW VENTURA DR 7140 SW LOLA LN TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-02300 1 S125DB-03802 LOUKA MARK E MORRE WALLACE R 6945 SW VENTURA DR 9600 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S 125DD-03900 1 S 136AB-05900 LOVE DONALD P & MORAN ANDREAS J WYNNE JOELLEN 7440 SW GORDANA CT 9855 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 136AB-063 0 1S125DC-01800 M EST WOODS OWNERS OF MORSE WILLIAM J/LOURENE J & LOT -8 STE MARIE CHERRILL 7085 SW VENTURA DR TIGARD, OR 97223 1S125DB-04000 1S136AB-00400 MCCREARY JOHN R & DORIS L MULHEARN FRANCIS X & CHERYL A 9605 SW 74TH AVE 10055 SW 72ND TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-01900 1 S125DB-10200 MCELWAIN JAMES D/JANET K MURCHE DAVID JOSEPH/EILEEN M 7065 SW VENTURA DR 9620 SW SHADY PL TIGARD, OR 97223 PORTLAND, OR 97223 1 S125DC-02000 1 S125DD-04600 MCGEHEE-KELLY MARGO A & BRIAN A MURFIN DANIEL A & ELAINE J 7045 SW VENTURA DR 9785 SW VENTURA CT PORTLAND, OR 97223 PORTLAND, OR 97223 S136AA-00400 1 S136AB-00201 ~CGUIRE JAMES E NEWELL JERI JUNE 6909 SW OAK ST 10060 SW 72ND AVE TIGARD, OR 97223 PORTLAND, OR 97223 321 1 S 125DD-05000 1 S125DD-08000 NORTON SARAH L RANDALL AARON W & JENNIFER C 9760 SW VENTURA CT 9715 SW VENTURA CT TIGARD, OR 97223 PORTLAND, OR 97223 1 S 125 DD-04800 1 S 125DD-02800 ODENBRETT ROBERT J ROSS CAROL 9765 SW VENTURA CT 6845 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 1 S 136AB-00700 1 S 125DD-08900 O'NEIL MICHAEL CARY RUTLEDGE RONALD R AND 7211 SW LOCUST ST LINDA COY PORTLAND, OR 97223 9682 VENTURA CT TIGARD, OR 97223 125DB-119 1 S136AB-03701 O F LOTS OF THE SANDER LEO ROBERT REVOCABLE RA PATCH LIVING TRUST 0 10031 SW 71ST PL TIGARD, OR 97223 1S125DB-10600 1S125DB-03804 PAKENEN GENE L AND BETTY A SAVAGE WOODROW A & SANDRA JEAN 9555 SW SHADY PLACE 7301 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 0125DD-08700 1 S125DC-00201 PANGBORN JEFFREY L SCHMITT PATRICK D & PATRICIA J 9690 SW VENTURA CT 9720 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1S125DC-03800 1S125DD-08800 PIEDRA GUIDO A SCHROEDER TED C & JENNIFER 7035 SW BARBARA LN 9686 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-08600 1 S125DC-03400 PIERCE MARK A & MARY A SETTLELMEYER SUSAN 9696 SW VENTURA CT 7083 SW BARBARA TIGARD, OR 97223 TIGARD, OR 97223 1S125DB-10100 1S125DB-10300 POWERS GLENN S AND SHAW GERARD E & KARLA E MARILYN J 9615 SW SHADY PL 9600 SW SHADY PL TIGARD, OR 97223 TIGARD, OR 97223 S125DD-02400 1 S125DG-02800 UERIN TARILYNN SHERMAN PATRICK J 6925 SW VENTURA 7130 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 322 1S125DC-02100 1S136AB-04000 SHKOLNIK MIKE WALTER ERIC B & NICOLE 7025 SW VENTURA DR 10066 SW 71ST PL TIGARD, OR 97223 PORTLAND, OR 97223 1 S 136AB-03700 1 S125DB-09900 SILCOX RICHARD L & BECKY A WANTLAND ANNIE M 10005 SW 71ST PL 7170 SW LOLA LN PORTLAND, OR 97223 PORTLAND, OR 97223 1S125DC-03700 1S125DC-04600 SIMON IOANA WARD ROBERTC & HELEN M 7047 SW BARBARA LN 7162 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 1 S136AB-06200 125DC-010 SMITH JEFFREY W & WA IN ON SQUARE ESTATES HUNNICUTT GEOFFREY D LOT ERS 7485 SW GORDANA CT TIGARD, OR 97223 1 S125DD-05600 125DD-103 SODERQUIST DAVID R & PAMELA E W I ON SQUARE ESTATES 9870 SW VENTURA CT LOT ERS TIGARD, OR 97223 ~S136AB-03600 125DC-048 0 STEWART JOHN M & KAREN S W HIN ON SQUARE ESTATES 10061 SW 71ST PLACE LOT NERS TIGARD, OR 97223 1 S125DC-01100 125DD-101 0 STORER ROBERT A & W i ON SQUARE ESTATES TOCCI-STORER BEVERLY A LOT ERS 7225 SW VENTURA DR TIGARD, OR 97223 1 S125DC-04200 125DD-109 TRIGOBOFF MICHAEL L & W IN ON SQUARE ESTATES LEONARD PATRICIA V LOT RS 7072 SW BARBARA LANE TIGARD, OR 97223 1 S 125DC-03600 1 S125DC-00900 TURNER RICHARD B AND WEBSTER DENNIS R & PHYLLIS ANN REITTER-TURNER BECKY L PO BOX 11229 7059 SW BARBARA LN PORTLAND, OR 97211 TIGARD, OR 97223 136AA-101 1 S125DD-08400 U STATES OWNERS OF WEEK KENNETH JR LOTS 6955 SW BARBARA LN TIGARD, OR 97223 323 1 S125DC-01600 WHITFORD ELEANOR A TRUST 7125 SW VENTURA DR PORTLAND, OR 97223 1 S125DD-04000 WILLIAMS JAMES B AND PATRICIA D 9845 SW VENTURA COURT TIGARD, OR 97223 1 S125DC-01300 WILSON LEE A & WILSON DAVID F & WILSON LORRAINE J 7185 SW VENTURA DR PORTLAND, OR 97223 1S125DB-10500 WOODWARD LENORE 9585 SW SHADY PL TIGARD, OR 97223 1S125DC-04100 WRINKLE MELISSA J 7048 SW BARBARA LN TIGARD, OR 97223 OS125DC-01400 ZIEGLER FREDERICK W AND BARBARA G 7165 SW VENTURA DR TIGARD, OR 97223 324 Kurahashi and Associates SUB2003-00010 Attn: Greg Kurahashi and Melinda Wood ASH CREEK ESTATES SUBDIVISION e 580 SW Jay Street, Suite 200 "NOTICE OF CITY COUNCIL FINAL ORDER averton, OR 97006 ON LUBA REMAND': Gregory Kurahashi Bob Storer 15800 SW Jay Street 7225 SW Ventura Drive Beaverton, OR 97006 Tigard, OR 97223 Dale Richards Ron& Alice Ellis Gaut Winwood Construction, Inc. 10947 SW Chateau Ln 12655 SW North Dakota Street Tigard, OR 97224 Tigard, OR 97223 Ernest E., Elda H., & Ray Senn & Connie Coleman & Karen Schuster Brian Kelly 9750 SW 74th Avenue 7045 SW Ventura Dr. Tigard, OR 97223-11.67 Tigard, OR 97223 Walt Senn Sue Beilke 13323 Meridian Avenue N 11755 SW 114th Place Marysville, WA 98271-7090 Tigard, OR 97223 Davis Wright Tremaine LLP Jim Laabe, Urban Conservationist Christopher P. Koback Audubon Society of Portland 1300 SW Fifth Avenue, Suite 2300 5151 NW Cornell Rd. Portland, OR 97201-5682 Portland, OR 97210 Chris Koback Carol Paddock- 1300 SW 5th 5001 NE Mineral Springs Rd. Portland, OR 97212 McMinnville, OR 97128 John Frewing Karen Schuster 7110 SW Lola Lane 2720 NE 85th Circle Tigard, OR 97223 Vancouver, WA 98665 Merilyn Ferrara & Ned Lesnick 7140 SW Lola Lane Tigard, OR 97223 qilliarn Iron 9780 SW Ventura Ct. Tigard, OR 97223 325 LN < S M GEOGRAPHIC INFORMATION 8YOT (50W) EL T LOLA LN sRalm, tmaal tlRaam tmaoNN lOIfmOIRIN sRawml 41111 ,IRON.: .RIN FOR: Ash Creek Estates Su . BARBARA am a RE: February Mailing List ,IRa.II aN N RsmeN .RaNa 43RNONa Property owner information sam um m Is valid for 3 months from eR=cum 1IRa the date printed on this map. 1IRa0NN •Ra4I1n 1 G ~ ,gnmNlN /Y- a oaalNm C, J v~ Q ,ImmN,m 0 N Z MKD)O w RRmaa VENTU R . n104N,I w nmm I U) tat m R :ant I calm 1IRa0tIN ,adlN ,sml: II 1 Ie! I ,mOO, e staweuNs DR Rmm am ° M dt 00 1 1 RRNNOIN RRNNNN .nNNnm A nwlNlm w N Q .,»~.I1m RRIWRN sm4NONI R 0 100 200 300 400 Feet ^O ;UST 1"• 312 feet ST J W City of Tigard information on this map Is for general location only and w should be verified with the Development Services Division. w > 1312$ SW Hall Blvd _ELEAF T Q a Ti(g '223 http:l rd.or.us Community Development Plot date: Feb 6, 2006; C:\magic\MAGIC03.APR 1 zo 136AA-07; 0 19 74 PARTITION PLAT OWN OF LOTS 1 & 2 1 vo 1S125DA-06500 ADKINS NORMAN J & TAMI JO .9600 SW 69TH AVE. TIGARD, OR 97223 125DC-0 0 1S125DC-04400 ALLEGRETTO RICHARD L 7108 SW BARBARA LN TIGARD, OR 97223 1 25DC-05 0 1S125DD-05301 ALLEN JAMES & KATHLEEN 9810 SW VENTURA CT TIGARD, OR 97223 1 125DC-056 0 1S125DC-03900 ALLEN MICHAEL L 7023 SW BARBARA LN TIGARD, OR 97223 • 125DC-057 1S1251)A=06400 ANDERSON JAMES C & GENEVIEVE E 9580 SW 69TH TIGARD, OR 97223 1 125DC-05800 1 S125CD-05000 ARRUFAT DEBRA J 7540 SW ELMWOOD ST PORTLAND, OR 97223 1 25DC-05 1 S125DC-00300 ASH CREEK PROPERTIES LLC 12655 SW NORTH DAKOTA ST TIGARD, OR 97223 1 25DC-0 0 1 5DC-00200 ASH EK P PERTIES LLC 12655 ORTH DAKOTA ST T RD, OR 7223 ~12 5 13 5DC-00400 AS EEK PERTIES LLC 1265 NORTH DAKOTA ST T ARD, O 97223 327 1 S125DD-02600 1 S125DC-03000 ATTIA FARAG A & PEGGY C BITTE STEVEN J & MIRIAM F TRS 6885 SW VENTURA DR, 7173 SW BARBARA LN ~GARD, OR 97223 TIGARD, OR 97223 1 S125CD-04200 1 S125DC-03300 BACKARDJIEV ALEXANDER & BLANCO EDWIN A AND RUMIANA MARIE BLAKESLEE DE 7505 SW LANDAU 7105 SW BARBARA LANE TIGARD, OR 97223 TIGARD, OR 97223 1S125DD-02200 1S136AB-00701 BAIRD THOMAS E & ELLEN E BLAND BARBARA J 6965 SW VENTURA DR 10095 SW 72ND TIGARD, OR 97223 PORTLAND, OR 97223 1 S 136AA-08600 1 S125DD-07900 BARRY DESBIENS INC BOLANZ FAMILY TRUST 15840 S POPE LN BY KARL E & GAYLE C BOLANZ TRS OREGON CITY, OR 97045 9 MALLARD CT RINCON, GA 31326 136AA 08700 1S136A6-00500 2EGO D NS INCBOUDREAU PETER & PE LN BROWN-BOUDREAU GRETCHEN N CI I , OR 97045 7320 SW LANDAU PORTLAND, OR 97223 136AA-0900 1 S125DD-02500 BA Y SBIENS INC BOYER THOMAS L & 15 OPE LN FULLERTON ANN EGON ITY, OR 97045 6905 SW VENTURA DR TIGARD, OR 97223 136AA-0850 1 S125DD-07800 BA Y BIENS INC BRAICH PATRICK M AND ROSEMARY M 15 OPE LN 9685 SW VENTURA CT EGON TY, OR 97045 TIGARD, OR 97223 136AA-0880 1 S125DD-08500 RRBI, ENS INC BROOKS ROBIN D LN 9720 SW VENTURA CT OR 97045 TIGARD, OR 97223 1 S125DC-02500 1 S125DC-04500 BERENTSEN DIANE G BROOKS ROBIN D 7050 SW VENTURA DR 7130 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 1 25DD-09000 1 S125DC-02400 0 RGLUND JOHN A JR & JUDITH A BROWN RONALD & 9678 SW VENTURA CT MELGREEN MELISSA TIGARD, OR 97223 7020 SW VENTURA DR TIGARD, OR 97223 328 1 S125DD-02700 1 S125DC-02700 BUI CHUC VAN & CRAWFORD TERRY N LIVING TRUST & NGUYEN NHU-CAM T CRAWFORD MARGARET K LIVING TRUST 6865 SW VENTURA DR 7100 SW VENTURA DR WRTLAND, OR 97223 TIGARD, OR 97223 1 S125DD-04900 1 S 125DD-08100 BURD DANIEL E & MARGARET J CROSLEY DAVID G & DIANE N 9755 SW VENTURA CT 9725 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1S125DD-05100 1S125DD-04300 CAMERON RONALD G AND CULLISON GERALD L & WHITEWOLF CELESTE C MUSAEUS LINDA J 9770 SW VENTURA CT 9815 SW VENTURA CT PORTLAND, OR 97223 TIGARD, OR 97223 1S136AA-08300 1S136AB-03900 CAPSOUTO SAM & BRENDA DAHME BRENDA D 10013 SW 70TH PL 10034 SW 71ST PL TIGARD, OR 97223 TIGARD, OR 97223 1S1251)13-11300 1 S 125DB-03900 CARLSON LIVING TRUST DAHME KENNETH W & LISA A BY CARLSON CAROLEE T TR 9635 SW 74TH AVE 7440 SW ELMWOOD ST PORTLAND, OR 97223 TIGARD, OR 97223 10125DD-04400 1S1251)6-04001 CASSIDY ROBIN DAHME KENNETH W & LISA A 9805 SW VENTURA CT 9635 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1S125DC-00600 1S125DB-03805 CHAMBERLIN ALLEN LINLEY DEGROFF PETER B 9777 SW 74TH 9640 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1S1251)13-03702 1 S136AA-07600 COLE EDWIN J & ELIZABETH LEE DEL ROSARIO DANILO E AND BY JAMES COLE MARIA ELENA 9540 SW 74TH 7025 SW LOCUST ST TIGARD, OR 97223 TIGARD, OR 97223 1 S 136AA-08900 1 S125DD-05400 CORNELL DONALD R & ELIZABETH A DIETZ THOMAS PATRICK & CYNTHIA 10022 SW 70TH PL 9840 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1D-08300 1 S136AA-08200 I ZUR KEVIN M & ANNE M DIXON HEATHER L & 6925 SW BARBARA LN PERILLOUX THOMAS R TIGARD, OR 97223 10009 SW 70TH PL TIGARD, OR 97223 329 1 S125DC-03100 1 S125DC-04000 DOW DARRIN M & KAREN S GARLAND ROGER J AND 7151 SW BARBARA LN PATRICIA A TIGARD, OR 97223 7022 SW BARBARA LANE TIGARD, OR 97223 1S125DD-04200 151250C-01700 DWYER THOMAS & NANCY GARRETSON RALPH/JUANITA 10004 SW QUAIL POST RD 7105 SW VENTURA DR PORTLAND, OR 97219 TIGARD, OR 97223 125CD-07 1 S125DD-04700 EL D PARK OWNERS OF LOTS GATES CHARLES A/PATRICIA K 9775 SW VENTURA CT PORTLAND, OR 97223 1S125DC-03200 1S136AB-03600 FIELDHOUSE MICHAEL R & GERR KEITH R & JOANNE S ABRAHAM WENDY R 7129 SW BARBARA LN 10008 SW 71ST PL TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-02600 1 S125DC-01500 FINLEY-ZEHNTBAUER TRUST A REVOCA GONDEK CORY R BY ERIC EPPERSON TR 7145 SW VENTURA DR PMB 175 TIGARD, OR 97223 25 NW 23RD PL STE #6 1 4RTLAND, OR 97210 36A8-04100 1 S125DB-03803 FISH STEVEN F & ELISABETH GRIFFITHS MICHAEL R & JULIA K 10088 SW 72ND AVE 9620 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S 136AB-06100 1 S 125DA-06800 FITZGERALD NEAL J & CALISTA L HAACK WILLIAM H & MICHELLE N 7453 SW GORDANA CT 9585 SW 69TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-00202 1 S125DC-04300 FLANAGAN JOHN C HALSTED SCOTT L 525 SW JACKSON ST 7090 SW BARBARA LANE PORTLAND, OR 97201 TIGARD, OR 97223 1 S125DB-11200 1 S136AB-06000 FOX BRUCE J/MARTHA J HARDINGE LIVING TRUST 7460 SW ELMWOOD ST BY HAL W & KRISTEN J HARDINGE TRS PORTLAND, OR 97223 7431 SW GORDANA CT TIGARD, OR 97223 W 5DB-10000 1 S 7 25DD-04100 NCONE THOMAS M & LYNN F HARMON KATIE 7198 SW LOLA LN 9835 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 330 1 S136AB-00200 1 S 125CD-04201 HARRINGTON CLAYTON & TERESA JACKSON WOODS LLC 10006 SW 72ND AVE 7501 SW LANDAU ST ~GARD, OR 97223 PORTLAND, OR 97223 1 S136AB-03500 1 S125DB-09500 HARS-WALTER JASON JEFFERY JAMES T & 10097 SW 71ST PL TANAKA NAOKO PORTLAND, OR 97223 7060 SW LOLA LN TIGARD, OR 97223 1S125DA-06600 1S125DC-00500 HOAGLAND DEAN GUY AND ZOLA JEFFS JERRY L AND PAUL 1 9625 SW 69TH 9655 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-01200 1 S125DG-04700 HOBBS RONALD E AND JUNE E JOHNSTON MICHAEL R & MARY ELLEN 7205 SW VENTURA DR 7160 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 1 S125DA-06700 >716 -02900 HOENER MELODY L TO ICHAEL R & MARY ELLEN 9605 SW 69TH ENTURA DR TIGARD, OR 97223 , O 223 0125DD-08200 1 S125D8-09700 HURT JOHN C AND TERESA A KAUFFMAN GAYLE I & 9735 SW VENTURA CT FREWING JOHN L TIGARD, OR 97223 7110 SW LOLA LN TIGARD, OR 97223 1 S 125DD-05200 1 S 125DD-04500 IRON WILLIAM Z & KEEVER MOJDEH B MEADS KATHERINE B 9795 SW VENTURA CT 9780 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S 136AB-00401 1 S 136AA-08400 IRVIN DARRELL B KEIDEL JEREMEY & TRICIA R 7280 SW LANDAU 10025 SW 70TH PL TIGARD, OR 97223 TIGARD, OR 97223 1 S125DB-09400 1 S125D6-09600 ISAACS RONALD R AND DONNA KELLY JOHN R & ELIZABETH A 7042 SW LOLA LANE 7080 SW LOLA LN TIGARD, OR 97223 TIGARD, OR 97223 125DG-03500 1 S136AB-00600 KSON SCOTT M & RHONDA A KOHLMAN BRIAN H & SHAUNNA L 7071 SW BARBARA LN 7307 SW LOCUST ST TIGARD, OR 97223 PORTLAND, OR 97223 331 1 S125DD-03800 1 S125DD-05500 KOSTUR CHARLES J & DIANNE M MCLELLARN PALMIRA B 9865 SW VENTURA CT 9860 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 0 1 S136AA-07700 1 S125DB-03703 LEE REYNOLD GEORGE MINETTO STEVEN L & JAN V 7047 SW LOCUST ST 9510 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1 S125DB-09800 1 S125DC-02200 LESNICK EDWARD C JR & MONROE JAMES E FERRARA MERILYN 7005 SW VENTURA DR 7140 SW LOLA LN TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-02300 1 S125DB-03802 LOUKA MARK E MOORE WALLACE R 6945 SW VENTURA DR 9600 SW 74TH AVE TIGARD, OR 97223 TIGARD, OR 97223 1S125DD-03900 1S136AB-05900 LOVE DONALD P & MORAN ANDREAS J WYNNE JOELLEN 7440 SW GORDANA CT 9855 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 136AB-063 0 1S125DC-01800 M EST WOODS OWNERS OF MORSE WILLIAM J/LOURENE J & LOT -8 STE MARIE CHERRILL 7085 SW VENTURA DR TIGARD, OR 97223 1S125DB-04000 1S136AB-00400 MCCREARY JOHN R & DORIS L MULHEARN FRANCIS X & CHERYL A 9605 SW 74TH AVE 10055 SW 72ND TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-01900 1S1251)13-10200 MCELWAIN JAMES D/JANET K MURCHE DAVID JOSEPHIEILEEN M 7065 SW VENTURA DR 9620 SW SHADY PL TIGARD, OR 97223 PORTLAND, OR 97223 1 S 125DC-02000 1 S125DD-04600 MCGEHEE-KELLY MARGO A & BRIAN A MURFIN DANIEL A & ELAINE J 7045 SW VENTURA DR 9785 SW VENTURA CT PORTLAND, OR 97223 PORTLAND, OR 97223 136AA-00400 1S136AB-00201 GUIRE JAMES E NEWELL JERI JUNE 6909 SW OAK ST 10060 SW 72ND AVE TIGARD, OR 97223 PORTLAND, OR 97223 332 1S125DD-05000 1S125DD-08000 NORTON SARAH L RANDALL AARON W & JENNIFER C 9760 SW VENTURA CT 9715 SW VENTURA CT 0TIGARD, OR 97223 PORTLAND, OR 97223 1 S125DD-04800 1 S125DD-02800 ODENBRETT ROBERT J ROSS CAROL '9765 SW VENTURA CT 6845 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 1 S 136AB-00700 1 S125DD-08900 O'NEIL MICHAEL CARY RUTLEDGE RONALD R AND 7211 SW LOCUST ST LINDA COY PORTLAND, OR 97223 9682 VENTURA CT TIGARD,'OR 97223 125DB-119 1 S136AB-03701 O F LOTS OF THE SANDER LEO ROBERT REVOCABLE PATCH LIVING TRUST 10031 SW 71ST PL TIGARD, OR 97223 1 S125DB-10600 1 S125DB-03804 PAKENEN GENE L AND BETTY A SAVAGE WOODROW A & SANDRA JEAN 9555 SW SHADY PLACE 7301 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 0125DD-08700 1 S125DC-00201 PANGBORN JEFFREY L SCHMITT PATRICK D & PATRICIA J 9690 SW VENTURA CT 9720 SW 74TH TIGARD, OR 97223 TIGARD, OR 97223 1 S125DC-03800 1 S125DD-08800 PIEDRA GUIDO A SCHROEDER TED C & JENNIFER 7035 SW BARBARA LN 9686 SW VENTURA CT TIGARD, OR 97223 TIGARD, OR 97223 1 S125DD-08600 1 S125DC-03400 PIERCE MARK A & MARY A SETTLELMEYER SUSAN 9696 SW VENTURA CT 7083 SW BARBARA TIGARD, OR 97223 TIGARD, OR 97223 1S125DB-10100 1S125DB-10300 POWERS GLENN S AND SHAW GERARD E & KARLA E MARILYN J 9615 SW SHADY PL 9600 SW SHADY PL TIGARD, OR 97223 TIGARD, OR 97223 125DD-02400 1 S125DC-02800 ERIN TARILYNN SHERMAN PATRICK J 6925 SW VENTURA 7130 SW VENTURA DR TIGARD, OR 97223 TIGARD, OR 97223 333 1 S125DC-02100 1 S136AB-04000 SHKOLNIK MIKE WALTER ERIC B & NICOLE 7025 SW VENTURA DR 10066 SW 71ST PL GARD, OR 97223 PORTLAND, OR 97223 1 S 136AB-03700 1 S125DB-09900 SILCOX RICHARD L & BP-CKY A WANTLAND ANNIE M 10005 SW 71ST PL 7170 SW LOLA LN PORTLAND, OR 97223 PORTLAND, OR 97223 1 S125DC-03700 1 S 125DC-04600 SIMON IOANA WARD ROBERTC & HELEN M 7047 SW BARBARA LN 7162 SW BARBARA LN TIGARD, OR 97223 TIGARD, OR 97223 1 S136AB-06200 125DC-010 SMITH JEFFREY W& WA IN ON SQUARE ESTATES HUNNICUTT GEOFFREY D LOT ERS 7485 SW GORDANA CT TIGARD, OR 97223 1S125DD-05600 125DD-10 SODERQUIST DAVID R & PAMELA E W I ON SQUARE ESTATES 9870 SW VENTURA CT OT ER LS TIGARD, OR 97223 0136AB-03600 125DC-048 0 STEWART JOHN M & KAREN S W HI ON SQUARE ESTATES 10061 SW 71ST PLACE LOT NERS TIGARD, OR 97223 1 S125DC-01100 125DD-101 0 STORER ROBERT A & W I ON SQUARE ESTATES TOCCI-STORER BEVERLY A LOT ERS 7225 SW VENTURA DR TIGARD, OR 97223 1S125DC 04200 125DD 109 TRIGOBOFF MICHAEL L & W N ON SQUARE ESTATES LEONARD PATRICIA V LOT RS 7072 SW BARBARA LANE TIGARD, OR 97223 1 S125DC-03600 1 S125DC-00900 TURNER RICHARD B AND WEBSTER DENNIS R & PHYLLIS ANN REITTER-TURNER BECKY L PO BOX 11229 7059 SW BARBARA LN PORTLAND, OR 97211 TIGARD, OR 97223 136AA-101 1 S125DD-08400 4 F U STATES OWNERS OF WEEK KENNETH JR LOTS 6955 SW BARBARA LN TIGARD, OR 97223 334 1 S1'25bC-01600 WHITFORD ELEANOR A TRUST 7125 SW VENTURA DR ~ORTLAND, OR 97223 1 S125DD-04000 WILLIAMS JAMES B AND PATRICIA D 9845 SW VENTURA COURT TIGARD, OR 97223 1 S125DC-01300 WILSON LEE A & WILSON DAVID F & WILSON LORRAINE J 7185 SW VENTURA DR PORTLAND, OR 97223 1S125DB-10500 WOODWARD LENORE 9585 SW SHADY PL TIGARD, OR 97223 1S125DC-04100 WRINKLE MELISSA J 7048 SW BARBARA LN TIGARD, OR 97223 OS125DC-01400 ZIEGLER FREDERICK W AND BARBARA G 7165 SW VENTURA DR TIGARD, OR 97223 335 LAWYERS Davis Wright Tremaine LLP ANCHORAGE BELLEVUE LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C. CHRISTOPHER P. KOBACK Direct (503) 778-5382 SUITE 2300 TEL (503) 241-2300 D D 1300 SW FIFTH AVENUE FAX (503) 778-5299 chriskoback@dwt.com ck778- com PORTLAND, OR 97201-5630 www.dwt.com February 9, 2006 Dick Bewersdorff Planning Manager City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: 2129 Ash Creek Estates PUD LUBA No. 2005-042, Remand Dear Mr. Bewersdorff-. I have enclosed a copy of a letter dated September 28, 2005 that I submitted to you in response to LUBA's remand in LUBA No. 2005-042 involving Windwood Construction's application to develop property in Tigard. Now that the Court of Appeals has affirmed LUBA's decision, I am resubmitting that letter to you at this time so that you can place it in the record for the upcoming February 28, 2006 hearing before City Council on LUBA's remand. As set forth in my September 28, 2005 letter, , I believe the enclosed material establishes that Windwood Construction is complying with LUBA's remand directive. As such, Windwood Construction respectfully requests that City Council grant final approval for its application for the Ash Creek Estates PUD. Thank you for your attention to this matter. Very truly yours, Davis Wright Tremaine LLP LM ~-C, pL, IV. Christopher P. Koback CPK/lkt • Enclosure cc: Dale Richards, Windwood Construction Gary F. Firestone, Attorney for Respondent PDX 13848170 44727-22 61402-3 336 LAWYERS - 1 Davis Wright Tremaine LLP ANCHORAGE BELLEVUE - LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C. CHRISTOPHER P. KOBACK SUITE 2300 TEL (503)241-2300 Ditect (503) 778-5382 1300 SW FIFTH AVENUE FAX (503) 778-5299 chriskoback@dwt.com. OR 97201-5682 www.dwt.com September 28, 2005 RECEIVED PLANNING SEP 2 9 2005 Dick Bewersdorff Planning Manager CITY OF TIGARD City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: 2129 Ash Creek Estates PUD • LUBA No. 2005-042, Remand Dear Mr. Bewersdorff. As you no doubt have been advised, the Land Use Board of Appeals LUBA") remanded the above-referenced case for the City to consider one specific issue. Beginning on page 20 of LUBA's Final Opinion and Order, dated September 20, 2005, LUBA discusses the Applicant's obligation to preserve trees. On page 22, the Board identifies 23 specific trees that the current submission shows as being removed. LUBA believes on remand the Applicant must explain why those specific trees cannot be preserved. LUBA expressly stated that neither the Applicant nor the City was required to explain the necessity for removing any trees other than those expressly identified by LUBA in footnote 16 of its opinion. The Applicant has decided that each of the 23 trees identified by LUBA can and will be preserved in the final development plan. Accordingly, I have attached for the City's records and as a supplement to the application, a copy of a Revised Tree Plan, which illustrates the preservation of each of those 23 trees. Pursuant to LUBA's opinion, there are no additional issues the Applicant must address on remand. Accordingly, pursuant to ORS 227.181(2), the Applicant is requesting that the City proceed with this application on remand and set it for hearing before City Council at the earliest possible date. PDX 1329829v144727-22 61402-3 337 Dick Bewersdorff fro City of Tigard September 28, 2005 Page 2 Thank you in advance for your continued cooperation with this matter. Very truly yours, D .s Wright Tremaine LLP ~P Christopher P. Koback CPK/lkt Enclosure cc: Dale Richards, Windwood Construction Gary F. 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R ~ aR,oas on w 0 9 RAMIS CREW CORRIGAN LLP • ATTORNEYS AT LAW 1727 NW HOYT STREET PORTLAND, OREGON 97209 TELEPHONE (503) 222-4402 Gary Firestone FAX (503) 243-2944 gar ageclawyers.com WWW.RCCLAWYERS.COM February 2, 2006 Michelle Waring Business Tax Department City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223 Re: Ash Creek LUBA II John Frewing Dear Michelle: Enclosed is a check we received from John Frewing for a Cost Award for attorney fees from the above referenced matter. I have included a copy of the Award document for your reference. Please feel free to contact me if you have any questions at all. inc l Lori R. talker Legal Assistant to Gary Firestone lrs Enclosures • 341 1. A City of Tigard 13125 SW Hall Blvd CUSTOMER RECEIPT Tigard, OR 97223 W ) 639-4171 COT0783, Michelle Receipt No.: 0025920 Receipt Date: 02/03/2006 Customer No.: 000000 Name: JOHN FREWING 7110 SW LOLA LN 00A TIGARD, OR 97223 Total 174.00 Cash 0.00 Check 60 174.00 Change 0.00 Type Description Amount MISC Reimbursement of City Attorney F ees 174.00 • Cour Awarded for Ash Creek LUBA II 02/03/2006 1:23:57 PM 303 02 2006 • 342 Mr Tom Coffee, Interim CD Director RECEIVED • City of Tigard 200 13125 SW Hall Blvd DEC 2 3 5 Tigard, OR 97223 Off1f Offliw Dear Mr Coffee: • This letter requests City of Tigard to use the TCDC rules of a Type III hearing in the forthcoming remand hearing on Ash Creek Estates and to include in the scope of the hearing 1)issues affected by changes in project design by the applicant, Windwood Construction and 2)by new information developed in the course of a recent hearing on a Division of State Lands (DSL) removal/fill permit for a culvert and street crossing of South Ash Creek at SW 74th Ave. LUBA remanded the prior City of Tigard decision on this matter to the local government on September 20, 2005. I appealed this remand decision to the Oregon Court of Appeals, which affirmed the LUBA remand on December 7, 2005, so the land use decision is back in the hands of City of Tigard. In the process of making a removal/fill application for a culvert and street crossing of South Fork Ash Creek at SW 74 h, Windwood and Division of State Lands have made the following representations of significance to the Tigard decision: • 1 In a final submittal to DSL in early August, 2005, Windwood provided DSL with a site drawing showing the impacted wetland area, and a layout of the SW 74`h stream crossing. This drawing clearly shows a 4-foot planter strip, 5-foot sidewalk and 6-foot shoulder on the east side of the SW 74 h stream crossing, which is contrary to the layout drawings in Windwood's Tigard land use application. See this site drawing attached (marked F3 1/11, which is the admitted exhibit in the DSL hearing on this matter). This new information differs from the plan previously considered by Tigard - it has two effects: it lengthens the proposed culvert, which is inimical to fish passage, but it brings the street design of the SW 74`h stream crossing more in compliance with Tigard street standards (as found in PIDS). 2 In evaluating whether the proposed culvert and stream crossing would have any impact on public health and safety, DSL (Louise Bos) stated that her agency did not review these matters, but deferred that matter to local decisionmakers in a land use application. However, it is clear from the distribution list provided by DSL that City of Tigard was not noticed on this removal/fill application and specifically not noticed that any City of Tigard evaluation of public health and safety was key to the DSL approval. The importance of this matter is that the DSL application seriously understates the watershed area considered in sizing the culvert. The application uses a watershed area of 391 acres; using Clean Water Services watershed maps, the area should be about 700 acres (the issue is drainage from the southeast side of I-5 underneath the freeway and into South Ash Creek). See attached drawing from the DSL application, marked up (by me) showing the corrected drainage area. If the proper watershed area is used, the culvert may not pass the 100 year flood, which is referenced in culvert design, may result in damage to • the fill (Tigard's responsibility once it is turned over to the city) and may damage the stream resources and adjacent landowners downstream as a result of erosion or failure of the fill. Also 343 • attached is a photo of the relevant area of South Ash Creek, taken yesterday at about 2PM, during a rain shower passing through. This photo shows more stream flow than expected, given a 391 acre drainage and a 24-hour prior rainfall of 0.77 inches, which is less than a third of the design rainfall. I read the TCDC and previous land use decisions to say that you initially decide the type of hearing, and that the City Council decides the scope of the hearing. As a matter of interest, in the previous Tigard remand hearing on this application, City Council members seemed to express the opinion that ONLY the remanded issues could be considered. My review concludes that they CAN so limit the remand hearing, but MAY consider other issues. Because of the emergence of the above issues after the prior consideration by Tigard City Council, a full and fair hearing is obtainable only by their inclusion in the pending remand hearing. Please advise me of your decision on hearing type and City Council decision on scope of hearing. If there is opportunity for me to address City Council on scope of hearing prior to their decision, I would appreciate notice, so I may appear. Sincerely, Jo Frewing 7110 SW ola Lane, Tigard, OR 97223 jfrewing@teleport.com 503.245.5760 attachments plan view of South Ash Creek, proposed crossing at SW 74th Ave (Windwood submittal to DSL) markup of South Ash Creek drainage above SW 74 h Ave (Windwood drainage vs actual) photo 12/22/05 of flooding South Ash Creek at SW 74th Ave (J Frewing photo) • 344 r t- IP AREA IM 1MP ACTED o° W ° t -.60 . ~ xA►~ t 1 • t IIv MY ~ww WNW 4t7 uNE 13 WA4L or e C~~ a` „ •a" ss V I n1#~~~. ` f Y°d s3`=`&r 'j',~. i • 34 ys 9uR t:asl~"°' 11•~\W~^lttii~°y'ss~~~„i, ) as ~ ~ ;n ~r.~~.,,~1.0► d~u• rtr~M.r. AMEN I°" g,4" _ /~/9,r7►~/ ~~Cr es~ 1T7.~~ii~ 1~~„^••~~^'"JQ~~~'j/~w+"~ MS~~ ~0►41 a PEAK A - / t ~ j~ a/. 1., w 1 •pr s: so a OutOER 4' 1 op~~) / r~".P 5~.~~ w~~~. \ Ll ~ / d ei ..Al b,• . ~ !9 ~ -s=-- - Cana M r OEWA< ER \ ~~~~#j tit` d ,p 11~~ r. ;i •a i, 's a+ wn -wo r""wlT+s1"'`7i ` •tM y 1 W tl Y • I L' - ti ~ • { w t b i i IA - `f 2.0 = -fwQ~oz°ne.ta 10 4000 0 .3400 mites 2000 1000 0 Meters. V Cl/ ~ L~ ` LAS f7~ 344 - 1 ' r f ~ ~ ~ c~ ~ ~ cs~ 2 ~N 1 3 FILED: December 7,2005 IN THE COURT OF' APPEALS OF THE STATE OF OREGAECEIVE® : JAN 1.9 2006 JOHN FREWING, ) RAMS CREW LUBA No. 2005_042 CORRICAN, LLp ATtORNEYS AT LAW Petitioner, ) A130080 CITY OF TIGARD.and WINDWOOD . ) CONSTRUCTION, ) Respondents.) ' Submitted on record.and briefs: November 10, 2005 • Before Haselton, Presiding Judge, and Armstrong and Rosenblum, Judges Attorney for Petitioner: John Frewing pro se Attorney for Respondent City of Tigard: Gary'Firestone Attorney for Respondent Windwood Construction: Christopher P. Koback AFFIRMED WITHOUT OPINION DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: Respondents U .No costs allowed _ [X] Costs allowed, payable by: Petitioner APPELLATE JUDGMENT - AND SUPPLEMENTAL JUDGMENT 348 MONEY AWARD. Judgment #I Creditor: CITY OF TIGARD and WINDWOOD CONSTRUCTION Attorneys: Gary Firestone Christopher?: Koback 1727 NW. Hoyt Street' 1300 SW 5". Avenue Ste 2300 Portland OR 97209 Portland OR 97201. Debtor: JOHN FREWING Costs: $100.00 TOTAL AMOUNT: $100.00 Interest: Simple, 9% per annum, from the: -date of this appellate judgment: MONEY AWARD Judgment #2 Creditor: CITY OF TIGARD Attorney: Gary Firestone 1727 NW Hoyt Street Portland OR 97209 Debtor: JOHN FREWING v Costs: $124.00 a' b ln- fm dui Std, Cmt Adnirist w-L- - when e . . TOTAL AMOUNT: $124.00 ct~d `his' meT `mss c :act iGY" 20.t = Interest: Simple, 9% per annum, from the date of this j` :1 Jo 349 M4Y Aw Judgment #3 b OD CONS UCT10 . Creator" Z{oback . "2300, CristopherP • Ste Attorney' 1344 SW 5 Ave241 Portland OR 97 30HN:FREG Debtor: X124.04 Costs: $124.40. udgmeut. . ovN? . TAI- _ frm. the date of this ~pevate . TO o per annum, COURT OF APPEALS 9 % p Interest: Simple, C~O (seal). Ap~eUate Judgment January 199.2006 Effectwe Date:. 350 ^ / ) LAWYERS Pt2_1zd3 , Davis Wright Tremaine LLP ANCHORAGE BELLEVUE - LOS ANGELES NEW YORK PORTLAND SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, D.C. CHRISTOPHER P. KOBACK SUITE 2300 TEL (503) 241-2300 Direct (503) 778-5382 1300 SW FIFTH AVENUE FAX (503) 778-5299 chriskoback@dmt.com PORTLAND, OR 97201-5682 www.dwt.com September 28, 2005 RECEIVED PLANNING SEP 2 9 2005 Dick Bewersdorff CITY OF TIG/~R~ Planning Manager City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: 2129 Ash Creek Estates PUD • LUBA No. 2005-042, Remand Dear Mr. Bewersdorff As you no doubt have been advised, the Land Use Board of Appeals ("LUBA") remanded the above-referenced case for the City to consider one specific issue. Beginning on page 20 of LUBA's Final Opinion and Order, dated September 20, 2005, LUBA discusses the Applicant's obligation to preserve trees. On page 22, the Board identifies 23 specific trees that the current submission shows as being removed. LUBA believes on remand the Applicant must explain why those specific trees cannot be preserved. LUBA expressly stated that neither the Applicant nor the City was required to explain the necessity for removing any trees other than those expressly identified by LUBA in footnote 16 of its opinion. The Applicant has decided that each of the 23 trees identified by LUBA can and will be preserved in the final development plan. Accordingly, I have attached for the City's records and as a supplement to the application, a copy of a Revised Tree Plan, which illustrates the preservation of each of those 23 trees. Pursuant to LUBA's opinion, there are no additional issues the Applicant must address on remand. Accordingly, pursuant to ORS 227.181(2), the Applicant is requesting that the City proceed with this application on remand and set it for hearing before City Council at the earliest possible date. PDX 1329829v144727-22 61402-3 351 Dick Bewersdorff m City of Tigard September 28, 2005 Page 2 Thank you in advance for your continued cooperation with this matter. Very truly yours, D s Wright Tremaine LLP Christopher P. Koback CPK/M Enclosure cc: Dale Richards, Windwood Construction Gary F. Firestone, Attorney for Respondent • PDX 13298290 44727-22 352 ~ ~i i ~ e _ ~a -j- z ~ ,s ~I I ~ ~:i i ~ ~ ~ ! II I _ ~ II ~ i t 1U- I 6 ` I III ~ _ _ ~ _ _1~._~...___ _ . . ~ 9 C~) ~ 4 t o ~ "-,A } "~1 ~ t ~ t~ ~ r ~ 1~ ~ ~ Ot)I~ P ~A4.rY FEI ~ W r, . ~ . _..~...._______.~.___...~_._.._...__~.._..d.__.._,__._._~. ~ l_._~__.____..__ $ ~ ~ ~ MESH FEIIt~.. ~iI~C k I ~ _y_~ _ _ 8 _M._._ G~ i , C.~ Q S86 S89 S8 6 r ~ Sg ~ ~ S8 ~g ~ S$ X62 4l S8 ~g S4 S ~ 856 5' 93 - S 588 98 _ _~~-w~ . 3 :`yam _ Rr S 2S I ~ r -7"~ ~ - a s_ - ~ ~ r~ s c > ~ 9~s ~ s9 8S _s= t - _ rs - - jc Si ~ l t ~ ~ ~ ~ r ~r 1 . ' 1 j ~ S 60p ~ r - ~ -1 _ ~ s~ I ~3s ~---,,..,~..,.m~,.. ..w.-.~,. E w, 1 ~3 ! ~ r. F i - S> ~ ~ ~ - 4I ~ .__.w--,___.- ~ s4 i4 . o s f z s ~ ~ ~ (l r,. ~ ~ t 2r l AL 1 ~ 7 s~ 1 ; ~ _ L_ , o I 1 ~ .P i I 1 ~ ~ ~..~,._,f.m-~.._ ~7:v ~9fda.: _~1`i~ ~ ,r~F~C1~_C SZ .r' ~ ~4 i L., ~ ~ \ r.. " ~ ■ i __.._l ~ f ~ 1 ~ ~ , ~ti g ~ ~ 2r r V A ~ , . A' 6r~ _ ~L , ■ i F~ - 35.. . _ ~ ~ , r~ II - ; ' - I ~ ~ ~ x 4 . ~ ~ '~N', e, e~ ~ ':..t ~ l~ X TREES 12 ANA? GREATER ; i ~ ~ . ti', ~ . ~ S x ~ ~ O>S i k ~ .,a. X TREES LESS THAN 1 Tt~ ~ ~ ~ . , a~. ~ ~ ~ ~ . ~ . r _ , ~ ~ t n BE SAVED _ _ _ -ti . -T-yw - 8Y ~ ~ TREES NOT CONFIRMED _ _ ~ ~ Sqy ` ~ Lr~ - ARBORIST ~ ~ w _ ~ - - GREATER THAN 12 HAZARD ' ~ ~ ~ S2 r- . x TREES ALL HAZARD TREES ~,t , x 066 ~ os ~ 08r i a a ON LOTS SHALL BE CUT ~ ~'o . N ~o83Y- . o . r i ~ z,` so~~. HAZARD TREES SMALLER - s i ~s . F ~ 1 0 x 'k ~ Oro ~I I- THAN ~ 2 4ALL HAZARD ~ ~ ~'Y, . i Sr, f TREES ON LOTS SHALL BE , 00 ' F 1 ~ ~ C~T~ xr ~ A , r ! I ~ ` TRE~.S GREATER THAN ~ ~ TO BE CUT ~ k ~ ~ Cis aF~ ~n ~ 08s 'ter u t; z , , . ' TREES LESS THAN 12 TO ~ ~ . ~ 63 fa ~ ~ t Og 3g BE CUT ~ ~ ~ 5~8 ,~~'c z~ ~q s ; ~ 093 'f s2 ~ a NOTES; ~ ~ - i ~ 0 ~ O ~ . ~ , a 1. SEE AR80RIST REPORT FOR TREE _ _ ~ ~ ~ fig" ~ PROTECTION MEASURES F ~ ~ ~s ~ ~ ~ _ 4 ~ ~ 089 .d i , ~ ~ srs g ~ 1 - ~ _ 9 ~ ~ - I N MEETING WITH ~ ~ ~ ~ ' - 2 PRE CONSTRUCT 0 _ ~ I ~ ~ ~ ~ ARBORIST PRIOR TO FALLING OF ANY o ~ TREES ON SITE 1 6 ~ 3S 1 , ~ ~ ~ ~ r ~ ~ i 1 3. 3000 AND 4000 SERIES ARE NOT ~ ~ 4 r ~ , 3~ I 8 TREES. ~ F ~ , j` r, ~ r r / ti J } 4, ALL TREES SAVED WfI.L BE SUB~IECT ~ k QS M TO ARBORIST REVIEW IF (3ElRII!IG ~ r ~ f CONSTRUCTION OF SUBDIVISION OR ~ HOUSES, THE GRADING IS PROPOSED ~r~ go , ; 63 k ~ S 5 ~ ~ CLOSER THAN 1 PER INCH DIAMETER 208 o s0~ OF TREE, ARBORIST SHALL PROPOSE og ~ z 22 5 0~6 NECCESSARY MITIGATION. _ sq , 24r W f 23 y 9 'v k w, c~As8s2 V 5. ALL TREES SMALLER THAN 12 ~ 6349 • a 56 x 38 ' o' s ' we USO 4 ~ 24 2) s r~ 21 S oS WILL BE CUT. TREES LESS THAN 12 24o s2o 0 3q ' t. 0. k 05 s Q ~0 X640 ~ / S~ ds -gib 2~ s'8a® AT EDGE OF LOTS MAY BE SAVED ~ ~ 8~ 20,3 634 . UNTIL HOUSES ARE CONSTRUCTED ~ i 1 k t , s3 ss / OS k 8 ` 30 02 ~S s TO MAXIMIZE THE NUMBER OF TREES ~ 6 Os k o Os ~ ~ ~ k 92 Og k 306 f~ ~ ~ Ne os ~ Ss s 62 k s ~ ~ Og 3p x 6 ~ ~ 1 Uss, O5 0 SAVED. og 462 k 2 7 OS 50 0 ~ Cg 3 5 ~ - k 563 2$6 `III k pSp C Sp o 62 05 r ~ 5S_°7a 094 6. SEE ABORIST REPORT FOR SIZES ~ ~ i 523 501 01 CONDITkON AND REMOVAL LIST ~ 0 ~q ~ '`52 r , 523 ~ QS . _ . -625 - ~ i ° p.. ® 7. HAZARD TREES WITHIN THE LOTS 1 g 3 os~ 4 z ~ ~ 6 SHALL BE CUT. _ _ ~ f' k ~ Os S6 6 ~ 2 pr k ~ ~ i , I~ 1 ~ d 2 6 ~ ~ , ~ 9 4 8 k 05 ~6 , 3 0 ! ~ , 02 w, , t ~ . es s \ oS f ~ ~ 1 24 081 8. HAZARD TREES WITHIN OPE~1 SPACE i ~ 617 I ~ k ~ ~ os S ~ 1 _ ~ ~ k SHALL BE REVIEWED BY ARBORIST OS k s ~ p~ Os I ' ° C 23 52 9 099 22 621 ~ ti, s ~ Q f ~ os ~ > u y DLRING CLEARING AND WILL BE CUT ~ 2 4 IF THEY ~EPRESEtiT A SIGN►~kOA~lT _ _ ~S i ®62 ~ 50,3 26 f 0 ~ ~ ~ t SAFETY HAZARD ~ ~ - ~ 086 't; h , 1, t ~ ®6a, 6225 ~ r 22 slg o,, 11- 46 I - s~2 ~ ~ ~ - I 2 ps 11 > fl3 , OS f ~ 8 (,1t 41 ~ J 8 f 622p --"°~64 ~ ~ ' ~ 9. ALL TREES TO BE SAVED SHALL HAVE ~ TREE PROTECTION FENCING PLACED a~ I 8 , l_ 1 S S ~ 2l~ S46 i ~ AROUND THEM AS DIRECTED BY ~ 52 ~ 33 S?3 S2~ Q5 S6 631 61R ~ ? ! ~ 1 ~ ~ r 6 ~ 23 - s k ~ ~ h~~ 61 ~ r R S ~ ~ Os - ~ s k , ~ ,3 ARBORIST ~ ~ s2 s e 2>> 3~ 236 52 ~ ~ 6 , 21~ 20 ` k ti 62r S ~ ~ k ~ f S s 2 0_ 3 5 ~ 2 ~ ~ 4s S2 604 ~ ~ 520 ~ , C s - ~ ~ 049 METAL FENCE - ~ f 1 k s ~ I 2s~ C sa ON STEEL POSTS 5 255 p5~ 4 t , 52 521 L.. _ 2? 2 S 5 ~ 2r j x 521 J 05 3 ~s ; s 2 ~,22~~, 2s i4e ~.~6 NOTE. ~ 1 ~ Os _ ~ ~ 3 , SEE ARBORISTS REPORT FOR TREE PROTECTION r- ~ 524 22 02 3 0 i NOTES. z _ - 5 Os z 24 221 ~N FENCE TO BE LOCATED PRIOR TO CUTTING OF TREES 5 242 EXCEPT AS COORDINATED WITH ARBORIST. t _s2s _ _ . ~ g _ _.~4R~. ~WI€'~- -~E~Fk<--F€Rl~;€ -k~aP~ _.860 k . 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SOp 6 6 8 31 3 B6 os _r f~~MAl~d ~ 1 44 q0, _ d S Q E~AhE3 ~e Wl~~ ►~~ESH F~~.IIt,E LIPdE d r _ ~ ~ 88 - _ 1 S 14 ? s3 ~ ,r t ~ Ol SAN - S„i~~ - ~,S SAN SAN SAN ~ SAN .'53~.. ~ ~ L' ~ i vr~ rk T f 2005-042 Frewing v. City of Tigard Page 1 of 32 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON JOHN FREWING, Petitioner, VS. CITY OF TIGARD, ' Respondent, and WINDWOOD CONTRUCTION, Intervenor-Respondent. LUBA No. 2005-042 FINAL OPINION AND ORDER Appeal from City of Tigard. • John Frewing, Tigard, filed the petition for review and argued on his own behalf. Gary F. Firestone, Portland, filed a response brief and argued on behalf of respondent. With him on the brief was Ramis Crew Corrigan, LLP. Christopher P. Koback, Portland, filed a response brief and argued on behalf of intervenor- respondent. With him on the brief was Davis Wright Tremaine, LLP. HOLSTUN, Board Member; DAVIES, Board Chair; BASSHAM, Board Member, participated in the decision. REMANDED 09/20/2005 You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850. • http://tuba.state.or.us/pdf/2005/sept05/05042.htm 355 2005-042 Frewing v. City of Tigard Page 2 of 32 Opinion by Holstun. NATURE OF THE DECISION Petitioner appeals a city decision that grants subdivision and planned development approval for a 29-lot subdivision on 9.3 acres. FACTS The appeal concerns a city decision that was adopted to respond to our decision in Frewing v. City of Tigard, 47 Or LUBA 331 (2004) (Frewing I). In Frewing I, petitioner alleged a large number of assignments of error. We sustained several of them. On remand the city was required to provide further explanation for a steep sag curve it approved for 74th Avenue, which provides access to the subdivision. The applicant was also required to prepare a tree inventory and plan and explain how vegetation would be protected. Finally, the city was required to provide additional justification for two adjustments that were approved to allow a curb-tight sidewalk and a cul-de-sac that is longer than the Tigard Community Development Code (TCDC) allows and serves three more houses than' the TCDC would otherwise allow. • MOTION TO FILE REPLY BRIEF On July 19, 2005, petitioner filed a motion to file a reply brief. In that reply brief petitioner argues for the first time that the tree inventory that the applicant prepared following our remand in Frewing I identifies trees by "genus or family names instead of species as called for in the regulation." Although petitioner contends that this argument in the reply brief is presented in response to a new issue raised in the applicant's response brief, the applicant's response brief does not raise a new issue, and the argument petitioner presents is not in response to any new argument that the applicant makes in its brief. As we have already noted, it is an entirely new argument. The motion to allow a reply brief is denied. POST ORAL ARGUMENT MOTION Following oral argument, petitioner filed a "Motion for Supplemental Brief to Aid LUBA Decisionmaking." In that supplemental brief, petitioner expands on his arguments concerning certain • trees and provides citations to and discussion of a number of additional LUBA decisions that petitioner believes lend further support to arguments in his petition for review. http://luba.state.or.us/pdf/2005/septO5/05042.htm 356 .2005-042 Frewing v. City of Tigard Page 3 of 32 Petitioner has been a vigorous and thorough advocate for his positions in Frewing I and in this appeal. However, the rules that govern our proceedings require that after petitioner presents his written arguments in the petition for review, respondents are given an opportunity to file a brief to respond to those arguments in writing. Following that exchange of written arguments, and a reply brief where warranted, LUBA must then resolve the legal arguments that are presented, with the benefit of the parties' oral argument. If petitioner continues to expand or refine his legal arguments after oral argument, it makes an already difficult case impossible. LUBA's job becomes unworkable, and it is not possible for LUBA to meet the deadlines that the legislature has imposed on LUBA. Because our rules do not allow the kind of supplemental briefing that petitioner requests, and because there are no special circumstances that might justify such a departure from our rules in this case, the motion is denied. FIRST ASSIGNMENT OF ERROR In subassignment of error 5(B) in Frewing I, petitioner challenged the city's approval of a vertical sag curve for SW 74th Avenue that is steeper than is allowed under the city's street construction • standards for streets with a design speed of 25 miles per hour.LU We set out the portion of our decision in Frewing I that explains petitioner's argument and our reasoning in sustaining subassignment of error 5(B): "SW 74th Avenue along the western border of the property is currently unimproved. To improve SW 74th Avenue along the western border of the property a creek and wetlands near the southwestern corner of the property must be crossed, which will create a vertical sag curve. With increased speed, the vertical sag curve needs to be more level or gentle to allow traffic traveling at the road's design speed to travel across the vertical sag curve safely. With decreased speed, the vertical sag curve can be steeper, or more severe, and still be safely traveled. The issue presented in this subassignment of error is whether the city approved construction of SW 74th with a vertical sag curve that is too steep. "TCDC 18.810.020(B) provides that the city engineer is to establish street construction standards. The parties apparently agree that the city engineer has done so. Attached to the petition for review, as Appendix B, are two figures that petitioner and the city apparently agree are street construction standards that have been adopted by the city engineer. The first figure shows a typical road pavement section, which indicates that the design speed for local roads is 25 miles per hour. The second figure shows vertical sag curve `K' values for roads with different design speeds. We do not fully understand that table, but the vertical sag curve `K' values clearly increase with design speed. For • example a road with a design speed of 25 miles per hour must have a K value of at least 13.4. For a road with a design speed of 55 miles per hour, a K value of at least 65.1 is required. It appears that the smaller the `K' value the steeper the vertical sag curve. Conversely, the larger the `K' value the more gentle the curve. http://tuba.state.or.us/pdf/2005/sept05/05042.htm 357 2005-042 Frewing v. City of Tigard Page 4 of 32 • "Rather than place fill in the area of the creek to decrease the severity of the vertical sag curve to a `K' value of at least 13.4, the county approved a steeper vertical sag curve with a `K' value of 5.4. To allow the steeper vertical sag curve and maintain safety, the county reduced the speed limit that would otherwise apply to this part of SW 74th Avenue to 15 miles per hour. The county explained its decision as follows: "`The applicant also requested that the speed limit be reduced to 15 miles per hour in the section where the 74th Avenue crossing will occur. This speed limit was accepted by the City of Tigard Engineer. The city of Tigard standards are met by a 15 mile per hour vertical curve design, to a `K value' of greater than 5 (AASHTO).' [Frewing 1] Record 43.[M] "It may well be that a road with speed limited to 15 miles per hour with a vertical sag curve with a `K' value of greater than 5 is just as safe as roads with the design speeds shown on the table with vertical sag curves with the `K' value that corresponds. to the different design speeds. However, the city's street standards seem to call for roads with a design speed of at least 25 miles per hour. Roads with a design speed of 25 miles per hour may have vertical sag curves with a `K' value of no less than 13.4. While avoiding the fill that will be necessary to achieve a vertical sag curve in this section of SW 74th Avenue might make sense from both environmental impact and traffic engineering perspectives, and might result in no compromise in safety if the posted speed limit is reduced to 15 miles per hour, the city's findings identify no authority for simply deviating from the lowest `K' value that is specified in the city's standards, and reducing the speed on the street to maintain safety. If the city engineer has retained discretion under the TCDC and any other related city regulations to simply deviate from the table and allow construction of a road with a lower `K' value and impose a speed limit to preserve safety, no party identifies such authority. "The findings simply say the city engineer has accepted the proposal. Neither the city's findings nor the response brief identify any place in the record that explains the city engineer's reasoning in support of the lower `K' value or the city's engineer's authority to approve deviations from the adopted `K' values. Without that explanation, we must sustain this subassignment of error." Frewing I, 47 Or LUBA at 358-60 (footnotes omitted; emphasis added). The findings the city adopted on remand take two approaches. We discuss those approaches separately below. A. The Public Improvement Design Standards (PIDS) Do Not Address All Circumstances The city's street design standards, and the two figures that were attached to the petition for review that we noted in our decision in Frewing I, are included in a document that is entitled Public Improvement Design Standards (PIDS), which is included in the First Supplemental Record in this appeal. The city first observes that the city's PIDS were not adopted to address all situations.W From that observation, the city reasons that it may reasonably look to Washington County's street http://luba.state.or.us/pdf/2005/septO5/05042.htm 358 2005-042 Frewing v. City of Tigard Page 5 of 32 improvement standards for K values for a road with a design speed of 15 mph since the city's • PIDS do not specify a K value for a roadway with a design speed of 15 mph.W There are at least two problems with the city's first approach. First, respondents never dispute petitioner's contention that under applicable local law 74th Avenue is a local street and a design speed of 25 mph is required under local law for local streets .W Second, as petitioner correctly points out, the PIDS do provide a sag curve K value for local streets with a design speed of 25 mph. The problem presented in this case is not the absence of a minimum K value for sag curves on streets that must be designed for 25 mph. Rather, the problem is that the city and applicant believe achieving the minimum sag curve K value that is required by the PIDS for 74th Avenue as it crosses Ash Creek would result in an economic hardship to the applicant and have undesirable environmental impacts. While those concerns may provide a basis for using one of the procedures provided in the TCDC and PIDS for deviating from the PIDS sag curve K value for local streets with a design speed of 25 mph, they do not provide a basis for saying the PIDS do not provide a sag curve K value for 74th Avenue. If the city were relying entirely on its first approach, remand would almost certainly be required. B. PIDS Design Modification Authority The city's findings on remand also take a second approach. Petitioner argues that TCDC 18.810.020(D) requires that the city approve a formal adjustment to deviate from the standards contained in the PIDS.LQ However, the PIDS also include a separate procedure by which "[m] odifications to specifications or standards may be requested" and approved by the city engineer. First Supplemental Record S30. The PIDS provisions for "[d]esign [m]odifications" appear at PIDS Section J and establish a process where an applicant may request "in writing" that a standard be modified. Id. The criteria for granting such requests for modification appear at paragraph 2.4 of PIDS Section J and are set out below: "The City Engineer may grant a modification to the adopted specifications or standards when any one of the following conditions [is] met: "(a) The specification or standard does not apply in the particular application. • "(b) Topography, right-of-way or other geographic conditions impose an economic hardship on the applicant and an equivalent alternative that can accomplish the same design is available. Variances to self-imposed hardships shall not be allowed. The variance requested shall be the minimum variance that alleviates http://luba.state.or.us/pdf/2005/septO5/05O42.htm 359 2005-042 Frewing v. City of Tigard Page 6 of 32 the hardship. "(c) A minor change to a specification or standard is required to address a specific design or construction problem which, if not enacted, will result in an undue hardship. "(d) An alternative design is proposed which will provide a plan equal or superior to these standards. In considering the alternative, the City Engineer shall consider appearance, durability, cost of maintenance, public safety, and other appropriate factors." First Supplemental Record S30-S31. The record includes a letter signed by the city engineer in which the city engineer acknowledges that the applicant requested that the K value required by the PIDS be modified: "The applicant on this development project has submitted design drawings for 74th Avenue that include a 'sag vertical curve that does not meet the design standards. [The applicant has] asked for an exception to the standards in order to minimize the amount of fill placed over the City of Tualatin water transmission line. The `K' value that results from this design will not meet the standards for a 25 mph posting. The City Engineer may authorize modification of the street improvement design standards if justified and if the street can be made safe for motorists to use with those modifications in place. To ensure that the appropriate speed is followed for the street at that location, the posting of an advisory 15 mph sign is required. The construction of a street that does not meet the design standards at that sag is acceptable provided a 15 mph advisory sign is posted as part of the project." Record 451. The city's decision on remand includes the following explanation of the sag curve K value modification: "The City Engineer has provided a memorandum expressly approving the modified design by granting an exception to the standard. This exception is mitigated by the requirement for additional advisory signage and street lighting, as further described in the memo. "In order to clarify the authority to `set' speed limits, the applicant's engineer contacted the State of Oregon. The speed limit is set by the State at 25 miles per hour as the normal speed limit on all residential streets. Where specific sections of streets cannot meet this standard, cities have authorization to provide design exceptions that allow for sections of streets that they are in ownership of to be constructed, reconstructed, or repaired that don't meet the speed limit standards. The State administers design exceptions on its own highways as well. According to the State, design exceptions at the state level are mitigated by using advisory signs as well as other safety measures. Jurisdictions are, therefore, allowed to post special signs and take other measures to safely control traffic. * * The City Engineer has determined that placement of `15 mph' advisory signage in advance of the crest and sag in each direction are appropriate mitigation measures and are sufficient to address the deficient `K' value. * * *."M Record 18-20. http://tuba.state.or.us/pdf/2005/septO5/05042.htm 360 2005-042 Frewing v. City of Tigard Page 7 of 32 The city never expressly cites the Design Modification authority provided by PIDS Section J, and it could have been clearer that it was approving the modified K value under PIDS Section J. However, petitioner does not claim that he was unaware that the city was relying on PIDS Section J, and apparently he was aware that the city might be relying on PIDS Section J. In the petition for review, petitioner notes: "In another alternative, the PIDS themselves deal with deviations. Section J, `Design Modifications', in the PIDS (Supp Record at S30) sets forth a procedure to consider any requested modification or variance to the standards; such procedure has not been followed here (e.g. written request, city engineer decision on the request, adjustment meeting one of specified conditions for modification)." Petition for Review 6 (footnote omitted). In response to petitioner's first parenthetical point ("written request"), intervenor contends that while the record in Frewing I is somewhat equivocal about whether the applicant requested a modification of the PIDS sag curve K value in writing, the applicant's letter to the city following remand includes a request that the 13.4 vertical curve K value that is required by the PIDS be modified to avoid the large amount of fill that would otherwise be required. With regard to petitioner's second parenthetical point ("city engineer decision on the request"), intervenor contends that the city.engineer's January 25; 2005 letter constitutes the city engineer's decision to grant the modification. We agree with intervenor on both points. The third shortcoming alleged in the last clause in petitioner's parenthetical ("adjustment meeting one of the specified conditions for modification") could be read to constitute a challenge to the adequacy of the city's findings to explain why the modification should be granted consistently with PIDS Section J Criteria 2.4(a) through (d). If that was petitioner's intent, it is not sufficiently developed to allow review. Deschutes Development v. Deschutes Cty., 5 Or LUBA 218, 220 (1982). Our conclusion that petitioner's argument is insufficiently developed to allow review is a much closer question than it would otherwise be, because the city's findings do not specifically identify PIDS Section J Criteria 2.4(a) through (d). However, even without express references to PIDS Section J Criteria 2.4(a) through (d), it is reasonably clear from the city engineer's January 25, 2005 letter and the • city's decision that both the city engineer and the city council believed that forcing the applicant to construct the 74a' Avenue/Ash Creek vertical curve at the PIDS required K value would be 361 http://Iuba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 8 of 32 unnecessarily expensive and that slowing traffic for a short distance while crossing a steeper vertical sag curve over Ash Creek was an acceptable design alternative. It is also clear from the city council's and the city engineer's decision that the sag curve K value that would otherwise be required by the PIDS would result in unnecessary negative environmental consequences and could result in damage to the existing water line. Those considerations are all clearly relevant under PIDS Section J Criteria 2.4(b), (c) and (d). Petitioner does not claim that he was unaware of PIDS Section J Criteria 2.4(a) through (d) and expressly recognized in his petition for review that the city might be relying on,those criteria. If petitioner believes that a remand is warranted for more focused and elaborate city findings that specifically reference PIDS Section J Criteria 2.4(a) through (d) and specifically relate the concerns that are identified in the city's findings to those criteria, a more developed argument is required. Finally, petitioner contends that remand is required because the city engineer in granting the requested K value modification ran afoul of TCDC 18.210.070(A), which prohibits city "officials, departments and employees" from issuing "permits" or granting "approvals" that violate "standards imposed" by the TCDC.LQ While the PIDS sag curve K values are imposed by the TCDC, so are the PIDS Section J modification provisions. In approving a modification to the sag curve K value that would otherwise apply, the city engineer did not grant an approval that violates the PIDS sag curve K value; the city engineer modified that K value as PIDS Section J allows and required compliance with the modified K value. That action does not run afoul of TCDC 18.210.070. The first assignment of error is denied. SECOND ASSIGNMENT OF ERROR In Frewing I, petitioner alleged in subassignment of error 5(1) that the city erred by not requiring that the applicant submit a tree plan for the part of the property that is to be developed residentially. We sustained subassignment of error 5(I). On remand, the applicant submitted a tree plan. Record 397- 443. In his second assignment of error in this appeal, petitioner challenges the adequacy of that tree plan to comply with TCDC 18.790.030. A. Identification of Existing Trees (TCDC 18.790.030(B)(1)) TCDC 18.790.030(B)(1) requires that the applicant submit a tree plan that shows the "location, size and species of all existing trees including trees designated as significant by the city." Petitioner 362 http://Iuba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 9 of 32 argues the tree plan does not accurately show the location, size and species of existing trees in four ways. We discuss those arguments separately below. 1. Trees Over 12 Inches in Caliper Computation of the mitigation requirements imposed by TCDC 18.790.030(B)(2) is based on the percentage of "existing trees over 12 inches in caliper" that are retained. Petitioner contends that the inventory that is included with intervenor's tree plan is fatally flawed because it counts trees that are listed as 12 inches in diameter as though they were over 12 inches in diameter. Intervenor responds that the inventory did not use any fractional measurements and identified the . diameter of all trees in round numbers. We understand intervenor to argue that trees with a fractional diameter between 12 and 13 inches were listed as 12 inches and trees with a diameter between 13 inches and 14 inches were listed as 13 inches. Intervenor contends that inventorying at this level of precision is not prohibited by TCDC 18.790.030(B)(2). Even if that means some trees that are exactly 12 inches in diameter might be counted as trees that are over 12 inches in diameter, that would not have the effect of improperly reducing the applicant's mitigation obligation under TCDC 18.790.030(B)(2). According to i intervenor, improper reduction of the TCDC 18.790.030(B)(2) mitigation obligation would only theoretically come into play if trees that are exactly 12 inches in diameter were counted if they are to be saved and not counted if they are to be removed. 10 That is not the case here. Petitioner's argument concerning the method in which 12-inch diameter trees were inventoried provides no basis for finding the tree plan is inadequate. 2. Differential Treatment of Trees with Effective Diameter of 13 Inches and Same Size Trees Petitioner next complains that tree 162, a tree with two stems with an effective diameter of 13 inches, is not counted as a tree with a diameter greater than 12 inches. Petitioner also cites other cases where multiple stem trees are sometimes counted as trees with an effective diameter in excess of 12 inches (trees 927 and 954) and sometimes they are not (trees 921, 923 and 939). Petitioner contends that these internal inconsistencies result in noncompliance with TCDC 18.790.030(B)(1). Intervenor explains that effective diameter was only calculated for multiple stem trees that are being removed so that those trees are counted against intervenor for mitigation purposes whereas 363 hftp://luba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 10 of 32 effective diameter was not calculated for multiple stem trees that are being retained. Intervenor contends, and we agree, that this methodology increases intervenor's mitigation obligation and therefore does not violate TCDC 18.790.030(B)(1). Petitioner also objects that tree 1397 and tree 1399 are the same size but are "accounted for differently." Petition for Review 9. Tree 1397 is described as a 12-inch diameter Western Red Cedar in Good Condition. Tree 1399 is described as a 12-inch diameter Oregon Red Alder in Fair Condition. The only difference we can tell in the way the two trees are inventoried is that Tree 1397 is listed among "Viable Trees Larger Than 12" Diameter" and tree 1399 is not. We assume that means tree 1397 is viable and tree 1399 is not. Petitioner makes no attempt to explain why he thinks that is an inconsistency that renders the inventory inconsistent with TCDC 18.790.030(B)(1). Petitioner's argument concerning the method in which multiple stem trees and identically sized trees were inventoried provides no basis for concluding that the tree plan is inadequate. B. Program to Mitigate Removal of Trees over 12 Inches in Diameter Petitioner contends that intervenor's tree plan is inadequate and that the city has improperly deferred discretionary decisions that must be made concerning the adequacy of intervenor's tree plan to comply with TCDC 18.790.030(B) to the future, where no right of public participation will be provided. The staff report, which was adopted by the city council, offers the following analysis of the tree plan: * * The proposed attached tree plan and arborist's report establishes the trees to be saved and those to be cut. As reflected in that plan, there are 893 total trees on site that are larger than 12" diameter. Of those, 115 arc deemed hazardous and are not subject to the mitigation requirement. From the remaining 778 net viable trees, 321 are proposed for removal. This constitutes a 59% retention. Since the total number of trees that will be retained is greater than 50%; one-half of the caliper inches being removed is required to be mitigated. A total of 6892 caliper inches are to be removed, so 3,446 caliper inches will be required to be replanted. This may be accomplished by either planting trees.on- site, off-site or payment of a fee in lieu. To assure that mitigation is accomplished and that subsequent tree removals are undertaken in accordance with the requirements of this chapter, staff recommends that the following conditions of approval be imposed: "[53.] Prior to commencing site work, the applicant shall submit a bond for the equivalent value of mitigation required (3,446 number of caliper inches times $125 per caliper inch) if additional trees are preserved through the subdivision improvements and construction of houses, and are properly protected through these stages by the same measures afforded to other protected trees on site, the 364 http://Iuba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 11 of 32 amount of the bond may be correspondingly reduced. Any trees planted on the site or off site in accordance with [TCDC] 18.790.060(D) will be credited against the bond, for two years following final plat approval. After such time, the applicant shall pay the remaining value of the bond as a fee in lieu of planting." "[54] Prior to issuance of building permits, the applicant/owner shall record a deed restriction to the effect that any existing tree greater than 12" diameter may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this decision should either die or be removed as a hazardous tree." Record 23. The challenged decision requires that the applicant post a'bond sufficient to pay a fee in lieu of actual replacement for the trees that the applicant plans to remove. Petitioner does not argue that the applicant cannot post a bond in lieu of replacement to satisfy its mitigation obligation under TCDC 18.790.030(B). According to intervenor, it will satisfy its obligations under TCDC 18.790.030(B) when it posts the required bond. Intervenor contends that the city's decision goes further and provides intervenor with an incentive to save additional existing trees: * * If the applicant can, during construction, preserve additional trees, it gets credit for those trees against its bond. The program also encourages planting on-site over paying a fee. All trees planted on-site within two years will also be credited against the bond. The resulting fee will be only for trees that could not be mitigated for by planting on-site. Thus, either trees will be preserved, or replaced; if they are not, the City will have money to replace them. This is the most feasible plan one could develop." Intervenor- respondent's Brief 14. The tree plan that the applicant submitted identifies the trees that may be removed and those that will not be removed. That known aspect of the tree plan does not appear to be at the heart of this subassignment of error. Rather, it is the explicit recognition that the applicant may take action in the future to save additional existing trees or to plant new trees. If the applicant takes such actions, the city may reduce the amount of the required bond. Petitioner appears to object to the lack of a current decision on the city's part with regard to these potential actions by the applicant in the - future. We understand petitioner to object to deferral of resolution of the particulars of these actions to the future, where petitioner may have no right to participate in a public process. The short answer to petitioner's argument is that TCDC 18.790.030(B)(2) does not require that the tree plan submitted under that section identify what trees will be planted and where they will be planted to satisfy the mitigation obligation imposed by that section of the TCDC. TCDC 18.790.030(B) (2) specifies that any mitigation that is required under that section of the TCDC is to be carried out in http://tuba.state.or.us/pdf/2005/sept05/05042.htm 365 2005-042 Frewing v. City of Tigard Page 12 of 32 a accordance with TCDC 18.790.060(D). TCDC 18.790.060(E) expressly provides that a fee in-lieu may be paid in place of a plan of mitigation that actually proposes and replaces trees." As we read TCDC 18.790.030(B)(2) and 18.790.060(D) and (E) a tree plan could simply provide a fee in lieu and leave the actual decision making concerning how that fee would be spent to the city. A tree plan that proceeded in that way would necessarily leave resolution of the details of the ultimate mitigation to the city under standards set out in TCDC 18.790.060(D). Given that explicit process for deferring resolution of the particulars for how trees are to be replaced under tree plans required by TCDC 18.790.030(B)(2), we fail to see how it could possibly be improper to allow the applicant to (1) continue to work with the city to save additional existing trees and identify replacement trees that are acceptable to the city and (2) allow the city to reduce the bond if the applicant is successful in saving additional trees and planting replacement trees. Petitioner's arguments under this subassignment of error provide no basis for reversal or remand. C. Tree Plan and Arborist's Report Do Not Identify the Trees to be Saved and the Trees to be Cut Under this subassignment, petitioner makes three discrete subarguments.tlJ2 We address them separately below: 1. Participation of the Arborist Petitioner contends that the applicant's arborist distanced himself from the tree plan by noting that the applicant selected trees for removal. Petitioner also contends that the latest participation by the arborist was on November 19, 2004, "whereas a later `revised' tree preservation plan was completed on 1/10105 and received at Tigard on 1/14/05." Petition for Review 13. Petitioner argues: "Without at least review and approval by the certified arborist, one cannot conclude that the most recent tree preservation plan is `prepared by a certified arborist" [as required by] TCDC 18.790.030(A)." Id. Intervenor disputes petitioner's contention that the arborist "distanced" himself from the tree plan. Intervenor contends that there is nothing improper about the applicant and the applicant's engineer providing information about which trees must be removed to accommodate development, since they know where development will occur and how it will impact trees. We agree with intervenor. Intervenor also argues that there is nothing improper about the way the tree preservation plan http://tuba.state.or.us/pdf/2005/septO5/05042.htm 366 2005-042 Frewing v. City of Tigard Page 13 of 32 was assembled and submitted to the city. "The Petitioner attempts to make an issue over the timing of the tree plan's preparation and submission. The arborist's tree inventory was prepared in November 2004. The site plans illustrating the location of the trees contained in the inventory were completed on January 10 and 11, 2005. The site plan component was then submitted on January 14, 2005. The Petitioner does not point to any discrepancy between the two components. Thus, it appears the engineer correctly illustrated the trees to be saved and those to be cut using the tree inventory." Intervenor-Respondent's Brief 15, n 3 (record citations omitted). We agree with intervenor that petitioner has not demonstrated that the tree protection plan violates the TCDC 18.790.030(A) requirement that it be "prepared by a certified arborist." There is nothing. in TCDC 18.790.030(A) that suggests that others may not assist the certified arborist in preparing the required tree plan. 2. Recognition that Additional Trees May be Protected Petitioner faults the arborist's statement that "it may be decided at a later date to retain some of the trees on each of the lots." Petitioner also points to the applicant's characterization of the tree plan as a "worst case scenario." We understand petitioner to contend that the tree plan that is required by TCDC 18.790.030 must precisely and accurately identify each tree that will be removed and each tree that will be protected. We understand petitioner to argue further that a tree plan (1) may not explicitly recognize that during the development process opportunities may be presented for protecting additional trees and (2) may not provide that in the event such opportunities are presented additional trees will be protected. We reject that argument. 3. Differences Between the Tree Plan Submitted in Frewing I and the Tree Plan Submitted Following Remand Petitioner identifies a number of differences between the original tree protection plan, that LUBA found to be inadequate in Frewing I, and the tree protection plan that was developed in response to LUBA's remand in Frewing L Intervenor responds that the tree plan in Frewing I and the tree plan that is at issue in this appeal "are totally unrelated." Intervenor-Respondent's Brief 15. Intervenor goes on to argue as follows: * * Any findings related to the plan for trees under the prior submission are irrelevant. The Applicant's entire approach to trees had to change based on LUBA's remand. With its current submission, the Applicant included a formal tree plan. Part of that plan was a site map that contains every tree on-site with a number that corresponds to the arborist's http://tuba.state.or.us/pdf/2005/septO5/05O42.htm 367 2005-042 Frewing v. City of Tigard Page 14 of 32 inventory. The site map indicates precisely the trees thatwill be retained and those to be removed. As that map reflects, now there are many trees in buildable areas that are being retained. For example, trees within * * * certain lots such as Lots 13 through 18, will now be retained whereas previously they would have been removed. * * Trees numbered 6135, 6117, 5303, 5310, 5391, 5393). While Petitioner proclaims his belief that more trees would be preserved under the original approval, he points to no specific evidence to support that belief." Intervenor-Respondent's Brief 15-16 (footnotes and record citations omitted). 14 The inconsistencies between the prior tree protection plan and the tree protection plan that was prepared in response to our decision in Frewing I are not the kind of inconsistencies that might render the latter tree protection plan inadequate. It is clear from the record that it is the latter plan that the city is relying on to support its decision and that the latter plan was prepared to respond to our remand in Frewing L That there are some incorporated findings that were adopted to address the first plan that can be read to be inconsistent with the latter plan does not require remand. D. The Obligation to Preserve Trees 1. TCDC 18.350.100(B)(3)(a)(1) In Frewing I, we rejected petitioner's subassignment of error 5(D), which concerned TCDC 18.350.100(B)(3)(a)(1). TCDC 18.350.100(B)(3)(a)(1) is one of the conceptual planned development approval criteria, and it requires preservation of "the existing trees, topography and natural drainage to the greatest degree possible." (Emphasis added.) 15 In Frewing I, petitioner argued that if the subdivision proposal were fundamentally redesigned in character and concentrated in small areas of the property where there are few trees then more trees could be protected than were proposed for protection in Frewing L We rejected that argument: * * It is clear that the city does not interpret TCDC 18.350.100(B)(3)(a)(1) to mandate that an applicant fundamentally change the nature of a proposed development, even if that would preserve more existing trees or avoid changes in existing topography and drainage. Rather, the city interprets TCDC 18.350.100(B)(3)(a)(1) to require that execution of the proposed development be implemented in a way that preserves existing trees, topography and drainage if possible." Frewing I, 47 Or LUBA at 365. Petitioner first contends that because our decision in Frewing I required that the applicant prepare a new tree plan, the city was required to use that tree plan "to make a new decision according to the criteria of the TCDC." Petition for Review 13. If by that argument petitioner is arguing that the city was obligated to start from scratch and completely rejustify its decision under all applicable approval 368 http://Iuba-state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 15 of 32 criteria, as though its decision in Frewing I and LUBA's affirmance of significant parts of that decision did not happen, we reject the argument. The fact that our decision in Frewing I obligated the applicant to prepare a tree plan that complies with TCDC 18.790.030 does not necessarily mean that all issues that were finally resolved by our decision in Frewing I are necessarily revived. Intervenor takes an equally extreme position. Intervenor contends that because we rejected the broad interpretation of TCDC 18.350.100(13)(3)(a)(1) that petitioner advanced in Frewing I and rejected subassignment of error 5(D), it necessarily follows under Beck v. City of Tillamook, 313 Or 148, 153, 831 P2d 678 (1992) that all issues regarding compliance with the TCDC 18.350.100(B)(3)(a)(1) tree protection criterion are foreclosed in this appeal of the city's decision on remand. Intervenor argues that in Beck "the court confirmed that when the record is reopened on remand, the parties may raise only issues related to the remand and not issues already resolved." Intervenor-Respondent's Brief 17. Intervenor is correct, but the point it makes begs the question of what issues were resolved in Frewing L The issue of whether the city was obligated to apply petitioner's expansive interpretation of . TCDC 18.350.100(B)(3)(a)(1) was resolved. The issue of whether the subdivision that the applicant proposed in Frewing I and the trees that the applicant proposed to remove and preserve to accommodate that subdivision was consistent with the tree preservation requirement in TCDC 18.350.100(B)(3)(a)(1) was resolved in Frewing L However, if the applicant now proposes to cut trees that it proposed to save in the original proposal and the applicant now proposes to preserve trees that were to be cut under the original proposal, the new proposal may not comply with TCDC 18.350.100(B)(3)(a)(1). It is petitioner's obligation to show that the proposal has changed so that additional trees are to be removed that could be preserved as TCDC 18.350.100(B)(3)(a)(1) requires, but petitioner is not barred by the Beck waiver principle from attempting to do so in this appeal. Intervenor appears to be correct that the proposed subdivision is essentially unchanged. The plan that appears at Frewing I Record 325 shows the trees to be saved and the trees to be removed under the original proposal. When that plan is compared with the tree plan that was prepared in response to our remand in Frewing I, which appears at Record 443, it is clear that there are differences. The new tree plan is far more detailed. It shows trees where the old tree plan did not show trees. Some trees in the area to be developed are to be preserved in the new plan, whereas all trees in the developed area were to 369 http://luba.state.or. us/pdf/2005/sept05/05042. htm 2005-042 Frewing v. City of Tigard Page 16 of 32 be removed under the original plan. But some trees that were to be preserved in the old plan are now to be removed. The tree plan that appears at Frewing I Record 325 shows a "Tree Removal Boundary" (TRB) running 15 feet south of the north property line west to east across the northern part of lots 1-10. The TRB then turns south and runs 15 feet west of the east property line across the eastern part of lots 10- 12. Finally, the TRB turns west and runs through lots 13 through 18. Petitioner contends that while that initial tree plan shows trees located on these lots north, east and south of the "Tree Removal Boundary" as being cut, the applicant agreed to preserve those trees during the proceedings in Frewing L Because neither intervenor nor the city dispute that argument, we will assume that petitioner is correct. Petitioner identifies a number of trees that the applicant now proposes to cut. Petitioner contends there is no explanation for why it was possible to preserve those trees before and now they cannot be preserved. LU7 It may be that with a more detailed inventory and better information about the condition of these trees, there are reasons why the trees petitioner identifies can no longer be safely preserved. However, the city did not explain what those reasons might be. Because that explanation is missing, the city has failed to demonstrate the new proposal preserves "the existing trees * * * to the greatest degree possible," as TCDC 18.350.100(B)(3)(a)(1) requires. We therefore must sustain this part of petitioner's second assignment of error. To assist the parties on remand so that this issue may be put to rest, we clarify the scope of our remand and the nature of the inquiry that is required under TCDC 18.350.100(B)(3)(a)(1). a. Scope of the Remand In responding to petitioner's contentions about some of the trees listed in n 16, intervenor suggests in its brief that the obligation to preserve "the existing trees * * * to the greatest degree possible," under TCDC 18.350.100(B)(3)(a)(1) only extends to trees greater than 12 inches in diameter and does not include "small trees." See n 14. Given the complexity and multiple layers of regulation present in the TCDC, that misreading of TCDC 18.350.100(B)(3)(a)(1) is perhaps understandable. But while the mitigation obligation under TCDC 18.790.030 and 18.790.060 is determined by the percentage of trees in excess of 12 inches in diameter that are retained, the obligation to preserve "the existing trees http://tuba.state.or.us/pdf/2005/septO5/05042.htm 370 2005-042 Frewing v. City of Tigard Page 17 of 32 * * * to the greatest degree possible," under TCDC 18.350.100(B)(3)(a)(1) is not limited to trees that are greater than 12 inches in diameter. See n 15. Whatever the city may have intended when it adopted TCDC 18.350.100(B)(3)(a)(1), that limitation is simply not stated. In fulfilling their obligation to preserve trees if possible, the city and applicant are generally entitled to rely on the applicant's tree plan, which was prepared by a certified arborist in consultation with the applicant and the applicant's engineer, to identify the trees it is possible to preserve and the trees it is not possible to preserve. But if a real issue is raised about whether it is in fact possible to preserve particular trees that the tree plan slates for removal, some specific explanation for why those trees must be removed must be included in the city's findings. That findings obligation may in turn necessitate additional justification by the certified arborist. Neither the city nor the intervenor claim that no issue was raised about the trees petitioner identifies on page 15 of his petition for review. See n 16. However, we also caution that our remand does not obligate the city to provide petitioner another opportunity to identify additional trees that might be preserved. The city's obligation on remand is limited to the trees identified in n 16 of this opinion. • b. The Meaning of Preserve if Possible In discussing the meaning of the preservation obligation under TCDC 18.350.100(B)(3)(a)(1) in Frewing I, we noted: * * L hder. TCDC 18.120.010, where a word is not defined in the TCDC, the `commonly Efccepted, dictionary meaning' is to be used. The first definition of `possible' provided in Webster's Third New Int'1 Dictionary, 1771 (unabridged ed 1981) is as follows: "[F]alling or lying within the powers (as of performance, attainment, or conception) of an agent or activity expressed or implied: being within or up to the limits of one's ability or capacity as determined by nature, authority, circumstances, or other controlling factor[.]" "Petitioner argues, and we agree, that the code's adoption of a `greatest degree possible' standard is far more exacting than a `cost effective for the developer' standard. Petition for Review 35. It imposes a heavy obligation to preserve `trees, topography and natural drainage.' Frewing I, 47 Or LUBA at 364 (citation and footnote omitted). Some additional clarification of our understanding of the obligation to preserve "the existing trees * * * to the greatest degree possible" under TCDC 18.350.100(B)(3)(a)(1) is in order, since that issue will now have to be confronted more directly on remand. In one sense, it is "possible" to preserve, http://luba.state.or.us/pdf/2005/sept05/05042.htm 371 2005-042 Frewing v. City of Tigard Page 18 of 32 at least briefly, any tree that need not be cut down to build houses, streets or other subdivision structures. However, the TCDC explicitly recognizes that trees may be hazardous or a nuisance and authorizes removal of such trees without a permit. TCDC 18.790.050(D)(2) and (3).LU8 In deciding whether it is "possible" to preserve an existing tree, and therefore whether that existing tree must be preserved in approving a subdivision under TCDC 18.350.100(B)(3)(a)(1), for trees that are not displaced by development the question will likely turn on the condition of the existing tree and whether it is safe to leave the tree in an environment where there will now be houses and people in the vicinity of those trees. The closer those trees are to proposed houses, the more likely they will be damaged by construction and the more likely they will cause damage to houses and people if they die or become diseased. An important question will therefore be whether it is safe to attempt to preserve the tree. In that regard it seems likely that city decision makeis are entitled to give great deference to the views of the certified arborist and other tree professionals and to balance the city's policy favoring retention of trees against the threat that particular trees may pose, depending on their existing condition and proximity to people and structures. With those observations, we sustain this part of petitioner's second assignment of error. On remand the city must explain why it is not possible to preserve the trees identified in n 16, or require that the tree plan be amended to preserve those trees. 2. TCDC 18.350.100(B)(3)(g)(1) TCDC 18.350.100(B)(3)(g)(1) is one of the approval criteria for planned development review. tU9 Under this subassignment of error, petitioner alleges that the proposal does not comply with TCDC 18.350.100(B)(3)(g)(1), as he interprets that provision. In Frewing I, we held that the city council was within its interpretive discretion in interpreting TCDC 18.350.100(B)(3)(g)(1) "to allow the open space area that is to be left in its natural state to be counted toward the TCDC 18.350.100(B)(3)(g)(1) 20% landscaping requirement." Frewing 147 Or LUBA at 379. If TCDC 18.350.100(B)(3)(g)(1) is interpreted and applied in that way, the proposal complies with that standard. We agree with intervenor that this interpretive issue was resolved in Frewing I, and petitioner may not raise that same issue again in this proceeding on remand. Beck, 313 Or at 153. Petitioner's second assignment of error is sustained in part and denied in part. http://tuba.state.or.us/pdf/2005/sept05/05042.htm 372 2005-042 Frewing v. City of Tigard Page 19 of 32 THIRD ASSIGNMENT OF ERROR In Frewing 1, the city applied TCDC 18.370.020(C)(1) to grant three special adjustments to city street improvement standards. 20 One of the approved special adjustments was an adjustment to city street improvement sidewalk construction standards, to allow a curb-tight sidewalk where SW 74th Avenue crosses the Ash Creek drainageway. The other two adjustments were to permit- the proposed cul-de-sac to exceed 200 feet in length and to serve 23 houses. Without the special adjustments, the SW 74th Avenue crossing of the Ash Creek drainageway would be required to include a 5-foot planting strip between the sidewalk and the edge of the roadway, and the cul-de-sac apparently would have to be replaced with a loop road. In Frewing I, petitioner alleged that the city erred in finding that the proposed special adjustment statisfied TCDC 18.370.020(C)(1)(c) and (d). We will refer to those two criteria as "public health safety and welfare criterion (c)" and "extraordinary hardship criterion (d)." With regard to public health safety and welfare criterion (c),- we agreed with petitioner in Frewing I that the city's finding that there was no evidence that the three disputed adjustments will be detrimental to the health safety or welfare or surrounding property owners was not supported by the record, because there was evidence-in the record to that effect. With regard to extraordinary hardship criterion (d), we rejected petitioner's challenge to the cul-de-sac adjustment but sustained his challenge regarding the curb-tight sidewalk adjustment. Frewing I, 47 Or LUBA at 378. On remand the city adopted additional findings to address the deficiencies we identified in our decision in Frewing I regarding public health safety and welfare criterion (c), and extraordinary hardship criterion (d). In addition, the city adopted additional findings to address TCDC 18.3 70.020(C)(11), which provides a somewhat different criterion for approval of adjustments to "street improvement requirements."LZA1 Finally, with regard to the curb-tight sidewalk, the city considered whether an adjustment was required or whether the TCDC 18.810.070(C) requirement for planter strips itself authorized approval of the requested curb-tight sidewalk, which would make approval of an adjustment unnecessary. On pages 17 and 18 of the petition for review, petitioner argues that the city erred by applying the street improvement adjustment criteria at TCDC 18.370.020(C)(1.1), for the first time on remand, as http://luba.state.or.us/pdf/2005/septO5/05042.htm 373 2005-042 Frewing v. City of Tigard Page 20 of 32 an alternative basis for granting the requested adjustments. Although we noted in Frewing I that TCDC 18.370.020(C)(11) seemed to be the more appropriate choice of adjustment criteria, petitioner accurately points out that LUBA did not require that the city apply TCDC 18.370.020(C)(11) on remand. However, that does not mean the city could not choose to do so, provided appropriate steps were taken to notify petitioner that it intended to apply TCDC 18.370.020(C)(11) as well as TCDC 18.370.020(C) (1) on remand. Petitioner does not claim that he was not made aware of the city's intent to apply both TCDC 18.370.020(C)(11) and TCDC 18.370.020(C)(1) on remand. The city did not err in doing so. . Petitioner also argues that the city should have utilized the PIDS modification procedure that was noted in our discussion of the first assignment of error above. The disputed adjustments were not adjustments to standards in the PIDS. We seriously question whether the PIDS Section J modification procedure could be used to waive TCDC Chapter 18.810 street improvement standards. Even if the city could have relied on PIDS Section J, the city certainly did not commit error by applying the TCDC 18.370.020(C) adjustment criteria. A. The Curb-Tight Sidewalk The TCDC 18.810.070(C) requirement for planter strips is set out at n 22. The city adopted the following findings on remand in support of its determination that the curb-tight sidewalk could be allowed under TCDC 18.810.070(C). "There is adequate right of way to accommodate the required planter strip, and sidewalks do not yet exist on predominant portions of the street. There are some potential conflicts with utilities, but not on the side where the planter strip is required. There are also no existing structures that would be in such close proximity to the new sidewalk. However, additional large trees and water features would be destroyed if the sidewalk were required to be moved five feet further east into the sensitive lands resource. Staff interprets the term `destroyed' to mean that additional trees would be removed, and additional area within the sensitive resource area would be disturbed by grading activity, vegetation removal and possible stream bank rechanneling. Although it is acknowledged that in some instances, these areas can be restored by planting new trees, or through revegetation and redirection of the stream channel, it is the general preference and the expressed intent of this exemption to avoid impact in the first place." Record 26-27. Petitioner argues that the above findings are not supported by substantial evidence in the record. The finding regarding the trees appears to be wrong. Based on the new tree plan, petitioner is correct • that the planter strip would have no effect on the number of trees that are planned for removal. Petitioner also questions whether the stream channel would have to be redirected. We have some 374 http://Iuba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 21 of 32 difficulty following petitioner's argument, but neither respondent nor intervenor identify any evidence that including the planter strip would require that the stream channel be redirected. The evidence on this point is inconclusive. However, intervenor does identify evidence that was provided by the applicant's engineer that requiring the five-foot planter strip would require additional fill in the wetland. "The applicant is requesting an adjustment to the 5-foot planter strip along 74th Avenue to reduce 1,100 additional square feet of impact to the drainageway and wetland area. The applicant proposes this curb tight sidewalk for the special circumstance where the development is required to cross the stream. Outside the resource area, the sidewalk will meet required public street standards." Frewing I Third Supplemental Record 9. Although we understand petitioner to dispute the magnitude of the impact, based on our review of the drawings at Frewing I Record 633, 635 and 636 and the above statement by the applicant's engineer, there is substantial evidence in the record that at least some additional drainageway and wetland area will be filled if the 5-foot planting strip is required. We reject petitioner's argument to the contrary. TCDC 18.810.070(C) was set out earlier at n 22. Under the language of that provision the city • need not require a planting strip if "significant natural features" areas will be "destroyed." We do not understand petitioner to dispute that the wetlands and drainageway qualify as significant natural features. The city concluded that filling wetlands and drainageways destroys them. While petitioner appears to dispute that conclusion, we agree with the city. Given those conclusions, the city appropriately allowed the portion of 74th Avenue that crosses the Ash Creek drainageway to be designed without a planting strip to reduce the amount of fill in that area. This subassignment of error is denied. B. The Cul-de-sac As noted earlier, this cul-de-sac will serve 23 residences, three more than allowed-under TCDC 18.810.030(L). The cul-de-sac is also longer than the 200-foot limit imposed by TCDC 18.810.030(L). The disputed adjustments are to allow these three additional houses to be served and to allow the over length cul-de-sac. In addressing public heath safety and welfare criterion (c) on remand, the city adopted the following findings to address public health, safety and welfare concerns that might be presented by allowing a cul-de-sac that is longer than 200 feet and serves more than 20 houses: "The length of the cul-de-sac is a planning issue related to an attempt to geometrically http://luba.state.or.us/pdf/2005/sept05/05042.htm 375 2005-042 Frewing v. City of Tigard Page 22 of 32 control block sizes from becoming too long. This standard allows continuity of blocks without having long dead-end streets affecting block sizes. * * * By limiting the length of cul-de-sacs, developers are encouraged to provide more through streets, thereby enhancing connectivity. This enhanced welfare is balanced by increased through traffic which may disturb residents. From a safety standpoint, culs-de-sac are vulnerable from the standpoint of only having one available ingress/egress. In certain situations, this access could become blocked preventing residents access to or from their homes. This is also balanced from a public safety perspective by the fact that culs-de-sac are more defensible spaces from burglary, and are generally less prone to break-ins and vandalism. The length of a cul-de-sac has no bearing on public health. Additionally, neither the Tigard Police nor [Tualatin Valley Fire and Rescue (TVF&R)] raised any safety concerns over the length of the proposed cul-de-sac. Extending the length of the cul-de-sac reduces the number of intersections and the safety risks associated with intersections. "Opponents testified generally that the adjustments allowing a longer cul-de-sac that would serve more than 20 residences would increase the amount of traffic [on] nearby streets and then concluded with no further. evidence that an increase in traffic will automatically result in decreased safety. The City finds that the amount of traffic is a function of the number of proposed units, not the arrangement of streets. It may be the case that more traffic will use the single point of access, than if there were two entries into the street, but the net difference from a conforming cul-de-sac is approximately 30 cars per day * * This limited number of additional vehicles that will result from the adjustments as opposed to the development itself will not automatically result in decreasing safety as the streets within and adjacent to the proposed subdivision are • capable of handling the full amount of traffic from this development. Moreover when the property to the north is developed, a new street will connect to the proposed subdivision and serve to offset the traffic impact at SW 74th and the Ash Creek Estates public street intersection. In examining the detrimental impacts to the public health, safety, and welfare, it is important to consider that a conforming cul de sac is limited to 20 units. The subject application represents an increase of 3 units. * * * Staff found that safety will not be impacted by the three additional units as the cul-de-sac street and intersection is in all other manners conforming with design requirements and capable of handling the additional vehicle trips. * * * TVF&R makes the determination of whether the number of lots poses a safety concern. According to Eric McMullin, TVF&R requires two (2) accesses for safety when more than 25 residential houses are on a street. Here, that standard is met because only 23 houses will be served. * * Record 28-29. The above findings are adequate to explain the competing considerations in limiting the length of culs-de-sac and why the city believes allowing the cul-de-sac to exceed 200 feet in length will not, given the existing street system and surrounding traffic facilities, "be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property," as required by the public health, safety and welfare criterion (c). The city relies primarily on the small deviation from the limit of 20 • houses to explain why it does not believe that small deviation will be a detriment to the public health, safety and welfare. While petitioner clearly disagrees with that reasoning, our role is not to second http://luba.state.or.us/pdf/2005/sept05/05042.htm 376 2005-042 Frewing v. City of Tigard Page 23 of 32 guess the city in applying such a subjective standard, at least not where there is at best conflicting evidence to support petitioner's contrary view that those three additional houses will be detrimental to the public health, safety and welfare. Most of the argument that petitioner presents in this appeal focuses on TVF&R fire code requirements that are not directly applicable here. That TVF&R fire code requirement apparently calls for a road to have two or more fire apparatus accesses if the road serves 25 or more dwellings. While the proposed cul-de-sac will only serve 23 dwellings, the short "Street A" that connects the cul-de-sac to 74th Avenue to the west, serves four more dwellings. If those four dwellings are added to the 23 dwellings on the cul-de-sac, Street A and the cul-de-sac would serve 27 dwellings. In his petition for review, petitioner questions whether TVF&R was aware that combined Street A and the cul-de-sac would represent a single access roadway serving 27 dwellings. Assuming that it did not know, petitioner questions whether TVF&R might have objected to the proposal on safety grounds. Notwithstanding petitioner's speculation, TVF&R did not object to the proposal. We do not • know if TVF&R was aware of the fact that Street A and the cul-de-sac together would constitute a single access street serving 27 houses until 73rd Avenue is extended south to provide a second access to the subdivision. Admittedly most of the discussion focused on the 23 houses that would be served by the cul-de-sac, because the adjustment to the 20-house cul-de-sac requirement was the central issue. But there is no reason to assume, as petitioner does, that TVF&R was unaware of the four houses that will be served by Street A. Moreover, it is far from clear to us that the 25 house limit would lead TVF&R to conclude that a single access road that serves 27 houses is unsafe. TVF&R's memorandum to petitioner also notes that under the City of Tigard fire code and model national fire code, up to 30 homes may be served by a road with a single access. Record 204, 206. In summary, we do not agree with petitioner that it can be or must be assumed that TVF&R was unaware that Street A and the cul-de-sac would be a one-access roadway serving 27 dwellings until SW 73rd Avenue is extended south at some time in the future. The city relied in part on TVF&R's failure to express any public safety concern in fording that the proposed cul-de-sac satisfies the public health, • safety and welfare criterion (c). The city's findings adequately express its rationale and are supported by substantial evidence in the record. http://luba.state.or.us/pdf/2005/septO5/05042.htm 377 2005-042 Frewing v. City of Tigard Page 24 of 32 This subassignment of error is denied. • The third assignment of error is denied. FOURTH ASSIGNMENT OF ERROR In Frewing I, we sustained petitioner's subassignment of error 5(K) in part and denied it in part. As we have already explained earlier in our discussion under section (13)(2) of the second assignment of error above, we rejected petitioner's interpretive argument concerning the 20% landscaping requirement of TCDC 18.350.100(B)(3)(g)(1) in Frewing L To the extent petitioner attempts to reargue that interpretation under the fourth assignment of error, we reject that attempt for the same reason we rejected it under section (D)(2) of the second assignment of error. However, in Frewing I, we sustained subassignment of error 5(K) in part, because neither the city nor intervenor responded to petitioner's contention that the applicant failed to provide a landscape plan to protect existing vegetation as much as possible, as required by TCDC 18.745.030(E).f2A6 On remand, the city adopted the following findings: "LUBA had found that since the applicant had not prepared a tree plan, there was inadequate evidence to evaluate the petitioner's claim that vegetation was not being protected. The applicant has submitted the required tree plan, including a protection program. Apart from the areas that will be disturbed to construct the infrastructure (sewer, water, storm drainage, streets, etc.) and the lots that will be graded for soil stability and proper drainage, the remainder of the site will be required to be protected from disturbance. The applicant will be required to erect protection fencing round each tree or group of trees to be retained. To ensure that the remaining vegetation is protected as much aspossible, the following conditions should be required. cc***** "Prior to commencing any site work, the applicant shall submit construction drawings that include the approved Tree Removal, Protection and Landscape Plan. The `Tree Protection Steps' identified in Teragan & Associates Letter of November 19, 2004 shall be reiterated in the construction documents. The plans shall also include a construction sequence including installation and removal of tree protection devices, clearing, grading, and paving. Only those trees identified on the approved Tree Removal plan are authorized for removal by this decision. "Prior to commencing any site work, the applicant shall establish fencing as directed by the project arborist to protect the trees to be retained. The applicant shall allow access by the City Forester for the purpose of monitoring and inspection of the tree protection to • verify that the tree protection measures are performing adequately. Failure to follow the plan or maintain tree protection fencing in the designated locations shall be grounds for immediate suspension of work on the site until remediation measures and/or civil citations can be processed. 378 http://Iuba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 25 of 32 "Prior to issuance of building permits, the applicant shall submit site plan drawings indicating the location of the trees that were preserved on the lot, location of tree protection fencing, and a signature of approval from the project arborist regarding the placement and construction techniques to be employed in building the house. All proposed protection fencing shall be installed and inspected prior to commencing construction, and shall remain in place through the duration of home building. After approval fr om the City Forester, the Tree protection measures may be removed." Record 31-33. TCDC 18.745.030(E) provides that "[e]xisting vegetation on a site shall be protected as much as possible." However, TCDC 18.745.030(E)(1) implicitly recognizes that much of the vegetation on subdivision lots will be displaced by houses and the construction process. That is particularly true where the residential lots are relatively small, as is the case here. We have already seen that the City of Tigard emphasizes protection of larger trees. The same measures that must be employed to protect those larger trees and their root systems during the construction process (snow fencing) will have the incidental effect of protecting some of the existing vegetation from the construction and house building • process. Beyond that, vegetation in the large common area that is to be protected from development will be protected. We understand the city to have found that this process, which is focused on protecting large trees in the developed area and protecting the common area from development, is sufficient to satisfy the TCDC 18.745.030(E) requirement to protect "existing vegetation on [the] site" "as much as possible." Even if it is possible to read TCDC 18.745.030(E) to impose a much more rigorous effort to protect existing vegetation on lots that are to be developed residentially, we do not believe the city is required to embrace such an interpretation. Presumably once the lots are developed and sold, the new owners will be free to remove any existing vegetation they wish to remove, to accommodate lawns and gardens and other uses of the lot. The requirement to fence off the large trees that are to be saved will present the lot purchasers with the option of retaining existing vegetation near the retained trees if they wish. Most or all of the vegetation in the common area will remain. The city's implicit interpretation and application of TCDC 18.745.030(E) to allow that approach to suffice to protect "existing vegetation on [the] site" "as much as possible" is not reversibly wrong under ORS 197.829(1), and we defer to the city's interpretation and application of TCDC 18.745.030(E) in this case. 379 http://luba.state.or.us/pdf/2005/sept05/05042.htm 2005-042 Frewing v. City of Tigard Page 26 of 32 The fourth assignment of error is denied. • FIFTH ASSIGNMENT OF ERROR Under his fifth assignment of error, petitioner argues that the city allowed the applicant to submit evidence and argument following our remand in Frewing I so close to the February 8, 2005 city council hearing on remand, that there was not sufficient time for city planning staff and city council consideration of that material, and there was not sufficient time for petitioner to be allow to rebut that evidence and argument. Intervenor responds: "The Applicant believes it is beyond debate that participants in the land use system may submit evidence until the record closes. The timing of any submissions by a party may trigger additional procedures to avoid prejudice to other parties, and may, in some cases, even require a record to be reopened. ORS 197.763(6)(c). "In this case, the City's planning staff responded to all of Petitioners pre-hearing requests for information. He received the Applicant's remand submission. Petitioner was at the hearing and was given time to respond to that evidence. When Petitioner arrived at the remand hearing, he heard all of the evidence that was submitted in this matter. He was • then given an opportunity to respond. Petitioner exclaimed that he did not have sufficient notice and an opportunity to examine some of the evidence to fully respond at that time. Accordingly, the city afforded Petitioner an opportunity to present orally the objections he did have and gave him an additional period of time to submit additional written responses. Petitioner complied with that procedure and submitted a voluminous written response. (Rec. 147-208) The procedure followed by the City is consistent with both its own code and state law. ORS 197.763. In fact, the City went above and beyond state law in that it granted Petitioner an additional opportunity to respond even though the remand hearing was not the initial evidentiary hearing. Petitioner's argument under his Fifth Assignment of Error is not basis for remand." Intervenor-Respondent's Brief 30. We agree with intervenor. The fifth assignment of error is denied. SIXTH ASSIGNMENT OF ERROR Petitioner makes what appear to be two arguments under this assignment of error. In its decision on remand, the city adopted a resolution. In that resolution the city council notes that it is responding to LUBA's remand in Frewing I, states that it has reviewed "additional evidence and staff's analysis," and then states: "The Tigard City Council approves * * * Ash Creek Estates Subdivision -'REMAND', subject to the conditions of approval stated the staff's January 25, 2005 report to Council, attached hereto as Exhibit A and incorporated herein by this reference." Record 4. We understand petitioner to argue that the above-quoted language in the resolution is sufficient http://luba.state.or.us/pdf/2005/septO5/05042.htm 380 2005-042 Frewing v. City of Tigard Page 27 of 32 to incorporate the conditions of approval in the attached staff report, but it is not sufficient to adopt the . attached 28-page staff report itself asfindings in support of its decision. Even if it is possible to read the resolution language narrowly to say what petitioner says it says, it is just as possible to read that language to incorporate the entire 28-page staff report as part of the city council's decision on remand. The city clearly intended the latter meaning, and we reject petitioner's argument that the city council's decision should be interpreted to the contrary. Next petitioner complains that the city relies both on findings that were adopted to support its decision in Frewing I and on the findings and conditions in the 28-page staff report. Petitioner contends that where decisions incorporate findings from multiple sources there is the possibility of conflict and confusion. Petitioner is certainly correct about that, and we have pointed out the problem on several occasions. Friends of Eugene v. City of Eugene, 44 Or LUBA 239, 249-50, aj d 189 Or App 335, 75 P3d 922 (2003); Hannah v. City of Eugene, 35 Or LUBA 1, 4, ajfd 1570r App 396, 972 P2d 1230 (1998); Wilson Park Neigh. Assoc. v. City of Portland, 24 Or LUBA 98, 106 (1992). But the only specific example of conflict or confusion that petitioner cites is to compare conditions 31 and 54. We do • not see that those conditions are in conflict or that they create any confusion that would warrant remand. The sixth assignment of error is denied. SEVENTH ASSIGNMENT OF ERROR In this assignment of error, petitioner asks that we consider certain issues that he contends were not resolved on their merits in our 45-page slip opinion in Frewing L With one possible exception, all of the arguments petitioner requests that we consider now were presented in support of assignments of error or subassignments that we rejected in Frewing L If petitioner believed those arguments should have led LUBA instead to sustain those assignments of error or subassignments of error, his remedy was to appeal our decision in Frewing I to the Court of Appeals. Having failed to do so, he may not reassert those arguments in this appeal. The possible exception concerns the TCDC 18.350.100(B)(3)(a)(1) requirement that trees be retained to "the greatest degree possible." Petitioner contends that while LUBA rejected his interpretation of TCDC 18.350.100(B)(3)(a)(1) to require consideration of fundamental redesign of the proposal to preserve trees where possible, the issue of whether the current, changed proposal for 381 http://luba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 28 of 32 retention and preservation of trees is consistent with TCDC 18.350.100(B)(3)(a)(1) is an issue that is properly presented in this appeal. Petitioner simply cross-references arguments that he presented elsewhere in his petition for review. We consider those arguments in section D(l) of our discussion under the second assignment of error. Except as noted above, the seventh assignment of error is denied. The city's decision is remanded in accordance with our resolution of subassignment of error 2(D) (1). As we explained in.Frewing I, a vertical sag curve is a dip in a roadway. MThe record that the city submitted in support of its decision following our decision in Frewing I includes the record in Frewing L Where we cite to the record in Frewing 1 or one of the four supplemental records in Frewing I, we so indicate. The PIDS preface includes the following language: "The City of Tigard Public Improvement Design Standards have been developed to provide a uniform set of standards and procedures to assist the City and private consulting engineers in coordinating, processing • and constructing public improvement projects. The Washington County Uniform Road Improvement Design Standards have been used as a guide in creating these standards. * * * The form has been kept brief and no attempt has been made to cover all possible situations or to provide detailed explanations. This manual is intended to be read with the [TCDC]." First Supplemental Record S4 (emphasis added). The city's PIDS apparently were developed based on the Washington County street design standards. U We emphasize that this important foundation to petitioner's argument is ignored in the challenged decision and in the response briefs. If there is any legal basis for disputing that 741' Avenue is a local street or that the design speed for local streets is 25 mph, neither respondent nor intervenor-respondent cite it. TCDC 18.810.020(D) provides: "Adjustments. Adjustments to the provisions in this chapter related to street improvements may be granted by means of a Type H procedure, * * * using approval criteria in Section 18.370.030(C)(9)." U1 The city also imposed the following condition of approval: 4652. Prior to commencing site work, the applicant shall submit construction drawings that show advisory `15 mph' speed limit signs to be placed in advance of the crest and sag curves on SW Vb in accordance with the City Engineer's Memorandum of January 25, 2005, which requires that the sag be monitored after construction to determine if any other measures need to be taken. The applicant shall be responsible for installation of additional measures within a year after construction of the street is accepted by the City if monitoring indicates that additional traffic control measures are needed." Record 13. U TCDC 18.210.070(A) provides: 382 http://luba.state.or.us/pdf/2005/sept05/05042.htm 2005-042 Frewing v. City of Tigard Page 29 of 32 "Official Action. All officials, departments and employees of the City vested with authority to issue permits or grant approvals shall adhere to and require conformance with this title, and shall issue no permit or grant approval for any development or use which violates or fails to comply with conditions or standards imposed to carry out this title." u TCDC 18.790.030 provides: "A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. "B. Plan requirements. The tree plan shall include the following: 1. Identification of the location, size and species of all existing trees including trees designated as significant by the city; "2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: "a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; "b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two-thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; "c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; "d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 443. Identification of all trees which are proposed to be removed; "4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. LUO Although petitioner does not claim it to be the case here, the mitigation obligation might also theoretically be reduced if a disproportionate number of trees on the property that are exactly 12 inches in diameter are saved. However, we agree with intervenor that the TCDC in no way suggests that this kind of precision in measurement is required. 1111 TCDC 18.790.060(D) and (E).provide: "D. "Guidelines for replacement. Replacement of a tree shall take place according to the following guidelines: 1. A replacement tree shall be a substantially similar species taking into consideration site characteristics; • 112. If a replacement tree of the species of the tree removed or damaged is not reasonably available, the Director may allow replacement with a different species of equivalent natural resource value; 383 http://luba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 30 of 32 "3. If a replacement tree of the size cut is not reasonably available on the local market or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be determined by dividing the estimated caliper size of the tree removed or damaged by the caliper size of the largest reasonably available replacement trees. If this number of trees cannot be viably located on the subject property, the Director may require one or more replacement trees to be planted on other property within the City, either public property or, with the consent of the owner, private property; 444. The planting of a replacement tree shall take place in a manner reasonably calculated to allow growth to maturity. "E. In lieu-of payment In lieu of tree replacement under Section D above, a party may, with the consent of the Director, elect to compensate the City for its costs in performing such tree replacement." 12 Petitioner actually identifies four separate arguments, but we combine the first and fourth, which deal with the participation of the applicant's arborist. 13 petitioner also argues that the recognition that ways may be discovered during actual development to save additional trees means the tree plan does not protect trees to "the greatest degree possible." We reject that argument as well. L U4 In one of the omitted footnotes, intervenor-respondent argues: "On page 15 of his brief, Petitioner lists a number of trees he believes will now be removed. Some of those trees are clearly in building envelope[s] (6120, 6121) and would be removed under any plan. Others • are small trees not protected under the City's code (6136, 6137 and 6138). One .tree (6129) will actually be retained." Intervenor-Respondent's Brief 16, n 5. 15 The complete text of TCDC 18.350.100(B)(3)(a)(1) is as follows: "The streets, buildings and other site elements shall be designed and located to preserve the existing trees, topography and natural drainage to the greatest degree possible[.]" U Petitioner specifically identifies a total of 14 trees on lots 13, 14, and 15 that petitioner contends were to be preserved in the initial proposal in Frewing 1: "6116, 6118, 6120, 6121, 6125, 6126, 6127, 6128, 6129, 5377AS, 6136, 6137, 6138 and 6319." Petition for Review 15. Although petitioner does not identify them by number, there are a total of 9 trees east or north of the TRB that are now to be removed, but presumably were to be saved in the Frewing I proposal: 6070, 6071, 6074, 6107, 6108, 5267, 6100, 5289, and 5283. 17 Intervenor, in its brief, offers a partial explanation for why some of those trees must be removed and contends one of the trees will be preserved. See n 14. lU8 TCDC 18.790.020(A)(3) provides the following definition: "3. `Hazardous tree' means a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property As relevant, TCDC 18.790.050(D) provides: • "Removal permit not required. A tree removal permit shall not be required for the removal of a tree which: «stsss 442. Is a hazardous tree; 384 httP:Hluba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 31 of 32 • "3. Is a nuisance affecting public safety as defined in Chapter 7.40 of the Municipal Code[.] 19 TCDC 18.350.100(B)(3)(g)(1) provides: "Residential Development: In addition to the requirements of subparagraphs (4) and (5) of section a of this subsection, a minimum of 20 percent of the site shall be landscaped[.]" IZOJ TCDC 18.370.020(C)(1) provides: "Adjustments to development standards within subdivisions (Chapter 18.430). The Director shall consider the application for adjustment at the same time he/she considers the preliminary plat. An adjustment may be approved, approved with conditions, or denied provided the Director finds: "a. There are special circumstances or conditions affecting the property which are unusual and peculiar to the land as compared to other lands similarly situated; "b. The adjustment is necessary for the proper design or function of the subdivision; "c. The granting of the adjustment will not be detrimental to the public health, safety, and welfare or injurious to the rights of other owners of property; and "d. The adjustment is necessary for the preservation and enjoyment of a substantial property right because of an extraordinary hardship which would result from strict compliance with the regulations of this title." TCDC 18.370.020(C)(11) provides: "Adjustments for street improvement requirements (Chapter 18.810). By means of a Type 11 procedure, as governed by Section 18.390.040, the Director shall approve, approve with conditions, or deny a request for an adjustment to the street improvement requirements, based on findings that the following criterion is satisfied: Strict application of the standards will result in an unacceptably adverse impact on existing development, on the proposed development, or on natural features such as wetlands, steep slopes or existing mature trees. In approving an adjustment to the standards, the Director shall determine that the potential adverse impacts exceed the public benefits of strict application of the standards." TCDC 18.810.070(C) provides: "Planter strip requirements. A planter strip separation of at least five feet between the curb and the sidewalk shall be required in the design of streets, except where the following conditions exist: there is inadequate right-of-way; the curbside sidewalks already exist on predominant portions of the street; it would conflict with the utilities, there are significant natural features (large trees, water features, etc) that would be destroyed if the sidewalk were located as required, or where there are existing structures in close proximity to the street (15 feet or less). Additional consideration for exempting the planter strip requirement may be given on a case by case basis if a property abuts more than one street frontage." U Because we agree with the city's decision that a planting strip need not be required under TCDC 18.810.070(C), we need not and do not consider whether the city adequately justified an adjustment to allow the roadway to be designed without a planting strip. 24 The subdivision adjoins 740' Avenue, but the northerly 27 lots will all be provided with access by Street A or the disputed cul-de-sac. Street A travels east from 701 Avenue a short distance and provides access to four lots, lots 24, 25, 26, and 27. At that point, Street A will end. A future southern extension of 73`d Avenue would connect Street A to roadways to the north. But until that happens, Street A stops where the cul-de-sac begins. As noted in the text, unless and until 73`d Avenue is extended south to connect with Street A, Street A and the cul-de-sac represent a combined single access toad that will serve 27 dwellings. 385 http://luba.state.or.us/pdf/2005/septO5/05042.htm 2005-042 Frewing v. City of Tigard Page 32 of 32 25 Because we reject petitioner's challenge concerning the public health, safety and welfare criterion (c), we need not and do not consider the city's alternative findings concerning the alternative adjustment criterion provided by TCDC 18.370.020(C)(11). 26 TCDC 18.745.030(E) provides: Protection of existing ve eg tation. Existing vegetation on a site shall be protected as much as possible: 1. The developer shall provide methods for the protection of existing vegetation to remain during the construction process; and "2. The plants to be saved shall be noted on the landscape plans (e.g., areas not to be disturbed can be fenced, as in snow fencing which can be placed around individual trees)." M i http://luba.state.or.us/pdf/2005/septO5/05042.htm 386