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LUBA2006-017 - Sue Beilke • 1 BEFORE THE LAND USE BOARD OF APPEALS RECEIVED OF THE STATE OF OREGON 2 APR 0 3 2006 SUE BEILKE, 3 RAMIS CREW Petitioner, CORRIGAN, LLP 4 ATTORNEYS AT LAW V. 5 CITY OF TIGARD, 6 LUBA No. 2006-017 Respondent, 7 and 8 SPECTRUM DEVELOPMENT, INC., 9 Intervenor-Respondent. N 10 ~ O ry a N 11 INTERVENOR RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS a c 0 12 TO RECORD CA 13 o a 2 14 I. INTRODUCTION w „P k* =8 4 00 N 15 Intervenor-Respondent Spectrum Development, Inc. ("Spectrum') hereby responds to ~Qo 16 Petitioner's Objection to the Record submitted to the Board on March 20, 2006. ;fl w ~ 0 N 17 The sole issue before the Tigard City Council ("City Council') on January 24, 2006 0 0 18 was whether to exercise its authority under ORS 227.180(1)(a) to review the City Hearings 19 Officer's ("Hearings Officer's') December 22, 2005 decision approving Spectrum's land use 20 application with respect to the narrow issue of whether a railroad underpass access easement 21 exists. In his December 22, 2005 decision, the Hearings Officer held that the easement 22 exists. 23 The City Council held a public hearing about whether it should review the Hearings 24 Officer's railroad underpass access easement finding. At the conclusion of the hearing, the 25 Council chose not to "reopen the case" and to let the Hearings Officer's decision stand as the 26 City's final land use decision (Rec. 15), thus declining to exercise its authority under ORS Page 1 - INTERVENOR-RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS TO RECORD Portlnd l -2223008.1 0063198-00003 • I 227.180(1)(a). On March 23, 2006, Intervenor-Respondent moved to dismiss this appeal for 2 the reasons set forth in its Motion to Dismiss, because the City Council's January 24, 2006 3 action electing not to review the Hearings Officer's decision is not a land use decision. 4 With respect to Petitioner's first objection to the record, Intervenor-Respondent 5 contends that the City Council's action not to consider the railroad underpass access 6 easement is not a land use decision. A land use decision is defined in ORS 197.015(11) as 7 including a "final decision or determination made by a local government or special district 8 that concerns the adoption, amendment or application of (i) the goals; (ii) a comprehensive 9 plan provision; (iii) a land use regulation; or (iv) a new land use regulation." The final 0 10 decision regarding the subject application was made by the Hearings Officer on December xa N 11 22, 2005. That decision was not appealed by Petitioner or by anyone else. On January 24, N a o 0 12 2006, the City Council declined to exercise its authority under ORS 227.180(1)(a) to review tea`. LZ 13 the Hearings Officer's decision with respect to the railroad easement or any other matter. In 14 particular, the City Council did not adopt, amend, or apply the goals, a comprehensive plan O C N a' M 15 provision, a land use regulation, or a new land use regulation. To the contrary, it elected not 16 to take any action with respect to the subject application and, instead, to allow the Hearings w 17 Officer's decision, pursuant to Tigard Community Development Code Section 18.390.040.G, 0 0 18 to be the final decision of the City with respect to the railroad easement and the application in 19 general, as it is allowed to do pursuant to ORS 227.180(1)(b). Thus, the Board does not have 20 authority to review the City Council's January 24, 2006 action and the Hearings Officer's 21 decision became the final decision of the City on January 12, 2006. 22 With respect to Petitioner's second objection to the record, Intervenor-Respondent 23 asserts that the written and photographic materials Petitioner claims should be included in the 24 record fall outside the record because they are not related to the railroad underpass access 25 easement finding and, in any event, were not considered by the City Council because the City 26 Council chose not to review the Hearings Officer's decision. Page 2 - INTERVENOR-RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS TO RECORD Ponind 1-2223008.1 0063198-00003 1 With respect to Petitioners third objection to the record, Intervenor-Respondent 2 argues that the minutes of the January 24, 2006 City Council meeting are complete and 3 correct. 4 For these reasons, Intervenor-Respondent requests that the Board reject Petitioner's 5 objections to the record. If necessary, pursuant to OAR 661-010-0026(5), Intervenor- 6 Respondent requests a telephone conference to consider Petitioner's objections to the record. 7 DATED: March/, 2006. STOEL RIVES LLP 8 9 os~0009S ° 10 Robert D. Van Brocklin, OGD No. 87130 Greg D. Corbin, OSB No. 00033 ° 0 11 Elaine R. Albrich, OSB No. 05506 o. Attorneys for Intervenor-Respondent .a c o 12 13 0 ° 14 WNM 00 P 5~ 15 CAao ;2 16 N~ 17 0 0 a 18 19 20 21 22 23 24 25 • 26 Page 3 - INTERVENOR-RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS TO RECORD Portlnd 1-2223008.1 0063198.00003 • 1 CERTIFICATE OF FILING 2 I hereby certify that on March 2 , 2006, I filed the original of INTERVENOR 3 RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS TO RECORD, 4 together with one copy, with the Land Use Board of Appeals, Public Utility Commission 5 Building, 550 Capitol Street NE, Suite 235, Salem, Oregon 97301-2552, by first-class mail. 6 Dated this-~-l day of March, 2006. 7 STOEL RIVES LLP 8 9 QSBca7o~S Robert D. Van Brocklin, OSB No. 7130 0 10 Greg D. Corbin, OSB No. 00033 x a Elaine R. Albrich, OSB No. 05506 N 11 Of Attorneys for Intervenor-Respondent N a ah 12 13 14 ~H 15 ~Qo 16 w 17 0 0 a 18 19 20 21 22 23 24 25 26 Page 1 - CERTIFICATE OF FILING PoMnd 1-2223008.10063198-00003 i 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on March ,~l 2006, I served a true and correct copy of 4 INTERVENOR-RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS 5 TO RECORD by first-class mail on the following persons: 6 Sue Beilke Gary Firestone 7 11755 SW 114' Place Timothy V. Ramis 8 Tigard, OR 97223 Ramis Crew Corrigan LLP 1727 NW Hoyt Street 9 Portland, OR 97209 N 10 ~ O LLB Q N 11 Dated this ~q day of March, 2006. N a o 0 12 STOEL RIVES LLP _Q'~ 13 OSO auog.,r a ' 14 Robert D. Van Brocklin, OSB No. 87110 O 1 H 15 Greg D. Corbin, OSB No. 00033 a o Elaine R. Albrich, OSB No. 05506 16 Of Attorneys for Intervenor-Respondent w 17 0 18 19 20 21 22 23 24 25 • 26 Page 1 - CERTIFICATE OF SERVICE Portlnd 1-2223008.10063198-00003 RAMIS CREW CORRIGAN LLP ATTORNEYS AT LAW 1727 NW HOYT STREET PORTLAND, OREGON 97209 TELEPHONE (503) 222-4402 Gary Firestone FAX (503) 243-2944 garvfAxeclawvers.com WWW.RCCLAWYERS.COM March 29, 2006 Land Use Board of Appeals Public Utility Commission Building 550 Capitol Street NE, Suite 235 Salem, Oregon 97301-2552 Re: Beilke v. City of Tigard LUBA No.: 2006-017 • Dear Clerk: Enclosed for filing is the original and one copy of Respondent's Response to Petitioner's Objections to Record: Thank you for your attention in this matter. Very tru s, on Stalk Legal Assistant to Gary Firestone Enclosures • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON SUE BEILKE, ) . Petitioner, ) LUBA No. 2006-017 V. } CITY OF TIGARD, ) Respondent, ) and ) SPECTRUM DEVELOPMENT, INC ) Intervenor-Respondent. ) RESPONDENT'S RESPONSE TO PETITIONER'S OBJECTIONS TO RECORD Petitioner submitted an Objection to the Record on March 20, 2006. The City of Tigard requests that the Board reject the objection and settle the record as submitted. The City Council did not have before it the underlying materials from the Hearings Officer proceedings that Petitioner seeks to add. The materials (photo, etc.) that Petitioner offered to the Council are outside the scope of the evidence that the Council allowed. The minutes of the council meeting are sufficient, especially considering that tapes of the hearing are part of the record. • The City agrees with the response to the record objections submitted by Intervenor- 1 - RESPONDENT'S BRIEF RESPONSE TO PETITIONER'S OBJECTIONS THE RECORD Respondent. For the reasons stated in this response and in the response of Intervenor-Respondent, the City requests that the Board reject the objections to the record and settle the record as filed. DATED March L`, , 2006. RAMIS REW ORRIGAN, LLP Gary Fi ' stone, OSB No. 87221 Of Attorneys for City of Tigard • 2 - RESPONDENT'S BRIEF RESPONSE TO PETITIONER'S OBJECTIONS THE RECORD CERTIFICATE OF FILING I hereby certify that on March Z` , 2006 I filed the original and one copy of this Respondent's Response to Petitioner's Objections to Record with the Land Use Board of Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, OR 97301-2552 by first class mail. PLI Dated this Z day of March, 2006. R.AMIS CREW CORRIGAN, LLP Gary Fire~to e, OSB#87221 Of Atto s for City of Tigard CERTIFICATE OF SERVICE I hereby certify that on March, 2006 I served a true and correct copy of the foregoing Respondent's Response to Petitioner's Objections to Record on the following parties by first class mail: Sue Beilke Robert D. Van Brocklin 11755 SW 114`' Place Stoel Rives LLP Tigard, OR 97223 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204 DATED: March 2006 RAMIS CREW CORRIGAN, LLP (lark Fire *&F, OSB#87221 Of Atto eys for City of Tigard r, R:EC`EF. i. ` BEFORE THE LAND USE BOARD OF APPEALS FOR THE STATE OF OREGON MAR 2 1 2006 RANIIS CREW i' v;3AN, LLP ATTORigEYS LAW SUE BEILKE, Petitioner Vs. LUBA NO. 2006-017 CITY OF TIGARD, Respondent OBJECTION TO RECORD, MARCH 20, 2006 In accordance with OAR 661-010-026, Petitioner hereby submit the following objections to the Record filed by City of Tigard on March 7, 2006: 1 This appeal is of `Refuge at Fanno Creek', Tigard File No. SDR2005-00002/SLR2005- 00017, 18, 19 &20/VAR2005-00055 & 56; the majority of material comprising this file is not included in the Record provided by Tigard on March 7, 2006, specifically preapplication materials, the application itself, review comments by agencies and the public, the staff report, the materials available to the Hearings Officer for his decision, testimony before the Hearings Officer and the decision itself of the Hearings Officer ("Final Order"). It is these materials which were the subject of and which the Tigard City Council considered at its January 24, 2006 hearing. For example, it is the City of Tigard "Land Use Permit Application" (a City of Tigard form, sample of which is attached to this objection) which states the requirement that the applicant must provide written authorization, signed by property owners, to develop the property which is the subject of the application. Legal counsel for applicant acknowledged these record materials on January 24, claiming that John Frewing had not submitted anything new, that was not already in the record, and applicant representative Matt Sprague similarly relied on the above record materials. stating on January 24 that all the graphics he used in his oral presentation were already in the record, except for one, which he pointed out.. Applicant attorneys Van Brocklin and Corbin both made reference to the Hearing Officer's record and asserted that he made his decision based on indirect evidence and `the totality of evidence' in the Hearing Officer's record. Mayor Dirksen on January 24 finally noted his review of the above record materials, saying that he came to the hearing with one opinion, but his action/vote was influenced by new material presented at the January 24 hearing. Land use decisions in Oregon rely on findings based on the `record, as a whole'. In the Record submittal by City of Tigard on March 7, 2006, the whole record has not been presented. Petitioner's substantial rights will be harmed if the whole record is not included before LUBA; the facts of the record are the basis for petitioner appeal. 2 The Record filed by City of Tigard on March 7, 2006 does not include the written and graphic testimony that Petitioner filed with the City Council as part of its meeting/hearing on January 10, 2006 and January 24, 2006. DVD and audiotape records indicate that this material was presented to the City Recorder, as provided by Tigard rules. This material both supported testimony regarding any easement beneath the railroad trestle as well as showing the need for such easement because of frequent flooding of the proposed primary access to the development. Petitioner's substantial rights will be harmed if the whole record is not included before LUBA. 3 The City of Tigard minutes of the January 10 and January 24, 2006 Tigard City Council meetings are in error, incomplete and contain only partial statements of what actually transpired. They thus do not accurately reflect the proceedings and prejudice the rights of petitioner to a full and fair hearing before LUBA. The written transcripts provided by the City are incomplete and this is material because they only inform LUBA of the applicant's and city evidence and argument, failing to include substantial discussion by and regarding petitioner's and other public views. These deficiencies can be described as follows: A Jan 10 The transcript does not record the oral presentation by John Frewing, questions regarding the issue and substantial discussion by City Council before the motion passed by City Council. Specifically, Council member Wilson and others questioned the adequacy of notice to the railroad, queried counsel how the Council can consider the issues regarding easement beneath the railroad trestle, discussed with counsel what action would be required if no easement is found, and discussed the scope/content of any possible hearing. All these matters are material to City of Tigard action regarding a required easement beneath the railroad trestle. B Jan 10 and Jan 24 The transcript does not record the oral testimony by petitioner. In this testimony, petitioner added support to the testimony of John Frewing, discussed the issue of flooding, which makes the alternate access beneath the railroad trestle necessary as a part of the application and questioned the related unusual access way requiring a 920-foot setback, contrary to the Washington Square Regional Center plan and Tigard comprehensive plan. All these matters are material to City of Tigard action regarding a required easement beneath the railroad trestle. C Jan 24 The Council packet (ie material provided by staff to Council members prior to the hearing) is not provided as part of the record. The Council packet does not contain information used by the Hearings Officer, specifically the application for development as noted above. This information is material to City of Tigard action regarding a required easement beneath the railroad trestle. D Jan 24 The DVD provided as Record does not contain any statement by Dick Bewersdorff, as represented in the minutes. This is material because it attempts to influence City Council members in their consideration of the required easement beneath the railroad trestle. E Jan 24 The minutes do not point out that applicant attorney Van Brocklin twice asserted that the area crossing the railroad property beneath the trestle has been "continuously used". This is material because it attempts to influence City Council members and was disputed (without rebuttal argument from applicant) by John Frewing (the existence of a ditch blocking access for some 20 years). L F Jan 24 The minutes refer to a Jan 26 Van Brocklin letter; it should be corrected to refer to a Jan 24 Van Brocklin letter. The DVD of this hearing clearly states this reference as Jan 24. Editorial. G Jan 24 The first map referenced by applicant rep Sprague, refered to as a `tax lot map', is not in the record that was provided by Tigard on March 7. All the photographs provided by Tigard on March 7 are illegible with respect to representing the character of the land when they were taken; they are not copies of the photographs presented at the Jan 24 hearing (they have been substantially reduced, making them illegible and not usefiil as evidence). There is no indication that the large photographs have been retained by City of Tigard as part of the record, so that they can be available for oral argument at LUBA. H Jan 24 The three maps referenced by applicant rep Sprague, referring to easements between Cascade Blvd and the railroad property are not in the record provided by Tigard on March 7. These maps are material in that the 1965 bargain and sale deed and 1995 easement documents refer to them. I Jan24 Page 615 and the complete 1965 bargain and sale deed, as presented by and referenced by applicant attorney Van Brocklin and applicant rep Sprague, is not in the • record provided by Tigard on March 7. These documents are material in that they show no easement exists beneath the railroad trestle. J Jan 24 A 1974 aerial photo of the site, refered to by applicant rep Sprague, is not in the record provided by Tigard on March 7. This photo is material because it defines the time when access under the railroad trestle ended. K Jan 24 The minutes provided by City of Tigard do not report John Frewing's rebuttal of the assertion by applicant rep Sprague, without any written evidence, that in 1907 an easement was reserved for the area of railroad property passing beneath the trestle. This is material because uncontested, such assertion might be considered true. L Jan 24 The minutes mischaracterize the remarks of John Frewing regarding an easement across railroad property beneath the trestle. The minutes say Frewing referred to a' bridge' which is not the case and that he asserted that the proposed development application should be 'thrown out', which is not the case. Reference was made to the 'trestle' and Frewing stated that access beneath the trestle is a significant part of the current application and later, that the application should be denied. This is material because an accurate understanding of the fact situation is necessary to find for petitioner and the proposed remedy for action must be accurately stated. M The Record filed by City of Tigard on March 7, 2006 does not include two emails from John Frewing provided to City Council on January 24, 2006: 1) email sent at 8:16AM to Mayor Dirksen enclosing photograph showing flooding which creates the need for alternate access (proposed beneath railroad) in development of Refuge at Fanno r. Creek, and 2) exchange of emails (1/18, 12:19PM, 1/18, 1:35PM and 1/19, 8:59AM) between John Frewing and Dick Bewersdorff, City of Tigard, regarding lack of a staff report in advance of the January 24, 2006 City Council hearing. These are material because they illustrate the need for the alternate access beneath the railroad trestle and document failure by City of Tigard staff to comply with the motion for conduct of the Jan 24 hearing. I have attempted to resolve these issues with Tigard's attorney, Tim Ramis, by email on March 17, 2006, but have not been able to resolve the above conflicts. Attachment: City of Tigard Planning Division, "Land Use Permit Application" 6/26/02 Sue Beilke, March 20, 2006 CER'T'IFICATE OF FILING AND SERVICE • 1, Sue Beilke, certify that on March 20, 2006, I filed the original and two copies of this OBJECTION TO RECORD, MARCH 20, 2006 with the Land Use Board of Appeals, PUC Building, Suite 235, 550 Capitol Street NE, Salem, OR 97301-2552, by first class mail, and served a copy of this same document by first class mail on the following persons: Tim Ramis, Ramis, Crew, Corrigan Lawyers, 1727 Hoyt Street, Portland, OR 97209 and Robert Van Brocklin, Stoel Rives, Suite 2600, 900 SW Fifth Avenue, Portland, OR 97204. Sue Beilke, March 20, 2006 PRE-APP. HELD BY: CITY OF TIGARD PLANNING DIVISION 13125 SW HALL BOULEVARD TIGARD, OR 97223-8189 503.639.4171/503.684.7297 CITY F OF TIGARD oeEG°" LAND USE PERMIT APPLICATION File # Other Case # Date By 71Receipt # City ❑ Urb ❑ Date Complete TYPE OF PERMIT YOU ARE APPLYING FOR ❑ Adjustment/Variance (I or II) ❑ Minor Land Partition (II) ❑ Zone Change (III) ❑ Comprehensive Plan Amendment (IV) ❑ Planned Development (111) ❑ Zone Change Annexation (IV) ❑ Conditional Use (III) ❑ Sensitive Lands Review (I, 11 or 111) ❑ Zone Ordinance Amendment (1' ❑ Historic Overlay (11 or III) ❑ Site Development Review (II) ❑ Home Occupation (II) ❑ Subdivision (11 or 111) (Address i available) i . I I t: tit/-L i i 1UN i acn is i more an on IJHUNF- NU. t-AA NU. 'When the owner and the applicant are different people, the applicant must be purchaser of record or a lessee possession with written authorization from the owner or an agent of the owner. TheC;vners must sign this application in t space provided on the back of this form or submit a written authorization with this application. PROPUSAL SUMMARY ease be spec is APPLICATIONS WILL NOT BE ACCEPTED WITHOUT ALL OF THE REQUIRED SUBMITTAL ELEMENTS E DESCRIBED IN THE "BASIC SUBMITTAL REQUIREMENTS" INFORMATION SHEET. r' t 1 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON 2 SUE BEILKE, 3 Petitioner, 4 V. 5 CITY OF TIGARD, 6 LUBA No. 2006-017 Respondent, 7 and 8 SPECTRUM DEVELOPMENT, INC., 9 Intervenor-Respondent. N 10 OS O 0L R C 0 11 C N INTERVENOR-RESPONDENT'S MOTION TO DISMISS o0 12 a` 13 14 I. INTRODUCTION ~ M 15 Intervenor-Respondent Spectrum Development, Inc. ("Spectrum") moves to dismiss ¢o 16 the above-captioned appeal because (1) the challenged action by the Tigard City Council w 3 17 ("City Council') is not a land use decision and, thus, the Board does not have authority to 0 0 18 review the City Council's action, (2) neither Petitioner nor anyone else appealed the City 19 Hearings Officer's ("Hearings Officer's") December 22, 2005 decision to the City Council 20 and, thus, pursuant to Tigard Community Development Code ("TCDC") Section 21 18.390.040.G, the Hearings Officer's decision is the final decision of the City and became 22 effective on January 12, 2006, and (3) the City Council did not exercise its authority under 23 ORS 227.180(1)(a) to review the Hearings Officer's December 22, 2005 land use decision 24 with respect to a contested railroad underpass easement. Thus, this appeal must be 25 dismissed. • 26 Page 1 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS Portlnd 1-2221927.1 0063198-00003 r ~ • 1 II. FACTS 2 Petitioner's original notice of intent to appeal, filed on February 14, 2006, claims to 3 challenge: 4 "The land use decision of City entitled `REFUGE AT FANNO CREEK,' which was 5 finally approved by the Tigard City Council (City Council') at a hearing on January 24, 2006, and which involves site development review, sensitive lands review and 6 adjustments to the Tigard Community Development Code (TCDC)." 7 In fact, the City Council did not make a land use decision on January 24, 2006. 8 Instead, it declined to exercise its authority under ORS 227.180(1)(a) to review the Hearings 9 Officer's decision of December 22, 2005 with respect to a railroad underpass easement. N N The Hearings Officer made the final land use decision in this case on December 22, 10 ~ O ° 11 2005. The Hearings Officer approved Spectrum's Type II application for site development 0 C N 4 o 0 12 approval to construct two commercial office buildings totaling 26,000 square feet and three cn a 13 buildings equaling nine residential units in the City's MUE-2 mixed use employment district. 14 Among the Hearings Officer's findings was a conclusion that an access easement exists N 15 under a Southern Pacific Railroad underpass right-of-way. See Appendix 2, p. 10. > ¢ o 16 On December 27, 2005, the City mailed the Notice of Final Order by the Hearings wE 17 Officer (Appendix 1), the Hearings Officer's December 22, 2005 decision (Appendix 2), and 0 0 18 a copy of the City Staff s November 7, 2005 Staff Report (Appendix 3) to those entitled to 19 such notice. Petitioner, was included in this mailing and received this Notice, the Hearings 20 Officer's decision, and the accompanying Staff Report. 21 In accordance with TCDC Section 18.390.040.G.2, any party with standing (as 22 provided in TCDC Section 18.390.040.G.1) is entitled to appeal a Hearings Officer's 23 decision to the City Council. In the instant case, the deadline for filing an appeal to the City 24 Council was 5 p.m. on January 11, 2006. Petitioner testified at the Hearings Officer hearings 25 on Spectrum's application and had standing to appeal the Hearings Officer's decision to the 26 Page 2 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS Portlnd 1-2221927.1 0063198-00003 i ► • 1 City Council. Petitioner, however, did not appeal the Hearings Officer's decision to the City 2 Council, nor did anyone else with standing to do so. 3 On January 10, 2006 the City Council held a regularly scheduled meeting. During the 4 citizen communication part of the meeting a citizen, John Frewing, requested that the City 5 Council exercise its authority under ORS 227.180(1)(a) and review the Hearings Officer's 6 decision with respect to the finding that there is an access easement under the subject railroad 7 underpass right-of-way. 8 In response, the City Council approved a motion to schedule a City Council hearing 9 on January 24, 2006 to allow comment on whether there is an easement under the railroad 0 10 right-of-way and allowing people "to advocate as to whether or not the Council should xa N 11 even hear this matter." Rec. 89, 74-75 (emphasis added). S_ rl o 0 12 At the January 24, 2006 City Council hearing, the City Attorney stated: 13 "In this hearing, the Council will consider whether it should review the o 14 decision and may also consider whether to amend the decision as it relates to w the rail crossing. The Council will accept argument on whether to review .0 4 00 15 the decision and will accept testimony on the merits of the decision as it = o relates to the rail crossing. In order to get.through this procedure in a V 16 reasonable time, the Council will allow both the argument on whether to 17 review and the testimony on the substantive issue at the same time. After it o has heard argument and testimony, the Council will decide whether it 18 wishes to review the hearings officer's decision. If it decides to review the decision, it will then make a decision on the application as it relates to the 19 proposed rail crossing for the secondary access to the property. If the Council decides to review the matter, the Council's role will be to make a 20 land use decision applying the existing laws of the City of Tigard, but 21 limited to the crossing issue. " Rec. 55 (emphasis added). 22 The City Council then held a public hearing on the whether it should review the " 23 Hearings Officer's finding that there is an easement under the railroad right-of-way and, if it 24 chose to review that question, whether to make a land use decision applying the existing laws 25 to amend the Hearings Officer's decision with respect to the rail crossing. At the conclusion • 26 of the hearing, the Council chose not to "reopen the case" and to let the Hearings Officer's Page 3 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS Pordnd 1-2221927.1 0063198-00003 • 1 decision stand as the City's final land use decision. Rec. 15. Thus, the City Council declined 2 to exercise its authority under ORS 227.180(1)(a) to review the Hearings Officer's decision. 3 TCDC Section 18.390.040.G provides: 4 "The decision of the Hearing Officer with regard to any appeal of a Tyne 5 H Administrative Decision is the final decision of the City. The decision of the Hearings Officer is final for purposes of appeal on the day after the 6 appeal period expires, unless an appeal is filed. If an appeal is filed, the decision is effective on the day after the appeal is resolved." 7 In this case, the Hearings Officer's December 22, 2005 decision was not appealed 8 and, thus, is the final decision of the City. Pursuant to TCDC Section 18.390.040.G, the 9 8 Hearings Officer's decision took effect on January 12, 2006. 0 10 x a III. ARGUMENT °0 11 H ORS 197.015(11) defines a "land use decision" as including a "final decision or t: 12 v, determination made by a local government or special district that concerns the adoption, 13 amendment or application of (i) the goals; (ii) a comprehensive plan provision; (iii) a land 14 w M use regulation; or (iv) a new land use regulation." The final decision regarding the subject ON 15 o application was made by the Hearings Officer on December 22, 2005. That decision was not Z~ 16 3 appealed by Petitioner or by anyone else. On January 24, 2006, the City Council declined to 17 exercise its authority under ORS 227.180(1)(a) to review the Hearings Officer's decision 18 with respect to the railroad easement or any other matter. In particular, the City Council did 19 not adopt, amend, or apply the goals, a comprehensive plan provision, a land use regulation, 20 or a new land use regulation. To the contrary, it elected not to take any action with respect to 21 the subject application and, instead, to allow the Hearings Officer's decision to be the final 22 decision of the City with respect to the railroad easement and the application in general, as it 23 is allowed to do pursuant to ORS 227.180(1)(b). 24 ORS 197.825(1) provides that the Land Use Board of Appeals (the "Board") shall 25 have exclusive jurisdiction to review any land use decision of a local government in the 26 Page 4 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS Portlnd l -2221927.1 0063198-00003 ~ T • 1 manner provided in ORS 197.830 to 197.845. The City Council's January 24, 2006 action 2 not to exercise its authority under ORS 227.180(1)(a) and not to "reopen the case" is not a 3 land use decision. Therefore, the Board does not have jurisdiction to review it. 4 The burden of establishing that a land use decision was made by the City Council is 5 on Petitioner. Petitioner is unable to meet this burden because (1) the City Council did not 6 adopt, amend, or apply a planning goal, a comprehensive plan provision, a land use 7 regulation, or a new land use regulation with respect to Spectrum's application, and (2) the 8 Board does not have authority to review decisions that are not land use decisions. 9 IV. CONCLUSION 0 10 In summary, (1) the challenged action by the City Council is not a land use decision as N 11 and, thus, the Board does not have authority to review the City Council's action, (2) neither C N o 0 12 Petitioner nor anyone else appealed the Hearings Officer's December 22, 2005 decision to 13 the City Council and, thus, pursuant to Tigard Community Development Code Section ,.a 14 18.390.040.G, the Hearings Officer's decision is the final decision of the City and became W ~ M 5 15 effective on January 12, 2006, and (3) the City Council did not exercise its authority under 16 ORS 227.180(1)(a) to review the Hearings Officer's December 22, 2005 land use decision . N 3 17 with respect to a contested railroad underpass easement. For these reasons, Intervenor- o 0 18 Respondent Spectrum respectfully requests that the Board enter an order dismissing with 19 prejudice the above-captioned appeal. 20 DATED: March `t. 2006. STOEL RIVES LLP 21 22 Robert anrocklin, SB No. 87130 23 Greg D. Corbin, OSB No. 00033 24 Attorneys for Intervenor-Respondent 25 26 Page 5 - INTERVENOR-RESPONDENT'S MOTION TO DISMISS Portind l -2221927.1 0063198-00003 ~ T • I CERTIFICATE OF FILING 2 I hereby certify that on March 2006, I filed the original of Intervenor- 3 Respondent's Motion to Dismiss, together with one copy, with the Land Use Board of 4 Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, 5 Oregon 97301-2552, by first-class mail. 6 Dated this 23 day of March, 2006. 7 STOEL RIVES P 8 9 Robert DVVan rocklin, O $B No. 87130 10 Greg D. Corbin, OSB No. 0033 o a Of Attorneys for Intervenor-Respondent c 11 C N ca j t: co 12 a 13 .i J-, 14 ' t0 ~N 15 1 C4 > s~ 16 0 17 0 18 19 20 21 22 23 24 • 25 26 Page 1 - CERTIFICATE OF FILING Portlnd 1-2221927.1 0063198-00003 t ~ 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on March, 2006, I served a true and correct copy of 4 Intervenor-Respondent's Motion to Dismiss by first-class mail on the following persons: 5 Sue Beilke Timothy V. Ramis 6 11755 SW 110 Place Ramis Crew Corrigan LLP 7 Tigard, OR 97223 1727 NW Hoyt Street Portland, OR 97209 8 9 N 10 Dated this day of March, 2006. a~ ~ N STOEL RIVES LLP C. 11 C N : 0 12 13 Robert Van B ocklin, OS No. 87130 Greg D. Corbin, SB No. 00033 rx o Of Attorneys for Intervenor-Respondent 14 M ~N 15 ~¢o 16 17 0 0 18 19 20 21 22 23 24 . . • 25 26 Page 1 - CERTIFICATE OR SERVICE Portlnd 1-2221927.1 0063198-00003 120 DAYS = 1/24/2006 CITY OF TIGARD Df OF FILING: 12/22/05 Community (Development ShapingA Better Community CITY OF TIGARD Washington County, Oregon NOTICE OF FINAL ORDER BY THE HEARINGS OFFICER File Numbers: SITE DEVELOPMENT REVIEW SDR 2005-00002 SENSITIVE LANDS REVIEWS SLR 2005-00017,18.19 & 20 ADJUSTMENTS VAR 2005-00055 & 56. File Name: REFUGE AT FANNO CREEK Owner's Name: MBM Holdings Company, LLC Applicant's Name/Address:. Spectrum Development PO Box 3440 Wilsonville Ore on 97070 Address of Property: 10225 SW North Dakota Street Ti and Ore on 97223 Tax Ma /Lot Nos.: Washington Coun Tax Assessor's Ma No. 1 S135BC Tax Lot 1200 A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS APPROVING A REQUEST FOR SITE DEVELOPMENT REVIEW, FOUR SENSITIVE LANDS REVIEWS AND TWO ADJUSTMENTS. THE CITY OF TIGARD HEARINGS OFFICER HAS REVIEWED THE APPLICANTS PLANS, NARRATIVE, MATERIALS, COMMENTS OF REVIEWING AGENCIES, THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE HEARINGS OFFICER HELD A PUBLIC HEARING ON NOVEMBER 14. 2005 AND DECEMBER 12. 2005 TO RECEIVE TESTIMONY REGARDING THIS APPLICATION. THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER. Request: ➢ A request for Site Development Review approval to construct two commercial office buildings totaling 26,000 square feet and three, 3-plex buildings equaling nine residential units on an 8.33 acre site. Sensitive Lands Review is required as the subject site has slopes greater than 25%, drainageways, wetlands, and 100-year floodplain. The applicant is also requesting an Adjustment to the required access width from 24 feet to 22 feet and gWdjustment to the maximum front yard setback standard in.the Washington Square Regional Center to increase setback from 20 feet to approximately 920 feet. At the close of the record on December 12, 2005, the Hearings Officer conditionally approved the applications. ZONE: MUE-2: Mixed Use Employment, District - Moderate Density. The MUE-2 zoning district is designed to apply to areas where employment uses such as office, research and development and light manufacturing are concentrated. Commercial and retail support uses are allowed but are limited, and residential uses are permitted which are compatible with employment character of the area. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.360, 18.370, 18.390, 18.520, 18'.630, 18.705, 18.715, 18.720, 18.725, 18.745, 18.755, 18.765, 18.775, 18.780, 18.790, 18.795 and 18.810. Action: ➢ ❑ Approval as Requested I@ Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to: 0 Owners of Record Within the Required Distance I@ Affected Government Agencies O The Affected Citizen Involvement Team Facilitator 0 The Applicants and Owners Final Decision: THIS DECISION IS FINAL ON DECEMBER 27, 2005 AND BECOMES EFFECTIVE ON JANUARY 12, 2006 UNLESS AN APPEAL IS FILED. Appeal: The decision of the Review Authority is final for purposes of appeal on the date that it is mailed. Any party with standing as provided in Section 18.390.040.G.1. may appeal this decision in accordance with Section 390.040.G.2. of the Tigard Community Development Code which provides that a written appeal together with required fee shall be filed with the Director within ten (10) business days of the date the notice of the cision was mailed. The appeal fee schedule and forms are available from the Planning Division of d-11 and City Hall, 13125 SW Hall Boulevard, Tigard, Oregon 97223. I THE DEADLINE FOR FILING AN APPEAL IS 5:00 PM ON JANUARY 11, 2006g(o Questions: If you have any questions, please call the City of Tigard Planning Division at (503) 6399, BEFORE THE LAND USE HEARINGS OFFICER CITY OF TIGARD, OREGON REGARDING THE APPLICATION FOR SITE ) FINAL ORDER DEVELOPMENT REVIEW APPROVAL TO ) CONSTRUCT TWO COMMERCIAL OFFICE ) BUILDINGS TOTALING 26,000 SQUARE FEET ) REFUGE AT FANNO CREEK AND THREE BUILDINGS EQUALING NINE ) RESIDENTIAL UNITS IN THE - MUE-2: ) SITE DEvELoPMENT REVIEW (SDR) MIXED USE EMPLOYMENT DISTRICT IN SENSITIVE LANDS REVIEWS (SLR)SLR200S-00017, -00018, -00019, -00020 THE CITY OF TIGARD, WASHINGTON ) AD iUS MUM - VAR200-1-M5, -00056 COUNTY, OR. APPROVED wrrH coNDITIoNs INTRODUCTION The applicant is requesting Site Development Review approval to construct two commercial office . buildings totaling 26,000 square feet and three buildings equaling nine residential units. The subject property has frontage along SW North Dakota Street, between SW Greenburg Road and SW Scholl's Ferry Road. The subject site has slopes greater than 25%, drainageways, wetlands and 100-year floodplain. The applicant is also requesting an adjustment to the required access width from 24 feet to 22 feet and an adjustment to the maximum front.yard setback standard in the Washington Square Regional Center to increase the setback from 20 feet to approximately 920 feet. City records indicate a previous land-use case for a 42 unit condominium development with site development review, sensitive lands review and an adjustment to the accessway width from 24 feet to 22 feet. This proposal was withdrawn. No other land-use cases for this site exist. APPLICANT: Spectrum Development OWNER: MBM Holding Company, LLC Attn: Peter Kusyk P.O. Box 120 P.O. Box 3440 Newberg, OR 97132-0120 Wilsonville, OR 97070 APPLICANT'S REP: SFA Design Group, LLC Attn: Matthew L. Sprague 9020 SW Washington Square Drive, Suite 350 Portland, OR 97223 LOCATION: 10225 SW North Dakota Street; WCTM 1S13513C, Tax Lot 1200. ZONE: MUE-2: Mixed Use Employment Districts. The MUE-2 zoning district is designed to apply to areas where employment uses such as office, research REFUGE AT FANNO CREEK(SDR200"0002) PAGE 1 OF 40 . and development and light manufacturing are concentrated Commercial and retail support uses are allowed but are limited, and residential uses are permitted which are compatible with employment character of the area. APPROVAL CRITERIA: Zonin Districts 18.520 (Commercial Zoning Districts) 18.370 'Variances and Adjustments) 18.630 ashinfon Square Regional Center) 18.705 Access gress and Circulation) 18.725 nvironmental Performance Standards) 18.745 andscaping and Screening) 18.755 ed Solid Waste and Recyclable Storage) 18.765 Off-Street parking and loading requirements) 18.780 Signs) 18.790 ree Removal) 18.795 (Visual Clearance Specific SDR Approval Criteria 18.360 Street and Utili Improvement Standardsl 8.8 10 Impact Study 1.390 STAFF RECOMMENDATION: APPROVAL, subject to the following recommended Conditions of Approval and Findings within the November 7, 2005 Staff Report. HEARING AND RECORD • The Public Hearing on this matter was held on November 14, 2005 and the record was kept open until December 12, 2005 at the request of the applicant and Mr. John Frewing, an opponent of this application. At the end of the December 12, 2005 hearing the applicant waived their right to have the record open in order to file a further response and the record was closed. A record of all testimony received and all the supporting studies, reports and the application are in the custody of the Planning Department of the City of Tigard. As explained at the hearing. The Hearing Officer (HO) has conducted a site visit prior to the Hearing (See summary of testimony below). AGENCY COMMENTS Tualatin Valley Fire and Rescue has reviewed the proposal and-has offered comments. Division of State Lands has reviewed the proposal and has offered the following comments: • Wetland delineation (WD03-0565) has been approved for this site. Clean Water Services has reviewed the proposal and issued a service provided letter with conditions. HEARING SUMMARY (Not intended as a verbatim transcript) November 14, 2005 Hearing: • Mathew Scheidegger, the lead City planner on this application, testified that the site has slopes greater than 25%, drainageways, wetlands and a 100-year floodplain, so sensitive lands review is required. The proposed project meets the relevant density standards. Based on the findings in the REFUGE AT FANNO CREMSOR20054MM) PAGE 2 OF 40 • Staff Report, Staff recommends approval of this project, subject to the conditions of approval in the Staff Report. Peter Kusyk, the applicant's representative, testified that it has been 21 months since this project was started. At one point submission was withdrawn, because they thought it could be done better and now they think that they have now complied with everything in the code. 4&e , the applicant's project manager, testified that with respect to Conditi Matt Spr on 7 in the Staff Report, we would request that the word "trees" be substituted for "Pacific willows." If the applicant can find suitable Pacific willows, they will, but would like the option to substitute another type of tree if necessary. Next, there is a small piece of wetland mitigation; City standards do not allow landform alterations in these areas, and the applicant needs some clarification as to what is expected Hearing Officer (HO) indicated that he drove by the sight tonight but did not go into it and reported a concern that the sight distance from the proposed entrance to the top of the rise seemed very short. Mr. Sprague replied that perception is odd at that location, currently, but that the entrance to the site will be raised. HO: Apparently Staff resolved the issue by substituting stopping distance for sight distance? • Mr. Sprague: That's correct. Judith Grey, the applicants traffic consultant with Kittleson Associates in Portland, agreed that it is tricky, looking at the current sight distance from that driveway. Working with a traffic engineer she found that the current intersection sight distance does not meet the 370-foot County standards. Stopping sight distance is the distance needed for a car to enter the traffic stream without causing the other cars to brake. The required stopping sight distance is 270 feet, and the intersection has 305 feet of available sight distance. It's not ideal, but it works, for the County's purposes. John Frewina reminded the HO that Code section 18.110 is to ensure that any development be commensurate with the physical characteristics of the land to promote public health, safety, convenience and welfare, to promote and diversify the city economy, to ensure a supply of land for various uses accommodating future growth, to encourage affordable housing, to conserve energy through land use decisions. With that he exhorted that the decision in this matter should consider the purpose of the code section as a whole, not just specific segments. Mr. Frewing then read from his prepared statement, indicating that he had 19 separate comments to submit to the record. His complete remarks are marked Exhibit A, his comments are summarized and responded to under FINDINGS. David Drescher, vice president of Fans of Fanno Creek testified that the Fans work with the City of Tigard to enhance and restore Fanno Creek and improve the watershed. As concisely as possible, Spectrum Development and SFA have given us formal presentations on their plans; Per 18.705.030.H.1 sight distance and deceleration standards are set by MOT, Washington County, the City and AASHTO. REFUGE AT FANNO CREEK(SDR2005AMM) PAGE 3 OF 40 t . however, there are a number of instances in which our concerns have not been met. According to 18.775, a 50-foot buffer, rather than a 25-foot buffer, should be required for this location, because the habitat is not degraded. He introduced aerial photos dating back to 1936 for the purpose of showing that habitat was in good condition until 2003. He agreed with Mr. Frewing's comments regarding the critical height for fire vehicle access and the reference to the wetland delineations in the wetlands report; it would be helpful to get some clarity on that issue. He added that the proposed driveway has not been used in 50+ years. The evidence shows that the requirements of 18.775 have not been met, and we ask you to deny this application. His remarks and Exhibits are marked as Exhibit B and are responded to under FINDINGS. Brian Wegener testified that he represents Tualatin River Keepers. In response to page 12 of the application, provisions for public transportation, what this says is that public transport must be provided if the project is within 500 feet of the public right-of-way. This project is within 100 feet of the railroad tracks, so this requirement has not been met. On page 16 of the application narrative, there is no evidence that access could not be reasonably achieved to the north. It would be prudent to put the burden of proof on the applicant to show they have made an effort to secure that access. He agreed that emergency access is inadequate, according to the standards set forth by TVFR. . Also, the main access road goes through the flood plain and would be flooded during a flood event. There is no evidence that the applicant has the right to excavate under the railbed to increase the access height. On page 79, it states that "the proposed landform development will not result in hazards to life and property." One concern is that the walls along the driveway could cause offsite effects - erosion - on the far side of the stream. You are not allowed to build walls or fences in the floodway. His comments are responded to under FINDINGS. Sue Beilke, testified as Vive President of Friends of Sumner Creek and indicated that she and her husband have lived near the proposed project site for 15 years and frequently walk the trail on the west side of Fanno Creek. She expressed concern about development along Fanno Creek and would prefer to see the site completely protected. She submitted her written comments to the record (Exhibit C) and then she proceeded to read them. Her comments are responded to under FINDINGS. In her oral testimony she highlighted that the applicant is requesting a reduction in pavement width from 24 feet to 22 feet for the access road; however, there is no evidence that the option of a northern access has been pursued. The applicant has failed to show why joint access could not be achieved to the north. If the applicant truly wants to protect the natural resources on the site, they would aggressively pursue access to the north, rather than building a 920-foot road bisecting the site. The application should be denied. The application does not meet the dedication of open space requirements or trail requirements. regwre The construction of the 920-foot access road will result in the removal of a large amount of important vegetation in the drainageway. REFUGE AT FANNO CREEK(SOR200540002) PAGE 4 OF 40 • Within wetlands, the applicant proposes to alter wetlands at three locations on the site; Staff argues that only one of these areas is significant. However, after inspecting the applicable resource maps, we would argue that all three wetlands should be considered significant. The application goes on to state that the three wetland alterations should be allowed, because they are being done under the direction of the City. This is not true. Landform alterations are not allowed in the floodway; such alterations are subject to a Type IV proceeding. Two of the alterations- would result in significant negative impacts, resulting in a loss of wetland habitat for songbirds and other species. The City is required to discourage development of areas designated as significant wetlands. We request that the sensitive lands permit be denied, and that the entire application be denied. With respect to the degraded corridors argument, it is very difficult to determine where those are located, or, in fact, what the overall condition of the wetlands are and how they have been changed. Native vegetation was cleared from the site in 2003, when the applicant, without the necessary permits, graded and filled the subject area. Portions of the vegetated corridor, however, still contain substantial stands of Pacific willow, much of which will be removed if this application is approved. Again, we ask that it be denied. Finally, there was a stop work order placed on the site; as far as we know, that is still in effect. We ask that that be looked into. • Mr. Frewing commented that Ms. Beilke has raised several issues he would like to respond to in writing and requested a two-week continuance. Mr. Robert VanBrocklin, attorney for the applicant indicated support a continuance, perhaps 21 days, given the upcoming Thanksgiving holiday. That would- put us to December 5. HO: I think the applicant is entitled to copies of the materials and written testimony submitted tonight. 'Because of Thanksgiving the matter will be continued until Monday, December 12 at 7 pm. The applicant might have to waive the 120 day rule. Anyone who wants to submit anything in writing prior to the hearing, please do so by December 5 at 5 pm, so that there are no surprise submittals on the day of the hearing. Mr. VanBrocklin: The applicant preserves his rights to submit a final written closing argument. Open Record Period: Exhibit D: Mr. Frewing responded on December 5" arguing that: 1. Alternate access is inadequate because the applicant's easement 950015055 is to the railroad right of way and not under it. 2. The illegal fill on the site has not been resolved 3. The HO takes notice of the Highway 217 Task force which has recently completed a study which somehow conflicts with this proposal. • 4. That the ODFW "Fish Passage Criteria" will be violated because the proposed private road will prevent Ash Creek from meandering. A long bridge would not do that. 5. The applicant is not required to improve his North Dakota frontage including the bridge over Fanno Creek, thereby violating 18.810.030. REFUGE AT FANNO GREEK(SDR2005-00002) PAGE S OF 40 6. There is no proposed parallel road next to the rail right-of-way in violation of. 18.810.030P 7. There is inadequate visual clearance to the east along North Dakota in violation of 19.795 8. 18.410.040 is violated when the development creates a 2000 foot block perimeter. Exhibit E: Dated December 3, 2005, Ms. Beilke argues that the "Stop Order" issue needs to be resolved. She restates her prior argument that CWS was either confused or negligent in issuing the Service provider letter, because they made a. determination that the vegetated areas were "degraded" only because the significant amount of vegetation, including native willows, was removed in early 2003. Secondly , the prior fill, for which there is Stop Work Order required a DSL permit and that it could not have been to fix the road, because there was no road there prior to the fill. Thirdly 18.775 would be violated because the wetland delineation is not complete and the annual flooding is not accounted for. A 50-foot buffer is required and the proposed mad would violate that standard. The illegal gravel fill has distorted adequate survey of the wetland. Finally the existing culvert for Ash Creek should be removed and the creek restored to its historical meander and that this is the responsibility of this development. Exhibit F: Received December 5, 2005 is SFA response to the issues raised at the first hearing supported by attachments: Technical Memorandum from SWCA Environmental Consultants regarding fish passage, Technical Memorandum from Fishman environmental Services, LLC regarding the location of good buffers, Waste Management Approval Letter, Tigard Significant Wetlands Map and legend, Wetland Delineation Approval from the Department of State Lands, Easement documents relating to Property, Sensitive Area Submittal documents to CWS, Arborist Map, Original CWS Application for a Sensitive Area Certification, CWS Service Provider Letter with Map used by CWS for approval, Building Elevations. The substance of that response will be covered in the Findings below. December 12, Hearing: The HO requested Staff testimony, but none was offered. Mr. Scheidegger indicated that the City is not making any changes to their previous findings. HO: One of those findings had to do with the fact that the applicant had not provided information about the height of the buildings; that information has now been submitted, so I assume that finding, at least, will need to be changed Matt Sprague, applicant's representative, stated that the information he submitted tonight is the applicant's rebuttal to the information presented at the initial hearing (It has been marked as Exhibit G). There are several overarching issues the applicant has responded to; the first is wetlands - how they are delineated and mitigated for. There are two impacts on the east side of the accessway, which are not significant. The third impact is west of the accessway. The Ash Creek • riparian area is not a significant wetland area, but it is a riparian area. The applicant is making the argument that planting would be allowed within significant wetland areas in this particular case; that would be approved or disapproved by the DSL. All activities within the wetlands are also approved by the City. REFUGE AT FANNO CREEK(SDR20OS40002) PAGE 6 OF 40 Another overarching issue is the alternate access; that access is not required, but it is an opportunity to provide connectivity, primarily for pedestrians and bicyclists, but occasionally by emergency vehicles. HO: And the alternate access will be graded and paved? Mr. Sprague replied in the affirmative and indicated that the alternate access has also been reviewed and approved by TVFR. The applicant will need to continue to work with the railroad on the access, however. With respect to the buffers, Clean Water Services (CWS) agrees with the applicant about the condition of the buffers. The applicant has received a letter from CWS approving their plan for improving the condition of those buffers.. The final Issue is fish migration. The applicant is not arguing about whether or not anadromous fish are present in Ash Creek, but is merely submitting an affidavit that shows that the Ash Creek culvert does not detrimentally impact fish passage. HO: What about the report that discusses the fact that Ash Creek meanders and that the private road will prevent that meandering? Paul Fishman, applicant's consulting biologist, responded that there is no regulatory requirement that covers meandering. The existing culvert is passable and meets the standards for fish passage. • There is no requirement for the applicant to make any changes to the culvert; essentially, if it isn't broke, don't fix it. :a John Frewina testified again that he submitted comments on November 14 and supplemental comments on December 5 (Exhibits 'A and D). SFA Design Group has now responded to his December 5 comments. With respect to the alternate access, this plan does show one; the HO is obliged to either approve or disapprove this plan. He indicated that he has visited Washington County records and looked at easement number 950015055. This easement actually provides access to the property, not through the property. The applicant, SFA, responded that they have submitted documentation of all easements benefiting this property; however, these documents do not address access through the railroad property. That is a condition of development and proof of ownership or control must be shown, so this application should be denied. With respect to the technical adequacy of the passage under the railroad, TVFR requires 13.5 feet of clearance under the railroad overpass for emergency vehicle access; the clearance under this railroad overpass is two inches short. HO: That's why I asked whether the access road would be graded and paved. Mr. Frewing agreed that it will be. He then testified that he asked TVFR, how high is their biggest rig? Their best measurement was about 12 feet. The bottom line is that TVFR's largest vehicles simply won't fit through the alternate access. (This was illustrated by a drawing showing the wheels of the emergency vehicles rising 20 -inches above the center point under the trestle, thus 13'8" over the height of the passage), REFUGE AT FANNO CREEK(SOR2005-00002) PAGE 7 OF 40 • With respect to the illegal fill on the site, he believes that he has now documented that it occurred; if HO approves this application, they will be building atop illegal fill and that should not be permitted. Ms. Beilke testified that she didn't have a chance to see the materials the applicant submitted until tonight, but had a couple of responses. She also submitted submitted a new letter (Exhibit H). The first has to do with the stop work order, they argue that if this application is approved, the necessary fill permits will have been acquired. She did not agree with that position. HO: I think they're arguing that they did not fill the wetland areas. Ms. Beilke said that she is arguing that they did. Second, there is the buffer issue; Ash Creek and various significant wetland areas are present on the site. The previous owners cleared the site of understory vegetation in early 2003, prior to the wetland delineation; that act alone changed the quality of many areas later surveyed by CWS and SFA - wetland and buffer areas that would have been found to be in good condition were then found to be degraded: "I have lived in this neighborhood for 15 years, and have seen that area many, many times. A lot of that vegetation is now gone, and that really affects the quality of that habitat." HO: Isn't it true that the access road is the only thing that will be built in the buffer? Also, they are planning to do some plantings and other mitigation. It's a fairly difficult site to develop; they are avoiding most of the wetland and buffer areas. Why is the prior condition of the buffer critical for • me to know? Ms. Beilke replied that when CWS issues a permit to do the work, they assess the condition of the buffers. These buffers have been reduced because of their degraded condition. First; the removal of vegetation affects buffer width, which should be greater than 25 feet between the wetland and the road. For years, even large developers have assumed this site was too difficult to develop and this is still the case. HO: So let's say there was a 50-foot buffer. Or look at it this way. The City has designated this area for development. They could have zoned it open space, but they didn't - that's a policy choice. How would a 50-foot buffer affect the proposal? Ms. Beilke replied that her argument is that there should be a 50-foot buffer all the way around the wetland. To do that, they would have to move the road, and they can't. The only way they could do it would be to reduce the road width to a trail no more than about 5 feet wide. For this reason, and others, the HO should not approve this application; the stop work order has not been resolved. HO: I don't understand that argument. The order is issued, and the work stops. The applicant then applies for a permit, and if it is approved, they resume work. Any penalties will be addressed through a separate process. I'm not sure what further resolution you expect the stop work order is not before me tonight. • Ms. Beilke said that her point is simply that the illegal clearing that took place has influenced every aspect of this application that came later, including the wetland delineation and the buffers that were then approved. REFUGE AT FANNO CREEK(SDR200"0002) PAGE 8 OF 40 . On rebuttal Mr. Sprague waived his right to keep the record open in order to submit a final written rebuttal and expressed confidence in the easement documentation the applicant has submitted in support of the alternative access. He reiterated that TVFR has approved this plan. The diagram that was drawn on the white board is not an accurate reflection of actual conditions as the road passes under the overpass. Brent Fitch testified that he is the engineer on this project and in his opinion, based on his calculations, there is plenty of room for even the largest TVFR vehicles to pass safely beneath the overpass. He added that the dip in the road will be widened to allow even more room. Mr. Sprague continued that the wetland delineation occurred prior to the time the clearing and fill was done on the site, in 2003, and that it was Clean Water Services that concluded that the buffers were in a degraded condition, prior to any work on the site. If the buffers are degraded, then CWS allows you to put into practice a number of averaging scenarios; the applicant is removing a significant amount of old fill and doing some additional planting. HO: The CWS permit is a separate permit, which includes a significant number of conditions? Mr. Sprague: That's correct. Mr. Kusyk, the applicant, summed up that he was very proud of his original application and feels that he has gone out of our way to address all of the concerns the neighbors have raised and asked that this application be approved. HO: Closed the record. FINDINGS The Hearing Examiner adopts as his own and incorporates by reference each and every finding . " and conclusions contained in the November 7, 2005 Staff Report and Recommendation, except to the extent expressly modified or supplemented herein. Only the issues and the approval criteria raised in the course of the application, at the hearing or before the close of the record, are discussed in. this section. Any standard that might be deemed to be an applicable approval criteria but which was not raised by staff, the applicant or a party to the proceeding has been waived as a contested issue and no argument with regard to any such issue or criterion can be raised in any subsequent appeal. Criteria not discussed specifically in these findings below are deemed to be met as discussed in the Staff Report. The site is located in the MUE-2: Mixed Use Employment District. Residential uses are a restricted use in the Mixed Use Employment District (MUE-2). According to Table 18.520.1 attached residential units are subject to the provisions of 18.630 Washington Square Region Center Design Standards. Office uses are permitted outright within the MUE-2 zoning district. As noted at the hearing, the City faces a number of policy choices when it chooses it's zoning • designations. The proposed use for this site, relative to the size of the lot, is a relatively modest one, two office buildings and nine residential units. When the City designates a use for a site that has natural resources and constraints on it for development, it is the hearing officer's fob to determine whether the proposal can meet the City standards. " REFUGE AT FANNO CREEK(SDR200S-00002) PAGE 9 OF 49 • The City Council designated this site as MUE-2, by which I understand that it wanted to see compatible development commensurate with the site's physical characteristics. The policy choice was not open space or some other equivalent. The task is to approve something that would fit on this very constrained site and not to search every plausible theory, however self contradictory, in order to find an excuse for denial. But to respond to every conceivable theory proposed for denying this application, I have to respond to the opponents arguments. We start with Mr. Frewing's 26 issues: JOHN FREWING Issue 1: an alternate access is proposed; the applicant should show clear ownership or authority, to all aspects of that access. The applicant submitted easement documents for all of the existing easements benefiting the property. The easement in question and its purpose under the railroad tracks is shown in book 567 page 615 number (3). "Subject to an easement to Members of the Public for access to that certain Southern Pacific Railway Under-Pass lying approximately one thousand feet northwesterly of Southwest Dakota Street under the Southern Pacific Railway tracks and westerly of the parcels herein conveyed " The applicant has the right to use the easement for an alternative access as proposed and will be working with the railroad in the final design which would be necessary regardless. This issue is raised again by Mr. Frewing as Issue A on December 5, 2005. The language quoted • contradicts Mr. Frewing's argument that the easement is to the railroad right-of-way only. The easement is to the underpass for members of the public. The applicant has provided evidence of their ability to utilize the easement under the railroad. The applicant also argues, just in case, that only one access is required for the proposed development, which is why TVRF has required a sprinkler system. The applicant is nevertheless proposing a second access for emergency use. TVFR has reviewed the applicant's plan and approved the alternate access as described in response to Mr. Frewing's Issue 4 through 6 below. The evidence also shows that the conduit attached to the railroad will be moved upwards to be out of the clear space and not obstruct access and that easement will be graded and paved allowing the largest TVFR to pass through, even under Mr. Frewing's calculations. The applicant's engineer and TVFR are more credible than Mr. Frewing, whose credentials have not been established, on the issue of adequacy of the easement to provide second emergency access. The easement clearly exists under the railroad. Issue 2: the incursion into wetland areas is inconsistent with Section 360 of the code. Alternative construction techniques, such as building on pilings, would be more appropriate. Wetland incursion has been raised by several parties. The applicant is not proposing an incursion into a wetland area other than minor areas to complete the access drive. The applicant is giving regard to the natural environment by reducing the width of the proposed access drive to limit impacts to the wetland resources. The applicant is also giving regard to wetlands by removing • non-native species such as Himalayan blackberry and replanting all of the existing wetland buffers adjacent on the development area in accordance with Clean Water Services standards except for one small area in the northwest comer of the site which is the only area determined to be in good condition. The removal of non-native species and new plantings in the wetland buffers in turn enhance the appearance of the City which is also in the purpose statement of Chapter 360. The REFUGE AT FANNO CREEK(SDR200"0002) PAGE 10 OF 40 applicant has complied with the approval criteria of this chapter and the approval criteria are designed to implement the purpose statement of the chapter. Therefore, the applicant complies with the purpose statement of Chapter 360 Issue 3: the City's notice to the Division of State Lands, which is contained in the record for this case, says a conditional use is proposed. The Staff Report and application do not address section 330, which covers conditional use, and so the application should be denied The notice that was sent out to the Division of State Lands and the notice does not reference a conditional use permit. No conditional use has been applied for by the applicant. The Division of State Lands is currently reviewing the wetland fill permit and proposed enhancement through plantings. Issue 4: TVFR emergency vehicle access minimum width and height requirements are not met by the alternative access proposed in this application - it is too short, by 4-6 inches, to accommodate fire trucks and other emergency vehicles. Also, any flood event will also flood the emergency vehicle access - it is in the 100-year floodplain. The Tualatin Valley Fire and Rescue District reviewed the plan and prepared recommendations for conditions of approval. The applicant is sprinkling the units per condition #3 of the TVFR letter which relates to the Fire Apparatus Access Road Exception For Automatic Sprinkler Protection: This option allows the fire official to approve modifications to the access when buildings are • completely protected with an approved automatic fire sprinkler system.. Condition 3 of the TVFR letter in bold states, . "The. alternative emergency access roadway proposed is acceptable to the Fire District given that all buildings within the development will be provided with automatic fire sprinkler systems " Therefore, the width of the alternative access drive does not have to be 20- feet. The clearance was also reviewed by TVFR and found to be acceptable. The reason the floodplain elevation does not appear on the. alternative access drive is because the lowest elevation on the alternative access drive is 161 feet. The floodplain elevation at this location is below 161-feet. The 100-year floodplain (approximately 160.5') only reaches 161-feet in the extreme northeast corner of the site. Therefore, during a 100 year event, the alternative access mad should not be flooded. Issue 5: TVFR also specifies some critical dimensions for these access roads - for example, a 10X30 foot turnout is required, but is not provided, according to this application. There are also problems with the curve radius of the turnaround and the first public street access. These safety requirements are not met by the current application. The accessway is over 400 feet long and a 10 by 30 turnout is normally required However, the applicant is proposing to sprinkle all of the units and TVFR has approved the accessway as designed. The fire code official can otherwise approve longer access drives without need of turnouts as demonstrated in Condition #3 and #8 of the TVFR letter. Therefore, with review by the fire district, the design complies with this standard M Issue 6: the exterior walls of all buildings cannot be more than 150 feet from the emergency vehicle access. This condition is- not met under the current application. REFUGE AT FANNO CREEK(SDR200S00002) PAGE 11 OF 40 • TVFR has reviewed the applicant's plan. Portions of the building are just over 150-feet from the accessway however TVFR can modify this standard through condition number 3 as they have done. "When buildings are completely protected with an approved automatic fire sprinkler system, the requirements for fire apparatus access may be modified as approved by the fire code official. " Issue 7: the applicant describes buffer trees that are supposed to meet the requirements in 18.360. However, those trees are shown as planted on the railroad right-of-way; there is no evidence that those buffer trees will remain, so I believe that code section is not met. The applicant does not just describe plantings in the railroad right-of-way as a means to buffer the development from rail traffic. The buffering takes place in many other forms including, distance, elevation and new plantings. There is a separation between the tracks and the nearest proposed building of approximately 135-feet. The elevation of the tracks is approximately 15-feet above the site thereby directing much of the noise over the development. The applicant is planting the wetland buffer of which approximately 40-feet exists on the applicants property and the plantings will grow to a height in excess of 4-feet and some of the proposed trees will be much higher than that. Regardless of whether the larger trees are removed from the railroad right-of-way or not, adequate buffering has been provided by the applicant through multiple means of achieving the buffering needed. Issue 8: the Washington Square Regional Center plan proposes transit within 500 feet of this site. Code sections 18.360 and 18.330 are not met by this application. The transit route proposed adjacent to this site will be a commuter rail line and is currently being planned by local governments who will establish the final route and stops along the route if it is ever implemented. No opportunity exists along the site's boundary with the rail line to provide a transit stop as it is physically and economically limited with the raised grade of the tracks, the location of Ash Creek and the intervening wetlands between the tracks and the parking area.. The applicant can however provide provisions for access to the new commuter line by providing pedestrian and bicycle connections from the site to the public streets which will facilitate use of commuter rail by the new residents and employees of the proposed development. The applicant is providing a pedestrian and bicycle access to both Cascade Avenue and North Dakota thereby complying with this requirement to provide provisions for future transit routes. Issue 9: the proposal must be consistent with the surrounding area. This proposal is not consistent with the Washington Square Plan, and so should be denied. The proposal does not violate the ability for transportation improvements to be made as shown in the Washington Square Plan. The WSRC implementation plan contains recommended improvements to the motor vehicle system which include a Nimbus to Greenburg connection. Currently, the City does not have a defined route for this connection. The map currently shows the connection west of the developed area on the site then crossing the proposed access drive where Ash Creek goes below the railroad. The proposal complies with and permits this alignment as the road would miss the proposed buildings and will be elevated substantially in order to clear the railroad tracks. Access to the development would not be affected. In order for.the route to be designed through the developed portion of the site it would require the removal of buildings located immediately north of the site which is unlikely. In addition, the applicant has been conditioned the applicant to submit and receive approval from the City Engineer for a future street REFUGE AT FANNO GREEK(8DR2005*W02) PAGE 12 OF 40 • extension plan that addresses the Collector extension included in the City of Tigard's Transportation System Plan. Issue 10: the rules for public outdoor space require a certain amount of space to be dedicated to public use; this requirement is not met. The rules for outdoor space are very specific and the applicant complies completely. 18.360.090.A.7.b(4) states... "The shared outdoor recreation space for multi family use can be provided as part common space and part private, for example, it could be an outdoor tennis court, indoor recreation room and balconies on each unit. " The applicant is providing both common area and private balconies and therefore complies with the required recreation space approval criteria. . Issue 11: when fill is used in a wetland area, a trail is required. No trail is proposed in this application. 18.360.090 (8) is in reference to floodplains and not wetlands. Where landfill or development is allowed within and adjacent to the 100-year floodplain, the City shall require consideration of the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area is supposed to be at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. The City in reviewing the application has considered this dedication. Because there is an existing pathway on the west side of Fanno Creek, the Staff found that a duplicate path on the east side is not necessary. In addition, the applicant has proposed dedication of all of the lands outside of the development area to the City of Tigard for greenway purposes. The area contains lands within the floodplain of the same elevation as the pathway on the west side of the creek. As such, should the city consider the construction of an east-side pathway through the greenway in the future, they will have more than an adequate amount of land to do so if they accept the dedication. This code section does not require the applicant to construct the pathway. Issue 12: the map of wetland areas and 50-foot buffers is unclear, making it unreadable. Until the wetland area and the buffers are clearly identified, a decision is not possible in this matter. The wetland boundaries and wetland buffers are clearly delineated on sheets one through five and L 1 of the applicant's plans. The wetland delineation has-been approved by the Division of State Lands. Clean Water Services is the agency in charge of the required buffers for the wetlands. They have reviewed and approved the proposed buffers for the project in* accordance with their requirements as shown by the service provider letter submitted by the applicant. Issue 13: the applicant claims to be landscaping more than the 15% minimum of the entire site but the requirement is 20% under 18.360 18.360.A.12.b. & c. requires "...20% of the gross area including parking:, loading and service areas shall be landscaped" and "a minimum of IS% of the gross site area shall be landscaped: " • Two interpretations for this statement could be 20% of the gross area in which you have to include the areas described or just 20% of those areas described. As such, the applicant has run the calculation both ways and complies with the standards. If the gross site including the described areas is included, there is no question that more than 20% of the site is landscaped including natural and planted vegetation as is clearly evident on the plans showing the wetlands and wetland REFUGE AT FANNO CREEK(SOMM-00 ) PAGE 13 OF 40 • buffers. The wetland and wetland buffers west of the developed area consist of 216,519 square feet alone or 60% of the gross site area. If just the parking, loading and service areas are to be included then the calculation is as follows. The parking, loading and service areas equate to approximately 42,929 square feet. Of that area the applicant has landscaped 8,803 square feet or 20.5% not including hardscape. Therefore, the proposal complies with the landscape requirements of chapter 18.360. Issue 14: the applicant does not meet the Washington Square minimum density rules, which as applied require a minimum density of just over 10.12 dwellings and the applicant is proposing 9; this requirement is not met. The minimum density on this site is 25 units per acre and the maximum is set by 18.630.020.D as 1101/o of the minimum density. The minimum density as demonstrated on page 37 of the applicant's narrative is 9.2 units. As it is not possible to build a fraction of a unit, the applicant has rounded down to 9 units as permitted by the City of Tigard. To clarify the maximum, 110% of the minimum density is the maximum density for sites which include or abut a riparian setback. Therefore, 9.2 X 1.10 is 10.12 units maximum. By developing nine residential units (minimum) and less than 110% of the minimum, (which is the maximum) the applicant complies with the density requirements of the code. Issue15: Section 360 requires the creation of CC&Rs. This project does not involve subdivision of land nor a planned Association; therefore, CC&Rs are not necessary or proposed. Access to the units will be provided via a common. easement and maintenance of the common areas will be accomplished through a maintenance agreement rather than CC&Rs. The code requires the applicant to submit existing and proposed CC&Rs. Because there are no existing or proposed CC&Rs, there is no requirement to submit them and the applicant complies with the criteria. Issue16: Section 705 calls for a walkway on Cascade Avenue, but is not shown in the plans. Sidewalks should have planting strips, except when crossing Ash Creek. There is not a specific requirement for a walkway under the railroad tracks. 18.705.030. F.1 states, "Unless impractical, walkways shall be constructed between new and existing developments and neighboring developments. " Because the railroad right-of-way is between the proposed development and existing development on the east side of the tracks, a walkway would typically be impractical. Although not required, the applicant has an opportunity to provide the connection via an easement and has therefore proposed the connection. The code requires hard surfaced materials for required walkways and the applicant has proposed a pedestrian/bicycle pathway in conjunction with the secondary emergency vehicle access which is paved rather than a soft surface as.could be proposed because the pathway is not required.. Planting strips are not required to separate the sidewalk from the driveway. Vehicular use of the emergency access would occur in uncommon flood events to avoid driving through standing water on the primary accessway. Issue 17: the applicant uses different terms, including "driveway" and 'private roads" to describe the auto access to this site. There are different rules for these different designations. Justification for adjustments are not provided. REFUGE AT FANMO CREEK(SDR2005.00002) PAGE 14 OF 40 • The applicant is proposing a private accessway, private driveway or parking lot. There are many different terms that can be used for the type of access proposed and the City has found that the applicant has complied with the applicable criteria for the access and for the adjustment to reduce the width to 22-feet in accordance with 18.370020.C.5. The adjustment is necessary to limit impacts to the floodplains and wetlands on the site. No opportunity to share access as explained below in response to Sue Beilke regarding 18.520 and 18.370. there are no alternative access points on the street in question or from another street, the request is the minimum adjustment required to provide access, the access with.the adjustment remains safe and the visual clearance requirements will be met. The applicant is not proposing a Private Drive or Public Street or Cul- de-sac. See pages 16 & 17 of the applicant's narrative for detailed compliance with the adjustment standards. Issue 18: a bridge over Ash Creek, rather than culvert and fill, would be a better comply with words of 18.775 and minimum required for use is subject to the ODFW fish passage criteria. The approved culvert does not comply. It should not be approved now. The applicant is not proposing a culvert or fills on Ash Creek. The creek currently flows through a large culvert which will remain in place. Because the applicant is not proposing any change to the existing culvert or fill associated with the culvert through which Ash Creek flows, the applicant is providing the "minimum required for use". In addition, the applicant has analyzed the existing culvert for fish passage and has submitted a letter from Steve Novotny who is a Fish and Aquatic Biologist and Steve Johnson who is a Senior Fish and Aquatic Biologist with SWCA Environmental Consultants demonstrating that the existing culvert is adequate for fish passage. In any event I am not sure how the existing culvert not impacted in any way by the applicant would be the applicant's responsibility. There would be no necessary nexus and no legal authority has been sited for this proposition. Issue 19: the current tree plan is incomplete and wrong. Arborist did not identify trees to be removed and new mitigation rules apply. As with all development proposals in Tigard where trees are involved, an applicant hires an arborist to evaluate the existing trees by location, size and species and make recommendations for preserving trees and/or for mitigation. The applicant has attached the original plan by the arborist from which the applicant's tree removal plan was developed. Working with the arborist, the is applicant prepares the "Tree Removal Plan" (sheet 4) which identifies trees to be removed for review by the City. All of the required elements of the Tree Plan are included in the application either on the plans or in the narrative (pages 85 - 90) and arborist report. It has been the policy of the City of Tigard to not count trees removed that are hazardous or impacted by improvements to existing roadways and therefore the hazardous trees are not counted towards the mitigation requirements because they should be removed anyway. A hazardous tree by City definition is 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: " The S application complies with the requirements section 18.790 and how the City views tree removal for hazardous trees. I do not find it necessary to count those trees in the mitigation calculations, the applicant will either pay fee in lieu or propose plantings in accordance with the percentage requirements described in 18.790 for the additional trees as permitted by the Code. The revision REFUGE AT FANNO CREEK(SDR200540002) PAGE 15 OF 40 • would result in three hazardous trees numbered 632, 643, and 644 being mitigated and the total number of trees would be 28. Hazardous trees 660 and 667 are not being removed as their location in relation to buildings, parking areas and walkways will not pose in immediate danger and they will be available for wildlife use. The resulting preservation would be 9 of the 28 trees which is a higher preservation rate of 32% and mitigation would remain at 2/3rds of the 303 inches removed for a total of 202 inches of mitigation. There are no new mitigation rules that apply to the way the applicant has calculated mitigation. The methodology remains the same. Issue A (December 5 objections): Alternate access is inadequate because the applicant's easement 950015055 is to the railroad right of way and not under it. As already discussed, the applicant has submitted easement documents for all of the existing easements benefiting the property. The applicant has provided evidence of their ability to utilize the easement under the railroad. Only one access is required for the proposed development. The applicant is proposing a second access for emergency use. Tualatin Valley Fire and Rescue has reviewed the applicant's plan and approved the alternate access as described in the applicant's rebuttal response to Mr. Frewing's Issue 4 through 6 from the initial hearing. The conduit attached to the railroad will be moved upwards to be out of the clear space and not obstruct access. Issue B: The illegal fill on the site has not been resolved. Several opponents raise the issue of needing to resolve the stop order issue. Stop order is a code enforcement issue and not before me. As discussed at the hearing, there is no. issue to resolve. The applicant has been stopped. The applicant has not violated this order. The applicant will resume or revise that work when an appropriate permit is issued. Approval of this application will address the stop work order by permitting issuance of a permit for the fill material to be on the site. The applicant states that original survey completed by the property owner was done before any fill activities occurred and as a result; the current applicant has the original ground to work from. The fill placed by the owner is accounted for in the applicant's submittal. No fill activities occurred within any wetland areas. Some of the opponents argue that the fill distorted the buffer consideration, but no evidence has been provided that this is so. For the purpose of this application I review the site as I find it, with other agencies approvals. The arguments that the area was not degraded and should have been treated differently by DSL of CWS is a collateral attack on other jurisdictional decisions. Attacks on those decision are subject to different jurisdictional authority, time limits and procedures. For the purposes of these application those agencies findings are dispositive. Issue C: The HO takes notice of the Highway 217 Task force which has recently completed a study which somehow conflicts with this proposal. This issue is addressed under Issue number 9 above and in their rebuttal to public testimony provided at the hearing. No additional argument has been posed by Mr. Frewing in his • supplemental comments. 2nd Issue C: That the ODFW "Fish Passage Criteria" will be violated because the proposed private road will prevent Ash Creek from meandering. A long bridge would not do that. REFUGE AT FANNO CREEK(SOR2005-00002) PAGE 16 OF 40 The applicant has submitted documentation that the existing Ash Creek culvert provides adequate fish passage. The three new culverts proposed by the applicant for high water conditions are not intended for fish passage nor required to meet fish passage criteria as the primary channel of the creek already provides fish passage through the existing culvert. No one is arguing whether native migratory fish are or have been present in the waters. The applicant is arguing and has demonstrated that based on an analysis of the existing Ash Creek culvert, fish passage is adequate at this time and will remain adequate after the development is completed and he is not impacting that culvert. Issue D: The applicant is not required to improve his North Dakota frontage including the bridge over Fanno Creek, thereby violating 18.810.030. The specific. code section being discussed is 18.810.030.A.5.a-f. The applicant has specifically addressed the criteria on page 94 and 95 of the applicant's narrative. More specifically Issues a, b and f. a. "A partial improvement is not feasible due to the inability to achieve proper design standards. " A partial improvement is not feasible because proper design standards can not be met due to the future bridge replacement project and the change in vertical grade. The applicant can not design and buil d a half street improvement without rebuilding all of North Dakota on both. sides and for a considerable distance to the west. This improvement will need to be accomplished in a single project in order to achieve proper design standards. • b. "A partial improvement may create a potential safety hazard to motorists and pedestrians. " The elevation of the applicant's half street improvement would be significantly higher than the opposite side of the street and result in a drop-,off where the frontage terminates. f. "Additional planning work is required to define the appropriate design standards for the street and the application is for a project which would contribute only a minor portion of the anticipated future traffic on the street. " The City of Tigard will need to determine the appropriate vertical alignment and final centerline profile of North Dakota to include the bridge replacement and the approaches to the east and west of the bridge. This project contains only 9 multi-family attached units and 26,000 square feet of commercial office that will contribute only 340 trips per average weekday which is minor in comparison to the existing traffic on the street regardless of the future traffic on the street. The applicant has clearly demonstrated that specified conditions exist which the City has reviewed and found it appropriate that the applicant provide a fee-in-lieu of the half street improvements. Issue E: There is no proposed parallel road next to the rail right-of-way in violation of 18.810.030P The standard in question is 18.810.030.P which states... "Wherever the proposed development contains or is adjacent to a railroad right-of-way; provision shall be made for a street approximately parallel to and on each side of such right-of-way at a distance suitable for the appropriate use of • the land The distance shall be determined with due consideration at cross streets or the minimum distance required for approach grades and to provide sufflcient depth to allow screen planting along the railroad right-of-way in nonindustrial areas. " The applicant is proposing an access way which - provides access in a manner suitable for the use of the land. ' The access has been located REFUGE AT FANNO CREEK(SDR'MWP-00002) PAGE 17 OF 40 with consideration to provide sufficient depth to allow screen planting along the railroad right-of- way. A street is not necessary to make appropriate use of the land and is therefore not required adjacent to the railroad right-of-way. In addition, map 18 of the Transportation System Plan includes no mention of a local street in that location as connectivity is limited by existing development, wetlands, drainage courses and topography. The applicant complies with this standard. Issue F: There is inadequate visual clearance to the east along North Dakota in violation of 19.795 The opponents argument is confusing two very different criteria. One is Vision Clearance and the other is Sight Distance. Vision clearance is measured at point 30 feet from the right of way and the applicant meets this standard. The vision clearance standards can be found in 18.795. For the type of accessway proposed, the vision clearance triangles are formed by measuring 30 feet into the site along the centerline of the access way and 30 feet in both directions along the intersected street. 35-feet is used along the intersected street if it is an arterial only. North Dakota is not an arterial street. The applicant complies with the Vision Clearance requirements and the owner will be responsible for maintaining the vision clearance area. Sight distance, which appears to be the issue being raised, is measured from point 10-feet from the fog line in this case. The applicant has demonstrated that safe stopping site distance exists at the intersection in accordance with the findings in the traffic study and Judith Grey's testimony in the initial hearing. The applicant has complied with both the Vision Clearance requirements and sight distance requirements. Issue G: 18.410.040 is violated when the development creates a 2000 foot block perimeter. 8.810.040.B.1 states... "The perimeter of blocks formed by streets shall not exceed 2- feet measured along the centerline of the streets except. b. For blocks adjacent to arterial streets, limited access highways, collectors or railroads. " The block discussed by I Ar. Frewing is adjacent to a railroad and therefore exempt from the block length requirements. The applicant is providing a bicycle/pedestrian way (alternate access) in the only location possible along the railroad as well. The applicant is not required to meet the spacing standard of 330 feet due to the existence of the raised railroad which presents a topographical constraint and due to the existing development patterns of which the railroad is a part of. In conclusion, none of 1VIr. Frewing's many arguments justify denial of this application, which is an attempt to squeeze a relatively modest development out of very limited site. DAVID DRESCHER Issue l: What is the floodplain elevation? The elevation of the floodplain increases with distance as you go upstream because the elevation of the creek bed and floodplain rises. The elevation of the floodplain on this site is 160-feet at the bridge on the lower part of the creek and 161-feet on the upper stretch of the creek near the sites northern boundary. The applicant has taken this into account when establishing the finished floor elevations for the buildings to ensure they are elevated above the flood plain by approximately 1.5- feet. • Issue 2: Wetland delineation is needed to evaluate a variance. The applicant is not proposing any variances. The applicant is proposing an adjustment to the width of the access drive and the front building maximum setback from a public street in order to REFUGE AT FANNO CREEK(SOR20054)0002) PAGE 18 OF 40 limit impacts to resources. The wetland delineation approval from the Division of State Lands including the applicant's delineation report has been included with the applicant's response. Issue 3: Photos indicate that most of the site was in good condition until sometime in 2003 The photo evidence submitted by Mr. Drescher does not demonstrate that the buffers were in good condition. The vegetation that is seen in the aerial photographs includes primarily non-native species such as Himalayan Blackberry which is shown. as growing out over the access road to North Dakota. The buffers are not and were not in good condition in 2003. A Technical Memorandum from Fishman Environmental Services (attached) dated June 22, 2004 describes and has an exhibit of the only location where the vegetated corridor is designated in good condition. Issue 4: The driveway had not been used as such and since 1953 the access was under the railway. The aerial photographs submitted by the opponents show the access road in the 1936, 1950 photos. More vegetation has grown up on each side of the access road in the photos from 1968, 1977 and 1983 however; the access road is still visible. The age of the access road and the amount of use it sees is not relevant nor does it have a bearing on the approval. The fact that it is there simply means that because no other access is available to serve the site, the access will be utilized and the fact that it is there also reduces the impact constructing a new access would cause otherwise through the same area as no alternative exists. Due to the Necessity of Way Standards, the City is obligated to permit access to the public street where available. This evidence also contradicts Mr. Frewing's repeated assertions that there is no easement under the railroad, only to it. SUE BEELIKE Ms. Beilke asserted violation of a number of ordinances, although the heart of her complaint is that, notwithstanding the zoning and the surrounding development, the site contains important wetlands and two creeks which ought to be preserved to provide habitat for fish and wildlife species and that the City of Tigard should purchase it and protect it. 18360.070 . The applicant has included the proposed elevations within the attached information demonstrating compliance with all of the design standards and height requirements. The residential structures will be slightly less than 39 feet in height above the lowest floor grade and the commercial buildings will be slightly shorter at 32-feet tall. Therefore, the applicant proposes buildings of a height less than 60-feet which is the maximum height within the MUE-2 zone. The applicant submitted a landscape plan in the initial submittal and addressed the landscape requirements in response to John Frewing's Issue # 13. _ 18.520 See the initial findings and responses to John Frewing's #13 and 18.360.070 above. The applicant complies with the building height and minimum landscape requirements as shown by the submittals of December 5, 2005, but even if he didn't this is only requires a condition of approval. 18520.2 and 18370 The applicant has discussed the attempts to acquire access to the site from a northerly direction with the opponents as a part of the neighborhood meeting and meetings with individual members REFUGE AT FANNO CREEK(SDR20054)0002) PAGE 19 OF 40 of Fans of Fanno. In addition, the City Engineer stated that the City would not want the primary access to be via an easement across another property. It would have to be in a tract. When the applicant contracted to purchase the property, the first goal was to achieve access from Nimbus to the north. The applicant contacted the agent that was marketing that property. After the agent contacted the owner of the adjacent property, the agent informed the applicant that the owner had no interest in any discussions about his property being encumbered in any way or at any price by the subject property. This is unfortunate for the applicant in that the northerly direction would be the most economical connection to make for the development. The applicant pursued this access as required by the development code. No alternative exists for access that would allow the applicant to design in a manner which would not require the adjustment to the maximum setback from a public street even if the alternative access to the north was available. The setbacks relate to the building locations in relation to the public street not the location of the access. I believe that it would have been in the applicant's every interest to secure northern access if it was possible. In choosing the only access possible, the applicant was acting rationally. 18.705 The applicant has attempted to obtain access to the north as described above. 18.370.020.5.b(1) & (2) are two of the criteria that must be met in order to allow the adjustments to the access. Both of those relate to shared or alternative access points. The applicant has no opportunity to provide shared or joint access with an adjoining property and therefore complies with the standards for approval of adjustments to the access. In addition, the widths of the requested adjustments have no relation to the Washington Square Regional Center Plan and Design Standards regarding Nimbus. 18.630 The Washington Square Regional Center Design Standards were developed to implement the Washington Square Regional Center Plan. The Plan is not intended to show all future building locations and no final alignment has been determined for the extension of SW Nimbus. The City is not even sure that the extension is economically feasible. The applicant has addressed the Design Standards of 18.630 and demonstrated compliance with all but the maximum front yard setback standard Because the City recognized that complying with all standards may not always be possible due to site conditions or conflicts with other Code requirements, they provide a method for adjusting or varying from those standards. In order to meet the standard in question, the applicant would have to build a building in Ash Creek and the Significant Wetlands of Yanno Creek. The code does not allow this and therefore, the applicant must request the adjustment. The applicant has demonstrated compliance with the adjustment criteria and the City Staff has recommended approval of the adjustment based upon their findings and the applicant's information. Neither the WSRC Plan nor the City's Transportation plan show a trail along Ash Creek Ash Creek is represented on the plan as a dotted line which may be mistaken as having the appearance of a pathway. 40 18.775 Bullet 1: Neither the WSRC Plan nor the City's Transportation plan show a trail along Ash Creek. Ash Creek is represented on the plan as a dotted line which may be mistaken as having the appearance of a pathway. REFUGE AT FANNO CREEK(SDR2005-00002) PAGE 20 OF 40 Bullet 2: The 'applicant has proposed the dedication of open land area to the City should they decide to accept it for greenway purposes. See response to John Frewing's Issue # 11 Bullet 3: The code section referred to states, "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. " The applicant has no alternative access to a public street and therefore must provide access to SW North Dakota. The access is being constructed on top of the only existing access to the property which can accommodate the use contemplated. The applicant has reduced the width of the access through the adjustment process. Therefore, since no alternative access exists and the width is being reduced, the applicant has proposed land form alteration or development in a manner which is the minimal necessary to access the site and therefore will not create disturbances to an extent greater than that required for the use. Bullet 4: See response to John Frewing's Issue #11 Bullet 5: The applicant is altering wetlands in three locations. The first two are on the east side of the existing accessway along Ash Creek. These wetlands are not designated significant by the City's "Wetlands & Stream Corridors" mapping (See attached map and legend). There is a riparian setback overlay only on the east side. These two areas can be clearly seen on sheet 3 of the submitted plans. The first is approximately 200 feet north of North Dakota near the 159-foot contour line and the second is north of that where the applicant proposes to install 3 new culverts for large storm events. These two wetland areas on the east side of the accessway are considered Jurisdictional and'therefore land form alterations are permitted in compliance with 18.775.020.) 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 Engineers, Division of State Lands, CWS, and/or other federal, state, or regional agencies, and are 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 The remaining wetland area is significant and is located on the west side of the access drive. The applicant is proposing to install wetland plant materials as shown on the landscape plan. The area is labeled "Wetland Enhancement Area" and is part of the permit from the Division of State lands and Army Corps of Engineers for the filling of the two small wetland areas on the east side of the access road This is permitted by Tigard Code as activities restricted in significant wetlands are those that include "land form alterations or development" as excepted from the Code and shown above. The definition of development as defined by the City of Tigard Development code is as follows: "Development" - 1) A building or mining operation, 2) a material change in the use or appearance of a structure or land; or 3) division of land into two or more parcels, including partitions and subdivisions as provided in Oregon Revised Statutes 92. The proposed plantings do not include a building or mining operation, a material change in the use or appearance of a structure or land or a division of land into two or more parcels. REFUGE AT FANNO CREEK(SDR2005.00002) PAGE 21 OF 40 • Tigard code does not have a definition for "land form alteration! 'however based upon the wording, land form alteration consists of a change to the land in question such as grading, not the vegetation upon it. Therefore, the proposed plantings should be permitted regardless if it is under City direction or not. In the alternative the applicant has offered to complete the wetland mitigation plantings on the east side of the accessway instead. Finally, the City of Tigard Development Code implements the City of Tigard's Comprehensive Plan. By complying with the Development Code, the applicant complies with the Comprehensive Plan. 18.775.090 The applicant is submitting the wetland delineation report with the letter of concurrence from the Division of State Lands who found the wetland and waterway boundaries to be accurate. The wetland buffers on the other hand are regulated by CWS Design and Construction Standards. The applicant submitted a Sensitive Area Assessment (also attached) and received approval by CWS for the design and concurrence on the condition of the buffers. The buffers were found to be in a degraded condition except for one small area in the northwest comer of the site. As a result, the applicant is required to bring the condition of the buffers up to a good standard and will be planting their entire width of the approved buffers with upland vegetation plantings further improving the on-site resources. As discussed before, Ms. Beilke's argument is either incorrect and the CWS classified the buffer area as degraded before any fill or CWS made an error and this is a collateral attack on the decision of another agency, in which case the argument should be • raised with CWS in accordance with their procedures and timelines. The record shows that the vegetative community assessment as dated July 29, 2003 for this previous application - the N.Dakota Condos. DSL wetland delineation was approved January 12, 2004 - based on materials dated July 25 and 29, 2003. While Mrs. Beilke argues that the damage to the buffer was done in early 2003 - her photographs have no internal datings, but she dates them as July, 2003. She provides neither independent specific dates, nor written evidence. The applicant admits that the property owner completed some clearing work on the upland areas outside of the wetlands in 2003. The vegetation removed from the existing access was primarily non-native Himalayan Blackberry which prohibits the growth of native species. Other vegetation removed consisted of a boxwood hedge, laurel hedge and small trees less than 6-inches near where the home used to be located. There were some small undergrowth native species removed on this portion of the site however this is not prohibited on an individual property so long as the vegetation removed is not significant trees or within wetland areas. The large tree shown in the photograph submitted by Ms. Beilke was already dead and lying on the ground. It was not cut down by the owner. The owner of the property cleared the property in a manner permitted by the Code and CWS. In removing the overgrown vegetation on the site, the owner also removed two truck loads of garbage from several "bum" camps consisting of tents, mattresses, syringes, garbage, sleeping bags, etc. Even Mr. Frewing photograph from December 5, 2005 still shows garbage and tires • under on the path toward the under-pass which implies that the area has a long history of being a dumping ground. In addition, this application includes the removal of fill that was historically placed on the site including concrete, asphalt, dirt, chunks of curb and rock. The fill appears to be from an old street improvement somewhere nearby and shows on the 1974 USGS mapping of the area along with the existing access to North Dakota This application provides the opportunity to REFUGE AT FANNO CREEK(SDR20054)0002) PAGE 22 OF 40 t • remove additional "garbage" from the site and improve the resource as the fill area is within the wetland buffer area. In the final analysis the vegetative state is now what it is and the issue of whether DSL or CWS made the correct assessments is theirs to consider or reconsider. I find applicant's testimony and evidence on this issue substantial and convincing. 18.790 A tree removal permit is necessary to comply with the tree removal standards of the Tigard Development Code, not because sensitive lands exist on the site. A tree protection plan is described in detail in the arborist report. A mitigation plan is not required because the applicant can pay a fee-in-lieu of mitigation for the removal of trees. No tree was removed on the site in 2003 which would require a permit or mitigation. The applicant invites the City on the site to investigate any tree removal that is alleged to have occurred Stop Work Order The stop work order was placed upon the owner as a result of adding gravel to the existing driveway for maintenance purposes. No work on the site has been done on the site since the stop work order went into effect. The current applicant and application when approved will dispose of the issue by authorizing proper permits and approvals from the proper agencies for the rock which was placed on the existing roadway. The applicant's base mapping was completed prior to the owners work and therefore the original. ground elevations are known and the calculations for cut and fill will be based on the site prior to the rock placement. On December 5, 2005 Ms Beilke reiterated her issues Bullet 1 The stop work order has been addressed both by the City of Tigard and the applicant in previous responses. The fill did not result in the creation of the access. The property owner was placing rock on the access as a part of its maintenance. The stop work order requires the acquisition of appropriate permits for the fill activity. The approval of this application will fulfill this requirement because the proper approvals for fill on the site will have been acquired. Clean Water Services is also in agreement with the applicant's findings that the wetland buffers. are and have been degraded save one small area in the northwest comer of the site. Clean Water Services has provided the applicant with a Service Provider Letter which addresses the buffers proposed and approved by them. All of the buffers are not 50-feet because of the existing access, CWS recognizes the applicant's right to access the property and the applicant in tum has provided buffers in some areas exceeding 50-feet and will be removing the historic fills in exchange for some of the reduced buffers. The buffers have all been proposed, reviewed and approved in accordance with Clean Water Services Design and Construction Standards. Bullet 2 The City's significant wetland mapping previously submitted by the applicant including the legend • clearly demonstrates that the wetland area on the east side of the accessway is not significant wetland but a riparian corridor instead. The applicant is therefore permitted to fill within this wetland area as long as the applicant obtains the necessary permits from the Division of State Lands, Army Corp's of Engineers, etc. This application will not alter a significant wetland on the east side of the accessway. There is no restriction from altering the floodplain in the manner the REFUGE AT FANNO CREEK(SOR20o5-00002) PAGE 23 OF 40 • applicant has proposed. Because of the proposed work within the floodplain, the appropriate decision maker is the Hearing's Officer and based on the findings below and in the Staff Report all the flooplain permits are approved with conditions. Bullet 3 The wetlands and -wetland buffers are described within Bullet Item 1 above. The buffers under many circumstances would be 50-feet however the applicant must be able to access the property so in some areas the buffers are less and additional buffers have been added in other areas such as just north of Ash Creek between Fanno Creek and the proposed access. The applicant has received approval from Clean Water Services. Clean Water Services is the responsible agency for reviewing and approving wetland buffers in accordance with their Design and Construction Standards. Bullet 4 The wetland delineation for the site is complete and has been approved by the Division of State Lands as shown by the approval submitted December 5, 2005 by the applicant. The field work and survey was completed prior to the placement of any fills on the site and the mapping is an accurate depiction of the existing wetlands. Bullet 5 A hydrology report is not required to be completed because the flood plain elevation was determined through a study in 1996 which established the flood plain elevation at 160 feet at the south end of the site and 161 feet at the north end of the site. The accessway does see periodic flooding during the winter at this time. The applicant will be raising the grade of the accessway as shown on the grading plan (sheet 3) through a process of balanced cut and fill to maintain flood storage volumes. The grade will be raised approximately 2 to 3 feet higher than the current access way elevation. This will minimize the amount of flooding that will occur. On average, the accessway will flood once every 5 years at the proposed elevation. The elevation of the crossing at the railroad tracks is above'the 100 year floodplain elevation. Bullet 6 There is no requirement for the. applicant to alter the creek channel. The applicant is not arguing the existence of whether native migratory fish are or have been present in the waters and a determination by the Oregon Dept. of Fish and Wildlife is not necessary. The existing Ash Creek Culvert provides adequate fish passage as demonstrated previously by the applicant through their consultant SWCA and their memorandum submitted December 5, 2005. BRIAN WEGENER - oral testimony Public Transportation See response to John Frewing's Issue #8 above. Access with adjoining parcels See response to Sue Beilke 18.520.2 and 18.370 above. Cause or increase clear and present danger The director has not found that the applicant is increasing an existing hazardous traffic condition, providing inadequate access for emergency vehicles or in any other way causing hazardous conditions to exist which would constitute a clear and present danger to public health, safety or REFUGE AT FANNO CREEK(SDR2005.00002) PAGE 24 OF 40 general welfare. As such the director has not referred any building permit to the Planning Commission. The alternative accessway is not a required accessway however the applicant has an opportunity to provide it for the benefit of the residents and employees of the condominium units and for emergency vehicles. If the residents feel uncomfortable using the primary access due to standing water, they can take the alternate access instead. The need to use the alternative access will occur very infrequently. The fire department has reviewed the plans and have approved them deeming the alternate access acceptable based on their condition #3 (bold section). The elevation of the alternative access is currently proposed above the 100-year floodplain as the area in question is higher. In addition, even if the area were for example a foot or two below the floodplain elevation, the access would still be passable. Not result in erosion, sedimentation, ground instability. The applicant is not proposing fences in the floodway. The walls proposed do not project above the accessway and will not create erosive conditions up-stream, downstream or on the opposite stream banks due to reflection. This accessway is located within an area of very slow velocities well below 3.5 feet per second which is the rate upon which erosion typically occurs. During large storm events which create flooding up to the accessway, the velocities will be approximately 2.0 feet per second in flood conditions. ADJUSTMENTS: An issue had been raised whether the adjustments by the applicants requested were properly justified. To summarize the findings contained in the Staff Report 1. This request asked for an adjustment to the width standard for a multi -family and commercial driveway, as directed by Table 18.705.2. which states that a multi-family development with between three and 19 units should have a driveway with a pavement width of 24 feet, if two-way. This standard is the same for commercial pavement width for parking areas containing zero to 99 spaces. The proposal requests the pavement width be reduced to 22 feet. The applicant's proposed accessway is hampered by the proximity of Fanno Creek, Ash Creek and their associated 100-year floodplain and wetland areas. There are no adjacent developments where shared access with the subject site is possible. The subject site is surrounded by existing development, railroads and sensitive areas. The Development Code does not have access separation requirements for neighborhood routes. In any case the closest to the proposed parcel is approximately 67 feet to the west on the south side of North Dakota. The proposed site plan shows that with minimal grading, and the placement of retaining walls, a minimum paved width of 22 feet along the majority of the main accessway can be provided The plan shows the ability to widen the accessway to the required 24-foot width at the entrance to SW North Dakota Street, where it is most critical. The applicant is providing the maximum width for the accessway that is possible, given the wetland and floodplain constraints of the site. The applicant has also obtained approval for the proposed accessway width from Tualatin Valley Fire and Rescue. Therefore, the required adjustment is the minimum needed to provide adequate access. Based on the summary analysis of the Staff Report findings provided above, the adjustment criteria • for 18.705 (Access, Egress and Circulation) have been satisfied 2: - The applicant is also proposing a modification to the maximum dimensional requirements of 20 feet for the front yard building setback requirement of the MUE-2 zoning district. The modification to the maximum setback is requested The applicant cannot build a structure fronting. REFUGE AT FANNO CREEWSDR200S00002) PAGE 25 OF 40 • SW North Dakota Street due to the existing drainaggeway location of Ash Creek. Ash Creek contains a riparian corridor and setback. The desired character of the area is to provide a high-quality mixed- use area, providing a convenient pedestrian and bikeway system, and utilizing streetscape to create a high quality image for the area (see next finding). The project provides a mixed use condominium development in a mixed use zone. The buildings front the access drive to best meet the "streetscape" characteristics desired. The project provides a convenient pedestrian and bikeway system by providing connections to SW North Dakota Street and SW Cascade Avenue. In addition, the Fanno Creek Greenway adjacent to the west of the site contains a pedestrian/bicycle pathway for the enjoyment of the new residents and employees. Therefore, the proposal is consistent with the desired character of the area as specified in the plan. The proposed modification is the minimum required to grant the applicable permits listed. The site's unusual characteristic along SW North Dakota Street require that a modification be granted in order to preserve and protect the natural resources located in this area. A building cannot be constructed in the drainageway. Based on the summary analysis of the Staff Report findings provided above, the Adjustment criteria for 18.520.2 (Adjustments to Density Requirements in the Washington Square Center) have been satisfied. SENSITIVE LANDS The project site is located in an area mapped in the Fanno Creek Watershed. What follows will summarize the findings related to the sensitive lands issues raised by the opponents: FLOODPLAIN • The subject site of the proposed project has been identified with 100-year floodplain, drainageways slopes greater than 25%, and significant wetlands on Tigard's Wetlands and Stream Corridor Map. The proposed development will involve floodplain alterations that will allow construction of structures intended for human habitation on lands within the 100-year floodplain. • The base flood elevation for the subject site is shown to be 160 feet according to the Flood Insurance Rate Maps of February 18. • The applicant has indicated that construction materials will be reviewed at time of building permit. In order to ensure that the proposed building materials will be resistant to flood damage, the applicant is required to provide information regarding the proposed building materials to a member of the Planning Department Staff for analysis and approval from Tigard's Building Official prior to building permits. • The applicant proposes to keep all of the buildings finished floor elevations above the 100- year flood plain elevation (160) by approximately 1.5 feet. Improvements such as utilities and paving in the 100-year flood plain will not be impacted by flood damage. Proper culvert sizing and placement ensure proper directional flow and limit erosion to those facilities. • • All mentioned equipment is proposed to be elevated and located to prevent water from entering or accumulating within the components. during conditions of flooding. • The proposed water supply system has been designed to eliminate infiltration of floodwater REFUGE AT FANNO CREEK(SDR200540002) PAGE 26 OF 40 • into the system. • The applicant has indicated that no structure or facility would be susceptible to flotation, collapse or lateral movement. Anchoring will be reviewed during building permit phase. • The applicant has indicated that the proposed sanitary sewerage system has been designed to the specifications required by this criterion. • The only on-site water disposal system is the proposed Stormwater management facility which is a cartridge system. The system is located in an area subject to flooding, however, no impairment to them or contamination. The system works in a manner that should flood waters flood into the system the waters are likewise treated before released. Contamination is also minimized with a flap prohibiting inward migration of floodwaters. As a result, the facility is not a source of contamination that would affect floodwaters. + The applicant has proposed the new residential structures to be designed with the lowest floor elevated at approximately 1.5 feet higher than the base flood elevation. No fully enclosed areas are proposed for the residential structures, including crawl spaces. The residential buildings are proposed to be slab on grade. • According to the base flood elevation (160 feet) the proposed commercial buildings are partially located within the 100-year floodplain. Therefore, the applicant is required to submit additional information that satisfies Section 18.775.040.M (Nonresidential Construction). Satisfaction of the requirements will be at the discretion of a member of the Planning Staff. CONCLUSION: Based on the analysis above, the General Provisions for Fooodplain Areas can be met if the applicant complies with the conditions below: CONDITIONS: • Provide information guaranteeing that the proposed building materials are resistant to flood damage to a member of the Planning Department Staff for analysis and approval from Tigard's Building Official prior to building permits. Submit additional information that satisfies Section 18.775.040.M (Nonresidential Construction). Satisfaction of the requirements will be at the discretion of a member of the Planning Staff. WITHIN 100-year FLOODPLAIN According to the applicant's grading plan, a zero-rise cut and fill has been certified by a professional engineer. The same floodplain volume that exists will exist at the completion of construction to ensure that no increase in the flood elevation will occur as a result of this project. The applicant's site grading plan illustrates a zero-rise cut and fill that is certified by a professional engineer. The same floodplain volume that exists will exist at the completion of construction to ensure no increase in the water surface elevation of the 100-year floodplain will occur. REFUGE AT FANNO CREEK(SDR20054)0002) PAGE 27 OF 40 • There is an existing pedestrian/bicycle pathway on adjacent property to the west. No pedestrian/bicycle pathway is required on the subject site. The applicant has indicated that the necessary permits from the above agencies are in the process of being obtained and has introduced evidence of wetland delineation from DSL and service provider letter from CWS. Prior to site work, the applicant is required to provide copies of the permits obtained from the US Army Corps of Engineers, Division of State Lands and Clean Water Services. CONCLUSION: Based on the analysis above, the 100-Year Floodplain standards can be me if the applicant complies with the condition below. CONDITION: Provide copies of required permits to work within the associated wetlands, from the US Army Corps of Engineers and State of Oregon Land Board, Division of State Lands and Clean Water Services. STEEP SLOPS • According to the applicant, the subject site has slopes that are greater than 25%. Therefore, the criterion of Section 18.775.070.C "With steep slopes" applies. • The applicant's proposal to tie the existing sensitive slopes to the proposed grades is the minimum alteration possible to the slopes as a part of the balanced. cut and fill activities in the floodplain. • Erosion control will be placed per the requirements of Clean Water Services to prohibit erosion and stream sedimentation. Embankments will be placed using standard engineering design practices, which will be reviewed by the City's Engineering Department. There are no steep slopes in the area of the proposed buildings. Irregardless, the placement of the proposed buildings has been sited and designed with no crawl spaces and is proposed to be slab on grade or have "piers". • The applicant has submitted a landscaping plan that addresses the re-vegetation of all areas disturbed. Therefore, this standard is satisfied CONCLUSION: Based on the analysis above, the Sensitive Lands standards have been met. WITHIN DRAINAGEWAYS: • The development is only proposing alterations necessary to install improvements for the use proposed 0 The applicant has provided a grading plan that illustrates erosion control measures that will • be in-place after mass grading. Erosion control measures are reviewed by Clean Water Services and the City's Engineering Department to ensure no erosion, stream sedimentation or other adverse impacts affect the associated drainageway. A condition of approval has been imposed later in this report under 18.810 (Street and Utility REFUGE AT FANNO CREEK(SDR200S.00002) PAGE 28 OF 40 • Improvement Standards). • The applicant's grading plan illustrates a zero-rise cut and fill that is certified by a professional engineer. The applicant's grading plan will result in zero balance cut and fill in the 100-year floodplain storage capacity. In addition, the applicant will be installing three additional 24-inch culverts in the access drive for large storm event overflow. As a result, the water flow capacity of the drainageway is not decreased. • The applicant has submitted a landscaping plan that addresses the re-vegetation of all areas disturbed. • The applicant is not replacing the drainageway. The existing culverts will remain in place and additional culvers will be installed for large storm events. • The applicant has indicated that the necessary permits from the above agencies are in the process of being obtained and has since shown the necessary DSL permit (December 5, 2005 submission). The applicant has been conditioned above under the 100-year floodplain criteria to provide copies of the required permits. • No dedication of land is required for this project to build a pedestrian/bicycle pathway. There is an existing pathway on the adjacent property to the west. CONCLUSION: Based on the analysis above, the drainageway standards have been met. WITHIN WETLANDS • The subject site contains areas designated as significant wetland on the Comprehensive Plan Fooodplain and' Wetland Map. The applicant is altering wetlands in three locations. The first two are not designated as significant on the mentioned Wetland Map as they are i . located east of the proposed access drive adjacent to Ash Creek. Ash Creek only contains a riparian setback designation and no wetland designations on-site. The applicant however is proposing an alteration to wetlands vegetative corridor shown on the map on the Fanno ' Creek side of the access drive. The applicant has indicated that the alteration is being completed as allowed under 18.775.020.C (24), which allows the removal of non-native _ vegetation and planting of native species. These alterations are exempt because they will _ be completed under the direction of the City, Division of State Lands, Clean Water Services and under 18.775.090.B.5.f of the Development Code. In summary, the applicant is altering two small wetland areas (0.02 and 0.01 acres) where necessary for the installation of the access drive and enhancing another 0.06 acres to'mitigate the impacts. • Section 18.775.020.C only allows activities within significant wetlands under the direction of the City. The proposed project is a private development None of alterations to the subject site have been under the direction of the City. Enhancements within significant wetland vegetative corridors are addressed under the direction of Clean Water Services and • 18.775.090. • The applicant is required to improve all of the vegetative corridors except that which is north of proposed building #1. The area to the north is being improved by Clean Water REFUGE AT FANNO CREEK(SDR2005.00002) PAGE 29 OF 40 • Services. The applicant has indicated that the wetland alterations are the minimum necessary for the installation of the access drive. • The proposed drainage of the subject site will not impact the associated wetlands. The applicant has stated that the requirements of the project biologist, Clean Water Services, the Division of State Lands and Corps of Engineers will be followed to ensure that adverse impacts are avoided. Therefore, this standard is satisfied. • The applicant has indicated that erosion control measures in accordance with the erosion control provisions of the Surface Water Management program of Washington County will be installed. All areas not covered by structures or impervious surfaces will be replanted. The applicant has submitted a landscape plan demonstrating that all disturbed areas will be replanted. • The proposed project involves drainageways, steep slopes and 100-year flood plain, which have been addressed within the Staff Report and found to meet the applicable criteria. • The applicant has been conditioned to provide the City of Tigard with documentation that the necessary permits from the required agencies have been obtained. • Tree Removal is addressed below under 18.790 (Tree Removal). CONCLUSION: The proposed development plan addresses these plan policies. The majority of the wetland area on the property will remain in its natural state. The site plan accommodates the Fanno Creek Greenway Trail as it has been constructed already on the west side of the creek. The Comprehensive Plan and Comprehensive Plan Map guides development throughout the City of Tigard and is implemented through the Development Code and Zoning Map. DEVELOPMENT ALONG FANNO CREEK -18.775.090 • The standard width for the vegetated corridors for Ash Creek and Fanno Creek at the subject location is 50 feet. In this location the buffer is shown as 50 feet. The applicant has indicated that a delineation of the associated wetland and buffer has been completed.. the applicant is required to provide a copy of the wetland delineation and the hydrologist's report that addresses the condition of the wetland buffer of Fanno Creek. • The . applicant has indicated that the associated vegetative corridor is in a marginal/degraded condition. According to the criterion, the corridor can be reduced to 50% of the standard width (50 feet). However, this standard does not apply according to section 18.775.090.B.5.g addressed below. • The applicant has indicated that a wetland biologist was hired to address impacts and appropriate mitigation measures for the associated wetlands and vegetative corridor found on the subject property. The applicant has also stated that an application to Clean Water Services addressing the impacts and proposed mitigation was approved in April of 2005. The applicant has been conditioned within this section to provide the' delineation of the associated wetlands and their-buffers and the copy of the CWS approval. (DSL and CWS approvals were provided on December 5, 2005) REFUGE AT FANNO CREEK(SDR200540002) PAGE 30 OF 40 • • The applicant has proposed to encroach into the vegetative corridor of the wetlands associated with Fanno Creek in order to replace the existing driveway associated with the property with a paved access drive to the proposed development. According to the applicant, the access drive has been approved by Clean Water Services and has been addressed in this report under 18.705 (Access Egress and Circulation). The applicant has been conditioned to provide Clean Water Services approval. Therefore, the vegetative corridor widths/.setbacks do not apply. • The applicant has stated the narrative that the proposed alterations within the established corridors are not designated as "good condition". In portions of the site, the 50-foot buffer is impacted where it is in a degraded condition. According to the above standard, provisions of Section 18.775.090.B apply when, "Land for alterations or development are located. within or partially within the minimum width area established for marginal or a degraded condition vegetated corridor, as defined in Section 18.775.0303.1" Therefore, the provisions of 18.775.090.B apply which allow roadways and driveways within the established buffers under 18.775.090.B.5.g of the Sensitive Lands Chapter. CONCLUSION: Based on the analysis above, the Sensitive Lands standards will be met, if the applicant complies with the condition listed below: CONDITION: Provide a copy of the wetland delineation and the hydrologist's report that addresses the condition of the wetland buffer of Fanno Creek. • TREE REMOVAL -18.790 • There are 28 trees on-site that are greater than 12-inches in diameter. The applicant's arborist has indicated that five of these trees are hazardous and need to be removed, leaving 23 trees viable for mitigation. Of the 23 trees remaining, the applicant will be preserving seven (30%) and removing 13 (70%). According to the mitigation requirements, retention between 25% and 50% of the trees greater than 12 inches in caliper requires two thirds mitigation of the inches removed. According to the applicant, the project is removing 263 inches. Therefore, two thirds would equal 174 inches. The applicant has not indicated how mitigation will be satisfied. Therefore, the applicant is required to provide a tree mitigation plan for 174 inches. • The applicant will need to record a deed restriction for all trees to remain on-site, either { independently or for the entire site. CONCLUSION: The Tree Removal standards can be met if the applicant complies with the conditions below, the standard will be met. CONDITIONS: + If trees are to be removed in sensitive areas according to Chapter 18.775 (Sensitive Lands) • in the Tigard Development Code, a tree removal permit must be obtained. Provide a tree mitigation plan for 174 inches. The applicant will need to record a deed restriction for all trees to remain on-site, either REFUGE AT FANNO CREEK(SDR200540002) PAGE 31 OF 40 independently or for the entire site. ♦ Prior to site work, 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. • Prior to site work, the applicant shall submit a detailed construction schedule to the City Forester for approval with notations as to when tree protection devices will be either installed or removed throughout construction of the project. ♦ 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: o Visible. o Constructed of 11 Gauge steel chain-link fencing supported on at least T' 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. o 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 construction activity, including material storage, may occur behind the fencing. o Inspected and approved in the field by the project arborist and City Forester prior to clearing, grading, or the beginning of construction. o Remain in place and maintained until all construction is completed and a final inspection is conducted ♦ Prior to issuance of building permits, 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. ♦ 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 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 with 18.790.060 (D) will be credited against the cash assurance, for two years REFUGE AT FANNO CREEK(SOR20OS40002) PAGE 32 OF 40 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. Prior to Certificate of Occupancy of the commercial buildings, 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 final building inspection, 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, 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. CONCLUSION: As stated before, the findings of the Staff Report, some of which have been summarized above to provide an overview of the Sensitive Lands issues and the two adjustments granted, are adopted with slight modification by the Hearing Officer. This is not an easy site to develop and the applicant's proposal deals with all of the applicable requirements imposed by the Tigard City Code while minimizing the impacts on the protected areas. The aerial photos of the area clearly show that the attempt is consistent with the adjoining areas. The opponents basic issue is really with the MUE-2 zoning designation for this site, but the applicant meets the criteria established by the City and should be approved, with conditions. DECISION Based on all the foregoing findings and the findings of the STAFF REPORT and except as conditioned below, this application .is approved in general conformance with the applicant`s proposal, preliminary site plan and the plans and reports associated with this proposal. This approval is granted subject to the requirements that the applicant, owner or subsequent developer (the "developer") shall comply with all applicable code provisions, laws and standards and the following conditions. These conditions shall be interpreted and implemented consistently with the Staff Report findings and the Findings contained in this decision. CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO SITE WORK: The applicant shall prepare a cover letter and submit it, along with any supporting . documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION. The cover letter shall clearly identify where in the submittal the required- information is found: REFUGE AT FAIMMO CREEK(SDR200540002) PAGE 33 OF 40 1. Provide a copy of the wetland delineation and the hydrologist's report that addresses the condition of the wetland buffer of Fanno Creek. 2. If trees are to be removed in sensitive areas according to Chapter 18.775 (Sensitive Lands) in the Tigard Development Code, a tree removal permit must be obtained. 3. Provide a tree mitigation plan for 174 inches. 4. Provide drainage information and acknowledge in writing that it is understood that no encroachment is allowed into the significant wetland associated with this project. 5. Provide copies of required permits to work within the associated wetlands, from the US Army Corps of Engineers, Division of State Lands and Clean Water Services. 6. Provide a revised landscape plan that shows the proposed Pacific Willows at the SW North Dakota Street frontage to be a minimum of 3 % inch caliper. If Pacific Willows of that size prove to be impractical, the City may approve another comparable species. 7. Prior to site work, 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. 8. Prior to site work, the applicant shall submit a detailed construction schedule to the City Forester for approval with notations as to when tree protection devices will be either installed or removed throughout construction of the project. 9. 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. 10. 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 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. REFUGE AT FANNO CREEK(SDR2005-00002) PAGE 34 OF 40 11. 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 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. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION, ATTN: KIM MCMIII AN 503-6394171, EXT 2642. The cover. letter shall clearly identify where in the submittal the required information is found: 12. Prior to issuance of a site permit, a Public Facility Improvement (PM permit is required for this project to cover the driveway approach and any other work in the public right-of-way. Six (6) sets of detailed public improvement plans shall be submitted for review to the Engineering 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.tigard- or. ov . 13. The PFI permit plan submittal shalt include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the 'Termittee", and who will provide the financial assurance for the 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. 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 associated with the project. 15. Prior to issuance of the site permit, the applicant shall submit a suite layout map to Shirley Treat, Engineering Department. If the applicant is not sure how many suites will be used, they must estimate a number. The City will then assign suite numbers and the address fee will then be calculated The fee must be paid by the applicant prior to issuance of the site permit (STAFF CONTACT: Shirley Treat, Engineering). • 16. 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. 17. Additional right-of-way shall be dedicated to the Public along the frontage of North Dakota REFUGE AT FANNO CREEK(SDR200"M2) PAGE 35 OF 40 Street to increase the right-of-way to 29 feet from the centerline. The description shall be tied to the existing right-of-way centerline. The dedication document shall be on City forms. Instructions are available from the Engineering Department. 18. The applicant shall submit an Engineer's Estimate acceptable to the City Engineer for half- street improvements along their North Dakota Street frontage to the Engineering Department as a part of the Public Facility Improvement permit. Prior to issuance of the Site Permit the applicant shall pay the fee in-lieu of half-street improvements. 19. The applicant shall provide connection of proposed buildings to the public sanitary sewerage system. A connection permit from CWS is required to connect to the existing public sanitary sewer system. 20. Any extension of public water lines shall be shown on the proposed Public Facility Improvement (PFI) permit construction drawings and shall be reviewed and approved by the City's Water Department, as a part of the Engineering Department plan review. NOTE: An estimated 12% of the water system costs must be on deposit with the Water Department prior to approval of the PH permit plans from the Engineering Department and construction of public water lines. 21. The applicant shall provide an on-site water quality facility as required by Clean Water Services Design and Construction Standards (adopted by Resolution and Order No. 00-7). • Final plans and calculations shall be submitted to the Engineering Department (Kim McMillan) for review and approval prior to issuance of the site permit. In addition, a proposed maintenance plan shall be submitted along with the plans and calculations for review and approval. 22. An erosion control plan shall be provided as part of -the Public Facility Improvement (PP permit drawings. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual, February 2003 edition." 23. 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. 24. The applicant's plans shall ensure that landscaping, signage and utility installations at the proposed driveway be located and maintained to provide adequate visibility per the Traffic Impact Analysis prepared by Kittelson & Associates, Inc. 25. Prior to issuance of the Site permit, the applicant shall submit and receive approval from the City Engineer for a future street extension plan that addresses the Collector extension included in the City of Tigard's Transportation System Plan (TSP). THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF THE BUILDING PERNUT: • The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION The cover letter shall clearly identify where in the submittal the required information is found: REFUGE AT FANNO CREEK(SDR200540002) PAGE 36 OF 40 26. Provide and implement a plan showing the proposed trim work of the proposed buildings. 27. Provide construction drawings that show the proposed parapets to be constructed in order to screen the proposed roof mounted equipment. 28. Provide construction drawings that include elevations that show the proposed weather protection at the main entrances of all buildings. 29. Submit additional information that satisfies Section 18.775.040.M (Nonresidential Construction). Satisfaction of the requirements will be at the discretion of a member of the Planning Staff. 30. Provide information guaranteeing that the proposed building materials are resistant to flood damage to a member of the Planning Department Staff for analysis and approval from Tigard's Building Official prior to building permits. 31. The applicant will need to record a deed restriction for all trees to remain on-site, either independently or for the entire site. 32. Prior to the issuance of building permits, the developer shall sign a copy of the City's sign compliance agreement. 33. Prior to Certificate of Occupancy of the commercial buildings, 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 final building inspection, 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, 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 violaied. 34. Prior to issuance of building permits, 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. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION, ATTN: KINI MCNMLAN 503-6394171, EXT 2642. The cover letter shall clearly identify where in the submittal the required information is found: 35. Prior to a final building inspection, the applicant shall complete any work in the public right- of-way (or public easement) and obtain approval from the Engineering Department. REFUGE AT FANNO CREEK(SDR2005.00002) PAGE 37 OF 40 36. Prior to final building inspection, 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). 37. Prior to final building inspection, the applicant shall pay the standard water quantity fees (fee amount will be the latest approved by CWS at the time it is paid). 38. Prior to a final building inspection, the applicant shall demonstrate that they have entered into a maintenance agreement with Stormwater Management, or another company that demonstrates they can meet the maintenance requirements of the manufacturer, for the proposed onsite storm water treatment facility. 39. The applicant's engineer shall provide final sight distance certification for the intersection of the driveway and North Dakota Street. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO A FINAL BUILDING OCCUPANCY: The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the CURRENT PLANNING DIVISION. The cover letter shall clearly identify where in the submittal the required information is found: 40. Provide documentation proving that the proposed shrubbery to be planted on site will be of a variety that will provide a three foot high screen and a 90% opacity within one year. 41. Provide a joint maintenance and access agreement for the individual buildings on the subject site. 42. Provide a lighting plan that shows proposed street trees to be a minimum of twenty feet from any proposed street light. 43. To ensure the proposed landscaping is completed, the applicant's landscaper shall provide a report certifying that the installed landscaping complies with the proposed plan and the landscaping requirement of chapter 18.745 (Landscaping and Screening). A final inspection must be completed by a member of the Planning Department 44. Provide a plan showing the construction of all standard and compact spaces and travel lanes to comply with the minimum requirements of Figure 18.765.1 in the Tigard Development Code. Construction and maintenance shall comply with approved plans. • 45. Provide a plan showing the construction and the location of the required bicycle parking stalls within 50 feet of the main entrances. 46. Provide and implement a plan that shows the required bicycle rack designed according to Section 18.765.050.C. of the Tigard Development Code. REFUGE AT FANNO CREEK(SDR2005.00002) PAGE 38 OF 40 S 47. Provide and implement a plan showi4a minimum of 13 bicycle parking stalls. 48. Allocate and assign five (5) percent of the total parking for car/vanpool parking. 49. Provide a plan showing the construction of wheel stops located within the proposed parking area in accordance with 18.765.040.) (Wheel Stops). 50. Provide a lighting plan demonstrating glare will not infringe on the residential homes to the west. 51. Provide a copy of the Franchise Hauler's Sign off letter for the method of waste collection. 52. To ensure erosion measures are installed prior to any .on-site work, the applicant will be required to have the proposed erosion control measures inspected and signed off by a member of the engineering department. 53. 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. 54. Prior to Certificate of Occupancy of the commercial buildings, 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 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, 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. h~ Dated this ZZ day of December 2005 /I , * a . J. A 'chard Forester City Tigard Hearing Officer Pro Tern • NOTE. Only the decision and the condition of approval are binding on the applicant as a result of this order. Other parts of the final order are explanatory, illustrative and/or descriptive. They may be requirements of local, state, or federal law, or requirements which reflect the intent of the REFUGE AT FANNO CREEK(3DR200540002) PAGE 39 OF 40 applicant, the city staff, or the Hearing Officer, but they are not binding on the applicant as a result of the final order unless included as a condition. APPEAL: This Decision of the Hearing Officer may be appealed by a party with standing to the Tigard City Council within 10 business days of the date the notice of decision is mailed as provided for in Chapter 18.390. THIS APPROVAL SHALL BE VALID FOR EIGHTEEN (18) MONTHS FROM THE EFFECTIVE DATE OF THIS DECISION. REFUGE AT FANNO CREEK(SDR200540002) PAGE 40 OF 40 gerida Item.„ Hearing Date` November 14 205 ' Time: 7:00 PM ST.ff 'RPDT0? Tt `CRY of nGARD FO:R-.THE,CITY OF` IGAR iR Cfl n.~ ..<:'r !.t..-.C..'.i.,IC ♦k♦ ..•J/L4 r' .!•~w. ..4YII•=!!'n1 120 DAY 1 24 2006 SECTION I. APPLICATION SUMMARY FILE NAME: REFUGE AT FANNO CREEK FILE NOS: Site Development Review SDR) D 05-00002 Sensitive* Lands Review SL SLR2005-00017 Sensitive Lands Review SLR SLR2005-00018 Sensitive Lands Review SLR SLR2005-0001.9 .Sensitive Lands Review SLR SLR2005-00020 Adjustment- (VAR) VAR2005-00055 Adjustment (VAR) VAR2005-00056 APPLICANT: Spectrum Development OWNER: MBM Holding Company, LLC Attn: Peter Kusyk P.O: Box 120 P.O. Box 3440 Newberg, OR 97132-0120 Wilsonville, OR 97070.. APPLICANT'S • REP: SFA Design Group, LLC Attn: Matthew L. Sprague 9020 SW Washington Square Drive, Suite 350 Portland, OR 97223 REQUEST: The •applicant is requesting Site Development- Review approval to construct two commercial offce buildings totaling 26,000 square feet and three buildings equaling nine residential units. The subject site has slopes greater than- 25%, drainageways, Wetlands and 100-year floodplain. The applicant is also `requesting an adjustment to the required access width from 24 feet to 22 feet and an adjustment to the maximum front yard setback standard in the Washington Square Regional Center to increase the setback from 20 feet to approximately 920 feet. LOCATION: 10225 SW North Dakota Street; WCTM 1S135BC, Tax Lot 1200. ZONE: MLLE-2: -Mixed Use Ern to merit Districts. The MUE-2 zoning district is designed to apply to areas where employment uses such as office, research and development and .light rrianufactunng are concentrated. -Commercial and retail support uses are allowed • but are limited, and residential uses are- permitted which are compatible with -employment character. of the area. i -:,i r: i ` APPLICABLE REVIEW. CRITERIA: Community Development Code 1Chaptors-11R.36x,--1$:7370,:18.390, .18.520, 18.630, 1 705, 18.715, 18:720; •'8.725; 18:745; •18.55; 18.765, 18.775, 18.780, 18;790,18 .795 and"~18.8`4f~ t 69 i!°t~i)Ifn, !(-I+' ri: If i„ `vvi REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002). c , ° PAGE 1 OF 55 HEARINGS OFFICER HEARING 11/14/2005 SECTION II. STAFF RECOMMENDATION . : , • Staff recommends that the Hearings Officer find that the _ro.osed Laridi lase Applications will not adversely affect the health,- safety and welf~e ofptl e: Gi£ i a .meets 'the approval i standards as outlined in this report.. Therefore, Staff recorrim'ends A'.PROVAt_; subject to the following recommended Conditions of Approval and findingS Mt} in this'staff-report.. CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS.StiAtL BE SATiSFt€D' PRIOR TO 51 :11 ORX. The applicant shall prepare a cover letter an submit it, along with h any supporting documents and/or plans that address the foilowin requirements to the CURRENT PLANNING DIVISION, ATTN.: MATHEW SCHEIDEGGZR 503-639-4171, EXT 2437. The cover letter shall clearly identify where in the submittal the required information is found: 1.. Provide a copy of the wetland delineation and the hydrologist's report that addresses the condition of the wetland .buffer of Fanno Creek. 2. Provide information addressing the height of all buildings and the percentage of landscaping'on the site. 3. If trees are to be removed in sensitive areas according to Chapter 18.775 (Sensitive Lands) in the Tigard Development Code, a tree removal permit must be obtained. • 4. Provide a tree mitigation plan for 174 inches. 5. Provide drainage information and acknowledge- in writing that it Js understood that no encroachment is allowed into the significant wetland associated with this'project. 6. Provide copies of required permits to work within the associated wetlands, from the US Army Corps of Engineers, Division of State Lands and Clean Water Services. 7. Provide a revised landscape plan that shows the proposed Pacific Willows at the SW North Dakota Street frontage to be a minimum of 3 Y2 inch caliper. 8. Prior to site work, 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 pro ect 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. 9. Prior to site work, the applicant shall submit a detailed construction schedule'to the City :F&ester for approval with notations as Jo-when tree,.protectign" devices will be either'installed or removed throughout constructibh-bf tNprojec#: 10. A note shall be placed on the final set- of plans, -ipdicating that equipment, vehicles, machinery, grading, dumping, storage; burial of idebris, or any other construction- related-activities shall not be located inside,of-an tree protection zone or outside -of the' limits of disturbance where other trees'are l#~e.fngP~ -cted. = r - - REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002) PAGE 2 OF 55 HEARINGS OFFICER HEARING 1.1114/2005' rAll tree pro tection.devices shall.be: Visible. . Constructed of 11 Gauge steel bl'ein-Llie[ feih.d6g, sUpported on at least 2° O.D. steel posts. Each post shall- be, no less than foyr. feet high from the'top of grade. Each post shall be driven into thve Irolhd Wja-depth~of no Iess 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 si n indicating that the area behind thelencirrg is protected and no construction activijr, including material storage, may occur behind the fencing. . Inspected and approved in the field by the project arbonst 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. 12. 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 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. The applicant shall prepare a cover letter and submit. it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION, ATTN: XIM MCMILLAN 503=639-4171, EXT 2.642.. The cover letter shall clearly identify where in the submittal the required information is found: • 13. Prior to issuance of'a site permit, a. Public Facility Improvement (PFI) permit is required for this project to cover the driveway-approach and any other work in tthhe public right-of- way. Six (6) sets of detailed public improvement plans shall be submitted for review to the Engineering Department. - NOTE: these plans are in. addition to any drawings required by the Building Division and should • only include siees relevant to public improvements. Public Facilittyy Improvement (PFI permit plans shall conform to City of Ti and Public Im, rovement CSesign Standards, which are available at City Hall and the Ciity's*web• page www.fi and=or. ov).* 14. The PFI permit plan submittal shall, include the exact legal name,: address. and- telephone number of the individual or corporate entity woo. will be designated- as the °Permittee", and who will provide the financial assurance for the 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. 15. The applicant shall provide a constfuction'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 i adjoining. residential Public streets..,,;~~or$ ri:iora:-vel)icles~.include. the vehicles of any contractor or subcontractdr involve,;tn ,thy :constructiQra of.s~te;improvements or buildings proposed by: this `application, 'arid shall' include: the. :vehicles of alf suppliers and employees associated with the project. ` 16. Prior to issuance of the site permit, the applica€it;shail submit a suite layout map to Shirley Treat, Engineering Department. If the-.a.'pplicant is not sure how many suites will be used, they must estimate a number. The City. will then assign suite numbers and the address. -fee well then be calculated;--. 4Me,:fee? rrlu~ t;,l paid by the, applicant prior to issuance of' the site permit. '(STAFF C•ONT CT-, aar#ey,;T,rEat, Engineering). REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00004!;;x; PAGE 3 OF 55 HEARINGS OFFICER HEARING.11/14/2005 17. The applicant shall provide signage at the entrance of each shared .flag lot driveway or : private street; that lists the addresses that are servecf by, :the given* driveway or street. 18. Additional :right-of-way shall be dedicated 'to' the 'Pub1ic,..aldrig the frontage of North Dakota Street to'' increase the. right-of-way td 29 fleet from the centerline: The description shall be tied to the existing right-of-way centerline. The dedication document shall be on . City forms. Instructions are available from the Engineering Department. 19. The applicant shall submit an Engineer's Estimate acceptable -to' the City Engineer for half: street improvements along their North Dakota Street frontage to the Engineering Department as a part of the Public Facility Improvement permit. Prior to.issuance of the Site Permit the applicant shall pay the fee in-lieu of half-street improvements. 20. The applicant shall provide connection of proposed buildings to the public sanitary sewerage system. A connection permit from CWS is required to connect to the existing public sanitary sewer system. 21. Any extension of public water lines shall- be shown on the* proposed . Public `Facility Improvement PFI)) permit construction drawings and shall be reviewed and approved by the City's WaIC be artment, as a part of the Engineering Department plan review. NOTE: An estimated 12% of the water system costs must be on deposit with the Water Department prior to approval of the PFI permit plans from the Engineering Department y and construction of public water lines. 22. • *The applicant shall provide an on-site water quality facility as required by Clean Water ' Services Design and Construction Standards adopted by Resolution- and Order No. 00- 7). Final plans and calculations shall be submitted to the Engineering Department (Kim McMillan) for review and approval prior to issuance of the site permit. In addition, a proposed maintenance plan shall be submitted along with the plans and calculations for • review and approval. 23.. 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., February 2003 edition." 24. The applicant shall obtain a 1200-C General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal can Waterct. 25. The applicant's plans shall ensure that landscaping, signage and utility installations at the proposed driveway be located and maintained to provide adequate visibility per the Traffic Impact Analysis prepared by Kittelson & Associates, Inc. 26. Prior to issuance of the Site permit, the applicant shall submit and receive approval from the City Engineer for a future street extension plan that addresses the Collector extension included in. the City,of Tiigard's Transportation System Plan (TSP). THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF.THE BUILDING PEFFIVIIT: The.-applicant shall prepare a cover letter an submit i , a ong with any supporting -documents and/or plans that address . the following requirements tc the CURRENT PLANNING-. DIVISION, ATTN: MATHEW 'SCHEIDEGGER .503-639-4171, EXT 2437. The cover letter shall clearly identify where in the submittal the required information is found: ' 27. Provide and implement a plan showing the proposed! trim- work of the proposed • buildings.'. ' 28. Provide construction drawings that show the proposed parapets to be constructed in .order to screen the proposed roof mounted equipment REFUGE AT FANNO CREEK STAFF REPORT (SOR2005-00002) - - • - PAGE 4 OF 55 HEARINGS OFFICER HEARING 11/14/2005 29. Provide construction drawings that ~clude.elevations ,that sf~ow the proposed weather protection at the main entrances of ail.bliilrig::. ; : . i .4. is i...i.. 30. Submrit additional ;information. that : ~'~ti5es' .:':'~8.7Z5:040.M (Nonresidential Construction). Satisfaction of the regcirements.'w:ill be 'at the discretion of a member of the Planning Staff. :31. Provide information guaranteeing that; the proposed building materials are resistant to flood damage to a member of the Planning Department Staff for analysis and approval from Tigardrs Building Official prior to building permits. 32. The applicant will need to record a deed restriction for all trees to. remain on-site, either independently or for the entire site. 33. Prior to the issuance of building permits, the developer, shall.sign a copy of the City's sign compliance agreement. 34. Prior to Certificate of Occupancy of the commercial buildings the applicant shall ensure that the Project Arborist has submitted written reports to the pity Forester, at least, once every two- weeks, from initial tree protection zone (TPZ) fencing installation, through final building inspection, 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, 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.Arbonst. 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. 35. Prior to issuance of building permits, the Project Arbodst 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.. The applicant shall prepare a cover letter and submit it, along with any supporting documents and/or plans that address the following requirements to the ENGINEERING DIVISION, ATTN: KIM MCMILLAN 503-639-4171, EXT 2642. The cover letter shall clearly identify wherein the submittal the required information is found: . 36. Prior to a final building inspection, the applicant shall complete any work in the public right-of-way •(or.public easement) and obtain approval #(om the Engineering Department. 37. Prior to final building inspection, 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 "D F" will be acceptable,. and 3) the as-built drawings shall be.* tied to the City's GPS network. The applicant's engineer shall rovide the. City with an electronic file.with points for each structure (manholes, catch :basins, uvate~.valves;.hydrants and,ati7e~.yyate~}s~rsterr~,featt~~s),in the,-development , C . • . : - . and•their respective X: arid: Y State .t'~~ne; ~CQord~[l eS,; referenced .to.NAD 83 (91). 38. Prior to final.building ..inspection, t t `applicarit'.sh .'pay ste'standard water quantity fees,-.(fee amount wilt be the latest ai pbrQ ced.by:CW$S t, e:tame.it is .paid). 39. Prior to a final building inspection,* the applicant`shawde,monstrate that they have entered amto:a maintenance.agreement with-, Slto,rrpvuatey;fvl gg~rraents„or.another; company. that demonstrates* they can meet the maintenance requir& ents of the manufacturer, for the - proposed onsite storm water treatment- facility. REFUGE AT FANNO CREEK STAFF REPORT SDR2005-00002 , ;r:;e C;I is I. I c Y PAGE 5 OF 55 f I HEARINGS OFFICER HEARING 11/14/2005 I } TTTj 1 f ~ E I 40. The app/'cants engineer shall gvide final sight distance certification for the intersection of the driveway and North Dako Street.. THE FOLLOVYING NDITIONS SHALL BE SATISFIED PRIOR TAO A MAL BUILDING -OCCUPANCY: e applicant shall prepare a cover letter an submit it, along with any supporting documents and/or . plans that address the followingg requirements to the CURRENT PLANNING. DIVISION, ATTN: iMATHEW SCHEIDEGGER 503-639-4171, EXT 2437. The cover letter shall clearly identify where in the submittal the required information is found: 41. Provide documentation proving1hat the proposed shrubbery to be planted on site will be of a variety that will provide.a three foot high screen and a 90% ppacity within one year. 42. Provide a joint maintenance and access agreement for the individual buildings on the subject site. 43. Provide a lighting plan that shows-proposed street trees to be a minimum of twenty feet from any proposed street light. 44. To ensure the proposed landscaping is completed, the applicant's landscaper shall provide a. report certifying that, the installed landscaping complies with the proposed ' plan and the landscaping requirement. of chapter- 18.745 (Landscaping and Screening).. A final inspection must be completed by a member of the Planning Department- 45. Provide a plan showing the con' truction of all standard and compact spaces and travel lanes to comply with• the minimum requirements of Figure 18'.765.1 in. the Tigard . Development Code. Construction and maintenance shall comply with approved plans. 46. Provide a plan showing!' the construction and the location of the required bicycle parking stalls within 50 feet of the main entrances. 47. Provide and implement a plan that shows the required bicycle rack designed according to Section 18.765.050.C. of the Tigard. Development Code. 48. Provide and implement a plan showing a minimum of 13 bicycle parking stalls. 49. Allocate and assign five'(. ) perI nt of the total parking for car/vanpool parking. 50. Provide a plan showing the construction of wheel stops located within the proposed parking area in accordance with 18.765.040.J (Wheel Stops). 51. Provide a lighting plan ddmons rating glare will not infringe on the residential homes to the west. 52. Provide a copy of the FrancFiise* . Hauler's Sign off letter for the method of waste collection. 1 .53. To ensure erosion meas res a installed prior to any.on-site work, the applicant will be required to have the. Vropol ed erosion control measures inspected and signed off by a-member of the engigeenri department. 54. if it is necessary to enter, the t e-protection zone at any time-with equiprxient (trucks, bulldozers, etc.) the project a orist and -City Forester must be - notified before any entry occurs.. Before: entering the TPZ, the .project arborist- and City .Forester shall eterFn~ne- the ,mei od by.; which eptr~r,;:can`: bbcur,* a" I ' WMth - any additional tree projecAiph measures: 11; b1ZEFUf$E AJ FA.NN P R~EE$C TAFF;REPORT (SDR2005i00002)- "PAGE 6 OF 55 - - HEARNGS 04t. R MEAF ING1'1/14/2005 I'f'j' ! i lc'," 7 •t- Se% t'till ~ . :P~ibri.td Cer~ifcate; of.'Odcupancy.:'p,-' 1. coTmercial: tiwldmg~;`;tki applicant shall ensure. ;that- th6 .Pr oject :Al boast has; jsu ; fted writte~i reports t'o`.th rty Forester, at si. ; prjce +e ery 'two we.elcs, from int' I ree: prot ction:zone. (Tf?Z). fenGrng installation, ea 40 - * - - f through,-site ,work, .as fie rimonitor ; e,i. btistiuc ion aCtiy'iti s, and progress. These -reports should 'include any changes`. a't occurred to the TPZ as we Preis 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, Ion' -term health and stability of the free(s): If the reports are not submitted or 'r'eceived . 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 roject 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. THIS APPROVAL SHALL BE. VALID FOR EIGHTEEN: (1.8) Mb-NTHS• FFt©M THE EFFECTIVE DATE OF THE. HEARINGS OFFICER'S- DECISION: SECTION III. BACKGROUND INFORMATION. Site Histo to con ucted a search of City records and found a previous land-use case fora 42 unit condominium development with site development review, -sensitive lands review and an adjustment to the accessway width from 24 feet to-22 feet. This proposal was withdrawn. No other land-use cases exist. Vicini information The su ject pproperty has frontage along SW North Dakota Street, between SW Greenburg Road and•SW Scholl's Ferry'Road. Site Information and Pro osal Descri tion: The appIcant~ is requesting Site Development Review approval to construct two commercial office bbuildings totaling 26,000 square .feet and three: buildings providing- nine residential units. The subject -site has- slopes greater than 25%, drainageways, wetlands and 100-year floodplain. The applicant is also requesting an adjustment to the required access width from 24 feet to 22 feet and an adjustment to the maximum front yard setback standard in the Washington Square Regional Center to increase.the setback from 20 feet to approximately 920 feet. SECTION IV. SUMMARY OF APPLICABLE REVIEW CRITERIA A. oning Districts 18.520 ((Commercial Zoning Districts) B. Applicable Development Code Standards 18.370' ariances and Adjustments).' 18.630 [VA ashington Square Regional Center) 18.705 ccess Egress and Circulation) 18.725 nvironmental Performance Standards) 8.745- andscapingg and Screening) -Af 1-8.755 ixed-So lid~Waste and; RecyclableStorage)~-18:765 ff-Street- parking and loadm. girequiremen s) 18.780 ignRemoval)* r . 18:790 ree : 18.795 Visual Clearance) C. Specific DR Approval Criteria 118.360 { = } 'D.. , Street and Utility Improvement St4h.dards= is 18.810. E. Impact Study - 18::390 - -REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002.): PAGE 7 OF 55 c HEARINGS OFFICER HEARING 11/14/2005 + SECTION•V. APPLICABLE DEVELOPMENT CODE STANDARDS t T..• - - r - A. ZONIING DISTRICT Commercial Zonin District: Section 18.520.020 Lists the description o -t a .ommercial Zoning Districts. The site is located in the MUE-2: Mixed Use Employment District. Uses: Types.of-uses.•Section 18.520.030. Residential uses are a restricted use in the' Mixed Use Employment District (MUE-2). According to Table 18.520.1 attached residential units are subject to the provisions bf 18.630 Washington Square Region Center Design Standards.. Office uses. are permitted. outright within the MUE-2 zoning district. Development Standards: Section 18.520.040.13 States that Development. standards in Commercial. Zoning Districts are contained in Table 18.520.2 below: TABLE 18.520.2 DEVELOPMENT STANDARDS IN COMMERCIAL ZONES STANDARD NIU=2•• , roposed Minimum Lot Size None 362,855 sq. ft. Minimum Lot Width None 272 ft. Minimum Setbacks - Front yard 0 ft [21] g00 ft., --Side facing street on comer & through lots [1] 0 ft [21] N/A - Side yard 0 ft [20] 160 ft. - Rear yard 0 ft [26]. 7k 'Distance between front of garage & property line abutting a public or private street - - Minimum Building Height None N/A Maximum Height 60 ft ? -Maximum Site Coverage [2] 85%. ? Minimum Landscape Requirement 15% ? • Minimum FAR 0.6 0.6 Minimum Residential Density [4][5][6] 25 units per acre 9-units Maximum Residential Density 50 units per acre 10-units [1] All permitted and conditional uses subject to special development standards contained in Section 18.520.050A [2] Permitted subject to requirements Chapter 18.742. _ [4] Uses operating before 7:00 AM and/or after 10:00 PM are conditional'uses. ,[5] All permitted, limited and conditional uses must meet special development.standards in Sectionl8.520.050.B. ) [6] Residential units permitted by right, as a mixed use in conjunction with a commercial development, on or above the second_ floor of the :structure, at densities not to exceed 12 units/net acre. !Jr [20] All permitted and conditional. uses subject to special development standards contained in Section18:520.056.C. [21] Multi-family'residential, at 25 units/gross acre, allowed outright Pre-existing detached.single-family dwellings are permitted outright As demonstrated in the table above, the applicant's plans da not comply with the dimensional standards of the MUE-2 zone. The applicant has not provided actual numbers for the proposed building heights, and has not provided information showing thati the minimum landscaping bl_ requirement has been satisfied. Therefore, the applicant will be required to provide information I_ addressing the. buildings height and the percentage of landscaping on the site. FINDING: Based on the analysis above, the Development Standards criteria have not been satisfied, If the applicant complies with, the condition below, this section will be -met. CONDITION: Provide information addressing the 'height of all buildings and the percentage of C landscaping on the site. REFUGE AT FANNO,CREEK STAFF REPORT (SDR2005 x0002) PAGE 8 OF 55 HEARINGS OFFICER HEARING 11/14/2005 ' ' ' - iL ~ISI•Ertf:. r;.-- c i, . , I... -r-,~i ~ra~crrta-= c:t Ir;ci~.~•it;r.,l;. •::zc~ •1ET> s B. APPLICABLE DEVELOPMENT C0DE:9TA 1 DS, ffc ~:i; ;is uc-;ir: .t .r•f %%.,Th&'SR& development Review approval .star~O ds, regOtreythat.ia-,doyolooment proposal ' be found 'to be consistent with the various standards 'bf..the .community Development Code. - The applicable criteria in this case are Chapters 18.360, 18.370, 18.630, 1p8.705, 18.725, 18.745, 18.755, 18.765, 18.780, 18.790, .18.795, and 18.810. The proposal's consistency.w.ith these Code Chapters-isseviewedAn the following sectigns,, , Variances and Adjustments (18.370): ...For - o ions to dimensional. and minlinum• density reguirerrients for developments within the. Washington: Square Regional; -Center :that:: include or abut 1 designated. Water Resource overlay areas,. the - standards of • Section 18.630.020.1 apply. . The site is. located within the Washington Square Regional Center and the applicant is requesting a modification -to the front -yard maximum setback of 20 feet. -Therefore, the standards of 18.630.020 apply and have been addressed below under 18.630 (Washington r ' Square Regional Center Design Standards). Adjustment to access and, egress standards (Chapter 18.705). In all zoning districts where access and egress drives cannot be readily designed to E conform to. Code standards within -a artlcu ar < P Ppreel,. access, with. an adjoining property shall be considered. If access in conjunction with another parcel cannot reasonably be achieved, the Director may grant an adjustment to the access requirements -of Chapter 18.705 through a Type 11 procedure, as governed in Section. 18.390.030, using approval criteria contained in Subsection 2b. : . The applicant is -requesting an adjustment to. the width standard for a multi-family and commercial driveway, as directed by Table. 18.705.2. which :states that a multi-family development.with between three and 19 units should have a driveway with a pavement width of 24 feet,-if two-way. This standard is the same for commercial pavement width for parking areas containing zero to 99 spaces. The proposal requests the pavement width be reduced to 22 feet. The applicants proposed accessway is hampered by the proximity of Fanno Creek, Ash Creek and their associated 100-year floodplain and wetland areas. It is not possible to share access; There are no adjacent developments where shared access with the subject site is possible. The roperty to the north is* developed with commercial buildings and associated parking lots. Property to the east is established with a railroad and its associated right-of--way. The applicant will be constructing a 'secondary emergency access under an existing railroad trestle via an : V;I, . T•, existing-easement -to SW Cascade Avenue; , however, the-trestle- is not, a, adequate width .(approximately 12 feet) to provide•two way. vehicular traffic on •ar regular basis: It is not possible to share. access to the west due to .the. existing :wetlands and..associated.:sensitive areas. Therefore, the access from SW North Dakota Street is the-only logical access point. There are no other alternative access points on the. street in question or' from another street; As mentioned- above, the subject .site is surrounded- by existing 'development, railroads and fse-, isiitiive areas. 'Therefore, any altemative, amEsS. point:would conflict with.the existing and 11Jlt©rs. -i. .i:_ ~.t. }Yl~`i E'{r-♦-I;;~frriY} tin' EE~iE i1w F, vv.. u:~I,r :fir;'.. ♦ • / ♦ - 4 ~~Ef r The-,access se aration requirements nnot. be c -i,; d'4nrtfl Dakota is- a: neighborhood' routeE..,Tbe-rDavelmpment-)Gode-cdoes*~not have access. . tJ ; :t is- aratiars: requirements, for: neigh borhooO,;route%:w artyecase.the closest to,-the proposed paiW:it•bpproAj nately:. 67..feet to the west-ot -the s,=tK.We:of N6ft a: D2&Gt . 1 _The.-request is the minimum-adjustment required to provide adequate access; . i n., r ~r_~trcrrc:- `i: ,7, i'nur,i REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002).;r : ; _~.r. r (✓gr}i ji , t 1; PAGE 9 OF 55 HEARINGS- OFFICER HEARING 11/14/2005 I. The proposed site plan shows that with minimal grading- and the placement of-retaining walls, a • .minimum paved width of 22 feet along the majority -o . the main.aoeessway can, be provided. The plan; shows the ability to widen the accessway to the' eeq#ed'24.foot width: at the entrance I I iz* to SW North Dakota Street, where it is most critical.: The applicant is providing the maximum -.width for,the accessway that is possible, given the wetland 'and-flo'odplain constraints'ofthe site. The applicant has also obtained approval for the proposed accessway width from Tualatin Valley Fire and Rescue. Therefore, the required adjustment is the minimum needed to provide adequate access. f The approved access or.access approved with conditions will result in a safe access;. The proposed access width being modified will result in a width that is safe for vehicular traffic. At the sites entrance the width of. the -access increases to 24 feet. As mentioned. above, Tualatin Valley Fire and Rescue has reviewed the proposal and has approved the proposed access. Therefore, this standard is satisfied. The visual clearance requirements of Chapter 18.795 will be met. Visual clearance has been addressed under 18.795 (Visual Clearance) and it is found to meet the requirements. Therefore, this standard is satisfied. FINDING: Based on the analysis above, the Adjustment criteria for 18.705 (Access, Egress and Circulation) have been satisfied. Washington Square Regional Center Design Standards_ (18.630) Design standards or public street improvements - an or new development and renovation projects have been. prepared for the Washington .Square Regional Center. : These design standards- address several important guiding principals adopted for the, • Washington Square Regional Center, including creating 'a high-quality mixed use area, t providing a convenient pedestrian * and 'bikeway system, and utilizing streetscape to create a high quality image for the area. All new developments, including remodeling and renovation projects resulting in new non single family residential uses are expected to contribute to the character and quality of the area. In addition to meeting the design standards- described below and other development standards 'required by the Development and Building Codes, developments will be required to dedicate and improve public streets, connect to public facilities such as sanitary:sewer,• water and storm drainage, and participate in funding future transportation and public improvement projects necessary within the Washington Square Regional Center. The following design standards apply to all development located within the Washington Square Regional Center within the MUC, MUE, and MUR zones. If a standard found in this section conflicts with another standard in the Development Code, standards in this section-shall govern. Phasing of Development Standards: Projects may use the Site Development Review process (Chapter 18.360) to develop a site by phasing compliance with the development standards established in this Chapter. Such proects must demonstrate how future development. of the -.site, . to. the. minimum evel.opment standards .--established-in this Chapter or greater,'can be achieved at-ultimate Build out of the site. The Plan Jmg Director may waive or modify the: appifoval period (Section 18.360.030.0 and ~hdsbd.development time schedule (Section 18!360.030.E.1) for projects approve under this section. If a time.period greater than that specified in Section 18.360.030.C is necessary, it must be requested at the time 'of original application with a detailed time line--for completion. I { i. ' lias.nofbeeri proposed with this project. The'r-afore; tHs Mandard-does °not apply. N Phasi69: r 1.. L of - - - REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002) PAGE 10 OF 55 i2 HEARINGS OFFICER HEARING 11/14/2005, ` Y I f ` - H `'r"` `~ensif' `Requirements .for D~vdlopme~nfsl~~n~~cfOch `dw"°b~i~tfiI i a`rian Setback. r fir' ` ` ``N6twithstandin~ the density 'requirem'e`nt ~ti'T- 561[ s.B20, r tim residential i : . l '.density" and mixed-use and nonresid ri 'a~Off~i3r-Vear r' IU' '`d~~r~,:p ments that + ~nclude.or abut Riparian Setliacl s shall fro gr'l ~e` t n ` the minimum i residential density and floor area rafiis` ire `ail"ie8`' `s l~v~e~`e~C'ciept" when the following are met: 1.. Wetlands within the developpment- are expanded "o~,e'Rh'a'nced ~iri conformance with the Oregon Division of State•Lands Wetlands Restoration and~Enhancement Program, and if applicable; 2. Fish Habitat within the. develo meet.=is enhanced in=~cartformance with tfie Oregon. Division of State Lands Fish..H:C'WJ.W*-EnWi ce ex~t..P~ogram, and if applicable; 3.. The overall flood storage capacity of ~ the '100-year floodplain within the development is increased by 10 percent. If the enhancements described above are approved, or if enhancements are already. "in existence, the maximum residential density standards shown in Table 18.520 and .no maximum floor area ratio standards for mixed use and non-residential developments. shall apply. 4 The subject site includes - a Riparian Setback area. Based upon the applicant's density calculations in Chapter 18.715, the project does not exceed 110% of the-minimum density. The minimum density.is nine units and 1'10% of the minimum is 9.9 units;as.a maximum. The ' proposed commercial floor area for the site has been. proposed to be 6.0, which is the ` minimum for the MUE-2 zone. Therefore, this standard is satisfied. Adjustments to*Density Requirements in the Washinggton Square Regional Center. The + density. requirements shown in Table 18.520.2 ;are; designed..to implement the goals and policies of the Comprehensive Plan. These requirements appply throughout the • Washington Square Regional Center zoning,.districts, ,but.the City recognizes that some sites are difficult to develop or redevelop in compliance with these.requirements. The adjustment. process provides. a mechanism by which the minimum density requirements may be reduced byy up to twenty-five percent (25%) of the original requirement if the pro osed. development continues to -meet the intended purpose of the.requirement and findings are made that all approval criteria are met. Adjustment reviews provide flexibility for unusual situations and allow for alternative ways to meet the purpose of the code. Approval criteria. Adjustment requests will be approved if the review body finds that the applicant has shown that approval criteria a through.d below, are met: a. Granting the adjustment will equally or better:meet:the.pur+p.os' of•the regulation to be modified; b.. .-The proposal. will be consistent with the desir=ed character of'the area; c. If more than one 'adjustment is being requestetk..1he •"Cumulative • affect "of the .adjustments results in a project Which is still consistent with the overall purpose of the zone; d. Any impacts resulting from the adjustment are mitigated to the maximum extent .-possible. "'No, adjustment to the density requirements :leas It een prop ed. ` ~'hbrefare,-~is standard does " +"::.In nofapply. sF,~i"rsrjtt:ii9~ "arc: tr.. tirliill;- 1"i., + - : - :=~)~3i: +:71il~licl.~ :ii1~.11":i.i+i+:~(: i•.c•ll' :r!iCeal . _'Ii:~J:. ++r1r.F~ bE :V~. Yt. ;i i'~{T itii; :ii: , REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002 • , " PAGE 11 OF 55 HEARINGS-OFFICER HEARING 11/142005 r • ii: Fi :fit; .Rll"!~: i 1,':++~:%£vh Modifications to Dimensional. and Minimum Density Requirements for Developments That Include or Abut Designated Water Resources . ° vprlay District Riparian Setbacks. Notwithstanding the dimensional and minimum density requirements in Table 18.520.2, ; the minimum .and, maximum dimensional ..requirements and.the, minimum residential f deve:f6pments that c: density end mixed-use and' non-residential -floor ;area-:rat to, or include or abut Riparian Setbacks shall be subject to modification when modification is necessary to assure that environmental impacts are minimized. Modification reviews provide flexibility for unusual situations and allow for alternative ways to meet the purpose of the code, while assuring potential, 'environmental- impacts are -minimized. The applicant is proposinga modification to the maximum dimensional requirements of 20 feet for the front yard building setback requirement of the MUE-2 zoning district. Therefore, the following criteria apply. Modification requests will be approved if the review body finds that the applicant has shown that approval criteria a through d below, are met: Evidence is provided that the modification(s) are necessary in. order to secure approval under any of the following applicable regulations: Federal Endangered Uecles Act, National Pollutant Discharge Elimination System Permit, Section 404 or 1 of the Federal Clean Water Act, and Oregon Removal-Fill Law; The modification to the maximum setback is requested. The applicant cannot build a structure fronting SW North Dakota Street due to fhe existing drainageway location of Ash Creek. Ash Creek contains a riparian corridor and setback. The proposal will be consistent with the. desired character of the. area as *specified in the Plan; According to the applicant, the desired character of the area is to provide a high-quality. 1 mixed-use area, providing a convenient pedestrian and bikeway system, and utilizing streetscape to create a high quality image for the area (see next finding). The project provides a mixed use condominium development in a mixed use zone. The buildings front the access drive to best meet the "streetscape" characteristics desired. The project provides a convenient pedestrian and bikeway system by providing connections to SW North Dakota Street and SW Cascade Avenue. In addition, the Fanno Creek Greenway adjacent to the west of the site contains a pedestrian/bicycle pathway for the enjoyment of-the new residents and employees. Therefore, the proposal is consistent.with the desired character of the area as specified in the plan. If more than one modification is being requested, the cumulative effect of the modifications results in a project that is still consistent with the overall purpose of the zone; The overall purpose of the zone is to: 1.` Implement.the vision, concepts and principles contained in. the Washington Square Renal enter Plan': -2•. 'Permit mixed -use development within the Regional Center at densities 'aporopriate for an' urban center. 3. Connect districts to each other and to the rest of the -region by multi-modal- transportation system: and provide a -range of working, living, and shopping opportunities. - 4. Provide improved multi-modal transportation links. Higher densities,. variety--of land uses, .and enhanced environmental qualities to-contribute to'create.a'desfraW&',-tivabig•earhmunity in the s :F face -of dramatic population and employment ;growth`.:-r5. 'Provide-:.new :niixed-use zoning distracts, along with existin residential zoning district s. in established areas. As only a single modification is proposed an increase of apprloximatel "'.900~•feet), -this iterrr -does not apply a zone: ' and the-project is consistent. with the overall purpose* 6f. The modification(s) proposed are 'the rhihimuf'! ,b&gU1 `41. -to gtartt e : applicable hermit(s) Fisted in criteria a:. 1ic!iE:1 1rfia fly = REFUGE AT-FANNO-CREEK STAFF REPORT (SDR2005-00002) PAGE 12 OF-55 1 HEARINGS OFFICER HEARING 11/14/20051 '-"JAO CREEK STAFF (:i=Pi)i?l HF A r:1 ~1 IbrAd V, n R Vffi0rhi)ts C Vi;:, . fhe;pGo{~osed modi c fion:,is.the-minimum-ju~re ~g ~rt`' Pe ppica listed. The' ,i,= site's unusual. chra'c eristic. along SW : a S#rerui , difcation be t a" A building granted, n'order to ppteseeve rid: protecttl 'btu ' I'r,E t1r Wi0k. nofconstructe(i:in tfi~; ojaicigeway:c~wv5I?td• Section 18.630.040 requires a way for creating continuity and connectivity within the Washington Square Regional Center (WSRC). The* primary . objective is to- create a balanced; conne.cted,transportation syst6plb-qt di§tdbutl s.y1'p$'v itt~'rti the WS RC on a variety of streets. The. connectivity standards may be satisfied by either of two options: Option:. . Design a.. Local street spacing . shall provide,"public street. connections-. at intervals of no more than 530 feet. b. Bike and pedestrian connections..on pubtic- easements or right=of-way shall be provided at intervals. of no more that 330 feet. Performance Option. - a. Local street spacing shall occur. at intervals of no less than eight street intersections per mile. b. The shortest vehicle trip over public streets from a major building entrance to a collector or greater facility is no more than twice the straight-line distance. c. The shortest pedestrian trip on public . right-of-way from a major building entrance to a collector or greater facility is ;no more than one and one=half the straight-line distance. Access to the subject site is provided by,:a private" access .drive. There are approjimately nine street intersections along SW North Dakota' between, SW Tiedeman and SW 124 Place to the west. The shortest vehicle trip from the. main entrance . of the-.- propose'd commercial buildings to SW Tiedeman will be approximately 1,700. feet. The straight line distance from the main entrance. of the proposed commercial buildings. to SW Tiedeman is approximately 1,,600 feet. The shortest pedestrian trip, to 'SW Greenburg Road, an arterial street, is appproximately 1,500 feet, which is no more -than one and one-half the straight-line distance. T'herefore, the applicant meets the Performance. Option, Building placement on Major and Minor Arterials: Buildings shall occupy a minimum of,50% of all street frontages along major *and minor arterial streets. Buildings shall be located at-public street intersections on major and minor arterial streets. Southwest North Dakota Street is classified as. a neighborhood route. Therefore, the subject site does not abuta major or minor. arterial. Therefore,. this standard does not apply.' Building setbacks: The.minimum and maximum building seiback'from'pubII st'reet~-r ' fs=Qf=way shall.be in accordance-with Table 18.520.2., ~ , . ~ , The maximum setbacks listed are for front yards and adjacent to public streets. North Dakota . Street is the front yard of the project site and is .also a public street.. However, because of the sensitive lands which 'exist adjacent to SW North Dakota Street, :no opportunity exists to site a . r building9within 20-feet' of .the ,n ht-of-w - nro~(n~se f. buildan' w11,.be". set back ;fill (1~ ,ilt. Y'iT r ,r !t'. 1r r r.1 Ir'7 'illy. pp7J4 n~,`has :requested an t, approximately .9Q0 'feet 7rorri S4,N; North'' ketaBe AN adjustment `to 'ttie max'iirnum 'dimensional le4ihremehff, of,.. ` ee :'fo{,the',fron"f yard building ` setback requirement of the MUE-2 zoning district: -~THe'moaificafon is necessary'to assure that environmental impacts.'are minimized. Therefore„this stapdar"d..has.•been rrme#.'; , 1. :'Front.yard setback design:`..: .;{For etliacks greater,.than~+Yei ;lanc~scap1 n6;~a 'd' tfe, o !:a° afi, , 1. cied'expansion of th-e pedestrian path: musf'be;pro"vid'ect b'e#~rtreen"a strU ure'.`a~id"a;publ.ic street or accessway. If--a-building"abutt"bre tha` bhe•Aebet'-AN.re hired-9•mi?rovements shall be provided on all-streets: - Uri•dsoaping- -s-hall`t3e' deve1'oped'~o;aeiL 1 standard on public streets-and an L-2 standard on. accessways. Hard-surfaced: areas shall be, constructed REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-0000?~. N, 1 i 4 ir? PAGE 13 OF 55 HEARINGS OFFICER HEARING 11/14/2005 with scored concrete or modular paving materials. Benches and other street furnishings are encouragged:. These- areas shall contribute to the. minimuni.landscaping requirement ; . . per Section '(8:520:040.6 and Table 18.520.2: ! The proposed buildings: will be set back.fromlthd-,:'fight=of=weyy.ef.SW North:.Dakota Street for a - distance of approximately 920 feet. As a result; the,- applicant's. tan demonstrates. that a six-foot-wide hard surface sidewalk will be provided from each building entry to the proposed accessway. No building - abuts more than one street. The accessway as shown on the landscape plan demonstrates compliance with''-. -the -L-2 • standard described under , 18.630.090.8.2. The frontage along SW North Dakota that is not -within a sensitive area has been shown to be screened with a combination of trees (Pacific .Willow) and shrubbery (Redosier Dogwood). The L-1 landscaping standard requires trees. to be planted at a minimum of 3'h inch caliper. The applicant has, shown the Pacific Wallows to be' larited at-a 2 inch minimum caliper. Therefore,.the applicant is required to provide a revised landscape plan that shows theroposed Pacific Willows to be a minimum of 3 '/Z inch caliper.. The sidewalks connecting -the building entrances to the accessway wilt be constructed of scored concrete or modular pavers. . Walkway connection to building entrances:' A walkway connection is required between a building's entrance and a public street or accessway. This walkway must be at least six feet wide and be 'paved with scored concrete or modular Qaving materials. . Building entrances at a corner adjacent to a ublic street intersection are required. -These areas shall. contribute to the minimum landscaping requirement per Section 18.520.040.6 and Table 1.8.520.2. The applicant's plans demonstrate that the walkway connections between building :entrances and the accessway are six feet wide. The- proposed walkways will be. paved with scored concrete or modular paving materials. The walkway connections between the entrances for ' buildings three and four connect directly to their primary accessway however, to clearly define a pedestrian. environment, six foot wide, at grade concrete pathways will be designed connecting to the primary accessway. Under this standard, no walkway is required along the accessway. However, the applicant has shown a five foot wide walkway along. one side of the accessway, in accordance with Table 18.705.2. Therefore;. this standard is satisfied. Parking location and landscape design: Parking for buildings•or phases adjacent to public street rights-of way must be located to -the side or rear of newly constructed buildin s. When buildings or phases are adjacent to more than one' public street, primary streets) shall be identified by the City where this requirement applies. In general, streets with higher functional * classification will be* identified as primary streets unless specific design or access factors favor ahother street. If located on the side, .parking is limited to 50% of the primary street frontage and must be behind a landscaped area constructed to an L-1 landscape standard. The . minimum depth of the L-1 landscaped area is five feet or is equal to the building setback, whichever is greater. Interior side . and rear yards -shall be landscaped to- an L-2 landscape standard, except where a side yard. abuts a, public. street, where it shall be landscaped to an L-1 landscape standard. (I C:- -i There are no parking spaces proposed adjaceni'to a ,public street as a result of the location of the on-site sensitive areas. The buildings and -parking spaces are. setback from SW North Dakota. Street approximately 900 feet and are located :behind a five foot landscaped area consistent with the L-1 landscaping standard. Therefore, this criterion is satisfied.. . Ground floor windows: t;t `1< (►:!iN„'.:nlir; ~'r..-;, All street-facing elevations within the Building`Sbc.fo'1'Olfe`e)`.along public streets shall include a minimum. of 50% of the ground:fl6dy,.: will-area-,with -windows, -display areas or. doorway openings. The ground floor, waQ. arga: shall' be measured from three feet above grade to nine feet above the entire -width, of tle.stre.et'-facing elevation. The ,ground- floor window requirement shall be-met- •vlPin :thas'ground' floor wall area. and for. ` glass doorway openings to . ground level.;',- ,'U,p. fl : 0° <<-4oji~the_ground':,floor window requirement may e met on an adjoining elevation as fong as the entire requirement is ; located at a building, corner. E{ REFUGE AT FANNO CREEK STAFF REPORT{SDR2005-00002)'. PAGE 14 OF 55 HEARINGS OFFICER HEARING 11/1412005` FAA NNO =":L!',`.S r.FF F-Ei'•. i ! i, _ir i•:! !'I t'• - }YYIt lf'f~ : r.f tt Fps [a {'I (I!F'!`tl .a..tl~'~t tYtt I._,•.i: c r 'j S{ ' r r r h 1 'I ~y. l i r , I t 1 r 1 ( i•)' ' THere are. no proposed"buildings; lbcated. i~hi~r`' 1 b f ,e of 3u il1T'd r' .e Therefore' this =standard`dQ not'aRp1y • fWit,. 1 IG:itt- ' r... , .a;.r t .t•t r s 4f%rrkll}'.~.}l`t: Willi (,1-•~t~i liiiih.lt:•',i t .t , ' Vii: :1_ ilC ~a~.t`,I"t° ~ .;:1:. w t . Building facades: ~1 1 Facades that face a public street shall extend no more than 50 feet without providing at least one of the following features: (a) a variation in -building materials; (2) a building off- set of at least ;1. foot.; (3) a wall area that.i"1' 1 i. iret :separated. fropir other; wall areas by~a projection, such as an arcade; or (4) by another design features that reflflect the buildin s structural system.. No building fagade shall extend for more than 300 feet- withou a pedestrian connection between or t rough the building. None of the' proposed buildings face a public street.' However, the applicant has provided plans that show the proposed buildings to extend no more than 50 feet without providing a variation of building matenals, offsets or other design features-.that reflect the buildings structural system. Therefore, this standard is satisfied. Weather protection: Weather protection for pedestrians such as awnings, canopies, an arcade, shall- be provided at building entrances. *Weather protection is encouraged along building fronta es' abutting a public sidewalk or a hard-surfaced expansion of -a sidewalk, and along building frontages between a building entrance and a public-street or accessway. The applicant has. indicated that each of -the' proposed • buildings will . be constructed with a covered entrance. However, the applicant has not. provided elevations. Therefore, staff cannot verify that this standard is satisfied. The applicant is required to provide construction drawings • that include elevations that show the proposed weather protection at the main entrances of all buildings. Building Materials: Plain concrete block, plain concrete, corrugated metal, plywood, sheet press board or vinyl siding may riot be used as exterior finish materials. Foundation material may be plain concrete -or plain concrete block where the foundation material is not revealed for more than 2 feet The proposed buildings will consist of composition shingles (Arch. Series) as an exterior finish with vinyl windows, Vim wrap posts, decorative braces, cultured stone veneer wainscote and post bases. -The commercial buildings will include a' combination of split face CMU and brick veneer.. Therefore, this standard is satisfied. Roofs and roof lines: Except in the case of a building entrance feature, roofs shall be designed as an extension of the primary materials used for the building and should respect the building's structural system and architectural style. False fronts.and false roofs are not permitted. No false fronts or roofs are associated with this development. The applicant has proposed that the; roofs of the proposed buildings have bee .~d' iggned.with, fpspe~to the ;structural system and architectural style. Therefore, this standard.ls,.-gsfied. Roof-mounted equipment- All roof-mounted equipment must be screened from view from adjacent public streets. Satellite dishes and other communication equipment must be screened from view from adjacent public streets. Satellite dishes and other-communication equipment must be ,5et,,baf k- Qr. positioned; on a • roof so,. Zh {t, ,LA~xpo from a acg t~~ uplic streets is minimized. $olar'hea ing panels-are..exeli~f~t' n6i; h~ a ~tiiat'tl: According to the applicant, no roof mounted- equipnris„proposed.fpr. the,;residential units. The ;proposed commercial, buildings have h .era :propprsed fQ ;have. oof;mounted.equipment that will.be screened by..the'proposed parapetS. Npwe :er; the„applicant f~tis not provided elevations V;. r. ;showing=theroposed..screen.: Therefore; th tls_ regiljfd, t;pTQvide'fAnstrufion_' dravings that. sbovu 2h,e'.'propose. parape ririR.ss`~r b de' tt~. sci~~eb* the proposed ~'J- it •i`r i r _ , - t r v, { _ + . . ! } ' • t 1 . . : ( . . r . . i i L ~ t _ i • L o p pGa R1., l.Y l':.IU:t.+.ulr.>.i.'E(f•, rgof mQluMeo` equiQrnenf: ;n !*t.. ri.r.: ltf t: 1.;.1i1 t. :ir:li;ilrif' .•"al,~Y~r4.~E!i~f.j~3I.Y{a~i:v 1 ~iiG 1, t: IUI - .f t!. '.}ne. r~ .rcr..y..R: rV_. r'r 'i a.r.It ic'•r•. .frr i}. Vii- .:i i\: i." REFUGE AT FANNO CREEK STAFF REPORT $DRZOb5-00002_ 4, PAGE 15 OF 55 . , .r I~,'r.t' ".F:'i-dl: i !i':=1?:•tl' .o -HEARINGS OFFICER HEARING 11/14/2005 } Section.18.630.070 specifies additional requirements as-'related to signs.. In general for commercial' developments in the MUC zone, the: requirements fo,r.signs. in commercial • . zones. as described in 18.780 shall be used.- Height limits. for freestanding signs shall be 10 feet. Watl signs are notpermitted ,to.extend above.the roofline of the wall on which the sign is located. No''height increases' 'ill be permitted., t The applicant has not proposed any signsge with this application. Signage will be covered under a separate process through the City. Therefore, this standard does not apply. V.A Section 18.630.090 describes the landscapin and screening requirements applicable within the Washington Square Regional enter. For • general landscaping of landscaped and screened areas within parking, lots and along local collectors and ' local streets planting standards of Chaper 18.745. Landscaping and Screening, shall apply:".In addition the L4 standard applies to setbacks on major.and .minor arterials i and where parking lots abut public streets. Where the setback is a minimum of 5 feel between the parking lot and. a street trees shall be planted at 3% inch caliper at a maximum of 28 feet on center. Shrubs shall be.of a variety that will provide a Poot high screen and a 90% opacity-within one year. Groundcover plants must fully cover the remainder of. landscape area within two years. For general landscaping of • landscaped and screened areas within parking lots, and along local collectors and local streets, planting standards of Chapter 18.745, Landscapingg and Screening, shall apply. In addition, trees shall be provided at' a minimum M inch caliper, at, a ` maximum spacing of 28 feet. Shrubs shall be of a size. and quality to achieve the required landscaping or screening effect within two years. The landscape plan submitted by the applicant shows landscaped areas within the parking lots and along SW North Dakota Street comply with the planting standards of Chapter 18.745 except along.a small southern portion of SW North Dakota Street that has sensitive lands. Because the accessway is in excess of 100 feet in length, the applicant has proposed street trees to be r planted along the entire length of the drive at 2% caliper inches per tree at a spacing of 28 feet. The applicant has not indicated whether or not the proposed shrubbery to be planted on site will • be of a variety that will provide a three foot high screen and a 90 percent opacity within one year. Therefore, the applicant will be conditioned to provide further information. FINDING: Based on-the analysis above, the Washington Square Regional Center Design criteria have not been satisfied. CONDITIONS: • Provide a revised landscape plan that shows the proposed Pacific Willows at the SW North Dakota Street frontage to be a minimum of 3 Y2 inch caliper. y to be planted on Provide information indicating that the proposed shrubber site will be of a variety that will provide a three foot high screen and a 90 percent opacity within one: ear.: .4 Provide construction drawings that" include. elevations that show the proposed weather protection at the mam entrances of all buildings. Access Egress and Circulation (18.705): Access- plan: No, p.uilding or, other permit,shall be-issued. until scaled plans -are- presented and ; . approved as provided by this chapter'that show how, access, 'egress and circulation ; requirements are to be fulfilled. The appJiicarit: Shall :submit a. site plan.. The Director r .shall., • provide the applicant with detailed information about this submission re.quirement:. : . I The. applica. bhas submitted a site plan showing one.'entrance,to.:the.sjte.- Access is reviewed . ;fQr.,compiianoe;pelo~w.• Therefore. this standard has :been .sa#isfiecj',. 't' I F; REFUGE AT FANNO Cf?EEKSTAFFREPORT (SDR2005 00002 PAGE 16 OF 55, HEARINGS OFFICER HEARING 11/14/2005?. = _ I : C: I , . t ,5C::' „ , , : i ,i; ; ' • • .t i r •i l'?'1i: i'j I•' ' If.,: f °.i r..:.1~.?:..;r; , i..{. , ' Joint access:. Owners of,two.or-.more uses, structures. or pafceii bf'lahd`ir~~ay.agree.to utilize jointly the: same:'.ac''dess and a ress when the coM.bibed- occess •an:d aggress-.of both uses, ttte ~ , structures; ,or.-parcels of land satisfies ie; cotn in'ed,r - Arbm nts designated in ~.t.; . this title, provided: Satisfactory legal evidence shall bb presented in the form of deeds, easements, leases or contracts to establish the joint use; and copies of. the deeds, easements, leases. or contracts are placed on permanent file with the City. The applicant has indicated that joint access is not required with this application.. However, the proposed commercial- and residential buildings are to, be sold to individual owners and joint access will need to -be established for maintenance and access rights. Therefore, the applicant is'required to provide a joint access agreement for the individual buildings on the subject site. Public street access: All vehicular access and egress" as -required in Sections 18.705.030H and 18:705.0301 shall connect" directly with a public or private street approved by the City for public use and shall be maintained at the required standards on a continuous. basis. The subject site is accessible from SW North Dakota Street, which is .a public street that will be maintained as a public street. Curb cuts: Curb. cuts shall be in accordance with Section 18.810.030N: Concrete curbs, curb. cuts, wheelchair,. bicycle ramps. and driveway approaches shall be constructed in accordance with standards specified in this chapter and Section 15.04.080:."Concrete curbs and driveway approaches are required; except where no sidewalk is planned, an asphalt approach may be constructed with City Engineer approval and Asphalt and concrete driveway approaches :to the property line shall be built to City configuration ; standards. No driveway approach shall be less'than-five feet from the side property line projected except in cul-de-sacs, without approval and written permission of the city. The end slopes may encroach within the five foot restricted area. No portion of any driveway approach, including the end slopes, shall be located. closer than thirty feet to an intersection street right-of-way. line. Commercial or service drives shall. not be more than thirty feet in width and if located on the same lot frontage shall be separated by a minimum length of curb of thirty feet. Each. residential driveway shall be not more than twenty-six feet in width including end slopes, and if more than one driveway is to be constructed -to serve the same lot, the frontage spacing between such driveways shall be not less than thirty feet measured along the curb line. Joint access driveways shall conform to the appropriate width standard for commercial or residential type usage. ; The proposed driveway approach to the `subject' pp'roperty' is' shown'to"be"ten feet from -the T east toeman opperty line and greater than 30 feq.t mJthe,i :tersection of SW North Dakota Street and Avenue. Therefore, this stdNA91 is sa 10ba:" Walkways: On-site pedestrian walkways shall comply with the following standards: Walkways lA),.',,p all;ex# nd from. the, round floor entranC .s.orl fro , r . Und floor landin of stairs, tt l`: r,e -ramps " or elevators of all. commercial;-iri'st~itut orlai;'ah industirial,.uses, to the streets f. ' wh7clirovide `the required access an''gres: ,11rllnnrays' s all-,'provide convenient. ' connections. between buildings in `i~ u' lti-building' 'cohi'merclal, "'institutional, and industrial complexes. Unless impractical,,.walkways shall be constructed between new ..and existing ;~developments and neigh.bojang_,devW,op4r~n#s;;.;,; F: .F F1. III(, ~ I `1 * i .r.` ;I{w ay been ~roposed• k .fki'e'L tp^J(~L,11.•-1e,p o-osed acre sswaV which i: ..c i pp "E •t!F'"y~tv 11l",17 iv i~ I.a ..7 r-'+C ~lpr`i I. t 1..:. lip ►co_in.ecfs_ to-STN N`orfi:D'aiCOa street. 'TteefpraR thrs.t~ndrd ts"Satls~^{ed: _ Ft. r 1: • i:,' is i .iIUC j ~•..2. i _ 1 ti 14Lt C:a.. i. K'if~: ~'.^.'v ?~:r i .i~'.~ _ •.r4 r;a. •i rv ::i , Scn!`;•.j:.Y I.., 7 ; i.1 •l i::ri..r - - REFUGE AT FANNO CREEK STAFF REPORT~SDR2005-0008 4,: ; rr ~F; ; ;c r~;l.;,,; ; . < PAGE 17 OF 55 " k HEARINGS OFFICER HEARING 11/14/2005 Wherever -equi ed:walkways cross vehicle access:.dciveways rQr..parking lots, such. :.j~~ } .t crossings-,stab :be.•designed.a.nd tocated..for :p.6destriaft:saffetV -..R.eq' ired walkways rro . shal~_ be; phys;ically:'Separated. from motor :vehicle. traffic.:nd p~kmg,,by either a rpinirnu n; -G•-4nch , vqr.tidal. separation;.,.(;curbed)'.: pr:.-a niLnJmumj;,34o.ot.- horizontal . njiI- separatiota; ezc p# th'M pedestrian crossings.: of traffic ;ais%s.: arse , permitted for distances no greater than 36 feet if appropriate iandscaping, pavement markings, or . contrasting pavement materials are used.. Walkways shall be- a minimum of four feet in width, exclusive of vehicle overhangs and obstructions such as 'mailboxes, benches, bicycle racks, and sign posts, and shall be its c6mpliancevitti ADA standards; - The applicant has. proposed to construct a .five foot wide walkway along. one side of the private . acgessway. The -proposed walkway is shown to be separated from vehicular , movements byy a six inch curb. The proposed walkway does'&6ss the toposed accessway and stripping has been proposed to demarcate the pedestrian area. The walkway from the building entrances to the- walkways on the -accessway is a minimum of six feet in width, as required by 18.630 We'sqigne shington Square Regional Center. Design Standards). All walkways are proposed to be d inaccordance with ADA standards. Therefore, this standard is satisfied. Required walkways shall be paved with hard surfaced materials such as concrete, asphalt, stone, brick, etc: Walkways may be required to be. lighted and/or signed as needed for safety purposes. Soft-surfaced public use pathways may be provided only if such pathways are provided in addition to required pathways. The applicant's plan shows the pedestrian walkways' from the subject building to be paved.. Therefore, this criterion has been satisfied. ` Inade uate or hazardous access. Applications or building permits shall be referred to the Commission for review when, in the opinion of the Director, the access proposed. Would cause or increase existing hazardous traffic conditions; or Would provide inadequate access' for emergency vehicles; Tualatin Valley Fire and Rescue and Tigard Police have.been notified of the proposed development and have not indicated a hazard. The proposed driveway has. been designed-to. City standards. The Director has not determined . that Planning Commission review is necessary for building permits. With regard to streets and street intersections, these issues are addressed under TDC Chapter 18.810 (Street and Utility Improvement Standards). This criterion has been satisfied. In no case shall the design of the service drive or drives require or facilitate the , *backward movement or other maneuvering of a vehicle within 'a street, other than an alley.. Single-family and duplex dwellings are exempt from. this requirement The proposed- accessway, will enable vehicles. to pull forward from the site onto SW -North i € Dakota Street, a neighborhood-route. In addition the applicant is not requesting direct individual access to a public street from the commercial or iesid6ritial units. Therefore, this criterion is a( satisfied. Access Management (Section 18.705.030.H) S ion 18.705..: -states. Mat an access report- sha 'ways. be submitted. with all new . ;.develo.pment.prAposals which verifies.. design : of driveays, and... streets '.are safe by 4neeti:ng. adeguite..stadking .needs, sight distance and deceleration standards as set by rn ODO7 Vllashington County, the City and AASHTO." A Traffic Impact Analysis was prepared by Kittelson & Associates, Inc, dated May 19, 2005. In. this report they addressed sight distance at th cc 9,proposed aess point onto North Dakota I Street.' A speed study was performed and. the'85 percentile. speed: was found to be 37 mph, requiring a minimum intersection sight distance of 370 feet. According to the report, the sight rF distance to the west is--more than adequate at this location.. The sight distance. to the east (westbound vehicles) from the proposed access is 277 feet. This does.not meet the standard %-:REFUGE ATfANNO-CREEK STAFF REPORT•(SDR2005-00002) - - PAGE 18 OF 55 RF HEARINGS OFFICER HEARING 11/1412005 I ;I , „ l... .so the engin`eer.then. e'vaiuated -th`e stopppttig list tie 'ap raximately. 270 .;feef. The study determined-that a vehigl\ 't;t p' sleQ.f : ti -e visible to a i ' westbound driver ,cbrraing from the Tiede rv fa; tie uardrail at . -the. r,'ailroad track'.may paftially'obstruct the yie`!:.:`T el~xlyisbility would be clear from a distance of 274 feet from .the'prop''s . a .i ewa.. f there are. no. landscaping or signage obstructions. Therefore, a westbound vehicle woud i have sufficient visibility to recognize a vehicle exiting the proposed development and be able to come to a safe stop. r-nl aria` utilijy instaflations at 'the proposed scaping, signage The report . recommends that land driveway be properly located and maintained to maintain adequate visibility... Staff concurs with this recommenation. The engineer shall provide a final sight distance certification for the access upon completion of the driveway •approactr and-:pr qr to final building inspection. 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'ri§ht-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 frrontage, the applicant must explore any option for* shared access with the adjacent parcel. If shared, .access,.i not.possible or.: practical, the driveway shall be placed -as far from the interse ction as possible.' The proposed • driveway is over 400 feet from the nearest collector or arterial intersection, thereby meeting this criterion. .Section 18.705.030.H.3 and 4 states that tte minirnuin 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 1.25 feet. North Dakota Street is classified ' as a Neighborhood Route (local street). The spacing between the two closest streets, SW 105"' and SW 106 - is approximately 260 fee. Therefore this criterion is satisfied. Minimum access re uirements for residential use. Vehicular access an egress or sing e- ami y, duplex or attached single-family dwelling units on'individual lots and multi-famiily residential uses shall not be less than as provided in Table 18.705.1 and Table 18.705.2; . -The applicant has proposed nine multi-family* units on.the subject site. The.minimum access -.requirement for nine units is one 30-foot accessway with.24 feet,-.of payemen't:'..The applicant :..:,has requested' bn adjustment to reduce ffiq•'paveti 6ht' tl~h f§'.'2? `f et of:pa~ 'ment, which is addressed above under the adjustment section of .this` repott. ' 9-erefore, tKs standard is- satisfied..' Section 18.705.030.1,4 states that 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,.foJl win a cl culac, aved `surface.h ra:.adiUsasured from I.~ t ► I 4.' , g•: P • ,tyi ng, [p1 Ma t1'1, e IP r{c3?. c ter; point 'to outsiiie edge of 35 feQ';o~• a'.'h~ rh'Q=cqn rg , .paved. surface. it .f ] 1:.. gg . ' w'eac le '-of: fhe`h`ammerhead ha k.din , ti .rr~F rnil~i d. fl:pf O'ee 1 1a.bd a minimum t width bf 20 feet. The maximum cross s ogli i1i'MY6tin'd Ts k5./n. The. applicant's plan shows a ,circular ppaa~ec sufface (k~ Xipq~a,rpini' t~,Grt,#u rt;radius. greater... i p„3p;.feet..measure .from the ce.ntel',.ppinI::to,_~tfte.:o~ts e; edg ,.,.T1 ei' 'Ian has been;. s! -rp[{,viewe n d ._a r.v2c1 b ' ,T,ua7atin Va ~[G r~~1 o e s: standard is' k ,r;.,. k:s 1.J 1": :.:L..Y, ~:ki7t~ I FP) r{ I lfrlrj I t•Vrlril l y . Ii:4?t ed,... ii!iC;i ;.I"L ii l6 lartd~t;ape ISIdIIL +1'?.C'111fl~°1^ I.~i'. r.\ y - :`'L,, f:.,k. ~~.+r• •ul.inh hry. n.~-:-r"~ - , REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00062,),..'` ,cF:f r.Kli.~! 11 iSt?005 PAGE 19 OF 55 R HEARINGS OFFICER HEARING1 1114/2005 F- Minimum Access Requirements for Commercial-and Industrial Use.::. l i r Section 18.705.-030'.l provides the minimum a ccess.`re.quireme!rits:; fot-commercial and industrial:' u§es: ' Table 18.705.3 indicates. that:"the.,: requlirod ' access width for i i:. developments. with. 0-99 parking spaces: is :one,.;36.=foot.'a.cceses:wi#li 24 feet of c,::'. pavement. Vehicular access shall be provided t6-commercial or' industrial uses, and shall be located to within 50 feet of the primary ground. floor entrances; additional requirements. for truck traffic may be placed as conditions of site development review. The applicant bas shown a- total of 90 parking 'stalls' for'-the' proposed commercial buildings ? r which requires a 30-foot access drive with 24 feet of pavement. The aplicant has applied for an ad ustment to reduce the required pavement width to 22 feet, which is' addressed under the - ,Adjustment criteria above: Therefore, this standard is satisfied. One-way vehicular access points: Where a proposed parking facility-indicates.only one-wax traffic flow on the site, it shall be accommodated by a specific ddriveway serving thefacility; the entrance drive shall be' situated closest to oncoming traffic and* the exit drive. shall be situated farthest from oncoming traffic. The proposed access drive is designed for two-way traffic. Therefore, this standard does not apply. The Director- has the authority to restrict access when the need to do so is• dictated by = one or more of the following conditions: + 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 require 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. To eliminate the need to use public streets for movements between commercial or industrial properties; parking' areas shall be designed to connect with parking areas on adjacent properties unless not feasible., The Director shall require access- easements between properties where necessary to provide for-parking- area connections;. To facilitate pedestrian and bicycle traffic, access and parking area plans shall provide efficient sidewalk and/or pathway connections, as feasible, between neighboring .developments or land uses;- The proposed access to the subject property is not considered hazardous or constitutes a clear and present danger-to the public.health. Final sight distapgq;'., Pcation-has been conditioned Therefore; •no access restriction is required. = i 1 FINDING: Based -on the- analysis above,- the Access', Egress and' Circulation standards -have not been met. CQNDITION:.Provide-.a joint: maintenance-.and..aocess.,greemerlt.fdrtf e'Indiuidual buildings: ; . ' on the subleCt site: ' i%:: ' :Derisi Corr', utations and Limitations:' - apter 18315- implements the omprehensive-"Plan by" establisliin 'the criteria for determining-the number of dwelling units permitted.. the -number of allowable dwelling ry,, r t? ..the :.net. development-,hie~::• _Tfi.e,{iet VI Ut#e.,remapng. parcel area - afte~_~cliisio~: oft sens.itiVe :lands- and -land.'dedj afe`c1 a i ti~iic roa s p ' rks. ;The -net - ~,~s-•.~,,, rga,i-*"iheq.divEded by,•_the minimum-lot.size~,perWt't' ~j. ►tttaeiz4nmg~dL.E ric#fo..determine. . ,!-t-~"~ tt a nur x`lies.-ol ziweilirig_unifs that may be develQpe.d;on a_site:_° = = REFUGE-ATT=AI490-GREEK STAFF REPORT (SDR2005-00002) - PAGE 20 OF 55 - !F. . ".?T !.!dhiG CREGt S-T'/;F! ! :EPv!.i (:I?!'< uCs:: HEARINGS OFFICER BEARING 11/14/2005 l H The net development area is determined m-j by'subt~act fi m ttie gross area,. the land needed . fqr. public and private streets as well as. a r. a lad TheIcalculations areas. . ~St~t~ follows: c tOYPL ~iit . Gross lot area 362,724.12 square"feet Sensitive Lands 301,662.20 square feet Public right-of-way 2 047.32 .s dare' feet AREA: NET DEVELL)PABLE 59,014.6 square eet According to footnote* four of Table 18.520.2 (Commercial ' Zoning District) there is no minimum density requirement for mixed use 'projects. The maximum density for the subject site is based on 50 units per acre. Therefore, the maximum:-density for the subject site is 67 units. The applicant has proposed nine units. Therefore,'this section is satisfied. FINDING: Based on the analysis above, the Density Computations and Limitation standards have been met. Design Compatibility Standards (18.720) . Density transition: When a multi-family or attached single-family project abuts property zoned for detached single-family, the following design.standardt shall,apply: Building height shall not exceed two stories or 25 feet within 30 feet of the property f:. line.or three stories or 35 feet within 50 feet of the, property line;. - Building planes formulti-family dwellinggs.w.ithin.,5.0.feet of the; common property line(s) and abutting public rights-of-way shall be.subject to. the following standards: No building plane•that faces the common property line shall exceed 960 square feet within 30 feet or 1,400 square feet within 50 f et of the property. line; No building plane shall have a dimension greater than 40 feet in length or 35 feet in height; If more than one building-plane faces .a property line and building planes align at a common distance from the line, the building planes shall be horizontally separated by at least 20 feet. For purposes of this standard, "common distance" shall be defined as within 12 feet; Building plane is defined as a -surface that includes a building wall that extends from, the ground to the top of each wall of a structure. Area is determined by multiplying the length of each wall b the height. The plane does not include roof area. When a structure -along a waH juts out from the wall, or is off-set from an adjacent part less than four feet, the structure is ,considered part of the building. plane of the wall behind it. If tie: s rub#ure Irpro, Than four feet, it represents a separate building plane. I~a building plane is at an angle in relation to the property line, the midpoint of the, vya)I,shall;prouide;the::p:oint at.-which the plane and related' distances are measured: These:,concepts• are illustrated in Figure 18.720.1. The proposed buildings are not within 50-feet of the abutting property.zoned (R-7)-pr abutting -public right-of:ways.; Therefore; these staf)gards;plpi;;P~y~ Frontfacades: All primary ground-floor common entries or individuaf' unit entries of street frontage units shall be oriented to :the street, not--W,the:interioror to. a-,pair-king -lot. The front elevation of large structures must bb iiiivided ipto_;;s,maller: areas or planes of 500. t square feet or less. Projecting features suc~i:"as porch•e5, balconies, bays and dormer windows and roof pediments are encourages for structures facing a-street to create y visual interest. REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002) r; - 1t=Flt:'; i ' Y~c:.=:lh•. PAGE 21 OF 55 I HEARINGS OFFICER HEARING 11/14/2005 The project is not proposing any ground=floor-common entries or individual unit entries on a r street frontage as no street frontage exists aivhere corn on or:jridividual unit entries can be • provided. , 'The only street frontage is -SW NbAh. D'akbfa:.Street::.The. north -.Dakota Street rontage area: is impacted by wetlands, -&ainagewayrs~; and floodplains except where the accessway. connects to the. public right-of-way. .,.:.The :front elevations of the proposed residential units will have no building planes in excess of' 500 square feet. Projecting features are included on all of the buildings; owever, none of the structures face a street: Main entrance: Primary structures -must be oriented with their main entrance facing the street upon which the project. fronts. If the site is on a corner, - it may-have its main entrance ° oriented to either street or at the corner. The primary structures are oriented with their main entrance facing the proposed accessway. There are.no opportunities to' face the structures to a 'street or corner upon which the project fronts. The project meets the intent of this requirement by facing the main entrances of the buildings onto the proposed accessway. Therefore, this standard is satisfied. e Unit definition: Each dwelling unit shall be emphasized by including a roof dormer or bay windows on the street-facing elevation, or by providing -a roof gable or porch that-faces the street. Ground-level. dwelling units shall include porches that shall be at least 48 square feet in area with no dimension less than six feet. The applicant' has proposed each of the residential units with the inclusion of a roof gable and a porch that faces the proposed accessway: The proposed porches are more.than 48 square feet in area with no dimension less than six feet. Therefore, this criterion is satisfied. Roof lines: Roof -line offsets shall be provided at intervals of 40-feet or less to create variety in the • massing. of structures and to relieve the effect of a single, -long roof. Roof line offsets F shall be a minimum 4-foot variation either vertically from the gutter line or horizontally. The applicant's plans indicated that roof line offsets are provided at intervals of 40 feet or'less and the roof lines are broken horizontally with a four foot high break and vertically from the gutter by the large gable features. Therefore, this standard is satisfied. Trim detail. Trim shall be used to mark all building roof lines porches, windows and doors that are on a primary structure's street-facing elevation(s~. . The applicant has proposed trim work for all building roof lines, porches, windows and doors on the front elevations. However, no elevations have been submitted to show the proposed trim work. 'Therefore, the applicant is required to, provide and implement a 'plan showing the proposed trim work of the proposed buildings:: - i .Mechanical equipment: Roof-mounted mechanical equipment, other'than`vents or ventilators, shall be located and constructed so as to be- screened from ground-level view: Screening shall be integrated with exterior building design. . The,,,. applicants plan proposes roof mounted `merh scat -equin. "ea for, both . commercial I buildings.: The proposed equipment is screened by. the proposed parapet which is integrated bi with the exterior building design. Therefore; this standard.J• satisfied. Parking: .:~;ii -Parking :and loading areas may not be i.oeat6d ibLffWeen 1.f `ei =primary structure(s) and ` `#fiafe.tisno;alle. =and motor vehiclet 6.1 structure lfr'oin ...its the' 'street :upon. which th I ac~cess.is from the~treet; parking must-b I'' iied:'.arag'et at is-attached to the a ~ppximary: structure; In a detached accessorrryy,: atrucire aocated. at feast 5D feet from the front property line; or In a parking area att.he.side. or rear of the site.. - REFUGE AT:fANNO CREEK STAFF REPORT (SDR2005-00002.._._ - - - - PAGE 22 OF 55 R HEARINGS OFFICER HEARING 11/1412005 1.1 ;c'. • 1 !1.•': t '"!S?. 1('1•! f' t' l nr~,:f..r .The• proposed parl~ln.l' 6.6 ;~oaoin area:; Q e e P e ;structures and the ; accesswa)i :upon which; the.;unis.ront. rioe,.d";and::i~oto.r vehicle c.ess;-is fropi the a:ccessw, y.. Two par~ `.a r ¢ ~S f; iur` it ~ ,tithin .garages a achec'to .the: ►nividiial .units.. Therefore, Pedestrian Circulation: The on-site pedestrian. circulation system shall be continuous and connect the ground- level. entrances of primary structure(s) tp, tt i' ;fal Rv,+cij g :aa,., S, y06ts,'aputting the site; b. Common buildings such as laundry and recreation. facr)iiies; c. Parking areas; d. Shared open space and.-play areas; e. Abutting transit stops; and f. Any pedestrian amenity such as plazas, resting areas. and viewpoints. There=shall be at least one pedestrian connection to an abutting street frontage for each 200 linear feet of street frontage. The submitted plans show on-site pedestrian circulation from the "~pi,imary entrances of the proposed commercial buildings andthe associated parking areas: the common open space area south of building #5 and SW North Dakota- Street..' There is.232 lineal feet of street frontage on SW North Dakota Street. The sidewalk along the proposed accessway provides the necessary pedestrian connection to the street.- The project has a narrow flagpole to SW Cascade Avenue. Pedestrian access is connected to this street via an *easement through the railroad (ght-of-way. Therefore, this criterion,is satisfied. FINDING: Based on the analysis above, The Design :Compatibility Standards.have been met. Environmental Performance Standards (.18:725): Noise•.: • For. the purposes of noise regulation, the provisions, of Sections 7.40.130. through . 7.40.210 of the Tigard Municipal Code shall apply. r 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 of other oint source' emission from space heating, or the emission of pure uncombined water steam) which is visible from a' rt y line. Department of Environmental Quality DEQ) rules for visible emissions rroTe 4 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-i t ; .....i . The:.erssion' f.of: odorous; gases or.:otera##e ton .~.ucih: aquar4tities;iaso be -readily - detectabk at any point-beyond the* property:J, l e of-Ahe -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"dr from high temperature ' processes such as. ,combustio() or wgiging,,.-.Whf iptZ;is;,yisa le: ax,.the ot;:line shall.be permitted`and; :"there shall'be no emission,oe.trar.~smission.B. heat pr heated air which is ; discernible at the lot line of the source; and..these:regulatioos.shall. hot'.apply to signs or : . floodlights in parking :areas or- construetirig equip~e~af at,;t a :tirr~e;of'construction or excavation work otherwise,permitted by,t ~i r r,r;.:r+. v i.:. c is 1'. 16sects-and rodents: --)ire,qnfitis r r: r.incj -1121; * Fir-ei '-11 All materials including wastes shall 'bd,.tf6r6d,.a rg- it grounds shalt 6e maintained in a = manner which will not attract or aid the propagation of insects or rodents or create a rr health hazard. ' .t rt I I.IAlll.f'L-L".:-1/ v' , K,. ~.1-. f: .'i I•-::'. REFUGE AT FANNO CREEK STAFF REPORT SDR2005-00002• r- PAGE 23 OF 55 .i"'I HEARINGS OFFICER HEARING 11/1412005 ► it The proposed use is a mixed use project of office and residential which are outright permitted uses-within the _MUR-2 zoning district.. There is-'bAlndic; flori wi in•.the-application that these si, -farri'1" `h , gle • standards will: not, be rnet. However there' ~aTe` t y . r o es:-ifa - 6lose ; proximity to the subject site and:giare.froin.the.proposed'bui ings`ha;;`p t-pee'n,#et.; :Qggging bfforts to meet these standards shall .be maintained and annotation of•th:e~s~•ston•dards will be addressed by the City of Tigard 's Code Enforcement Officer: FINDING: Based on-the analysis above, the Environmental Performance Standards have not been met. However, if .the, applicant -satisfies. the. condition below, this section will be met. CONDITION: Provide a lighting plan demonstrating glare will npt infringe on the residential homes to the west. - Landscaping and Screening (18.745): Obligation to maintain. Unless otherwise provided by the lease agreement, the owner, tenant an is agent, if any, shall be jointly and severally responsible for the maintenance -of all landscaping and screening which shall be maintained in good condition so as. to present a healthy, neat and orderly appearance, shall be replaced or repaired as necessary, and shall be kept free from ruse and debris. The applicant has indicated that the owners of the individual residential and commercial units will be jointly and severally. responsible for the• maintenance of all landscaping and screening, which will be addressed within the owners, association . A copy of the CC&R's will be required to be submitted to the City later in this report under 18.810 (Street and Utility Improvement Standards). Therefore, this standard is satisfied. Pruning required. All plant growth in landscaped areas of developments shall be contro e y pruning, trimming or otherwise'so that: 1. It will not interfere with the maintenance or repair of any public utility 2. It will not restrict pedestrian or-vehicular access; and 3. It will not constitute a traffic hazard because of reduced visibility. As mentioned above, all common landscape maintenance will be controlled by the owners associatio'h..Therefore., this standard is satisfied. Installation requirements. The installation of all landscaping shall be as follows: 1. All an scaping shall be installed according to accepted planting procedures; 2.-The plant materials shall be of high grade, and shall meet the size and grading standards of the American Standards for Nurberg Stock (ANSI Z60,.1-1986, and any future revisions); and 3. Landscaping shall be installed in accordance with the provisions of this title. The-applicant has provided a landscape plan prepared by Perron Collaborative, which is a firm that specializes in landscape design.` The applicant's plan has indicated that the proposed. landscaping will be installed according to-the size and grading standards of the American Standards for Nurberg Stock: Therefore;-this, standard. is;satisfied. Certificate of Occupancy. -Certificates`'dt"occuParicy' S'hall'not bei' issued unless the an scaping requirements have been met or other arrangements have -been made and approved by the City such as the.posting .of a bond. . ' The applicant has indicated that.-all landscaping :rnr lI-bi,:insta9e ;prio,K gr;th> .-,issuance of.a i r certificate: of, occupancy. T-9. ;ensure - the = propN d ~,landscapifing is. ypmp eted, a final A inspection must be. • compleled 'by: a rrieMbe~': bf tf~~ • Planning, Depar(merkf Nand a report i according to condition. Section 18.745.030.E states that exist i•ng.wegetatiorf on-,d site `shaft tie-protected as much- as possible., The developer shall :provi• e -methods-.for the protection of existinll - remain Burinthe. t wt:ctio 'p .'r'`ce ' nid Ee 'I vc { vegetationto g consr,ei o Sq`;:.a h. ar;~fs_!to=ba'saved sha be: noted--on: the landscape plans (e:g..~ea`§."=nbt,1 .bE.~fis~urble' rirrtie'-fenced, as in r~~ snow fencing-which can be placed around-individual trees). C - REFUGE AT FANNO CREEK-STAFF'REPORT•(SDR2005-00002~-_- • . - - - PAGE 24 OF 55 F HEARINGS OFFICER HEARING 11/14/1005 %:!i~U GRcCi. Sl `Ci' jSE:i HE . -~{;ai..,'. ~-I ~ • ;F= i'~i~R•.~"= iii i ;i:'{;~:, 'The subject site (s approximately eight acres of wh C are,rriost1Vseb 'Ve' iartids that will not • have any disturbance. Barnerfencing will -be..install• riot ..'Comrn'~~ce` n6hl'of site work to gdlrede rerhMi plan has been ensure he protection of existing vegetation. In ,~fiorf; submitted demonstrating protection measures. for trees. to be preserved •to ensure proper protection for trees. Sensitive lands and tree' protection Is discussed in greater detail later to this report. Therefore, this standard is satisfied. Care of landsca in along Public ri hts-ofiwa :Appropriate methods for the care and main finance o street trees an an. scaping matert,als shall be provided by the owner of the-property-abutting the. rights-of-way. unless. otherwise required for emergency conditions and .the safety of the general publi•c.. ' The- applicant has proposed- a fee in-lieu of improvement. to the site's frontagge along SW North Dakota Stree- The owners association wilt ultimately:be..resp.onsible.fdi.the care of the right-of-way that the subject site fronts. Property maintenance will be spelled out in the CC&R's "which a copy will* be conditioned under 18.810. (Street and . Utility- Improvement Standards) to be on.file with the City. Therefore; this standard is satisfied. Conditions of a roval of existin ve etation. The review procedures and standards or require landscaping an screening shall e specified in the conditions of approval during development review and in no..instance shall be less than that required for conventional development. Existing vegetation has' been addressed above. No condition of approval has been .imposed. Therefore, this criterion does.not apply.- Hei ht restrictions abuttin ublic ri hts-of-wa . No trees, shrubs or plantings more than 18 inches in, eig shall be planted in, the public right-of-way. abutting roadways • having no established curb and gutter. : The applicant'h8s indicated that no trees; `shrubs'or plantings more than 18-inches in height are proposed nor will. be planted in. the public right-of-way on SW North Dakota. Street. Therefore, this standard is satisfied. Street Trees, Section 18.745.040 states that all development pro ects fronting on a public street or a private drive more than 100 feet in length shall ~e required to plant street trees in accordance with Section 18.745.040.C Section 18.745.040.C requires that street trees be spaced between 20 and 40 feet apart depending on the size classification of the tree at maturity.(small, medium or large): The applicant -,has ,proposed street trees along the entire' length of the proposed access drive intomP~lance:;with Pie spacing standards of 18:630;1 ashington,S.qupre Fjeggtonal Design ,.Standards) Whichet trees to. lie.plari~ed.att a.spacing of.28.,fee. Therefore, this criterion is satisfied. No new, utility pole location shall be established closer than five feet to any existing . - ' street tfee; . ' . . ' Tf tplaiis s ova ho 'n w iufility oles. are.,pr o e~i q , f u('e,. t i hErt five feet of existirireeg ic it, aT' c,i tit,. ;,,:~►i, I , I:S`-ri.'.ic. .E- r~}i<t} i;,~r ~;;c~ r s c, a Tr e,'p lws; 'hail `b 'IQcated o'as n t ?d . , p of o. cl ;e` uiJdi+ s;.•~e.,,ilii a#er:ana1 gas meters) in nth tree'well.. I~ The ap licant's plans show that tree pits'shall be located so as not to include utilities in the Y . - tree a~ Therefore this ,standard is satisfe¢. ,~';.t:l' 1t1i 1t -(~.:~w;lllrl Ct:(~ilftr.,.1• 1l bn-premises, utilities (e.g., water and gas met,r er) sh'al~ not`be: irisfalled within existing C tree well areas; -REFUGE ATFANNO CREEK STAFF' REPORT'(SDR2005-000W4 t F;t..r;.tt; :I: ;•I~; j~,;~ PAGE 25 OF 55 t, HEARINGS OFFICER HEARING 11/14/2005 ' { There, are no existing, tree well areas on the site;' Therefore., this standard does not apply. • Street trees shall not be planted closer than 20 #eet to.light standards; The applicant has indicated that no trees: are proposed within 20 feet of a light standard as shown on the landscape plan. However, no on-site lighting is shown on the submitted plans. Therefore, the applicant is required to provide a lighting plan that shows the proposed lighting ...on the subject site New light standards shall not be positioned closer than 20 feet to' existing street trees except when public safety dictates, then.they may be positioned no closer than 10 feet; . There are no existing streetArees located on-site. Therefore, this standard does notapply. Where there are overhead power lines, the' street tree species selected shall be of a type which, at full maturity, will not interfere with the lines; The applicant has chosen to pay the fee in-lieu of improvements to SW North Dakota Street. Street trees will be installed at a later date to this street' when improvements occur. Therefore, no street trees will conflict with existing overhead lines on, SW North Dakota Street. ' Trees shall not be planted within two feet from, the face of the curb. The, applicant's landscape plan shows street trees along the proposed access drive no closer than three feet to the curb. Therefore, this standard is satisfied. : . Trees .shall .not be planted within two feet of ,any permanent hard surface paving or walkway: Space between the tree and the hard surface may be. covered by a .nonpPermanent ' hard. surface such as grates, bricks on sand, paver blocks and cobblestones; The applicant's landscape plan shows the proposed: street trees along the proposed accessway to be located five feet from the proposed walkway. Therefore,- this standard is satisfied. , Sidewalk cuts in concrete for tree planting shall be at least four by four feet to allow for air and water into the root area. The applicant has not proposed tree wells. Therefore, this standard does not apply. D. Pruning g requirements. Trees, as they grow,.shall be pruned to provide at least eight fee o c earance a ove sidewalks and' ~ 13 feet above. local street, 15 feet above collector street, and 18 feet above arterial., street roadway. s.urfaces.. ; ..'Maintenance requirements will- be- required,-under the CC&R's,,-which will be conditioned l,~! under 18.810 (Street and Utility Improvement Standards). Therefore, this standard has been satisfied. E.'.Cut• -and fill around existing trees. • Existing trees. may be -used as street trees if no. ...Putting' or, •in - a es place within the dri -1i.ne of th.earee; ~uniess- an adjustment is cc apprAVed b ':the Director by. means of 'a Type- I -procedure; `as ;governed by Section ;i ` 18.39Oab.30;' sing~approval'critena in -5ectiori'~.5-:370:0 i9*.CA1A., f ° The applicant is not proposing to, utilize existing trees as -street trees. Therefore, this :standar=d does; not. ap.ply. 0: : =:2EFUGE AT-FANWBGREEK.STAFF REPORT (SDR2005-00002)-. PAGE 26 OF:55 F.i HEARINGS OFFICER HEARING 11/14/2065 ° i i t: f F.-Re lacement of street trees. Existins ne~et t6ees..removed. b ..develolpment projects p pr. o er cgnstruc won shall ere lac., 'i !t#t 1 a o y er Vi those types of ~rees p ! approved'-*bythq Director: The reptacerriei~'ftr..'f d'species similar / h re•beiri • reMdve-u'le e~ tothe trees at a g ~shill'bb a ` .es ae..approved by 'the Director: , . No street trees will be removed as a result of this project. Therefore,, this standard does not apply... ;r; r.~' ' G. Grantin d of adjustments. Adjustments to -the street tree requirements may be gran ad-.by a Director by means of a- Type I procedure, as--regulated in Section 18:390.03x, using approval criteria in Se•ctiojr'F837.020,C.4:b; The applicant has not requested an adjustment to the landscaping requirements. Therefore, this standard does not apply. H. Location of trees near signalized intersections. The Director may allow trees closer to sppecs le intersections which are signalized, provided the provisions of Chapter 18.795, Visual Clearance, are satisfied. The nearest intersection is SW North Dakota Street and SW Tiedemen Avenue at 480 feet to the west. Therefore, this standard does not apply. Buffering and Screening: Section 18.745.080 states that no buffer is required between abutting uses that are of a different type when the uses are separated by a street. No buffer is required between a proposed office-use and existing office- use. Screening has been addressed under Chapter 1,8.630' (Washington Square Regional Center Design Standards) above. Therefore, this standard has been satisfied'.' Screening: Special Provisions: Section 18.745.050.E requires the screening of parking and, loading areas. Landscaped parking areas shall include special design features which effectively screen the parking • lot areas from view. Planting materials to be installed should achieve a relative. balance between low lying and vertical shrubbery and trees. Trees shall be planted in landscaped islands in all parking areas, and shall be equally distributed on the basis of one, (1) tree for each seven (7) parking spaces in order to provide a canopy: effect The minimum dimension on the landscape islands shall be three (3) feet wide and the landscaping shall be protected from vehicular damage by some form of wheel guard or curb. Screening -has been addressed under. Chapter ,18:630, (Washington.'Square:Regional Center L~; ign,StatjdarWs above Therefore, this $t ji~ar, .~jas b er~,$a sfled•. . 1Screenirig 10f' Senildb Facilities: r Fr r..►►: ! <<.: i:r; l.:'. • ' ' r Except for one-family and two-family dwellings, any refuse container or disposal area and service facilities such.as gas meters and air conditioners which would otherwise be}y'visible from a public street, customer or.resident parking area, any public facility or. . .i:dential.area shall be screened 'f" Wt ii~r lap~erneR p t ol~gl.)ntood fence or masonry. wall between 'five and eight `i hK '1 W ef~4, e• maeriials shall be contained within the screened area; 1 z r. I] uY•`....i ~ 7.`,- I ' r.. / ! - i .:1 I Ir•" tl ii 1. it; ' 1 1: , I r, .•a 1 [ - _Screenin"igg of'S6rvice Facilities is addressed.. 66611 , Efia fe~,1,8,fi5 .;(IVllxed .t id Waste- and '.Re6Yclable Stprage). 4:li it T• ;i. ill:. 'JJiiI IE'-1 Ii I:.F, rr ii.,: i'~,i REFUGE ATFANNO•CREEK•STAFF'REPORT (SDR2005-0000 ~li•ii:;~41i-'F IC•E't". +-,~;tl?.••d e'i:'i-%,::.. PAGE 27 OF 55 I -L HEARINGS OFFICER HEARING 11/14/2005 I it Pre aration for re-vegetation. Topsoil removed from the surface in preparation for r r e • grading an construction is to be stored on or near the sites and protected from erosion while grading. operations are underway; and such storage 'm•ay• not be located "E where it would-cause suffocation of root-systems of trees intended tobe preserved; . v;rl1• and after completion of such grading, the topsoil is to be restored to exposed cut and fill embankments or building pads to provide a suitable base for seeding and planting. The applicant has indicated that topsoil removed from the surface in preparation for grading and construction Will be stored on-site and protected from erosion. The storage area shown on the grading plan is located where. it.Will. not cause suffocation of root systems-of trees to be preserved. After completion. of •constructiori activities, the topsoil may be restored to exposed cut and fill embankments to provide a .suitable base for seeding and planting. t Therefore, this criterion is satisfied. Methods of re-ve etation. Acceptable methods- o re-vegetation include hydro-mulching or the planting of rye grass, barley, or other seed with equivalent germination rates, and: Where lawn or. turf g rass is to be established, lawn grass seed or other appropriate landscape cover is to e sown at not less than four pounds to each 1,000 square feet of land area;. Other re- . vegetation methods offering equivalent protection may be. approved by the approval authority; Plant materials are -to be watered at intervals sufficient to ensure survival and growth; and the use of native plant materials -is encouraged to reduce irrigation and maintenance demands. The applicant has indicated that they will re -plant disturbed areas using acceptable methods as directed - - by the landscape architect. The landscape architect- will make the specific .recommendations for different plant materials in accordance with the approved landscape plans including the requirements above. Therefore, this standard is. satisfied. FINDING: Based on the analysis above, the landscaping and screening standards have not been met. However, if the applicant complies with the conditions below, the standards will be met. CONDITIONS: - Provide a lighting plan that shows proposed street trees to be a minimum of twenty feet from any proposed street light.. To- ensure. the proposed landscaping is completed, a final inspection must be completed by a member of the Planning Department. Mixed Solid Waste and Recvclables Storage (18.7u Chapter 18.755 quires a new construction incorporates functional and adequate space for on-site 'storage and efficient collection - of "mixed' solid waste= and source separated Recyclables prior to pick-up and -removal • by haulers.. The : applicant must choose one (1). of the following four (4) methods to demonstrate compliance: Minimum f:: ,;Standard):, Waste Assessment, Comprehensive Recycling -Plan; : or Franchised Hauler S f Review -and 'Si n-Off. The applicant will have to submit evidence or a plan which indicates compliance with this section. Regardless of which method chosen, the applicant will have to submit a' written sign-off from the franchise hauler regarding the facility location and compatibility. option to i The applicant has chosen 'to address the "Frenchised hauler review and sign;off" :•mneet the above -standard. According to the- applicant's narrative, there is approximately 9,1'5°s care feet of gross floor area. According to the. "S eeific-requirements option, the f. p applicant is!required- to provide a minimum storagge area of en square feet; plus four square - ~ feet per 1,;000•-sqquare feet, of gross floor area •(GFA). Therefore, :the applicant=, is required to l ~'.`.brQvlde a total bf,37- sgiiare'feet of'storage urea for mixed solid.wa`ste_ nd tecyclables.: The •E: appifdantis-proposing 120 square feet of i/vaste; storage area.. Therefore, this-standard has ai been satisfied. b( - . - = = =REFUGEA7•FANNO CREEK STAFF REPORT (SDR2005-00002)... PAGE 28 OF 55 -FEE HEARINGS OFFICER HEARING 11/1412005 L r : f + . ` i . HE Franchised hauler review method. t, I' r _T se ,...Typical 'app ica ion b method: his method is to 91='d; "d When ~fttiere are' unique . is i . conditions associated with the site, 'use or-.waste, stteaiIW that make compliance with ' any of the other three methods infeasible. The objective of this; nethod. •ls to match a specific hauler program (e.g., types of equipment freitiertc~ E~'fi'collection) to the unique characteristic(s) of the site or development. 'The' following constitute unique conditions: Use •of -either of the three other methods of compliance:would interferevith the use of the proposed development by reducing * the 'productive space of the proposed - development, -or make it impossible to comp'ly--with-lhe- -m-IMm-um off-street parking- - --requirements of the underlying zone; v -The subject site is constrained with associated wetlands and 1'00=year floodplain: Therefore". there is a very small amount of buildable land•that the applicant'hb§.to Work With. Whether or'_ not it is impossible to meet one- of the other three compliance methods is irrelevant to this pproject. Each of the other methods for waste storage and pick-up is required by the Director . to have franchise hauler sign-off. Therefore, if a productive method of service can be reached by the applicant and the franchise hauler,' and sign-off from.the franchise hauler is obtained, this criterion is satisfied. Location Standards: To encourage its use, *the * storage area for -source-separated recyclable shall be co- located with the storage area for residual 'mixed solid waste; Indoor ahd outdoor storage . ..areas shall comply with Uniform 'Building . and Fire. Code requirements; Storage area space .requirements can be satisfied with a single location. or multiple locations, and can combine both interior and exterior locations; Exterior storage areas can be. located within ; interior side yard or rear yard areas. Exterior storage areas shall ;not be: located within a I required front yard setback or in a yard adjacent fo a'public.or private.. street; Exterior storage. areas shall be located in central and visible locations ton a site to enhance. security for • users; Exterior storage areas. can be located in a parking area if the proposed use provides at- least the minimum .number of parking spaces required for the use after deducting the area used for storage: Storage areas shall be appropriately screened according to the provisions in 18.755.050 C, design standards; The storage area. shall be accessible for collection vehicles and located so that the storage area will . not obstruct. pedestrian or vehicle traffic movement. on the site or on public streets adjacent to the site. -The applicant has indicated that the residential units will store source-separated recyclables'co- located with storage area for residual mixed solid waste within the garage of each unit. The commercial uses will store' source-separated recyclables co-located with a storage area for residual solid waste within the storage area at the north end of the site. The indoor storage in the garages of the residential units will comply with Uniform Building Code requirements as well as the outdoor storage for the commercial element. The outdoor storage .area at the north end of:the property is. located in the side yard.of:.the_pr bused project andJs visible to enhance O..security,for users. The storage area is located :within the ,proposed nparklag aareafand is not part r ; ,.of the -parking calculations. The- storage facHity- is proposed to be :eMclpsed by a sight=obscunng -foot :wall.: Based 'on the analysis above; ;the lQgO . standara,,.haue sbeen,rn 1. Design Standards:" The dimensions of the storage area shall accommodate containers consistent with current methods of local collection; Storage containers shall meet Uniform Fire--Code standards and be made and, covered with terpp,roo mferi I a s .:r. 'c<. wa n. r~ u`r`ea;' Ext~erldr°-storagg e" areas shall bO.bricl'~ ea'si bbc~STi~~te §h a covered ce wall, or hedge aC~least six"Feet in height. Gatb'- Perim 'iNhichS' loo La(calto'users and tit fiatufi b 1-- rs=shall be=. provided. Gate openings;'-or :hauierfs §hall <tie a irr9 inimlttirri of 10 feet .':wide'arid-i5hall:be capable of being secured, n~:atclos~d•-grad • ~ 'en position; Storage area(s) and'.-containers shall be clearly labeled to indicate the. type of materials i' I accepted: r ll ;11) 1 I- , I' As mentioned above; the applicant has pra,.posec t e;o tc our storage area to be housed in " r six-foot high: masonry wall with six-foot. high gates. The franchise hauler has -signed off on si the location of the storage facility and. method of collection. Therefore, this section is tF} satisfied.: - C1 41 REFUGE AT FANNO CREEK STAFF REPORT (SDR2005 0000 PAGE 29 OF : . • HEARINGS OFFICER HEARING 11/14/2005 .55 HF FINDII~IG: ,..:Based. on the. analysis above; the~.'Mixed' .%lid.' W ste/Recjrcling Storage Standards have :not been met.' if the applicant:coniplies with t ie condition below, 1 • i :r , the standards will be met. CONDITION: Provide a copy of the Franchise Hauler's Sign off letter for the method of waste collection. _q and Loading (18.765): ` `¢f "Off-Stt'eet Parkin oca ion o Vehicle par King: Off-street spaces for. single-family. and duplex dwellings --and single-family attached dwellings shall be located on the same lot with the dwellings. Off-street - parking lots for uses-not listed above shall- be.-located 'not further than 200•feet'from the bui ding or use that they are required to serve, measured in a straight line from the building with the following exceptions: a) commercial and industrial. uses which require more -than 40 parking--spaces may provide for the spaces. -in excess of the required. first 40 spaces. up -to a distance of 300 feet from the pprimary 'site; The 40 parking spaces. which remain on the primary site must be available. for users in the following order of. priority: 1 Disabled-accessible spaces; 2)- Short-term spaces; 3) Long-term preferential carpoor and vanpool spaces; 4) Long-term spaces. Based on the roposed office use, the total number of required parking stalls for the proposed buildings is 2.7/1;000 square feet: The proposed buildings are shown to be 26,000 square feet. Therefore,, the minimum required parking for the site is -70 stalls. According to the above standard,' commercial uses must provide the first 40 parking stalls on site. The applicant's plans show a total of 90 parking stalls on-site to accommodate the commercial element. Parking for the residential units will be provided with garages. Therefore•,-this standard is satisfied. - Joint.Parking: {r. Owners of two or more uses, structures or parcels of land may agree to utilize •11'o.intly . the same parking and loading spaces -when. the peak hours of operation do not overlay, subject to the following: 1) The size of the joint parking facility shall be at least. as large as the number of vehicle parking spaces required by the larger(est) use er - Section 18.765.070; 2). Satisfactory legal evidence shall. be presented to the Director in the form of deed, leases or contracts to establish the joint use; 3) If a joint use arrangement is subsequently 'terminated, or if the uses change, the requirements of this title thereafter apply to each separately. The commercial use requires 70 parking stalls and the residential use requires.19 parking stalls including visitor parking. None of the parking spaces for the residential use are accommodated within the unit's garages and the remaining ten spaces are located in the parking area. Because.most -residents will be working during the day, there will be an opportunity to share the outdoor residential parking spaces with the. commercial uses where demand is generally during the day. As such and' as shown on the plans, joint parking is :.proposed far- this site even -though it is - not required to meet the minimum parking requirements for either use. Therefore, this CGriterion is.satisfied. ^Parking in Mixed-Use Projects: In mixed-use projects,. the re uired minimum vehicle parking shall be determined using- the following-formula. 11 Primary use., i.e., that with-the largest proportion of total-.floor area within the developpment, at 100% -of the . minimum vehicle parking re: uired for that use in Section 18.765.060; 2j Second "use; •i..; d r~' ' . q. ary that~With the secon ~lar. es#~ percentage of total. floor area'Within-.tha.devel.oprtier~t; at. Q0% -6Uthe:vehicle is parking regWred•for that use in Section..1-g."165'.060.;'3) Sub'se cent -use-or -uses, at 80% of the vehicle arkin re uired -for that-Use(s ' in S6ctiori 1'8.765.'060-; 4j- the maximum. °parking--allowance shall-be 1-50°la of •the`1ota rn16irriurii'= arkIng;as calcu at d in D•.1.-3' .above. • -The _ ProPosed project is a mixed use Pro1'e.~t,''hOWOVe 1'Q0%.a.of. he;.Pa`rkin9lreq- uired for each 1 t , •satisfie . us~IS~prQ~posed on°the site Therefore, thts'sfanda~d js.d - t LJc r ' - l : l;i i• C site. t' e' iiI1L3 t e1A; e,.Gt C,:! L ( ( is ti - REFt E-AT. FANNO-GREEK STAFF REPORT (SDR2005-0000!~ _ - - t- - _ - - - PAGE 30 OF 55 HEARINGS OFFICER HEARING 11/1412005 ~ { G,T f; ! ::F.E. t; a : r _ • ' ° L; HE Nisitor Parking-in Multi-Family. Resi n0 11 i!,c:. G!r! E c.! dential;'D:e e~ e4450,ircci by cl e , `a~ Multi-dwellin* units with ,more than: -1 ` ; req~uff. . 4rkitrg! ses! Is il : provide an. additional 15 /0 of vehicle parking spades: above-'the minilmumi required for the use of - guests of- residents of the complex. • These• spaces; -shalI . bet centrally- located or distributed throughout the development! -R,64u!red=,biicjiccllb`,Pa'rking facilities shall also be centrally located within or evenly distributed throughout the development. The multi-family portion of the : development has, .4ine„iin4s ~epiairing a ,inimum of 15:5 parking stalls. The minimum parking is provided inside `the gaga es of. the, ' units and' in the parkinq area. Each unit will have 1.75 parkin stalls for a total of.5.75 or 16. The.applicant is required to provide-guest parking of. an additional-),5%-of-the 15:75 required-spaces. This would equal three 'guest spaces.when rounded .up.:.'~h~epplicant :pp-.roviding the. required guest parking (3 stalls) including -two handicapped-.spots:. T.his•.parking is located • at the southern end •of. the site. Therefore, this criterion has been met. Preferential Long-Term CarpoolNanpool Parking:- Parking lots providing, in excess of .20 . long-term parking spaces shall provide preferential long-term carppool and vanPPool parking for-employees, students and other .regular visitors to the sife.. At least 5% 'of total long-term. parking spaces shall be reserved for carpool/vanpool use. Preferential parking for carpoolslvanpools shall be closer to the main entrances of the building than any other • employee or student parking except parking. spaces ' designated for use by the disabled. Preferential carpool/vanpool : spaces shall be full-.sized per. r-equirements:-in. Section- 18.765.040N and shall be clearly designated for use only . by carpools and vanpools between 7:00 -AM and 5.30 PM Monday through Friday: The applicant has -not. indicated. that carpoollvanpool spaces° will' be" provided. According to the standard, the- applicant is required to . dedicate 5 percent of the • ,total parking to car/vanpool parking. • ' Disabled-Accessible P . arking:- All parking areas shall be provided with the required number of parking spaces for disabled persons as specified by the State of Oregon Uniform Building Code and federal standards. Such parking spaces shall be sized, signed and' marked as required by these regulations. = The subject site is required to provide. a minimum of 70 parking stalls. According to ADA standards, parking lots with.51 to .75 parking stalls must provide 3 ADA accessible stalls that. are 9 feet wide with an 8-foot access aisle. The applicant's plans show four (4) ADA . accessible parking stalls that are 9 feet in width with an 8-foot access aisle.. Therefore, this standard has been satisfied. r..Aiii Drives: With regardj6i access to-public streets-frorn a#=street-parking:;, access drives from the street to- off-street parking or loading .areas snail ; fie' -designer 'and. constructed to facilitate tli~e:flow 'of traffic and pr oviditraaitr~Ui's#ety►`fc~!peldestrian end vehicular s traffic on the site; the rfurribef and siz&-ii cesis dti ieasrshd l'be;iwiddbrdance with the requirements of Chapter, 18.705, Accessi Egress and=C1rculation; access drives shall be clearly and permanently marked and defined through use of.rails, -fences, walls or other bai°rlers or.mark, ers on'froritage.not.occu ied by se _yipe-drives; access drives shall have _p.. minim.: , vision -clearance- n accoi', an6e~ vvit#~: ha teF 'F8: 95 Visual -Clearance; (f t `..t~: access drive. shalr b, irTtpro i6d withi,bf ;Ias- t~6 f e• "`and excluding i bn~re~te ibrf g sih``gle=fatly„anct duplex residericesp#sN~ry` tc5tltise`coi-15.810:030:P; roues of two Or. more parking spaces `sh'all :6e sei~ilcle`~di•ive so that ho t backing movements or other maneuveelft Wiffiin' t t1i i bttier public right-of=way will be required. The access drive has been addressed previously, in this report :under Chapter 18.705 Access + :Egress :and Circulation). •I I l:•.C A't•; vtdk!h q 'tLje SZ 'A~- F.i-!N! i!.! REFUGE AT FANNO CREEK STAFF REP.ORT.(SDR2005 OOOA2r , i' t ;!_-EF: !i i= 2W PAGE 31 OF 55 :I HEARINGS OFFICER HEARING 11/14/2005 I Pedestrian. Access: ! Pedestrian access through.,parking lots..sha-II; be..:provi0ed: t~,accordance with Section 18.705.030'.F. Where a parking area I vet 4eCej Area bias, -a. -drop-offsepa ; ration, the property owner ha'barYibr wwill 4 i n prevent a slow-moving vehicle or driverles"s'vehicYe franri" escaping such area and which will, prevent pedestrians from walking over drop=off edges. Pedestrian access has been discussed previously in this report under Chapter 18.705 (Access Egress and-.Circulation). Parking Lot -Striping: - Except for sing1le-family.and duplex residences., any area ntended to be used to meet the - off-street parking requirements as contained in this -Chapter shall have all.parking spaces. clearly marked; and all interior drives. and access aisles shall be clearly marked and signed to. show direction of flow and maintain vehicular and pedestrian safety. The plans submitted show the associated, parking stalls to be clearly marked with-striping. Therefore, this standard has been satisfied. Wheel Stops: Parking- spaces along the boundaries' of . a parking : lot or adjacent to interior landscaped areas or sidewalks shall. be provided witha wheel stop-.at least four inches high located three feet back from the front of the parking stall. The front three feet of the parking stall may be concrete, asphalt or'low lying landscape material that does not exceed the height, of the wheel. stop. This area cannot. be calculated to- meet landscaping or sidewalk requirements. The applicant has indicated that wheer stops will be placed as necessary and in accordance with the standard. The applicant is therefore, required to provide a plan showing wheel stops • located within the proposed parking area. in accordance with .18.765.040.J (Wheel Stops). Space and Aisle Dimensions: Section • 18.765.040.N states. that: "except as modified for angled parking in Figures 18.765.1 and 18.765.2 the minimum. dimensions for parking spaces are: 8.5 feet x 18.5 feet for a standard space and 7.5 feet x 16.5 feet for a compact space; aisles accommodating two direction traffic, -or allowing access from both. ends, shall be 24 feetin width. The applicant's plans and -narrative indicate that standard spaces will meet the minimum required dimensions of 8.5 feet x 18.5 feet. The associated travel. lane is shown•to be 24 feet in width. Therefore, this standard is satisfied.- . - Bicycle Parking Location and Access: , . Section 18.765.050 states bicycle parking:, areas shall tie provided at locations within 50 feet of primary entrances-to structures;' bicycle parking _areas shall not be located within parking "aisles, landscape areas. or pedestrian ways; outdoor bicycle parking shall be visible from on-site buildings an'd/o tht''stfeet: When the bicycle parking area is not visible. from the street., directional signs shall-be used to located the. parking area; and -bicycle parking may be located inside a building on a floor which has art putdoor.entrance open for use and floor location which does not. require the bicyclist to .use stairs: to gain access to-the space.: Exceptions. may.* b6. -made to the latter reyuirQment for parking. on upper stories'_ii~tth'in;~fmuati-story fesidential. building. The applicant has indicated. that bicycle. parkingis:within: 50.feet -of-the -primary :entrances to the proposed commerciat buildings. Howeve _1.iV;1Mclear where -tlie-'Main-entrances to the ~s buildings are. Therefore, the" applicant is---:reiauiFbd -to, provide a plan s howing the main entrances to the, proosed commercial buildi~ngsand..the, Iocatio~t ~gfftJ~e required bicycle parking stalls within 59. feet of the entrances- 1. -t' -irr•r. e4. i n t . r; i , ; V, .c:_ - REFUGE ATFANNO CREEK-STAFF REPORT (SDR2005-00002-)i- - - - - PAGE 32 OF 55 F` HEARINGS OFFICER HEARING. 11/1412005: GI l ~ A T (:-.l:IJC; (:D :i Bicycle! Parking Design. Requirements:.,...r;._,; Section 18.765:050.C.- 'The following ddi [0i*reqqu;1ren ents-.a ~ ly to the installation of • bicycle racks: The racks required for 1re'qui.red bicycle parking spaces shall ensure ; that bicycles.,.- may be securely locked to~them yvithput;undu~e inconvenience. Provision ; . of bicycle' lockers for long-term (employeal`ling pis encouraged but' not required; bicycle racks must be securely anchored o the ground, wail or other • structure; bicycle parking spaces shall be at least 2'/z feet by six feet long,* and, when covered, .with 'a vertical clearance of seven feet. An access .aisle of at least five feet wide shall be provided and maintained beside or between -each row of bicycle parking; each required bicycle parking space must be accessible without moving another bicycle; required bicycle parking spaces may not be rented or leased except where required motor vehicle parking is rented or leased,,. At-cgst. or..depos.it, fees for bicycle parking are exempt from this requirement; and areas. set aside for required bicycle parking must be clearly reserved for bicycle parking only. Outdoor bicycle parking facilities shall be. surfaced with a hard surfaced material,, i.e., pavers asphalt, concrete or similar material. This surface must be designed to remain well drained. The applicant has not provided a detail of the bike rack to be used; therefore, the applicant will be required to provide a plan that'shows the required bicycle rack designed according to Section 18.765.050.C (Design Requirements) of the Tigard Development Code. Minimum Bicycle Parking Requirements:. The total number of required bicycle parking spaces. for each use is specified in Table 18.765.2 in Section 18.766.070.H. In no case shall there be less than two bicycle parking spaces. The applicant has calculated the minimum bicycle parking based off of 26,000 square feet of building area. According to Table 18.765.2 the minimum :bicycle parking for.an office use "is calculated' as 0.5 stalls per 1,000 square feet. Therefore, the applicant is requlred.to provide a • plan showing a minimum of 13 bicycle parking stalls: ; Off-Street Loading Spaces: Commercial, industrial and institutional buildings or structures to be built or altered which receive and distribute .material or merchandise by truck shall provide and maintain off-street loading and maneuvering space as follows: A minimum of one loading space is required for buildings with 10,000 gross square feet or more; A minimum of two loading "spaces for buildings with 40,000 gross square feet or more. The proposed office buildings will be greater than 10,000 square feet (13,000 square feet a piece). Therefore, off-street loading space is required. FINDING: Based on the analysis above, the off-street parking and loading standards have not been fully met, however, if the applicant complies with the conditions listed below, the standards will be fuAy. fnet 1;; I CONDITIONS: Allocate and assign 5 percent of the total parking for car/vanpool parking. Provide a plan.showing the. construction of wheel stops located within the ; t.,?M.r9pgsad: part ing are~a~,n cr { f rv~~ h. $ 6 r04.J (V,Vheel -Stops). Provide a Pfan shov~ifl~ `i'11e!~ ns ' cion: of:all• standard and compact s aces. and travel 'lams'#b.licomp`"y.wlti` ttie' minimum requirements of - Figure :1'8.765.1 iri tie:: Tigard, Development ,Code. Construction and maintenance shall comply,ia~itfi-alp ~OVed plans. . provide a showi Iij~ *plan n~ s- #ruptiopn(an .the location of the required bicycle parking stalls"vtil in.~O'f et of the main entrances. . REFUGEAT FANNO CREEK STAFF REPORT (SDR2005-000g3 7- -;FF'!CEr: H==:.R!!vG i ; i4 PAGE 33 OF 55 HEARINGS OFFICER HEARING 11/14/2005 Provide and implement;,? :plan :#fiat: shorts' the required bicycle rack designed according ta'Sectian A8 7,65.A . 0-s pf he ,Tigard Development Code. "s t t - Ian 4rr....~`+1~•,1 ~:'t~ r,i_•~..:, Provide and implement.. a-. plan showing a minimum of 13. bicycle parking stalls. Sensitive Lands (18.775): TEr1sC ictional 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 Stage. Lands, CWS, and/or other federal, state, or regional agencies, and are 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 must be satisfied including sensitive' land permits for areas within the 100-year floodplain, slopes o? 25% or greater.or unstable ground, drainageways, and wetlands which are not under state or federal jurisdiction. The subject' site' of the proposed project has been identified with 100-year floodplain, drainageways slopes greater than 4%,' and significant wetlands on Tiigard's Wetlands and Stream Corridor Map. Therefore, the following sections' apply Sensitive lands permits issued by the Hearings Officer: The Hearings Officer shall have the authority to issue a sensitive lands permit in the 100 ear floodplain by means of a Type ILIA procedure, as governed b, Section 18.390.050, using approval criteria contained in Section 18.775.070. Sensitive lands permits -shall be required in . the 100-year floodplain when any of. the following circumstances apply: a. Ground disturbance(s) or landform alterations in all floodway areas; b. Ground disturbance(s) or landform alterations in floodway fringe locations • involving more than 50 cubic yards of material;- c. Repair, reconstruction, or ' improvement of an existing structure or utility, the cost of which equals or.exceeds 50 percent of the market value -of the structure prior to the improvement or the damage requiring reconstruction provided no development occurs in the floodway; d. Structures intended for human habitation; and e. Accessory structures which are r greater than 528 square feet in size, outside of floodway areas. The applicant has indicated that the proposed development will involve floodplain alterations that will allow construction of structures intended for human habitation on lands within the 100-year floodplain. Therefore, the applicant has- applied for a Type III procedure in which the City's Heanngs Officer makes a final decision. Special flood hazard: The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled "The Flood.lrisurance .Study of the City of Tigard;" effective February 18, 2005, with a`cconipenying Flood insurance- Rate maps ' effective-February 18,'2005 is hereby adopted by refference and declared to be a part of this chapter. T is Flood Insurance Stpdyis on fle alztffoTigard .Civic Center. The project site is located in an area mapped in" the' Fanno-Creek Watershed. •Base -flood elevation 'data: Wlien base flood ele afibn'data' has riot"Been'prow -ed in=accordance-with Section 18:775.040.6 above, the Director shall obtain; ;re~tew, pnd;reasor ably-utilize -any base C flood .elevation and floodway data availa"b16'froi,; a: Qr'a!, state or other source, in order to. administer Sections..18.775.040:M,ar}d 1;8 775,~040.i~l:below The base flood-elevation for the subject site shown •to be 160 -feet -according to the Flood • Insurance* Rate Maps of February 'f8 , 2005.. The. subject property -at the lowest point of construction is 158- feet. REFUGE AT FANNO GREEK STAFF REPO RT_7(SDR2005-00002) ;-'-T PAGE 34 OF 55 HEARINGS OFFICER HEARING 11/142005 [ ( ( ! - ,r J ^tl •'J. 'r 11 l:,J I.. r, ..1` r Te$`t 6f eas'onabl.er ess:. Whereielevation~data is'not available either th ough t1~ie Iood Insurance Study or from -.'J another authoritative source, applications for building permits shall be reviewed to t assure .ttiat;Ahe potential, for flood damage.,to ,the .proposed..construction will be minimized. The: test of reasonableness:- is-- a•9-'acdl -:Iudgment' and includes use of . historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above grade in these sensitive land areas may result :in.higher_ insurance rates.. Base flood elevation data is available and has been established at 160 feet by the Fema Flood Insurance Maps. Therefore, this standard does not apply. Resistant to flood damage: All new construction and substantial improvements, including manufactured homes, shall be constructed with materials and utility equipment resistant to flood damage. The applicant has indicated that construction materials will be reviewed at time of building permit. In order to ensure that the proposed building materials will be resistant to flood damage; the applicant is required to provide information regarding the proposed building materials to a member of the Planning Department Staff for analysis and approval from Tigard's Building Official prior to building permits. Minimize flood damage: All new construction and substantial improvements, including manufactured homes, shall be constructed using methods and practices that minimize flood damage. The applicant* proposes to keep all of'the 'building•s,.fnished floor elevations above the 100- year flood lain elevation (1.60) by approxirimately 'f .5 feet. Improvements such as utilities and paving in the 100-year flood plain will not be. impacted by flood damage: Proper culvert sizing and placement ensure proper directional flow, and limit erosion to those facilities. Therefore, this standard is satisfied. Equipment protection:. Electrical, heating, ventilation, plumbingg and air-conditioning equipment and other service facilities shall be designed andlor otherwise elevated or located so as to prevent water from entering or accumulating withiri the components during conditions of flooding. All mentioned equipment is proposed to be elevated and located to prevent water from entering or accumulating within the components during conditions of flooding. Therefore, this standard is satisfied. Water Supply Systems: All new '.and replacement water suppl : system'slialf be designed .to minimize or eliniinate'infiltration"of floodwater into `t, e' e The proposed water; supply' system has been' d'esigne~ to elim inate lnf Itration 'of floodwater ! into the system. Therefore; this criterion is satisfied. Anchoring: All.; ng. 0P*tryp+~ior);. afI manufactured homes a~j u~ tarp al, im ro ements shall be' a'~,lcha're;to Qrev i~t flot~tibii;.collapse, or latera.~~ gip'r> ot!, flttie.str cture. rc. 1.1~' •11 .1;11 l•1. 111:1. I:li !I. •"j I sll.., .!ii (lr r- The". app.licant,'Ms indicated that, no structure or fa4pity ,"O'id::be ;sUscebtible to flotation, 71* collapse or lateral movement. Anchoring will be `rev`iewed • during building permit phase. _ :Therlefore,;-this standard-is satisfied. , (.r j ri',1 1t-1 1 . , Sanifary ' sewerage systems. .t.{(:. :tl .1:,1_ill fi [;111•.; 1:. New and " replacement sanitary sewerage systems shall be designed to minimize or r•D' eliminate infiltration of floodwater into he systems and discharge from the systems el into floodwater. REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002); . PAGE 35 OF 55 RE HEARINGS OFFICER HEARING 11/14/2005 ; IEnR?i:: i 1•'+•i I The applicant has indicated that the proposed. sanitary S•ewerage system has been designed 1 s_ W the sppe.8cifcations required by this criteri t.,-Sarin ry! we- r..s.~ddr~~ec later in this report i tind$f= '181'0:" (Street, and- Utility ImprovemerRl•13 andards):} !Therefore `this., standard is t satisfied: - t . ' a r-o;.ia+..l V, tli t'1=.' t f ~.ati On-site water disposal systems: r,,•„ /f~' On-site water disposal systems shall be located to avoid 'impairment to them or contamination from them during flooding.. ..The.' only on-site .water disposal system .is the. proposed Stormwater_ management facility which is a cartr'dde s~ stem: The system 'is located in- an area subjecf to flooding, however no impairment to them or contamination:. The - system works in a manner- that should flood waters:flood into- the system the waters are'ilkese treated -before • released" -.Contamination is also -minimized with a flap prohibiting -inward •migratidn of--ftodwa'tets: ` As a result, the facili is not a source of contamination that would affect floodwaters. Therefore, this criterion is me... Residential Construction: 1. New construction and substantial improvement of any residential structure, including manufactured homes, shall have the lowest floor, including the basement, ' elevated at least one foot above base flood elevation; 2. Fully enclosed-.areas below the lowest. floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces' on exterior walls by-allowing for the entry and exit of floodwater. Designs for meeting this requirement must either be certified by a registered professional engineer or architect, or must meet or exceed the following minimum criteria: a. A minimum of two openings having a total net area of not less thane one square inch for every square; -foot of enclosed area subject to flooding shall be provided; b. The bottom of all openings shall be no higher than one foot. above grade; and C: `Openin.g , may be- equi ped with screens, louvers, or other coverin s or devices, :provided that they ,permit the .auto.natic ent and exit of flood waters. 3. Manufactured hor"nes shall be securely anchored to.'an adequately anchored permanent foundation system. Anchoring methods may include, but are not limited to, use of.over-the-top or frame ties to ground anchors. The applicant has proposed the new residential structures to be designed with the lowest floor elevated at approximately 1.5 feet higher, than the base flood elevation. No fully enclosed areas are proposed for the residential structures, including crawl spaces. The residential buildings are proposed to be slab on grade.. Therefore, this standard is satisfied. Nonresidential Construction: New construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall . either have the lowest' floor, including basement, elevated to the level of the base flood -elevation, or together with attendant utility and sanitary facilities, shall: 1. Be flood-proofed so that below the base flood level the structure is watertight with walls substantially .impermeable- to the passage of water; 2. t Have st .u. yral eompo:nents': capable of esistrn~ hydrostatic and hydrodynamic loads rind, eff .cts'of• bugyaricy;;`'3', Be certMd ."at re aster a" ° '0f~~ssional en ineer architeFt +Ly.'at ifii design an d methods f.' ' ontrupft n: a`r' m. ordance with accepted ~1 • Y(,,I y-t. r.; 5r pr f - - qq , t f 1 1, t i r r_- .r! s~tb' dads' of iac~ice for meeting ` py , i -,hg .,'of `thy 'sub` ctio'n 'based 'on their Gt development and/or review of the structural design, s ecifcations and plans. Such certifications. shah . be provided to the Building Off vial as set forth in Section .18.775:030.E.2; and 4. Nonresidential structures that are- elevated, not flood.proofed, must;'-m' eet Ih amp,standa.rids for:-agace.helpW.,:the.J9we,*k floor..as.described in ->,~►-;s ' :5ectio.n=`18-:775 Q4012: Applicants -floidd-=proofrrrgrirroriresident a buildings shall ° be c '~~F 4i` . '6fified=tfiat f~oo:d~ir urance promiums'wi(l b~ Based ota rates that/ate dire foot-below ; thbiflb+od-6prbo ed'level (ae. `a-building't'ogas-fUdtedrt -the'bale flood levelwill be rated as 6ere'rootboo- V liatile ilk:` t: t~ .r:: ` ild(' <)':.t^(lni ,Jr)rc,,I(- Gi('8 lr lit; llOI! ~1 I(i c7 (;I(.:!lllftli(:(3 Move: ill( ar)1t1l;:i 'tl l!r1._ 13f:..: i ti` 1~:C3 IlJit(.ttl:.E; Iii3Ui;;1' flr:) :It)ilt:U (;r (:II lUt,t.Ills~ll 111:::^liitlY lre~)Il•~~fi~i ::;.°h.:~l 11;-. r.r, llnr± 1,....I,.. il~i r. • ~i..:, i. Ir.r iinn nt. Tl,c; :.n: -lrf~• i ,ri~;l,/.• .nri -REELGI AT-.EANNROI3EEK STAEF REPORT LSDR2005 D0002)... PAGE.36 OF' 55_. _ R FAN, r ".F.t:_h;, f:=.F1 ~F'.,:;: el (JL..c•uC V0-_: HEARINGS OFFICER HEARING 11/1 f200ri i1' F- F' I c - n 1 i . ir:~;c ~ i t r.c. ! f-'~ j.; 2!! t~ 1 ~ is•tl20fi5 C, of fie Iirlll ! h1 t, 1 i fly rte 1 -In ~ rir) orc,tflF ra rlira«~e~r iC f ~ t. i `;;tj ap Ic as;raf afcresd'"ronresitliC C~tl ~N' ar'floodplain.... c.iiiiti ldlg/S it+ ` 'I4It'ttlie bas flbod*eleva`~iu'n .`ltd t q d s rcial buildings c ari : Irt l~. c ed Mt 5r1 `thy `90-year tl. b(t! ~r~ ► rote--~ lap. I ,1S required Ao ' it d fio a1. I~tf rmatibn that sa`'~sfies' bnresidential "'`'~bns~frt~Ctib'ri atisfaction of the requirerrte'rtits`Vslfl b•e ctls Otibh ember of the Planning Staff. sj41N,G; '1"; BaseO'.1'the rlafyysis above; ire G,erra1. ;P rovi.ionsopplain:Areas have not been °met: "-If the applicant'complies with 1h6' conditions below, this section _ will be satisfied. CONDITIONS: . 4" 'Provide information guaranteeing that the' pro osed' Building '.materials are resistant to flood damage-to a thember of.the.. canning Department Staff for analysis and approval from Tigard's Building Official prior to building permits. . Submit additional information that satisfies Section 18.775.040.M L.: (Nonresidential Construction). Satisfaction of the requirements will be at the discretion,of a member of the Planning Staff. Within the:1,0.0.year.fl6odplain. The Hearings Officer shall approve, approve with. conditions :.or...deny an application reg~est within the 100-year floodplain based upon findings that all- of the following criteria have been satisfied: ;Land,-forrr;.alterations..'shall'preserve or enhance the::floodplai n:storagdJunction and maintenance of the .zero-foot .rise floodway 'shall•.not resultJn, J is :encroachments, iri;cluding. fill,. new construction, substantial improvements and: other development 40 unless certified by a. registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; According to 'the applicant's grading plan, a zero-rise cut and fill has been certified by. a professional. engineer. The same floodplain -volume that exists will exist at the completion of construction. to ensure that no increase in the flood elevation will occur as.a result of this project. Therefore, this. standard is satisfied. Land form alterations or developments within the 100-year floodplain shall be allowed only in areas designated as commercial or industrial on the comprehensive plan land use map, except -that . alterations or developments associated with community recreation uses, utilities, or public support facilities as.defned in Chapter 18.120 of the Community Development Code -shall be . allowed. in areas designated residential subject to applicable zoning standards; 1. 1",: I".''I s' I• ( /•.~F):i'U': .el lt'. 11 t-•1 ,i `:1 Tlae:.suti'ec:;sife is:within.,the.M(JE-2 zonlie,.:.:which ,is:a.•cci' mmerci(, aJ.;zo`ne.. 'Therefore, this standard is satisfied..... -Where a land form alteration or development is permitted to occur within-the flood lain it will not result in any increase in the water surface elevation of the 100-year flood; li~an 's,SjW- qr din I illustr e;9:q.j r se cu nd fit -certifiedba ' r..riol nai,eA,, \N~~i:epP , • 1 a ' I I rP- A" x 1.1 ,S f' y 11. rofesslgt~af a neer.~,';Ttie samp floodplair .vb~.urne..th~;eX ~:vi ilt';exast,,a ,thg,•com 11ion of construction t en`sute nq.,Sn.ciease in the'WOt6f'surlace eIavatlpn o ;off .g~, PO,-year floodplain . will-occfur..',Th&d or~d this standard is satisfied.. _ ,,t The. land form`alt 'ration or development- ;tan:1hchit es•,a;pede$,trian%bicyicle pathway.in L r~: accordance with the adopted pedestrian •ic cle pathway:plan, unless tfie construction of said :pathway is deemed- by the Hearings Officer as untimely; - REFUGE AT FANNO CREEK STAFF REPORT (SDR2005 00004-);f~.ti C,r F lc,r:ci i IF: I=!• PAGE 37 OF 55 ric -HEARINGS OFFICER HEARING 11/14/2005 There is an existing' pedestrian/bicycle pathway. on adjacent pproperty to, the west. No• edestriariLbicycle pathway. Js, required on= the .subject: si#e:' 4 'therefore this standard is ` Satisfied: r- :.The.+ tans. for the -.pedestrianbicyl pathway indicate that no .paItiway will be below 11 the elevation of an average annual flood; No bike path is associated with this report. Therefore, this standard does not apply. . The. necessary U.S. Army Corps. of Engineers and State- of Oregon Land Board, Division of State Lands, and CWS permits and approvals shall be._obtained; and The applicant has indicated that the necessary permits from the above -agencies are in the : rocess of being obtained. Prior to site work, the applicant is required to provide copies of the permits obtained from the US Army Corps of Engineers, Division of State Lands and Clean Water Services. - Where sand form* alterations and/or development are allowed within and adjacent to the 100-year floodpl.ain,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. No dedication of land is required for this, project to build a pedestrian/bicycle pathway. There is an existing pathway on the adjacent property to the west. Therefore, this standard does not apply. FINDING: Based on the analysis above, the 100-Year Floodplain* standards have not been ; r • met If the applicant complies with the condition below, the loodplain standards will be met. CONDITION: Provide copies of required permits to work within the associated wetlands, from the US Army Corps of Engineers and State of Oregon Land Board, Division of State Lands and Clean Water Services.. With steep slopes. The appropriate approval. authority' shall approve, approve with conditions or deny an app ication request for a sensitive lands permit on slopes of 25% or greater or unstablle ground based upon findings that all of the following criteria have been satisfied: According to the applicant, the subject site has slopes that are greater than 25%. Therefore, the. criterion of Section 18.775.070.C- "With steep slopes" has been addressed below. 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,. Thb applica`nt's proposal to.tie the existing sensitive'slope's to 'the "proposed grades is the - minimum alteration possible to the slopes as a part of the balanced cut and fill activities in the •floodplain. Therefore, this criterion is met. '.-The proposed land form- alteration or. -developmenf irv ll mot; .result in- erasion, stream i I sedimentation, .ground., instabiiity, or.' other adverse..ii'n-site and la#=site. effects or ~E 't . "hazards to'fYe.or Er6idn' coritrol wifl'be placed-per the requirements of =Clean Water' Services to prohibit , erosion and stream sedimentation: Embankments will be placed using standard engineering design practices, which will.be reviewed.by the City's Engineering :Department. .Therefore, _i.• l this~stan~1erd is-satisfied.+,.. tip FANNO CREEK.STAFF.REPORT-(SBR2005-00002 PAGE'38 OF 55 RE HEARINGS OFFICER HEARING 11/14&0~ = • + • , ? LI _ ! • i ! IE The structures are .appropriately, sited a ~d` sip n."to en. ur stru to I stability and e ti , q,.. . =ng drainage of fbundation 'and 'cra- paq efo~''dAl&p' et ith-any of the so~ill conditions: wetthigh ° Vw to "ta ie, high shrink-swell , capability; compressible/organic; and shallow depth,-to-bedfrpiq There are no steep slopes in the area of the'propos6d'buiid.liigs: Irregardless, the placement of the proposed buildings has been sited and designed-with no crawl spaces and -is proposed to be slab on grade or have "piers°. Therefore, tbjq. ' ali ar 'is satj ed.;_ Where natural' vegetation has been removed due * to 'land' form ~ alteration or development, the areas- not covered by structures or • impervioussurfaces will be replanted..to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. The applicant has submitted a landscaping plan that addresses the re-vegetation of all areas disturbed. Therefore, this standard is satisfied. FINDING: Based on the analysis above, the Sensitive Lands standards have been ,met. 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 satisfied: 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; The development is only proposing alterations necessary, to' install, improvements for the use proposed. ` The proposed land form alteration or development will -not result in erosion stream sedimentation, ground instability, or other adverse on-site ' arid off-site effects or hazards to fife or property; •The applicant has provided a grading plan that illustrates erosion control. measures that will . be i . place after mass.-grading. Erosion control measures are reviewed by Clean Water Services and the 'City's Engineering Department. to ensure no erosion, stream sedimentation or other adverse impacts. affect the associated drainageway: A condition of approval has been imposed later in this report under 18.810 (Street and Utility Improvement Standards). The water flow capacity of the drainageway is not decreased; The applicant's grading-plan illustrates a zero-rise cut and fill that is certified by a professional engineer. The applicant's grading plan will resultih`zer6,b8lance'cut and*fill.in the 100-year floodplain storage capacity. In addition, the_ applicart will -be ;installing three.. additional 24- inch culverts in the access drivefor large. storrim .peep joYp?pw. , As a.. result, the water flow capacity-of the drainageway is not decreased. Therefore; th s criterion i"s met. 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 acco~dan.pe," with Chapter 18:745,-Landscaping and = Screening; The applicant. has submitted 'a landscaping plan that addresses:#t' O' to vegetation. of all areas disturbed. Therefore, this standard is satisfied. i • , ; ; The drainageway will be replaced by. a public facility of .a uate size: to accommodate r ` maximum flow in accordance with the adopted 168t Muster"Tralr a6t' ( -P1-an; REFUGE AT FANNO CREEK STAFF REPORT (SOR2005-00002);,`. PAGE 39 OF 55 - HEARINGS OFFICER HEARING 11/14/2005 , The-applicant is not repplacin the drainageway..The existi~gg.,cu verts;will remain in place and :,,,;....additional culverp.will be ins ailed. for largq_ tbrm-.ei ;Tlie ore;; 11i :s artdard does not _ V: pplY• ' ; , t!~ t' (:1r! The necessary; U:S. Army Corps of `E.nginers and- .S.tate;;of Or.:egon,:•Land Board, ' . Division of State Lands, and CWS approvals shall be obtained: The applicant has indicated that the necessary permits from the above -agencies are in the process of beih9 obtained. The applicant, has'. been "r'bt=iditidl bd. above' bnder the 100-year floodpplain criteria to provide copies of the required permits. Therefore, this standard is Satisfied.. 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. No dedication of land is required for this project to build a pedestrian/bicycle pathway. There is an existing pathway on the adjacent property to the west. Therefore, this standard does not apply. FINDING: Based on the analysis above, the drainageway standards have been met. Within wetlands: The hectors all approve, approve with conditions or deny an application request.for a sensitive lands, permit within wetlands based upon findings that all of the following. criteria have been satisfied: The -proposedland form alteration -or development is neither on wetland in an area designated as significant wetland on the Comprehensive Plan Floodplain and Wetland Map nor is within the vegetative corridor established per "Table 3.1 Vegetative Corridor Widths" and Appendix C: Natural Resources Assessments" of the CWS "Design and Construction Standards", for such a wetland; The subject site contains -areas designated as significant wetland on the Comprehensive Plan Floodplain and Wetland Map. The applicant is altering wetlands in three locations. The first two 'are not designated as significant on the mentioned Wetland Map as they are located east ro osed access drive adjacent to Ash Creek. Ash Creek only contains a riparian of-the proposed- setback designation and no wetland designations on-site. The applicant however. is proposing an alteration to wetlands vegetative corridor shown -on the map on the Fanno Creek side of the -access* drive. The applicant has indicated that the.alteration is being completed as allowed under 18.775.020.C (2-4), which allows the removal of non-native vegetation and plantingg of native species.. These, alterations are exempt because they will be completed under the direction of the City, Division of State Lands, Clean Water-Services and under 18.775.090.B.5.f of the Development Code. In summary, the applicant is altering two small wetland areas (0.02 and 0.01 acres) where necessary for the installation of the access drive and enhancing another 0.06 acres to mitigate the impacts. FIKDING:Section 18.775.020:C only allows activities Within significant wetlands under the. = direction of the City. The proposed project i5'a1 dvate.'development. None of alterations to the subject site have been :under. the, direction= of the City.- _ ` Enhancements within significant wetland vegetative"corridors are addressed under-the direction of Clean Water Services and 18.75.090 below. The extent and nature. of the proposed land form alteration -or development will not ' create :site disturbances to an extent greater than the minimum required for the use; s " REFUGE AT FANNO CREEK STAFF REPORT (SDR2005 00002) . - - - - PAGE 40 OF 55 -HEARINGS OFFICER HEARING 11/1492005 t ;i ThEi applicant. isl required to improve all of the vegetative E o;rridors. x-ce t at' which is north p oY pEaposed building #1. The area to the north is being 'u?alabpir."ed: by C.1"ean :Water Services. The 'appplicant has indicated that the wetland alterations ~r.y tiemi2imum; necessary for the installationbf:the access drive. ,4; . ; , Any encroachment or change in on-site or off-site drainage 'which would adversely impact wetland characteristics have been mitigated; The proposed - drainage of the subject site. will, not impact the associated wetlands. The applicant has stated that the requirements of the protect biolo ist, Clean Water Services, the Division of State Lands.and 'Corps of Engineers will be.fogowed to ensure.that adverse impacts are avoided. Therefore, this standard is satisfied.: Where natural', vegetation has been removed due to land form alteration or development,-erosion control provisions of the.Surface.Watei Management program of Washington. County must be met and areas not covered. by structures or impervious surfaces will be replanted in like or similar species, in accordance with Chapter 18.745, Landscaping and screening. The applicant has indicated. that erosion, control measures. in accordance with the erosion control provisions of the, Surface Water Management program of Washington County will be installed. All areas not covered by structures or impervious surfaces will be replanted. The applicant has submitted a landscape plan. demonstrating,; that. ..a.11 disturbed' areas will be replanted. - Therefore, this standard is satisfied. All other sensitive lands requirements of this chapter have been met;.... The proposed project involves drainageways,.steep.slopes and. I 00;yeat.flood plain, which have been addressed within this staff reportand found to meet.the applicable criteria. The necessary U.S. Corp of Engineers and State of Oregon Land Board, Division of Sate Lands, and CWS approvals shall be obtained. The-applicant has been conditioned to provide the City of Tigard with documentation that the necessary permits from the required agencies have been obtained. Therefore, this standard has been-satisfied. The provisions of Chapter 18.790, Tree Removal shall be met; Tree Removal is addressed below under 18.790'(Tree Removal). Therefore, this standard is satisfied. Physical Limitations and Natural Hazards, Flood Plains and, Wetlands, Natural Areas, and Parks Recreation and Open Spacd: pol~gs of jti_Comp~e~iensive Plan have been satisfied. r . .?•.(-tie ,I j':, r l,I ~ . • 1'~~ =d.l' The proposed development plan addresses theses'.1pf6n polIdes. ie majority of the wetland area -on. the property will remain in its natural state, . The site plan accommodates the Fanno Creek Greenway Trail as it has been constructed already; on the-west side of the creek. The Comprehensive. Plan and Compprehensive Plan Map guides develo ment:throughout the City •;of,Tigard:,and islimplemented. through the; py ;I- this standard is satisfied. QP~ea° 7-@Nng.tM-a p; Therefore, Special Provisions for Development Alo :;FanflajCree1-1.8,:7~~;09p In order to address the requirements of Statewlcj~ l~iar~ning; a(~5 Natural- Resources } and the safe harbor provisions- of the ;Gcaa! adminis#ra ave,.r,•ule; fOA:R,-666-023-0030 ' _perta'lning•, to wetlands , all wetlands, lClass fled: ~as'_si rJ4f;caRt-±vn ~tFie City• of .Tigar Wellands•:and- relms,Porridors Map`aFEYprotec ed rt~o Ian for T" Iterations or j` s d' 1 nl►ia devglopmentsL are..allowed within or-.paAally~ Nftr~i,a;~sigr~ifc~r{t.,uand, except, as ~a altowed/ppro.ved pu'rsuant'fe Section:$'5.30~ T;f..G ~:,~.;rj ii:n•r. ' C:.c;.: •r I. ' 1if7 C.I j G4h1tJ^t ('ICCK .G.y:'F L:I il'• 1".1 .i~. _ REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00092);:.S OF' 9 ; ;=r_,,-;;.!•_ , ; ; ag. PAGE 41 OF 55 R HEARINGS OFFICER HEARING* 11/14/2005 1 In order to address the requirements of Staltewipe.Planpin.g Goal 5 (Natural Resources) and,the.safe harbor provlisions, of the -G'o.#'t. ` 'd ' i. p .e rule.(OAR 660-023-0030) pertaining to .ri orlon corridors a stand d seliti.cC';e 'tahc .:or;~cegetated corridor area, ~ measured horizontally from and 'parall~ tb, l' ,e U q }fie; and is f ~stablished for the ~ n Tualatin River,. Fanno Creek, Ball Creek; 'and khe;Sou#~:~ol~ o,'F A`s.h.C'r'eek.. T. The standard width for "good condition" vegetated corridors along the Tualatin River is 75 feet, unless wider in accordance with CWS "Design and Construction Standards", or modified in accordance with Section`1.8:775- t3a.'If`all'b'r'-part of a locally significant wetland (a wetland identified as significant on the City of Tigard "Wetlands and • . Streams Corridors Map") is. located within, the.•.76-foot setback area, -the vegetated corridor is measured from the upland edge of the associated wetland. The subject site is not located along the Tualatin` River,.. According to Clean Water Services, the standard width for the vegetated corridors for Ash Creek and Fanno Creek at the subject location is 50 feet. Therefore, this standard does not-apply., The standard width for "good condition" vegetated corridors along Fanno Creek, Ball Creek, and the South Fork of Ash Creek is 50 feet, unless wider in accordance with CWS "Design and Construction Standards", or modified in' accordance with Section . 18.775.130. If all ..or part of. a locally significant wetland (a wetland identified as significant on the City of Tigard "Wetlands and. Streams Corridors Map"). is located within the 50 foot setback area, the. vegetated corridor. is measured from the- upland edge of the associated wetland. r. " The standard width for the vegetated corridors for Ash Creek and Fanno Creek at the subject location is 50 feet. In this location the buffer is shown as 50 feet.. The applicant has indicated that a delineation of the associated wetland -and buffer has been completed. However, no t~ copy of. the delineation or a copy of the study -prepared':by the wetland scientist/hydrologist has been :provided. Therefore, the applicant is required to provide .a copy of the wetland • delineation and the hydrologists report that addresses the -condition of the wetland buffer of Fanno Creek. The minimum width for "ma.rgganal- or degraded condition" vegetated corridors 'along the•Tualatin River, Fanno Creek, Ball Creek,-and the South Fork'of Ash Creek is 50% of the standard width, unless wider in accordance with CWS "Design and Construction Standards", or modified in accordance with Section 18.775.130. The minimum width for "marginal or degraded condition" vegetated corridors along 'the Tualatin River, Fanno Creek, Ball Creek, and the South Fork of Ash -Creek is 50% of the standard width, unless wider in accordance with CWS "Design and Construction Standards"; or modified. in accordance with Section 18.775.130. . .`iif 111. :-ff+ .d vegItef6~u6. corridor i$ in -a mar inal/degraded The applicant has indicated that the associate.+ condition. According to the criterion, the cot=rid f;can.tie reduced16'50% of the standard width (50 feet). However; this standard does-not apply a,ccordirig-to section 18-.775.090.B.-5.g addressed below. The determination of corridor condition shall' •-be based on ' the ' Natural Resource Assessment guidelines contained in the CWS "Design and Construction Standards".. "a'd~iress.'impacts and. I ' }the. applicant has: indicated that a wetl. i00::4.io1.bgptvdg:ibire~:o appropriate -mitigation measures for-the associaitedl W'etlarft -and vegetative corridor found on -al the :subject property. The applicant has also .stated' 1hat,:an • application .,to - Clean Water Services addressing the impacts and proposed:i;nitiga ort wa,$,.ap.prpyyed'-in-ApdI-.of. 2005. The zll applicant'has been conditioned within this 'secton.'to pr~vid '.tlie deltiheation:of the associated • wetlands and their buffers and the copy of the'b'~IS apprdval" -.ifl.u! v.:E'ti-i tit S . .i:. Ott ( 'f1111iaiE. lEir?~tt oil G 0; 11006 - -REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002 - - - ; PAGE 42 OF 55 ! 'c HEARINGS OFFICER HEARING 11/14/2005 F - i' >c A.l' i ;1!vi G^:E_i< 5..,! I i •G'G'.l H! The, standard -setback- distance..or vegetated cordor area ap RS to all development t e.V~e tatetf corridors, , proposed on.prop`erty located Within or',pa.. iipj. . iNr{ i ex cept • as -allowed below: a.: Roads,, pedestrian;`o['; b ke=. a irrr sfi~ : ~he vegetated corridor P. „ + . from one •side to the other, in order to -pp*!!.vvide`a ce~~to:~~h~e rrsftive: area or across the sensitive area, as approved by tha.'Citjl er.'.Sectioti:~1$.75:070 and by CWS "Design and Construction Standards , b. Utility/service provider infrastructure construction (.e. storm, sanitary sewer, water, phone, gas, cable, etc.), if approved by the City. and- C WS;. c.' A. pedestrian or..b41S e• p:eth'-;~ot'pe ee4}ingg,•1Q feet-in width and meeting the' CWS "Design and Construction. Standards"; 'd. 'Graciin' • for the purpose of enhancing the vegetated corridor, as approved by the City and CWS; e. Measures to remove or abate hazards, nuisances, or fire and life safety violations, as approved by the regulating jurisdiction; f. Enhancement-of. the-yeg:etated •corridor for. water quality or quantity benefits,, fish', or wildlife habitat, as approved by the City. and CWS; g. Measures to repair, maintain, alter,. remove, add to or replace existing structures, .'roadways, driveways utilities, accessory uses;•or,other developments provided they are - consistent. with 6ity and CWS regulations, and do. not encroach further into the vegetated corridor or sensitive area than allowed by the CWS. -"Design and Construction Standards. = The app• licant has proposed to encroach into the vegetative corridor of the wetlands associated with Fanno Creek in order to replace the existing driveway associated with the property with a paved access drive to the proposed development. According to the applicant, the access drive has been approved by Clean Water Services a.nd has. been addressed in this report under 18.705 (Access - Egress , abd CircuCatay...' Tl e '.applicant has been conditioned to provide Clean Water Services approval. Therefore, the vegetative corridor widths/setbacks do not apply. Land form alterations or developments located Within `o partially'witliin the Goal 5 safe harbor setback or vegetated corridor areas. established.. for the Tualatin River,.Fanno Creek, - Ball . Creek, and the South Fork of Ash Creek that meet the jurisdictional requirements and permit criteria of the CWS; U.S. Army Corps of Engineers, Division of State Lands, and/or -other federal, state; or regional agencies, are not subject to the provisions of Section 18.7.75.090.8, except where the: --a. Land form alterations or developments are located within or partially within a good ' condition vegetated corridor, as. defined in Sections 18.775.090.6.1 and 18.175.090.13.2;.Y* Land form alterations or developments are located within or partially within the minimum width area established for marginal or a degraded condition vegetated corridor, as defined in Section 18.775.090.6.1• The applicant has stated the narrative that the proposed alterations within. the established corridors are not.designated as "good condition". In portions of the site, the 50-foot buffer is impacted•where it is in a degraded condition. According to the above standard, provisions of Section 18.775.090.B.apply when, "Land for alterations or.-development are 'located within or within the minimum width area .e8tabIish6d',Jbr.. [tsar, nal or: a. degraded condition partially e. etaed . corridor, as defined- in' Section" `i'8-.77'5.030'B'.8:"'9`fiThe~efo"re,' the provisions of 18.775.090.6 apply which allow roadway. ,and. driYeVay~i)yithihJP, a{established buffers under 18.775.090.B.5.g- of the Sensitive Lands Ni of&. FINDING: Based on the analysis above,.the Sensitive Lands standards will be met, if the' applicant. complies with the condition listed below:' CONDITION: Provide a, cgpy of.'the wetla, delineation..andAha :hydrologist's report that { ,addresses the'condition of th6'et)ann'~,.btfffa~`nfrah'rtio;reak:' _ r clic, ' - , lSi~(=ill~LrW1 `-u 'C! 1.'3W.Sa 1: 7j. .,..~a ni, REFUGE AT'FANNO CREEK STAFF REPORT (SDR2005-000b2j PAGE 43 Of 55 . HEARINGS OFFICER HEARING 11/14/2005 , l : Si ns 1.8.780 ap er:- :130'D lists* the, type of allowat le.sighs.;:and sign area permitted in the Z. I1 • . MUE Zoriing District:. No signs ate .proposed in conjunction wfii this .developmeet.: Any future signage will be subject to the sign permit requirements in Chapter 1$:780.. There has-been a proliferation 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 8lmdre eXpedltious court process.1for-citations. FINDING: To ensure compliance and 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. Tree Removal 18:790: . tree pan or the planting, removal and protection of trees prepared by a certified •arborist shall be provide.d'wita 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 used by the applicant to protect trees during and. after construction.. There are 28 trees. on-site that are greater than 12-inches in diameter. The applicant's arborist has indicated that five of these trees are hazardous and need to be removed, leaving 23 trees viable for mitigation. * Of the 23. trees remaining, the applicant will . be preserving seven (30%~ and removing 13 ~70%). According to the mitigation requirements, retention between 25% and 50% of the rees greater than 12 inches in caliper requires two thirds mitigation of the inches removed. According to the applicant, the project is removing 263 inches. Therefore, two thirds. would equal 174 inches. The applicant has not indicated how mitigation will .be satisfied. Therefore, the applicant.is required to'provide a tree mitigation plan for 174-inches. Subsequent removal of a tree. Any tree preserved or retained in accordance with this section may thereafter be removed only. for the reasons set out in. a tree plan, in accordance with Section 18.790.030; or as -a condition of approval for a conditional use, and. shall not be subject to removal under any other section of this chapter. The property owner shall record a deed restriction as a condition of approval of any development permit affected ' by this section to the effect that such tree 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 section should either die or be removed as a hazardous tree. The form of this deed. restriction shall be' subjectto :approval by'thd Director. The. applicant will need- to record- a deed.-restrictign,fbr,.:all= trees! to" remain-on-site, either independently or- for the entire site. - FINDING Based on the-analysis above, the Tree Removal standards have not been met. If the applicant complies with the conditions below, the standard will be met. CONDITIONS: ~ . , , • • : ~ - r If trees are 'to be removed`in"seh59tJJe'are'as 66b ding'to: 1 Chapter 18.775 {Sensitive Lands) in the--Tgard'-Dev.elopment°cC-ode;-a. tree, removal permit must be obtained. . . . . . ` Provide a. tree°mitigation'plan:for 1+1 inches. r t': e. 1' it :I i' L~t~l ?i(% li i1)fl )b -lAl, _.IIn:i S'1.7 1i•; + ! 1 The applicant will need, to record, 'a deed restriction for all trees to remain on-site, either independently or for the entire site. REFUGE AT.FANNQ.CREEI< STAFF REPORT (SDR2005 00002._.._._ _ _ . • _ . PAGE 44 OF 55 HEARINGS. OFFICER, HEARING 11/14/26105.: .F=.{:'JC.? C RCE:':. Cr; r. Rx; _ _ Pf t llLtf'tti:f''1'. .•C1 l: _t=:li> C' I.t.. , t';. , • . ~:-,.Prior to site rwork,. all, be. aripluded with the • : <<_r6pptied:copstruction r i `s r `o g f(~ t1ie. antematl-~nal Society of 4; ; . I Arboricultyre (ISA) ggui, ii'i s off. ..i no peat by{the-Cittyy'Forester. . P±II tree protection Bevis; aldng`(niitfieird'etails and s ecifications, 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 tT:ty;, , ; t,,. r t,that:w,ifl:,raot e. removo4 pnsjtehthat,i~,,wi#hinstta ,limits~of~ isturbahce of'this . } roject must be protected. Any:tree. That is.located on property ad•acent to the construction project that will have more than ' 15% of its root system disturbed by construction activities shall also'be protected.. • Prior. -to site work, the -applicant shall . submit. a detailed construction schedule-.to the. City Forester for approval with notations as to when tree protection devices will : be.., either... installed' or .removed throughout construction of the project. • . 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: t - o Visible. t : o Constructed of 11 Gauge steel chain-link fencing supported on at least 2" 0. D. steel posts. 'Each ost shall be no Tess than four feet high from the, top...of grade., Each post shall be, driven into the ground.to a depth - f.n 'lesshan two and a half feet below grade. Each post shall be spaced no further apart than four•feet. • o Between, each post, securely ,attached 1:6-the chain-link fencing, shall be a sign indicating that the area. behind the fencing is protected and no construction activity, including material storage, may occur behind the fencing. o Inspected and approved in the- field by the progbt arborist -and City Forester prior to.-clearing, grading, or the beginning of construction. o Remain in place and maintained until all construction is-completed and a final inspection is conducted. Prior to issuance of building permits, the Project Arborist shall submit a final certification indicating the elements of the Tree Protection Plan were followed and that .all...remaming .trees on.. the • site are:;healthy, stable and :r . _ t . . viable. in their modified gr©wing,envtronment: If it is necessary to enter 'the -tree protection zone at any time with r• _ equipment (trucks,. bulldozers, eto.).the '-project.!.arbonst-arid City Forester must be • notified before. an entry occurs. Before entering the TPZ, the project arborst" and City. Forester shall determine the method,by which entry can occur, along with ahVadd.itional tree protection measures. " ( (t 'tlr.t I:. t a cash assurance Prior to commencing site work, a applicant spa I submi •t :,r for Ithe equivalent valugt;of ,fniti abon• •fe oirsdt E• . If,'additional trees , are preserved through subdivision in- roverpents 'and constn~ction of houses, and are properly'-protedted through these stages by the same ,,r% f , t measures afforded. to. 0,wi .r tecte .U@,9p t sit%;therarnaunt.of the cash ii- U le f::~I _ ; assurance may be-co e~spl c~dl,. I Jred~dc Ahj itrees ota6:ted on -the site . LU io -ill<<.r l;n,,: r: -!,:,,,,6r. off. sate. in.,accordaQo~'_790,p~ 01-10 ~ ~wtiitbe ~rerlited against the . ea s,follo 4rjg,.,jna> r a q#tersuch time, :yreash assurance, far. t vWV EEt,- rr.t:,ir►r: ..hq;~, ! i• tf Ir.: ..t the applicant shall pay, 41. tng yr lue fit- a oash; as fance.as a fee In-lieu.of planting. :r t. r:'r_r•,.,.v t v ~r tiv, n-. r i• '•nn, REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002)yr , •ya t ; ;2('Cc=, PAGE 45 OF 55 I ,L HEARINGS OFFICER HEARING 11/14/2005 t . ..Prior to certificate of Occupancy bf theotnmerclal ~i~ildirigs the applicant `shall ensure that the. Project Arb'onst hs~tsubmitted;`writteri reports to the f , Gity Forester, at least,, Qnce,eyer ry,, )vvq yvee)<s, ,frorti.initial.tree protection zone (TPZ) fencing installation,' - rough -1hal building inspection, 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 Arbor'rst=shall justify why the fencing was moved, and shall certify that the* construction acfivities to the trees did not adversely impact the overall, long-term' health and stability of. the tree()... 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 protJect until an inspection can be done by the City Forester and the Project Arbonst. This inspection will be to evaluate the free 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. Visual Clearance Areas 18.795 : apter 18.795 requires that a clear vision area shall be maintained on the corners of all - property adjacent to intersecting right-of-ways or the intersection of a public street and a private driveway. A clear-vision area shall contain no vehicle, hedge, planting, fence, all structure, or temporary or permanent obstruction exceeding three (3) feet in height. The code provides that obstructions that may be located in this area shall be visually clear between three (3) and.eight (8) feet in height-'.(trees may be placed within this area provided that all branches below eight (8) feet are removed). A visual clearance area is the triangular -area formed by measuring a 30-foot distance along the street right-of-way and the driveway, and. then connecting these two (2), 30-foot distance points with a straight line. On all designated arterial streets the visual clearance area shall not be less than 35 feet on each side of the intersection. Visual clearance is at the sites access driveway with SW North Dakota Street. As shown on the plans, the visual clearance is maintained with ' the design of the access. The clear vision riangles are shown and nothing exists within the triangles now or is proposed that would limit r visual clearance. Therefore, this criterion is satisfied. FINDING: Based on the analysis above, the vision clearance standards have been met. C. SPECIFIC SITE DEVELOPMENT REVIEW APPROVAL STANDARDS Section 18.360.090(A)(2)-through 18.360.090(A)(15) provides additional Site Development Review approval standards not necessarily covered by the provisions of the previously tisted sections. These additional standards -ate addressed immediately below with the following exceptions: The' following ctions are discussed elsewhere in this report and, therefore, will not be i addressed in this'! section" 18.360-.090.3 (Exterior Elevations); 18.360.090.4. (Buffering, ..Screening and Compatibility. Between ' Ad1''olning , Uses; 18.360.090.8 .(100-year' -floodplajn). 18..360.090.13. (Parkingg 1S°360.090:14~-(Landscaping),,1.8.360.090. (Drainage) and 18.360.090:14 Provision for the Disabled). V Relationship to the Natural and Physical Environment: Buildings shall • be: located to preserve existing trees, topography and natural " drainage: where -pgssible;.based. upon existingg site -conditions; located. in areas not : •l.sobject.to:grou id-slumin'' sliding;'Ibdated.•`to proyi'.q-adequate•distance between "adjoirnIn bui. m'-.for adequate lig-ht;•air,-circulation;.and'-fre-fghting;-and oriented with consideration for sun and wind. Trees shall be preserved to the extent possible. , Replacement of trees is subject to the requirements of Chapter 18.790, Tree Removal. - REFUGE AT FANNO:CREEK STAFF REPORT{SDR2005-00002) - - PAGE 46 OF 55 R HEARINGS OFFICER HEARING 11/14x2009 : ' i,."! r' I ,I•. S :I: - t' v.~~ ( •a C. V'Jcilc'I': r` ~d ' t$dl!HAP ye gentle slopes "the" existing topography.on the site where l e . gild{ s ►u . o v- 6. r~ g According to the Soil, Survey of V~' Is4 n t" e..sUbj~ct sits consists of Aloha , . U ye9e,a .Jig crops, irrigated sed;`', an P t d' d~ Loarri.i, °The 'Aloha series is 'mainly berries,. small grain, and etc. The study g i vies ho rndicatiohs of.'s umpmg or sliding: Drainage is addressed later in this report under Chapter 18.810 (Street and Utility Improvement Standards). The..subject building will be approximately 114.feet from the'n-earest building to the north, thus providing adequate light,. air circulation, and fire-fighting access. - The buildings have been oriented with a northwest/southwest axis on gentle slopes downward in the southwest direction. As a result the building orientations provide excellent air circulation potential and direct sunlight -in the" morning and/or evening. Most of the buildings receive sunlight throughout the day; however,. maintain 'ashaded or sunny area in front or in' hack of the unit which is essential during hot summer days and pleasant during the cooler months. Tree retention and mitigation is discussed earlier in this report under 18.790.(Tree-:Removal).. Therefore,. this standard has been satisfied. Privacy and noise: multi-family or grou living uses: - . Structures which include residential dpwelling units shall provide private outdoor areas for each ground floor unit which is screened from view by adjoining units as provided in Subsection 6.a below; the buildings shall be oriented in a manner which protects private spaces on adjoining properties from view and noise; On-site uses, which create. noise, light, or glare shall be buffered from adjoining residential uses; and buffers shall be placed on the site as necessary.to.mitiga4e noise, light or glare from off-site sources. The .proposed residential units are designed in a .townhouse style :with three floors. Each unit as shown has a private outdoor area which is screened from. ad oinmg units with a wall style side railing. The nearest adjoining. residential property is'west-of the site and is more than 300 feet , away.. ,The proposed distance is more than adequate .to prot6a'any private areas located on those properties. The-site is bound on the north by an industrial use which has.no private areas that need protection. The railroad is located along the sites eastern boundary and likewise has -no private space needing protection. Therefore; this standard is satisfied. Private outdoor area: multi-family use: Private open space such as a patio or balcony shall be provided and- shall be designed for the exclusive use of individual units and shall be at least 48 square feet i:n size with a minimum width dimension of four feet; and. balconies used for entrances or exits shall not be considered' as open space except where such exits or entrances are for the sole use of the unit; and required open space may, include. roofed or enclosed'structures such as a recreation center or covered picnic area. Wherever possible, private outdoor open spaces should be oriented toward the sun; and private outdoor spaces shall be screened or designed to provide privacy for the users of the space. The.applicant, has indicated that each unit:.of;the;nine:.units: %Wl,have p 'tio-with a minimum width dimension of at least four feet. The.' atids `pr'o oiled rovide-'ore. `ap_j square feet of s rya a a-ex ceedin the minimum of 4- s. liar ee e b"b" ru s: roPosd:.for the•units . t 4 Fe g ' ~ ,:?..T F;.~ ? Qp.... 72 will ~=be- for the sole' purposeof the .units.nvate outdoor.space. is addressed <~n the following standard. Therefore, this standard is satisfied. Shared outdoor recreation'areas: multi-family use. tii Pay „ It: 1. of subsect'or~ .,5 aid! 6aboa;g,,us~ble©tdoor.recreation . space shall`be provided in residential d - Zpm' nts Q the shared or common use of all ±t l„_,. a _-the residents in the foil owing amounts: ;Studio. u. to and. incl,uding:finro-bedroom units, At 200-square :feet per.unit; and three or more;bedroo,q,unJts,,30p.square.feet per unit. The required recreation. space. may. be provided° sf:folloanrs: I#,may;be z 11 ; outdoor space; or It . ma. be part outdoor space and part indoor spa ,e;: for example; an outdoor. tennis court, and indoor-.recreation room; or it may be'a~f.pia lia or: common space; or It may be. part a cot MQnzspace and.;partprivate;.for exq!ppte.,Fit eou~dib,e.an-,.p rrtertrris°court, .indoo.r- c - recreation room- and balconies-on each -:~ttt~ grad wherejbalcorrs are added to units, the r sg3are;feef.- _Shalretr'ou#~cor recreation space. shall 1: balconies shall not be less. than .48 be readily observable-to.promote crime prevention and safety; REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-0000 PAGE 47 OF 55 F HEARINGS OFFICER HEARING 11/14/2005 The appfieant has indicated that 'the proposed residential' units. will contain three or more bedrooms. As a result, the applicant is required4o' provide:2-700 s~ 66 et:o`F usable outdoor recreation' space. The applicant is utilizing both.comhion (shared), and private space to meet ; . ; this requirement. The common open space area is located south of building #5. This usable outdoor space' totals 562 square feet. The majority of the usable outdoor recreation space is located on the private decks and patios of the units, which averages 294 square feet per unit. Therefore,. the total of both common and private usable outdoor recreation space provided on the project -site is 3,208 square feet for an average of 356 square feet-per unit. This criterion is II satisfied. The project proposes private outdoor areas that aee'clearly defined"by trellises'and landscaping. Therefore, this standard has been satisfied. Crime Prevention and Safety: • Windows shall. be located so that"areas vulnerable to crime can be surveyed, by the occupants; . ♦ Interior laundry and service areas shall be located in a way that- they can be observed by:others; ♦ Mail. boxes shall be. located in lighted areas having vehicular or pedestrian traffic; ♦ The exterior lighting levels shall be selected and the angles shall be'oriented towards areas vulnerable to crime; and • Light fixtures shall be provided' in areas having. heavy 'pedestrian or vehicular traffic and in potentially dangerous areas such as parking lots, stairs, ramps and abrupt grade ch"anges. Fixtures shall be placed at a height so that light patterns overlap at a height of seven feet, which is sufficient to illuminate a person. . Windows are provided in all of the proposed units. The windows.will be facing both the outer perimeter of the project and the interior of. the proJjject. No common interior laundry area has been proposed. Mail boxes will be located in lighted areas having vehicular and pedestrian traffic. The .proposed buildings will have exterior light fixtures and outdoor lighting will be provided. This standard has been satisfied. Public transit: Provisions within the plan shall be included for providing for transit if the development proposal is'.adjacent to or within 500 feet of existing or proposed transit route; The requirements for transit facilities 'shall be -based on: The location of other transit facilities in the area; and the size and-type of the proposal. The following facilities may be required 'after City and Tri-Met review: Bus stop shelters; Turnouts for buses; and Connecting paths to the shelters. The project is riot adjacent to - or'within 500, feet, of an existing or proposed "transit route. Therefore, this standard does not apply. Provisions of the Underlying Zone: l .I t All of the provisions and regulations" of the underlying zone shall appl unless modified by other sections or this title, e.g, Planned Developments, Chapter 1Y8.350; or a variance or adjustment granted under Chapter 18.370. -Dimensional Requirements: •~'I:IVIjI.l lt.ul t't•,lt ,d'.t : .::J1,1111 d.'•'- le . - • , Ill.}•.1f .a C7.t:1 1....' i1 it!:tl It Ill'. ,,1 t?,I l,t /x:1,1,:1 l; 1• The proposed • project complies -with all. of the.. -prdvisions'and regulations of the underlying ; zone Qxcept for those provisions modified under' 18.370 (Variances and Adjustments). j•.• +:1 I. I 1 •+s: l:::ii~tt ; r..1. •-i., _is.,; tt PINDING. Based' on -the analysis above: The Site Developppent Review'standards have- not ;•it-,: I,:t1;<1? be&f fully met, however, if th a ~appl'rcant.corr pl"res with;te =condition listed -below, :r'thestah%d fdSwil(be=fully met; -,.;F 'i.i:' _t- F.=:Irr~; iii- :-•~~a~~i.~' ia~:--.i:....t~:. l '.i; - t a:a•- i-1- . r+;`~'_.....- :~.}F; - ::1 _ t - - ":I ttt! --1'l;:LSri' F~ t.e-:- •t _I-. - .Y'tO![ :7 -,c A' .:`r::; i.%1t-. .•.{)ltt i~R: i,; i-siy." `►_';:_'~";r's; EON]?ITI.Oi:~5ti~6ifja:dstaileekli ti /::5:a 30 ng::pJar ..td the"rTigar~i Poarce;~D' artmerit anal f?jarining - Division for.review - • REFUGE.AIFANNO.GBEEK.S.TAEF-REPORT~SDR2005-00002j___.-• -..PAGE 48 OF 55 ,HEARINGS OFFICER HEARING 11/14/2005 -1JGE i F.•],:: u,..L',_K S' i 1 F 1:1 i 0.., i { ii~,~tii:.•.v.ril } a J"fr►tlc'ti;:t ll,t_t !(,R u:t.i f ~.'D: l:s, RE& 6►NLITY~IMPROVEMENTS ►4DARC9 ne; r fit ap ter . prove es construction e . mp. menth tio,n ptililic. and ; e s,I,l?~' ai~ae -lie priva d facilities and utilities such as; ti applicable standards are addressed below: " V..t,) th ~i c kr `'•`:~;'li` pt:r;nl, ` 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 ortion. of an existing street shall be dedicated and improved, in accordance with the. goy. - • . Minimum Rights-of-Way and Street Widths: Section 18.810.030.E requires a Neighborhood Route to have a 58 right;of-way width and 36-foot paved section. Other improvements required may include on-street parking, sidewalks and bikeways, underground utilities, street lighting, storm drainage, and street trees. This site lies adjacent to SW North Dakota Street, which is classified as a Neighborhood Routh on the City. of Tigard Transportation Plan Ma At. resent, there; is: a.roximatel 20 feet of ROW from centerline, according to' fhe'•inost'~ecenf'tPaX assessor s heap. The applicant . should dedicate the additional ROW to, provide for 29 feet from centerline.... SW North Dakota Street is currently partially paved. In order to •mitigate.,the: impact from this development, the applicant should construcf .half-street'•improvements. The applicant has requested. that they, pay a fee in-lieu of constructing the.impproveements. The applicant has pointed out that in order. to improve North Dakota Street to the ultimate design standard extensive work would be required beyond the limits of the site frontage. The, City Engineer has 'a reed to accept the fee in-lieu of half-street improvements with these funds being placed in a dedicated account for future improvements along .this section of North Dakota' Street. The applicant's engineer shall provide an Engineer's Estimate for the • half-street improvement for review and approval by the City engineering staff... 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.s.uch time,as the adjoining,property,is 0veloped.:.AJ?arricade' shall be co`ristructed at the end`of the street bylhe-pfoperty,,'6Whttti.%V idff 5Fra1fi pbt be removed J S 3z c l `:j i. Lntil: authorized "by ttie ;C.ityEngineer, t[ie' cos Hof, *hic fi :sh' I "incl4idgd;in the street molrts: ~r feYtr'p:pt`.cill-cfe-lac bulbs shall r :construction•dos~. Temp'o.rar' tiammerh~eaic'tb be constructed .for stub streets in excess .of 150 feet in length.... . . The- applicant bas stated that there are 'no•-existing streets, that 'stub" into .this site and that- veialir~r(..;n;: erraluse~of",bbgve~rade railroad crossii g,,"f%; ►p-crgeIgi and;~we landua n.the site -a road. conriectio6 is nbt~ feasible or desired by~%fhe -Ci RIe -'fhb -e ty ' ac ges the" many rip reii vq the a .Rlicapt~of. v~rbg to respond to. c': cons#raints.:tha# re~preseot on :this, site it iZ indu t a to Collo dr'extension in-this 'the" Ci .;s ~ansport',tton System- Plan (TSP wi iC hli 1.•;• area:" ;"The;,-horJzontal.'_aligntridrit'for this collector eaten mn. li " n~t't~ ei Tfixeb~'and its route is r,,sQm wli~# flexible: ~.i ntadditional option fcir`submifta1 to :ftid'Ci ~`:Eii m.tfi6,.discussion of t1~e ct d` li# ' df fbjsoeve pment versus t e~ ez eU' d't'irr~'li er-is r- d WeWj;nent. of. such a rl lJ 1 , , r ..f1 ~a=,°I i; conr lectofa..r~T e.ap` lican`t. -provide _a" p.op•" t f~tr li On , %10VQSt <tlie TS,P;for , i is ~eviev~ a d a royal:: Foa o' !t_ fieF Or -be Teceived the jr f-pginee PP 81,0w, 1 , t: prior;to- issuance of permits: ~.i. REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002)'~ PAGE 49 OF 55 P HEARINGS OFFICER HEARING 11/14/2005. ^`I • _ l..,,. r Street Aliggnment and-Connections: a 1, Section:A3O.H.. states:tha# full stkeficonhe~EtT6(-f ' i~tti~spapi.iig,o`f no more than Q~ 530~:feetbetviieen: connections. is requirl ezcepfe~e r~ever~ted b ;barriers such as -1 topography, railroads, ..freeways, pre-ekistings:~deye (n+etjd'M.*- ~ao provisions, ip easements,, covenants or 'other restricfions_ a Afft p oh '1;= .1995 which n;. preclude street connections. A full street connection may also Ue. exempted due to a regulated water feature if regulations would not permit construction. Section 18,;810.030.-H.2 states that all local; neighborhood ioute - and -collector streets 51 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°•i't=. is' ii6t * possible`"-to redesign, or f: reconfigure the street pattern to provide required extensions: 'Land is .considered topographically constrained if the slope is greater than 15% for a distance of 250 feet or more.' 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. The applicant shall. include -discussion. of the code section with their submittal to the City Engineer for review- and approval. Approval by the City Engineer must* be received prior to issuance of permits. Block Designs - Section 18.810.040.A states that the-length, width and shape of blocks shall be designed with due regard to roviding adequate building. 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 18.810.040.6.1 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; 4 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.. The proposal includes an access drive. No public or private streets are proposed with this development. Therefore, no blocks will be created. 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* others tandards in the code. As mentioned above, no blocks are created*with this development. _ Lots - Size and Shape: Section 18.810.060(A) prohibits lot depth from;beirig more than 2.5 times-the average lotwi.dth,-unless the. parcel is, less. than•1..5 times the.minimum lot. size of the applicable zoning district. S . The proposal .is' for a mixed use project within a commercial zone. Therefore; no lots are Z created as a result of this project. • Lot Frontage:. Section 18.810.060(B) requires thatlots -have at. least 25 feet of frontage on ! public -or pprivate streets, other than an alley. - In the. case of -a . land partition, 18:420.050.A.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 be at least 15 feet. - - - - -REFUGE AT FANNO CREEK STAFF REPORT (SDR2005-00002).:. _ PAGE 50 OF 55 HEARINGS OFFICER HEARING 11/14/2005 ! : ! • The subject. site. has.. approximateljr'226 feet. of frontage. on to W:.North Dakota Street. Therefore, this standard is satisfied. Sidewalks:. Section 18.810.070.A requires that -sidewalks ~be ;constructed Ito meet City design standards and be located on both sides of arterial, collector and local residential streets. Private streets and industrial streets shall have sidewalks on at least one side. The applicant has indicated that the fee in-lieu of half-street improvements along their North Dakota Street frontage will include public sidewalk, thereby meeting this criterion. 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. The-applicant's plans indicate a private sewer system to serve the entire site as it will remain under one ownership. The private sewer will connect to the CWS main that runs east-west across the site. The applicant shall submit plans to' CWS for review- and approval. Storm Drainage: General Provisions: " Section 18.810.100.A requires developers to* make adequate provisions for storm water and flood water runoff. Accommodation of Upstream Drainage:. Section -18.810.100:C 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 3000 and including any future revisions or amendments). This site is impacted by both Ash and Fanno Creeks.. Fanno Creek runs theJength of the 'development, north to south. Ash Creek. crosses the site in an east=west direction.: The runoff from upstream drainage areas: is accommodated by theses creeks. The applicant has not. proposed any* changes to the creeks that- will impact the accommodation of upstream drainage. 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 ;withho d approval _ oIf the de"veIopment u ntl fi 'provisions have -been made for r ; Improvemenf of the potential cdittiition or until! "TOVisions'liave been made. for storage of additional: runoff caused% by be developm 't: ;in.. accordance-`witti. the Design and " ,,C:onstruction Standards fQr Sa-f;~ry and Surf cetWater Management:(as adopted by `Clean Water Services in 204 art;( ncludrng an)ffdture-revisions: or amendments). if is + Y.: t ,\".i.. •-r. REFUGE AT FANNO CREEK STAFF REPORT (S0 05-00002) - PAGE 51 OF 55 - - -HEARINGS~OFFICER HEARING 11/142005-- In 1997, Clears Water Services (CWS) completed a basin study of Fanno Creek and adopted the. 'Fanno Creek Watershed Mana errient Plan.. Section •V of that plan includes a r recommendation that' local governments institute •a 'stormWdkf.'deti~ntion/eff. ective impervious area. reduction. program resulting'in no -net increase-:in .:sfppr •,13ealr flows :up to. the 25-year event., The City will.require that all new developments reaa9.ting.. iri -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 including sheet.fl,ow. The applicant has stated that in accordance with the. 'Fanno• Creek. Sub-basin Study, conducted by the City and CWS; a development adjacent to Fanno Creek may be allowed to discharge directly into the creek-without detention. The applicant- will instead pay a fee in-lieu of constructing an on-site detention system. 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. The applicant's fee in-lieu of constructing half-street improvements will include funds for bicycle land striping, thereby meeting this criterion. 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 Ines. operating at 50.000 volts or above, and: o The developer shall make- all necessary arrangements with the serving utility to provide 'the underground services; o The City reserves the right to approve location of all surface mounted facilities; All- underground utilities, includng sanitary sewers and storm drains installed in streets by the developer, shall be constructed prior to the surfacing of the streets; and o 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. r 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 utUities•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 undergrounding. r :There`are.existing overtieact utility lines atom the frontage ofSW!1~lofith Dakota Street. The , applicant indicates they- will not be served from those Ines, but ftse along 'the. railroad ROW. In this case,'the app lie - t is not required to underground or pay the fee in-lieu for the ` lines alongNorth Dakota S~ree#: . I; '•ADD:ITI0NA1_ -CITY . AND/OR ~ y4GENCY CONCERNS LVWTM :i'STR-E-ET: AND UTILITY ~ !:.E -7 ~7 AIL: r n = = = - -REFUGE ATRANNO:.CREEKSTAFFREPORZ (SDR2005-00002 ~ - - PAGE 52 OF 55 ! HEARINGS OFFICER HEARING 11/14/2005 iI + ! _ :r.r : i~ , ! ; Traffic Stud Findings: Ara is impact Ana ysis was prepared for this development by Kittelson & Associates, Inc., dated May 19, 2005. Among their findings are the following: 1) The crash data history does not indicate safety problems or deficiencies along SW North Dakota Street in the project vicinity. 2) The proposed project will generate approximately 340 trip ends on a typical weekday, including 45 trip ends during the weekday a.m. and p.m. peak hours. 3) Under 2006 total traffic conditions the critical northbound approach at the.SW North Dakota Street/site driveway intersection is expected to' operate. at LOS -13 during the .weekday a.m. and p.m. peak hours. 4) Intersection sight distance to the west meets the 370 feet required. 5) Intersection sight distance to the east is.277. feet, which -does not meet the minimum sight distance requirement. The stopping site distance has been calculated to be b. approximately 270 feet.. A vehicle at the site driveway would be visible-to a westbound driver at a distance of approximately 270- feet from the driveway. As such, a westbound vehicle would. have sufficient visibility to recognize a vehicle exiting the driveway to come to a safe stop. The engineer has recommended the following: is 1) Landscaping, signage and utility installation at the site access driveway should be properly located and maintained in order to provide adequate visibility. Public Water S yste~m: The i o igand pprovides service in this.area. - The applicant's plans shall reflect all requirements of the Water•Department for line size, material and easements. Storm Water Quali The i as 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 quality facility 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 proposed unit from. Stormwater Management is acceptable, provided the property owner agrees to hire the manufacturer (or approved equal) to provide the required maintenance of the unit. Prior to a final. building inspection, the applicant .shall demonstrate that they : have entered into a maintenance agreement with Stormwater Management, or•ah6ther.c6mpany that demonstrates they can. meet the maintenance requirements of the manufacturer. Grading and Erosion Control: - EMS Design-andConstruction Standards also regulate erosion. control. to seduce the amount. of sediment and other pollutants reaching the public storm and surface water system resulting from development, construction, grading, excavatingg, clearing, and • any other -activity which accelerates erosion: Per CWS regulations, th-e applicant is required to submit an -erosion control plan for City review and approval prior to ► issuance of City permits. iREFUGE AT FANNO CREEK STAFF-REPORT (SDR2005-00002) PAGE 53 OF 55 r; HEARINGS OFFICER"HEARING 11/14/2005 ' ' y - 'The Federal Clean Water Act requires that a- National Pollutant Discharge Elimination rz System (NPDES) erosion control permit;be. issued for any development that will disturb one or.more acre of land. Sin6ee'this site is over_fibe acrds,,the developer will be required .to obtain. an "NPDES permit from the City,pt~or ,p.cons#ructiort..This permit will be issued along-with the site and/or building permif.`.: An NPDES 1200-C permit is required for this development. Site Permit Requited, e applicant is required to obtain a Site Permit from the Building Division to cover all on-site private utility installations (water, sewer, storm," etc.) and.driveway construction. This permit shall be obtained prior-to approval of the final,•plbt..: . Address Assic nments: e i o Igar is responsible for assi Wingg addresses for parcels within the City of Tigard and within the Urban Service Boundary ~USB). An addressing fee in the amount of $50.00 " per address shall be assessed. This fee shall be paid to the City prior to issuance of the site permit. - ` For multi-tenant buildings, one address number is assigned to the building and then all tenant spaces are given suite.numbers. The City is responsible for assigning the main address and suite numbers. This'information is needed so that building permits for tenant improvements can be adequately tracked in the City's permit tracking system. Based upon the information provided by the applicant, this building will-be a fnulti-tenant building. Prior to issuance of the site permit, the applicant shall provide a suite layout map so suite numbers can be assigned. The addressing fee will then be calculated based upon the' number of suites that must be addressed. In multi-level structures, ground.level suites shall have numbers preceded by a , "1", second-level suites shall have numbers preceded by a °27, etc. The developer will also be required to provide signsgge 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. E. IMPACT STUDY 18.390) ec 18.360.090 sates, Fie Director shall make a finding with respect to: each of the following criteria- when approving, approving with conditions or denying an application:." Section'18.390.040 states that. the applicant shall provide an impact study to quantify the effect of development. on, public .facilities and services. For each public facility sXstem and type of impact, the study shall propose improvements necessary to meet City standard, and to minimize the impact of the development on the public at large, public facilities systems, and affected private property users. M situations-•where. the-CommUnity D&eiopmeht:Code;requ.ires-#he dedication of real - pro~iert~r:interests; the applicant :shhall either, specrfFcally.-concu~r..with a requirement for . t`suppdrts*tha tthe'reai roperty i~ .public;right=of-way dedicatioii,,or provide`eVid&~.e th 'dedication is not roughly proportional llb 'thee prc5~~cted impact§ of the 'development. Section 18.390.040 states that when a c'onditiom of approval requires the'transfer to the public of an interest in real property, the approval authority shall adopt findings which support the -conclu-sion *th'at "the. IInterest. in .real proper. . to be "transferred .is roughly- propbrtiori2lttoa_h irnpact.:the. roposed°dev!Ooor ~r.;Mave.an thePu.blic. p !-1.1 14 1 to } t l' ect's- ini acts on public I.. The appf~cant:'f~s-.pp~ rovided ` aimppact;st l~' a ar s m tfie-A.. , p h i.{.. systems. " The - Wpshinggton County Traffic:trxrpact is a :mitigation measure that is s required at.thd'tirile`of develo men't.: Base'dbn a trarrsortatlort imppect study prepared by Mr. , a,~i,° PIY,Re' tibn`°9'S1`6rTtF's -are C °tD,a3~c, Lai•sgh fog`thhe';A-BoExpansion/Dot expected to rec pfure 7 per rtt 6f tP e.tra`ffi impsct' #~e e b meM~ p the Cdl ectgr and Arterial- r, 'e#in:` ppticant:viijihe regied``fo~"~[t s; tbxinia#ely, x126,393 based n [ '..Ft"l%MN-:::rt `,;t:dnoh ;U g DS d'ii c~ Ott II Icttrr:;ss.sh ll rtvt.17.v i(:S.s.ilt<<ci:f ; t v -REFUGE AT FAfdNA 6REEKAFF REP-0F(SDR 2005 00002] . - PAGE 54 OF 55 . - - HEARINGSOFFICER HEARING Iw4i-16d5 J +i 'rr.iV!~ iC:kEEK i `-i Based on the estimate that total -TIE fees cover 32 percent of the impact on major street ;pro ects traffic impact is improvemerifs citywide, a fee that!woul~dcoY:10.0:;percent t. i-11 I i $394,353 ($126, i 93 divided ~by.. •332):The. differopcpw beMepn.,-the= T~F• -••~p: aid, and the full impact is considered the unmitigated impact on the collector and arterial'tfreet system. The unmitigated impact of this pro ect on the transportation system, is.$2.68,160.., The applicant ' will be required to dedicate 1,971" .square feet of right-of-way along SW North Dakota Street to meet current transportation system standards. The cost of the improvements is expected to be $73,365 (1,971psquare feet ~c $15.Q0: per..,s.ctuare jppt.;for dedication" and 219 feet x $200.00 for'2 street improvements) thud as the -required exactions are less than the value of the unmitigated impact; the exaction is'roughly proportionate to the level of impact. generated from this development. Therefore; the rough proportion aIity. test has-been satisfied. SECTION VI: OTHER STAFF-COMMENTS. r ' The City of Tigard Forester has, revie'wed the proposal and offered the following comments: Landscape/mitigation plan not included in set of plans.. The Ci#y of Tigard. Long Range Planning Division has reviewed the proposal" and has offered the following comments: : • The Transportation System Plan identified-.the SW Nimbus Ave/Greenburg.connection road as a planned collector. The potential route could involve this parcel. The City of Tigard Water Department has reviewed the" proposal and has offered the following comments: • No public water fines in parking lots or private streets.. Either master meter the site or run private water lines to each building. The City of-Tigard .Building Department has reviewed the proposal and has offered the following comments: An accessible route is required to connect all buildings to each other arid to connect the buildings to public transportation. SECTION VII. AGENCY COMMENTS Tualatin Valley Fire and Rescue has reviewed the proposal and has offered comments, which can be found in the land-use file at the Permit Center next to City Hall. Division of State Lands has reviewed the taroposal;and..has.4ffered,the, following comments: Wetland delineation (WQ,03-056'5),h.as.been approved.forthis,.site.' r-- November.? 2005 Associate peel' ; t. .'Ir.11 irfrt ~,.r.iT t~'.t ..7_'ii •'r'... I:i~i:..* r._. - -h _P t:~"..~: ;~►r~►4r~, November 7, 2005 :AP" O icha : Bevel bATE tip!' »:Iri E; :ccV.Ctd s• : ; . Plannih rfdlanageFZ?j. .~.truc.iftr" I:CcurplnlmathevAsdr%SDR2003-00002.dec.doc.dot• REFUGE AT FA'NNO CREEK"STAFF REPOR F SDR2005 00002 c r n- r - PAGE.55 OF 55 i . • HEARINGS OFFICER HEARING 11/14/200&_; ;c.r!r.:-- ;;F;:.!:::-::- " i wo! .00002` .5~100~~(~Aj 3 • O T O oei° IF x Cuj goo Fa~ . - ass avei. , of`f1`a y~l cri r:., 44ee,oon only ! • ~p.1+4ocoS Sorvkes9h $1' • - ~djied'[~9 1ga~ SIT" z -too 9 8 H71.;U0. . Q i' r J ' l`lop,d of . ICiO - plot date: ~ • . _ • o i 4 ' r. `I+ai. i _a . , ~ • t:;! l~t+l . .I 1 i [ i i _ ~ .r pp \ Cf) I IRS { ft ~ - ' Z ` Z \ LL. . - SQR2005-000021SLR2005-00017; 18. 1 & 20/ YAR2005-00055 & 56 Sl*lrV- IPL- AN . . fMa --'REFUGE AT FANNO CREEK P::is notao scale)"~ • , i i . Iii. - - _ ti f RECEIVED • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON MAR- 2 9 2006 Sue Beilke, Petitioner RAMS GREW CORRIGAN, LLP Vs LUBA NO.2006-017MORNEYS AT LAW City of Tigard REFUGE AT FANNO CREEK PETITIONER'S RESPONSE TO MOTION FOR DISMISSAL Applicant has moved to dismiss (March 23, 2006). Petitioner responds: 1)the motion is untimely inasmuch as the record has not yet been established, 2) the Tigard City Council hearing of January 24, 2006 was a review of the Hearing Officer's decision and 3) the action of the Tigard City Council on January 24, 2006 was the final decision of the city regarding the subject application, a land use decision. UNTIMELY MOTION The record establishing the content and sequence of actions relating to Tigard's decision on the Refuge at Fanno Creek application is not yet established. City of Tigard filed a Record of the local proceedings on March 7, 2006 and Petitioner filed an Objection to that filing on March 20, 2006. For LUBA to consider the facts surrounding this • application, the record must first be established in accordance with LUBA rules. Questions of whether the City Council action on January 24 was a review of the hearings officer decision, or was a land use decision, or was the final action of the city cannot be addressed without a record being established. Petitioner, in her Objection of March 20, 2006 asked exactly that such record be established. Applicant, in his Motion to Dismiss, attaches as appendices selected materials from the local proceeding (going beyond the Record filed by the city on March 7, 2006) to support his motion, but does not consider the entire record of the local proceeding. "REVIEW' The City Council discussion of January 10, 2006 regards an additional hearing for two purposes: to consider whether there is indeed an access easement across railroad property at the northeast edge of the proposed development and to consider whether the City Council should reopen the record following the Hearings Officer decision of December 22, 2005. The City Council was clear that this was not to be a de novo hearing except to the extent that new information regarding an easement across railroad property might arise; hence it was a `review'. The fact that the City Council in the end chose not to reopen the hearing conducted by the Hearings Officer in no way suggests that it did not `review' the Hearings Officer decision. The concluding statement by Mayor Dirksen (Record at 13) is evidence of that review - he stated that "he came to the meeting tonight • ready to approve striking the second access but the testimony convinces him that there is a historical easement." • The Council's action on January 24, 2006 is actually garbled somewhat (Record at 15) in that Councilor Wilson moved to "uphold the hearings officer decision and decline to reopen it" whereas Mayor Dirksen spoke somewhat different words `not reopen the case and to uphold the previous decision'. However, both actions constitute a `review' of the Hearings Officer decision. In the Wilson wording, the "decline to reopen it" phrase obviously refers to the Hearings Officer decision of December 22, 2005 and in the Dirksen wording, the "not reopen the case and to uphold the previous decision" phrase obviously refers to the Hearings Officer decision as the "case" and the "previous decision" obviously refers to the Hearings Officer decision. The Council had to look at something to make this decision, and the clear reference is that they reviewed the Hearings Officer's decision. There is nothing in the Record which suggests that they reviewed anything else leading to their decision to uphold the Hearings Officer decision. Finally, the minutes of the January 24, 2006 hearing include Mayor Dirksen referring to the proceeding as a `review' of a hearings officer decision (Record at 9). The fact that new evidence was presented at the January 24, 2006 hearing further argues that the City Council did substantively review the Hearings Officer decision; the note in paragraph above regarding Mayor Dirksen's conclusion (ie that new information tonight influenced his position) proves such review. The presentation of new evidence at the January 24, 2006 hearing is a contested matter in establishing the record of the local proceeding. See Petitioner's Objection of March 20, 2006. • "CITY COUNCIL'S FINAL ACTION ON A LAND USE DECISION" No one disputes that the Hearings Officer decision of December 22, 2005 was titled as a final decision. It did not become effective on January 12, 2006 because on January 10, 2006 the Tigard City Council acted to review it in a new public hearing (January 24, 2006) with regards to an easement across railroad property, necessary for an access submitted as part of the application. The January 24, 2006 action was by a higher authority than the Hearing Officer and was made on a later date. It is true that the City Council included within the scope of the new public hearing the question of whether the Hearings Officer decision should be opened up. The important fact is that the new hearing was for both purposes and was conducted to serve both purposes. The motion for a new hearing made specific direction to City staff and City Attorney to contact the railroad (land owner) and determine certain information (new evidence) to be presented at the new hearing. The fact that such evidence from the railroad was not forthcoming does not change the scope of the hearing. In actuality, the applicant did present new substantive evidence at the January 24, 2006 hearing in the form of a new aerial photo (being contested in establishment of a record for this LUBA appeal), which further supports the conclusion that the hearing was indeed to review the facts supporting the Hearings Officer decision and make a final decision. The City Council hearing of January 24, 2006 was noticed as a hearing on a land use • decision (Record at 61-72). The notice includes in its title "Site Development Review," "Sensitive Land Review," the file numbers of the actions within the Tigard Planning r • Division (eg SDR 2995-00002) and the title of the application "Refuge at Fanno Creek". The notice of hearing cites the land use decision procedures to be followed and the scope for the hearing of January 24, 2006 - Chapter 18.390 and Chapter 18.705 respectively. The notice of the January 24, 2006 hearing cites Oregon land use statutes for guidance on procedural matters for the hearing (ORS 215 and ORS 197). Petitioner does not attach these chapters, but asks LUBA to take official notice of them. The TCDC does not have a definition of land use decision specifically included in its `definitions' section, but Chapter 18.310 clearly indicates that decisions on permits under Chapter 18 are land use decisions defined by Chapter 18.390.1 Chapter 18.390 is explicitly noted in the notice of the January 24, 2006 hearing. a ORS 197 includes the explicit definition of a land use decision; it includes the final decision of a local government in applying a land use regulation. The Tigard City Council decision on January 24 was final because the City Council is the highest body in the city which makes land use decisions, it was made after all other city decisions were made, and because the City Council agreement that there is an easement across railroad property, thereby giving applicant control over property to be developed is an application of land use regulations, those being TCDC 18.390.080 D.l.a.(4) and being the requirement stated on the Tigard Land Use application form (attachment to Petitioner's Record Objection: March 20, 2006). • Sue Beilke, Petitioner 3/28/06 CERTIFICATE OF FILING AND SERVICE I hereby certify that on March 28, 2006, I filed an original and one copy of this PETITIONER'S RESPONSE TO MOTION FOR DISMISSAL with the Land Use Board of Appeals, Public Utility Commission Building, Suite 235, 550 Capitol Street NE, Salem, OR 97301-2552 by first class US mail. I also served a copy of this same document on March 28, 2006 by first class US mail on Tim Ramis, Ramis, Crew, Corrigan Lawyers, 1727 NW Hoyt Street, Portland, OR 97209 and Robert Van Brocklin, Stoel Rives, 900. SW Fifth Avenue, Suite 2600, Portland, OR 97204. Sue Beilke, Petitioner 3/28/06 ' It states in part "In this development code, each land use permit or related action is processed by means of a generic decision-making type, eg Types I-IV or Limited Land Use Decisions (LLD) or Expedited Land Decisions (ELD), to which it is assigned. A description of these decision-making procedures are summarized in Chapter 18.390." z Although the hearing notice did not assign a hearing type (I-IV) to the January 24 hearing as called for by the TCDC, Chapter 18.310, and although there was no staff report available for inspection seven days prior • to the January 24 hearing as committed in the hearing notice, and the hearing notice was therefore substantially deficient, the City Attorney's introduction at the start of the hearing provided guidance substantially like a Type III procedure. 4 COPY • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON RECEIVED SUE BEILKE, BOARD MEMBER, FANS OF FANNO CREEK, MAR 0.6 2006 Petitioner, ) RAMIS CREW Cop,;'" LLP ATTORNEV5 AT t_Rj V. ) CITY OF TIGARD ) LUBA No. Respondent, ) MOTION TO INTERVENE I. • Spectrum Development, Inc. ("Spectrum") moves to intervene on the side of Respondent, City of Tigard, in the above-captioned alleged appeal. The name, address and telephone number of the attorney for Spectrum is as follows: Robert D. Van Brocklin Stoel Rives LLP Attorneys at Law 900 SW Fifth Avenue, Suite 2300 Portland, OR 97204-1268 Telephone: (503) 294-9660 II. The facts establishing the movant's right to intervene are that Spectrum is the applicant in the land use application approved by the City of Tigard's Land Use Hearings Officer ("Hearings Officer's") on December 22, 2005. The Hearings Officer's decision is entitled "Regarding the Application for Site Development Review Approval to Construct Two Commercial Office Buildings Totaling 26,000 Square Feet and Three Buildings Equaling Nine Residential Units in PDX 1 A-77619.1 11700-0003 Page 1 - MOTION TO INTERVENE AND AFFIDAVIT OF ROBERT D. VAN BROCKLIN Portlnd l -2221061.1 0063198-00003 • the MNE-2 Mixed Use Employment District of Tigard, Washington County, Oregon." No appeal of the Hearings Officer's decision, including by Petitioner, was filed by the appeal deadline of January 12, 2006. On January 24, 2006, the Tigard City Council declined to review or reconsider the Hearings Officer's decision. Spectrum appeared orally and in writing at the Hearings Officer's hearing and at the City Council meeting at which the City Council elected not to review the Hearings Officer's decision. DATED this 3rd day of March, 2006. Robert D. Van Bro kS No. 87130 Greg D. Corbin, OSB No. 00033 Of Attorneys for Intervenor-Respondent, Spectrum Development, Inc. PDXI A-77619.1 11700-0003 Page 2 - MOTION TO INTERVENE AND AFFIDAVIT OF ROBERT D. VAN BROCKLIN Portlnd 1-2221061.1 006319840003 AFFIDAVIT OF ROBERT D. VAN BROCKLIN STATE OF OREGON ) County of Multnomah) I, ROBERT D. VAN BROCKLIN, being first duly sworn, depose and say: 1. I am a partner in the law firm of Stoel Rives LLP. I make this affidavit pursuant to OAR 661-10-050 and in support of the Motion to Intervene made by Spectrum Development, Inc. ("Spectrum"). Spectrum's motion and this affidavit were filed with the Oregon Land Use Board of Appeals ("LUBA") on March 3, 2006. 2. I am legal counsel for Spectrum with respect to Spectrum's land use decision which was approved by the City's Hearings Officer. 3. A Notice of Intent to Appeal was filed with LUBA on February 14, 2006. 4. Pursuant to ORS 197.830(6) and OAR 661-10-050, as a result of appearing orally and in writing in the public hearing before the Hearings Officer who approved the subject application and at the subsequent Tigard City Council meeting to determine whether the City • Council would review the Hearings Officer's decision, Spectrum has standing to intervene in this appeal. ROBERT D. VAN BROCKLIN SUBSCRIBED AND SWORN to before me this 3rd day of March, 2006. O~CIALSEAL lea /V Akl- RACHAEL HEIN NOTARY PUBLIC FOR OREGON NOTARYPUBUC-OREGON COMMISSION NO. 399723 My Commission expires://- 2o-D q - MY COMMISSION EXPIRES NOVEMBER 20, 2009 PDXI A-77619.1 11700-0003 Portlnd 1-2221061.1 0063198-00003 CERTIFICATE OF FILING I hereby certify that on March 3, 2006, I filed the original of this MOTION TO INTERVENE and AFFIDAVIT OF ROBERT D. VAN BROCKLIN, together with one copy, with the LAND USE BOARD OF APPEALS, 306 State Library Building, 250 Winter Street NE, Salem, Oregon, 97310, by first class mail. DATED this 3rd day of March, 2006. Robert D. Van Broc in, OSB No. 87130 Greg D. Corbin, OSB No. 00033 Of Attorneys for Intervenor-Respondent, Spectrum Development, Inc. PDX l A-77619.1 11700-0003 Page 1 - CERTIFICATE OF FILING Portind 1-2221061.1 0063198-00003 CERTIFICATE OF SERVICE I hereby certify that on March 3, 2006, I served a true and correct copy of this MOTION TO INTERVENE and AFFIDAVIT OF ROBERT D. VAN BROCKLIN by first class mail on the following persons: Sue Bielke 11755 SW 114th Place Tigard, OR 97223 Tim Ramis City Attorney City of Tigard c/o Ramis, Crew & Corrigan 1727 NW Hoyt Portland, OR 97209 Peter Kusyk Spectrum Development, Inc. P.O. Box 3440 Wilsonville, OR 97070 PDX I A-77619.1 11700-0003 Page 1 - CERTIFICATE OF SERVICE Portlnd l -2221061.1 0063198-00003 BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON Sue Beilke, Board Member Fans of Fanno Creek, Petitioner vs LUBANO. RECEIVED C.O.T City of Tigard, Respondent FEB 15 2006 NOTICE OF INTENT TO APPEAL Administration I Notice is hereby given that petitioner intends to appeal that land use decision of respondent entitled "REFUGE AT FANNO CREEK", which was finally approved by the Tigard City Council at a hearing on January 24, 2006, and which involves site development review, sgnsitive lands reviews and adjustments to the Tigard Community Development Code (TCDC). lI Petitioner is Sue Beilke, 11755 SW 114'h Place, Tigard, OR, 97223; 503-639-3519; Board Member, Funs of Fanno Creek. 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 firm, 1727 NW Hoyt, Portland, OR 97209 and telephone of 503-222-4402. IV Applicant at time of final action was Spectrum Development, Attu Peter Kusyk, PO Box 3440, Wilsonville, OR 97070. Applicant had as its legal counsel Robert Van Brockl}n of firm Stoel Rives, 900 SW Fifth Avenue, Suite 2600, Portland, OR 97204 and telephone of 503-224-3380. No other persons were mailed written notice of the final land use action by City of Tigard 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. for Petitioner, 2/14/06 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2006, I served a true and correct copy of this Notice of intent to appeal on all persons listed in paragraphs III and IV pursuant to OAR 661- 010-0015(2) by certified US mail, first class (LUBA). and US mail, first class (others). for Petitioner, 2/14106 • BEFORE THE LAND USE BOARD OF APPEALS OF THE STATE OF OREGON SUE BIELKE, BOARD MEMBER, ) FANS OF FANNO CREEK ) LUBA NO. 2006-017 Petitioner, ) Index and Record vs. ) ) CITY OF TIGARD, ) SDR2005-00002/SLR2005-00017, 18, 19 & 20/VAR2005-00055 & 56 Respondent. ) • TRANSMITTAL OF CITY OF TIGARD RECORD LUBA RECORD NO. 2006-017 Sue Beilke, Board Member, Fans of Fanno Creek VS. City of Tigard City of Tigard File Nos. SDR2005-00002/SLR2005-00017,18,19 & 20/VAR2005-00055 & 56 I, Patricia Lunsf ord; Senior Administrative Specialist of the Qfy 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 7`s day of March, 2006. ricia Lansford Sr. Administrative Spec ' t, City of gar i CERTIFICATE OF FILING • LUBA RECORD NO. 2006-017 Sue Beilke, Board Member, Fans of Fanno Creek VS. City of Tigard Qty of Tigard File Nos. SDR2005-00002/SLR2005-00017, 18,19 & 20/VAR2005-00055 & 56 I, Patricia Lunsford, hereby certify that on March 7, 2006, I filed a copy of the original of this INDEX AND RECORD in LUBA No. 2006-017 with the Land Use Board of Appeals, Public Utility Commission Building, 550 Capitol Street NE, Suite 235, Salem, Oregon 97301-2552, by first class mail. By. tricia Lunsford Sr. Administrative Speci ' t, Ci f Tigard Dated this 7' day of ch, 2006 CERTIFICATE OF SERVICE LUBA RECORD NO. 2006-017 Sue Beilke, Board Member, Fans of Fanno Creek VS. City of Tigard City of Tigard File Nos. SDR2005-00002/SLR2005-00017,18, 19 & 20/VAR2005-00055 & 56 I, Patricia Lunsford, hereby certify that on March 7, 2006, I served a true and correct copy of this INDEX AND RECORD in LUBA No. 2006-017, City of Tigard File Nos. SDR2005-00002/SLR2005- 00017, 18, 19 8& 20/VAR2005-00055 & 56 by first class mail on the following persons: Petitioner: Sue Beilke, Board Member, Fans of Fanno Creek 11755 SW 114`s Place Tigard, OR 97223 Respondent: City o f Tigard Attorney for Respondent: Timothy V. Ramis Ramis, Crew, Corrigan Lawyers 1727 NW Hoyt Street Portland, OR 97209 Applicant: SpeaYwnDeu&pnvr Attorney for Applicant: Robert Van Brocklin Stoel Rives 900 SW Fifth Avenue, Suite 2600 Portland, OR 97204 By. _ Q7 )atinicia Lunsford ministrative Spec- - t, of Tigard Dated this Th day of ch, 2006 • Postal CERTIFIED MAIL, RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) ti m i .D Postage $ Certified Fee D ~R Postmark Return Red Z Fee Here C3 (Endorsement Required) n N r3 Restriscted Delivery Fee L -0 (Endorement Required) ru fU Total Postage 8 Fees rf no C3 sent o Land Use Board of Appeals rr- weer Apt E Public utility Commission Building orPOBoxNO._...... 550 Capitol Street NE, Suite 235 stare Salem, OR 97301-2552 PS Form 3800, June 2002 See Reverse for Instruction& • SENDER: • SECTION COMPLETE THIS SECTION . 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 Welk ❑ - -so that we can return the card to you. B. Receate of Delivery ■ Attach this card to the back of the mailpiece, 9ft- 1--'r - or on the front if space permits. 0 1111 W! 1W tP D. rfferent from item 1? ❑ Yes 1. Article Addressed to: , enter delivery address below-. ❑ No Land Use Board of Appeals GT Public Utility Commission Building 550 Capitol Street NE, Suite 235 3. Servi Salem, OR 97301-2552 AGertifi d Ma~ ❑ Registered t4meceipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. MArticle WIst r fmrom m service label) 7003 2260 0001 6389 6267 ~ (Tiarrsfer PS Form 3811, February 2004 Domestic Return Receipt 102595-0244-1540 i1 • Postal Service,,, m CERTIFIED MAIL. RECEIPT (Domestic .D For delivery information visit our website at www.usps.comt) 137 M 7 - 6 w 7J, .0 Postage $ r-i Certified Fee O, S~ C3 Return Radept Fee Q~ Here (Endorsement Required) O po09 C3 Restricted Delivery Fee J G (Endorsement Required) fv Total Postage & Fees $ % . da~✓ C3 Sent To Robert Van Brocklin 6 E10' ' r- s4ree iii ffd Stoel Rives or POeoxl B 900 SW Fifth Avenue, Suite 2600 oiry;"sYaig zi~ Portland, OR 97204 SECTION PS Form 3800, June 2002 See Reverse for Instructions 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 s that we can return the card to you. Received V Printed C. Date of Delivery ■ Attach this card to the back of the mailpiece, ~VV1 or on the front if space permits. D. Is delivery address•(f&iW',.ftom--Item 11 11 Yes 1. Article Addressed to: M YES, enter Live low: 13 No Robert Van Brocklin Stoel Rives 900 SW Fifth Avenue, Suite 2600 3. Bervice Type 41 i Portland, OR 97204 P1 Certified Mall 11fxpress Mail ❑ Registered ❑ Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number " (Transfer from service label) ' 7003 2260 0001 6389'6243 PS Form 3811, February 2004 Domestic Return Receipt 102595.0244.1540 • Postal (Domestic CERTIFIED MAILT. RECEIPT Only, Provided) For delivery information visit our website at www.usps.coms, l~JFI 0C5QL U 5 E M -n postap 97221 T O Certified Fee , O Return Redept Fee 1~'Flere d (Endorsement Required) O Restricted Delivery Fee ti (Endorsement Required) ZOO rU Total Postage & Fees $ , ® uc~FS m o senrro Sue Beilke, Board Member, ireei far ivo.; - Fans of Fanno Creek orPOSoxIVo. - 11755 SW 1141h Place cny smig aP,a Tigard, OR 97223 PS Form 3 00. June 2002 See Reverse for Instructiorps SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ■ Complete Items 1, 2, and 3. Also complete A. Sign re Item 4 If Restricted Delivery is desired. 0 Agent ■ Print your name and address on the reverse x ddressee so that we can return the card to you. g, yed b ( Name) 13 C. Date of Delivery ■ Attach this card to the back of the mailplece, e, i 9 -416 or on the front if space permits. 1. Article Addressed to: D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below. 1(No Sue Beilke, Board Member, Fans of Fanno Creek 11755 SW 11411 Place 3. ServloaType Tigard, OR 97223 hCertified Mail 0 Express Mall 0 Registered 0 Return Receipt for Merchandise 0 insured mail O C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article sfer 7003 2260 0001 6389 6274 (Transfer from seMce rebel) . PS Form 3811, February 2004 Domestic Return Receipt 102595m44.1840 • Postal o CERTIFIED . RECEIPT _ ui (Domestic J3 For delivery info rmation visit our website at www.usps.conin IF IF n nn S IF= r .0 Postage $ (ITr Q Certified Fee 'b ~aY Return Redept Fee ~.stmark - , ' C3 (Endorsement Required) ? Here C3 Restricted D8" Fee very .A (Endorsemem Required) r ru t - ru Total Postage & Fees $ M C3 sent o o Timothy V. RamiS It ireet apiN'i, Ramis, Crew, Corrigan Lawyers orP09oxNO. - 1727 NW Hoyt Street smte, Portland, OR 97209 PS Form 3800, June 2002 See Revierse~ SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1, 2, and 3. Also complete A. Skj!!tur 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. ,rived Nam l C. Date o f Delivery ■ Attach this card to the back of the mallpiece,or on the front if space permits. D. Is delivery address different from item 11 ❑ Yes 1. Article Addressed to: If YES, enter delivery address below: ❑ No Timothy v. Ramis Ramis, Crew, Corrigan Lawyers 1727 NIX/ Hoyt Street 3. Service Type Portland, OR 97209 0,Certified Mail ❑ Express Mau ❑ Registered O Retum Receipt for Merchandise ❑ Insured Mau ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number (Transfer from serv?ce fabeo 7003 2260 0001 6389 6250 Ps Form 3811, February 2004 Domestic Return Receipt 102595-024A-1540 • TABLE OF CONTENTS OF RECORD 6 LUBA RECORD NO. 2006-017 Sue Beilke, Board Member, Fans of Fanno Creek vs. City of Tigard City of Tigard File No. SDR2005-00002/SLR2005-00017, 18, 19 & 20/VAR2005-00055 & 56 Statement Certifying the Record i Table of Contents ii PAGE Council Meeting Minutes dated January 24, 2006 1 Council Motion dated January 24, 2006 - Refuge at Fanno Creek corrected 15 Council Agenda dated January 24, 2006 16 Written Testimony Robert D. Van Brocklin, Stoel Rives LLP Written Testimony, Received January 24, 2006 21 John Frewin Written Testimony, Received January 24, 2006 24 Oversized Documents Submitted by the applicant Contour Map, NW 1/4 Section 35, 4119, dated 1986 47 Aerial Survey Map, NW1 V4 Section 35, 4119, dated 1974 48 Arm Corps of Engineers Aerial Photo, dated 1936 49 Arm Corps of Engineers Aerial Photo, dated July, 1953 50 Arm Corps of Engineers Aerial Photo, dated May, 1977 51 Arm Corps of Engineers Aerial Photo, dated September, 1983 52 Arm Corps of Engineers Aerial Photo, dated February, 1968 53 Homeland Security Aerial Photo, dated Spring, 2002 54 City Attorney Statement - Rules of Procedure - Quasi-judicial Land Use Hearin 55 January 24, 2006 Public Hearin Testimony Sign-in Sheets 57 Affidavit of Publication of January 24, 2006 City Council Public Hearing for SDR2005-00002/SLR2005-00017, 18, 19 & 20/VAR 2005-00055 & 56 - Refuge at Fanno Creek 61 Affidavit of Mailing Notice of Public Hearing for the January 24, 2006 Tigard City Council Meeting (SDR2005- 00002/SLR2005-00017, 18, 19 & 20/VAR2005-00055 & 56 - Re eat Fanno Creek includin Exhibits 62 Council Meeting Minutes dated January 10, 2006 73 Transcript of Council Discussion leading up to the motion on the request by Mr. John Frewing for call-up - Refuge at Fanno Creek, dated January 10, 2006 82 Transcript of Motion b City Council, dated January 10, 2006 89 Council Agenda dated January 10, 2006 90 Citizen Communication b ohn Frewin given at Council Meeting of anua 10, 2006 94 Citizen Communication Sign-in Sheet, dated January 10, 2006 103 The following oversized documents are included with this record: Audio tapes for the City Council Meeting of 1/10/06 Video tapes or DVD's for City Council Meeting of 1/24/06 ii 71 Agenda Item No. 3, I - Or S For Agenda of oa a- OLO ~7!f TIGARD Tigard City Council Meeting Minutes Date: January 24, 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 Absent: Councilor Tom Woodruff Agenda Item Discussion & Comments Action Items follow u Study Session Discuss Use of Business Card Design Review - Assistant to the New Logo City Manager Newton reviewed this agenda item. Council preferences for business cards included: Landscape orientation, heavier stock and white paper (not grey). The Core Values should not be printed on the back. Cards are due to be redone because of the City's website address change. Assistant to the City Manager Newton discussed printing costs and the Council consensus was to go without embossing. Assistant to the City Manager Newton said the police have a patch on their uniforms that immediately identifies them as police officers. They have requested to be allowed to use the new logo inside a shield outline. Deviation of the logo shape will be acceptable for the police but all other uses will be standardized. Police staff members had drawn up a few suggestions that were discussed by Council. A simple design was preferred. The police also want the shield design on their cars and will put together some suggestions, including the italic Garamond font for vehicle lettering. The City's standard logo will appear on other City vehicles. Forms will be revised inhouse. Tigard City Council Meeting Minutes Page 1 January 24, 2006 1 Agenda Item Discussion & Comments Action Items follow u • Executive The Council went into Executive Session at 7 p.m. Session to discuss exempt public records and potential litigation under ORS 192.660(2)(0 and (h). Executive Session concluded at 7:21 p.m. 1. Business 1.1 Mayor Dirksen called the City Council and the Meeting Local Contract Review Board to Order at 7:30 p.m. 1.2 Council Present: Mayor Dirksen, Councilors Harding, Sherwood, and Wilson. Council Absent: Councilor Woodruff 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 2. ° Tigard Area Chamber of Commerce Executive Citizen Director Jeremy was present Mr. Monlux Communication reported that things are going well at the Chamber. He is finding that Tigard is a very hardworking, busy community with many issues. He feels people are looking forward to urban renewal. The Chamber is starting a nine-month program of leadership sessions designed to foster, empower and support future business leaders. Councilor Sherwood said she would like to see a partnership again between the City and the Chamber. Mayor Dirksen said the leadership program sounded interesting. Mr. Monlux will return to talk to the City Council about this plan. Councilor Harding asked whether the networking breakfasts are open to all. Mr. Monlux indicated that the Tigard Business Connection breakfasts are held on the 2"d and 4d' Tuesdays and are open to everyone, as are their regular Thursday breakfast meetings. Tigard City Council Meeting Minutes Page 2 January 24, 2006 2 Agenda Item Discussion & Comments Action Items follow u ° John Frewing spoke about the Parks System Development Charges. He said he spoke at a council meeting one year ago saying he felt these charges were too low and needed to be revised annually. His concern was that the property values continue to rise and the SDC's need to keep pace. Mayor Dirksen asked Dan Plaza to comment and Mr. Plaza said SDC's are reviewed each January 151 Dave George, of 13132 SW Ascension Drive in Tigard, representing his neighbors and himself. He said their concern is the lack of parks and open spaces. As a teacher he used open spaces as outdoor classrooms and feels that many people enjoy hiking, bird watching and observing wildlife. He is frustrated to see so many open areas disappearing due to development Mayor Dirksen said the City of Tigard shares his concern and would like for the City to have more local control over items such as density. He said this Council is looking for properties not only inside but outside of the Tigard city limits for future open spaces and parks. Councilor Wilson said he was disappointed in a recent public opinion poll that indicated people were not interested in spending much for parks. He suggested that Mr. George and others talk it up among their neighbors. He would like a bond measure for parks. Follow-up to Previous Citizen Communication: No action. None 3. Consent 3.1 Approve Council Minutes for December 20, 2006 Motion by Councilor Agenda Sherwood, seconded by Councilor Wilson, to approve the Consent Agenda. • The motion was approved Tigard City Council Meeting Minutes Page 3 January 24, 2006 3 Agenda Item Discussion & Comments Action Items follow u by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes 4. Approve Mayor Dirksen reviewed the 2006 Goals in a Motion by Councilor 2006 City PowerPoint presentation. A copy of this is available Wilson, seconded by Council Goals in the City Recorder's office. Councilor Sherwood, to approve the 2006 Council Goals. The motion was approved by a unanimous vote of Council present. Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes 5. Report on Risk Manager Mills gave a presentation on the Tigard Report/No action. Tigard Vision Vision. This report is now available at the Library and 2005 on the city website. She felt it was appropriate that Accomplish- the Tigard Vision report followed the Council goals ments Update presentation because what people have asked for is being reflected in the Council's goals and it shows that the Council and City are listening to the public. 6. Update Waterwatch Coordinator Brian Wegener and TRK Report/No action from Tualatin Board Member John Donnellson gave a presentation Riverkeepers on current TRK activities in Tigard. They moved their about Activities headquarters to downtown Tigard this month. For 16 in Tigard years TRK has been a leader in improving water quality and protecting and restoring the Tualatin River system. They hold annual river clean-ups, help improve and restore tiparian habitat along Fanno Creek, the Brown Natural Area and along the Tualatin River. Their Paddler's Guide will be republished next month. The Tigard Community Development Department is contributing to TRK's reprint of the Tigard City Council Meeting Minutes Page 4 January 24, 2006 4 Agenda Item Discussion & Comments Action Items follow u Field Guide to Erosion Prevention and Sediment Control, a publication for contractors and those who live near a site under construction. Mr. Wegener thanked the City for its support. The Tualatin Riverkeepers annual meeting will be held from 1:30- 4:00 on Sunday, January 29`s at the Tigard Library. Agenda Item Discussion & Comments Action Items follow u (Note Items were not discussed in order at the January 24, 2006 Council Meeting.) 7. Consider Parks Manager Dan Plaza reported that the latest Motion by Councilor Tualatin River information on the Tualatin River Bicycle and Sherwood, seconded by Bicycle and Pedestrian Bridge shows costs are up $1.5 million. Councilor Wilson, to Pedestrian Tigard's share is $592,578. The City of Tualatin's approve additional funds Bridge Funding share is $412,228, and Durham's share is $25,764. needed for the bridge, and Clean Water Services has committed to spend for confirmation of this $600,000 and will pay for all of the cost of running approval to be conveyed by pipes under the bridge. Metro will not be letter to the City of participating in this project. Tualatin. Tualatin approved an Intergovernmental Agreement After discussion, Councilor at their City Council meeting last week and Durham Wilson amended the motion just approved it tonight. ODOT would like the City to state that Tigard's share of Tigard to commit to their portion by January 31, of the project is now 2006. Staff will also be preparing a budget $592,578 and a budget amendment for Council to approve the additional amendment will be cost. considered by the City Council on February 14, Parks Manager Dan Plaza went over the reasons for 2006. the higher project cost. The original project was going to be built of wood but the National Marine The motion was approved Fisheries Commission had concerns about the wood by a unanimous vote of preservative being harmful to fish in the river. The Council present. bridge is now designed of steel and concrete. The ADA requirements for the ramps have added costs Mayor Dirksen Yes and the square footage is 20% higher. They had Councilor Harding Yes planned to use a crane to lift it into place but there are Councilor Sherwood Yes only two cranes in Oregon big enough and this is not Councilor Wilson Yes a priority project for them. Now we have to build a work bridge at water level that will need to be tom down when the project bridge is completed. Steel costs have risen. Another issue is that there are currently 30 bridge projects ready to be bid in Portland. The design complexity of the 380' span and necessary environmental permitting also raise the cost. Tigard City Council Meeting Minutes Page 5 January 24, 2006 5 Agenda Item Discussion & Comments Action Items follow u The project goes to bid on February 2 with a bid opening on February 23 d. Construction will occur from April-December, 2006, with projected opening in January 2007. Metro Councilor Carl Hosticka noted that Metro was never asked to participate in any formal fashion. There are potential opportunities for grant monies but probably not anything that can come to fruition in the next few weeks. Councilor Hosticka asked that staff contact him and said he will consider any grant request submitted. In response to a concern from City Councilor Wilson about learning of the cost overrun at this time, Tualatin Community Development Director Hennon, Tualatin City Manager Wheeler and Tigard Parks Manager Plaza outlined the circumstances of the cost increases. There was discussion about where the additional funds would come from: $200,000 would come from the MSTIP and the balance from park SDC's. In response to a question from Councilor Sherwood about whether this would affect the Greenburg Road project, Mayor Dirksen said he understands that these projects are funded from separate sources. During discussion, City Council members expressed support for going forward with the project. Any money left over will be refunded to the City. 8. Metro Metro President David Bragdon and Metro Councilor Presentation - Carl Hosticka gave a presentation on their proposed Proposed Nov. bond measure for the November 2006 ballot which 2006 Bond will provide funding to purchase natural areas in the Measure to region for parks and open spaces. They are going to Preserve the various city councils in the area to let them know Natural Areas, what they are doing and to hear any concerns the Improve Water cities may have. They have scheduled public hearings Quality, and to obtain input President Bragdon felt that the need Protect Fish for this measure was supported tonight by the items and Wildlife listed on the Council's agenda and the comments Habitat made during citizen communication. Tigard City Council Meeting Minutes Page 6 January 24, 2006 6 Agenda Item Discussion & Comments Action Items follow u Metro's 1995 Bond Measure helped Tigard by adding 8 acres to Cook Park, 2 acres along Fern Street and trail construction and right-of-way on the Fanno Creek Greenway. This new measure will help them continue targeting regional natural areas by acquisition, improvements and making opportunity grants available to "re-nature" neighborhoods. Tigard's share would be about $1.3 million. The Fanno Creek Greenway and Tualatin River Greenway are included among the areas targeted by a blue ribbon committee. Councilor Harding expressed concern about the lack of open space within the urban growth boundary. Citizens are asking for help in getting more greenspaces and stopping development's encroachment. In response to Councilor Harding's concern about the high cost of property, Metro Councilor Hosticka said local efforts could be helped by using matching funds. He noted that the corridors are within the Urban Growth Boundary. Councilor Harding asked if Metro could take away some of the density requirements to help our citizens. Councilor Wilson said he appreciated being asked for input in advance. He thought the measure would be popular with people but noted that Metro's map shows some areas that are "pretty far flung" and not very accessible to people. He said those areas are attractive but he hears all the time that people want to be close to natural areas. Each development brings out angry neighbors who want more parks and open space. He asked if more areas could be added inside the Urban Growth Boundary because they contribute to how people live. Mayor Dirksen suggested adjusting the balance back towards the neighborhoods. He felt an important criterion for land selection is that the areas be close to people. He said that Metro, by choosing to run this regional bond measure, may be precluding Tigard's own bond measure to help ourselves. He asked if Mr. Tigard City Council Meeting Minutes Page 7 January 24, 2006 7 Agenda Item Discussion & Comments Action Items follow u Bragdon and Mr. Hosticka could stay because later in the meeting there would be a discussion on a list prepared by the Tigard Parks and Recreation Board of properties they want Metro to consider putting in their bond measure. Mr. Hosticka said we can acquire greenway properties with regional funds. Mayor Dirksen will forward the list to him. 9. Parks Manager Dan Plaza described the process used Motion by Councilor Consider a by the Parks and Recreation Board to identify Sherwood, seconded by Resolution potential greenways, passive and active parks to be Councilor Wilson to approve Approving the included in Metro's bond measure. The properties Resolution No. 06-03. Submittal of the were 90% citizen and 10% staff identified. They did a City of Tigard's willing-seller analysis and several property owners The motion was approved Proposed who would consider selling property for parks were by a unanimous vote of Greenspace and identified. 17 acres of land, worth $3.6 million were Council present. Trail Projects donated. By February 14° 2006, a more completed for Inclusion in list will be available.. Mr. Plaza will forward this list to Mayor Dirksen Yes Metro's Natural Metro. Councilor Harding Yes Areas Bond Councilor Sherwood Yes Measure 2006 Councilor Wilson Yes 10. Public Mayor Dirksen opened the Public Hearing. City Motion by Councilor Hearing (Quasi Attorney Ramis read the procedures and described Wilson, seconded by judicial): the process. He read three options that the Councilor Sherwood, that Refuge at Council may consider tonight: 1) decide to not re- the Council uphold the Fanno Creek hear the matter; 2) agree that there is a fatal flaw hearings officer decision (Site Development in the design, approve with the secondary access and decline to re-open the Review SDR deleted; and 3) not approve. Attorney Ramis case. 2005000021 contacted the railroad and they have not had Sensitive Lands enough time to review the issue. The motion was approved Review SLR by a 3-1 vote of Council 2005-00017,18, City Attorney Ramis asked the Council if they'd present. 19 & 201 . had ex-parte contact or if there were any other Adjustment potential conflicts. Mayor Dirksen reported that Mayor Dirksen Yes VAK2005- he had viewed the property from North Dakota Councilor Harding No 00055 6 56) Street. He asked if they were familiar with the Councilor Sherwood Yes Council packet materials. He then asked if there Councilor Wilson Yes were any challenges from the audience. There were none. He stated the order of testimony: (1) applicant, (2) those opposed, and then (3) • applicant rebuttal. The hearing focus is narrow - Tigard City Council Meeting Minutes Page 8 January 24, 2006 8 Agenda Item Discussion & Comments Action Items follow u is there access across the railroad tracks for the secondary access? Dick Bewersdorff (City of Tigard Planning) stated that the secondary access is not a requirement of the project. Mayor Dirksen said it was unusual, bordering on unique, for the City Council to review a hearings officer decision and that no one should assume they will reopen future developments. He reminded everyone present that the testimony is limited to one issue. No other testimony will be allowed. Public Testimony: • Bob Van Brocklin, 900 SW Fifth, Suite 2600, Portland, OR. 97204 (representing the Applicant). Mr. Van Brocklin requested that the City of Tigard decline to exercise to review and allow the hearings officer decision to stand. He said this case went before a hearings officer who is an experienced land-use attorney and who, after considering all the evidence, approved it. Mr. Van Brocklin said there is considerable evidence to conclude that a 1965 Bargain & Sale Deed granted public right to cross the railroad property. He said the issue was raised a few weeks ago by John Frewing but Mr. Frewing provided no new evidence. He said that practical interpretation of aerial photographs shows 60 years of easement in use, since at least 1936. Practical evidence is historical use. The county's own tax map shows this easement. There exists an underpass that is designed to get people from one side of the tracks to the other. In building a trestle the railroad acknowledges that there is access. The railroad has not objected to this easement. They are not here tonight and they have not objected in the course of the hearings. He requested that his letter of January 26, 2006 be Tigard City Council Meeting Minutes Page 9 January 24, 2006 9 Agenda Item Discussion & Comments Action Items follow u placed into the record. • Matt Sprague, 9020 SW Washington Square Drive, Tigard, Oregon 97223 (representing the Applicant) Mr. Sprague displayed maps and photos of the property in question. He showed a tax lot map showing a dotted line and the word "easement". He had a photograph from 1936 showing a raised grade. A July, 1953 photograph showed a raised grade but no trestle yet. In 1968, the aerial photograph showed Cascade Boulevard and the trestle in place. In a 1977 aerial photo there is access to Cascade Boulevard as well as in a 1983 photograph. He brought in an enlarged copy of page 615 of the Bargain & Sale Deed. • Sue Beilke, 11755 SW 114`", Tigard, OR 97223 Ms. Beilke said she wanted the Council to review this matter because the Council is representing the people of Tigard and should protect the public health, safety and general welfare. She cited Section 18.705 of the Community Development Code - Access, Egress and Circulation. Attorney Ramis reminded her that the focus of this hearing is limited and she cannot address other issues. She then stated that the Friends of Summer Creek agrees with Mr. Frewing that there is not an easement. She also noted that the words, "Condominium Project" were shown on the agenda; this is an old project title. • John Frewing, 7110 SW Lola Lane, Tigard, OR 97223 Mr. Frewing stated that two weeks ago he asked the Council to review this application. He said he has visited the property and there is a ditch at the trestle now. He said the applicants are required to show an easement Tigard City Council Meeting Minutes Page 10 January 24, 2006 10 Agenda Item Discussion & Comments Action Items follow u and they have not. He read the property descriptions of Parcel #1 and Parcel #2 on the 1965 Sale Deed while pointing to the drawing supplied by the applicant. He indicated where the property lines are in reference to the bridge and thinks there is no evidence that there is an easement through the railroad bridge. He said that deleting this access changes the application substantially. He asserted the proposed development application should be thrown out and started over. He checked on why the railroad isn't here tonight and wasn't here before. The City of Tigard sent out a notice to affected property owners listed on the Washington County tax rolls. The railroad is not on this list because they are taxed by the state, not the county. He said representatives from the railroad have not addressed this matter and that there is no easement. Mr. Frewing feels the application should be denied. • Gretchen Buehner, 13249 SW 136th Place, Tigard, OR 97223 Ms. Buehner advised that she has researched old maps and deeds and finds that easements are not always labeled as such. They are sometimes referred to as private driveways. An easement cannot be terminated without agreement among all involved parties. Applicant Rebuttal • Matt Sprague asked that the Council to avoid getting bogged down in legal descriptions. The two parcels can use the easement. In 1907 the property was sold to the railroad and at that time an easement was reserved for the property. A railroad overpass was installed to provide access. The property owners didn't install the overpass, the railroad did. • Greg Corbin, 900 SW Fifth, Suite 2600, Portland, OR 97204 Tigard City Council Meeting Minutes Page 11 January 24, 2006 11 Agenda Item Discussion & Comments Action Items follow u Mr. Corbin said there isn't anything new in the record. The survey map was presented at an earlier meeting. He said the Council is being asked to hear the same argument a second time. He said could not follow Mr. Frewing's description and said it would be difficult for anyone to follow. As to whether or not the deed recognizes an easement, the easement need not be in the parcels that are being conveyed. The easement may be in another location. The documents could be written more clearly. The fact that the deed describes two different properties is irrelevant. The property being conveyed has rights. The railroad has been contacted by the City and the fact that the railroad has made no comment does not mean that there is no easement. Council Discussion Councilor Harding said it would be nice if the railroad were represented at this meeting. There is no new evidence but there is still a question in her mind. The fact that the railroad is not here doesn't prove the existence of an easement. Mr. Corbin said all of this evidence was before the Hearings Officer when he made his decision. The evidence was substantial enough for him to make that decision. Mr. Sprague said the trestle is indicative that there is an easement in that location. The railroad would only have built it to allow people to cross under. By building a trestle, the railroad acknowledges that there is access. The railroad has not objected to this easement. Mr. Frewing stated that the applicant has not produced anything saying that the railroad gave anyone the easement. Councilor Wilson said that the adjacent property owners could not convey the railroad Tigard City Council Meeting Minutes Page 12 January 24, 2006 12 Agenda Item Discussion & Comments Action Items follow u easement because it was not theirs to convey; however, this does not imply that there is no easement. He said he would vote not to reopen the case. Attorney Ramis said Mr. Frewing does make a point that the property deeds do not show access but it is an overstatement to say there is no evidence of the right to cross. There is a great deal of indirect evidence. Councilor Harding said she would rather not see the second access. Mayor Dirksen said he came to the meeting tonight ready to approve striking the second access but the testimony convinces him that there is a historical easement. If there is an access concern in the future, the dispute will be between the railroad and the applicant. 11. The Police Department requests approval from the Motion by Councilor Consider City Council authorizing them to apply for a grant to Sherwood, seconded by Application for that has the potential to make $208,000 available to Councilor Harding to the Gang the GREAT program. approve application for this Resistance grant. Education and Awareness The motion was approved Training by a unanimous vote of (GREAT) Council present. Grant Mayor Dirksen Yes Councilor Harding Yes Councilor Sherwood Yes Councilor Wilson Yes Tigard City Council Meeting Minutes Page 13 January 24, 2006 13 • Agenda Item Discussion & Comments Action Items follow u Adjournment 11:24 p.m. Motion by Councilor Sherwood, seconded by Councilor Harding, 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 Catherine Wheatley, City Recorder Attest: t Mayor, ity of Tigard Date: t: ladmtcathylc=W06060124.doc Tigard City Council Meeting Minutes Page 14 January 24, 2006 14 i January 24, 2006 - Council Motion - Refuge at Fanno Creek (corrected - Councilor Woodruff was absent on January 24, 2006) Councilor Wilson: I move that the Council decide to uphold the hearings officer decision and decline to reopen it. Councilor Sherwood: I second it. Mayor Dirksen: Moved and seconded to not reopen the case and to uphold the previous decision. Is there any further discussion. All those in favor of the motion say aye. Mayor Dirksen, Councilor Sherwood, Councilor Wilson: Aye (Councilor Woodruff was absent on January 24). Mayor Dirksen: Any opposed. Councilor Harding: Aye Mayor Dirksen: One opposed. i.%adm%cathy%c n%20061060124 - transcript - motion on refuge at fanno creek-doc • 15. ORevised January 20, 2006 -Added Executive Session Topic at beginning of meeting. . TIGARD;CI1Y COUNCIL MEETING JANUARY 24, 2006. 63Q p.m CITY OF TIGARD TIGARD CITY HALL OREGON 13125 SW HALE BLVD ,TIGIRD,,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 (TDD - 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 Deao. SEE ATTACHED AGENDA COUNCIL AGENDA -JANUARY 24, 2006 page 1 16 AGENDA TIGARD CITY COUNCIL MEETING • JANUARY 24, 2006 0:30 PM • STUDY SESSION > REVIEW PROCEDURE - REFUGE AT FANNO CREEK PUBLIC HEARING • City Attorney > REVIEW CITY OF TIGARD BUSINESS CARD DESIGN • Administration Staff • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session to discuss exempt public records and potential litigation under ORS 192.660(2)(£) and (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 7:35 PM 2. CITIZEN COMMUNICATION (Two Minutes or Less, Please) • Tigard Area Chamber of Commerce - Representative Executive Director Jeremy Monlux and Chamber President-Elect Ralph Hughes will be present to give the Tigard Chamber of Commerce Update. • Follow-up to Previous Citizen Communication 7:45 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 December 20, 2005 • Consent Agenda - Items Removed for Separate Discussion: Any items rvquested to be rrmoved firm the Consent Agenda for separate discussion =11 be consi&rrd immediately after the Council has voted on those items which do not need discussion. COUNCIL AGENDA -JANUARY 24, 2006 page 2 17 i 7:50 PM 4. APPROVE 2006 CITY COUNCIL GOALS • Mayor Dirksen 8:00 PM 5. REPORT ON TIGARD VISION - 2005 ACCOMPLISHMENTS UPDATE • Staff Report Administration Department • Council Discussion 8:10 PM 6. UPDATE FROM TUALATIN RIVERKEEPERS' ABOUT ACTIVITIES IN TIGARD • Staff Report: Administration Department • Update from Representative of Tualatin Riverkeepers • Council Discussion 830 PM 7. CONSIDER TUALATIN RIVER BICYCLE AND PEDESTRIAN BRIDGE FUNDING • Staff Report: Public Works Department • Council Discussion and Direction to Staff 8:45 PM 8. METRO PRESENTATION ON THE PROPOSED NOVEMBER 2006 BOND MEASURE TO PRESERVE NATURAL AREAS, IMPROVE WATER QUALITY, AND PROTECT FISH AND WILDLIFE HABITAT • Staff Report: Public Works Department • Presentation by Metro President David Bragdon and Metro Councilor Carl Hosticka • Council Discussion 9:05 PM 9. CONSIDER A RESOLUTION APPROVING THE SUBMITTAL OF THE CITY OF TIGARD'S PROPOSED GREENSPACE AND TRAIL PROJECTS FOR INCLUSION IN METRO'S NATURAL AREAS BOND MEASURE 2006 • Staff Report Public Works Department • Council Discussion • Council Consideration: Resolution No. 06-03 Councilor: I move for adoption of the proposed Resolution 06- Councilor: I second the motion. • COUNCIL AGENDA -JANUARY 24, 2006 page 3 18 Mayor: Will the City Recorder please read the number and title of the Resolution. City Recorder: (Reads as requested.) RESOLUTION NO. 06-03 - A RESOLUTION APPROVING THE SUBMITTAL OF THE CITY OF TIGARD'S PROPOSED GREENSPACE AND TRAIL PROJECTS FOR INCLUSION IN METRO'S NATURAL AREAS BOND MEASURE 2006 Mayor: Is there any discussion? Mayor (after discussion): All of those in favor of adopting Resolution No. 06- please say "aye. " Mayor/Councilors: Mayor: All of those opposed to adopting Resolution No. 06- please say "nay. " Mayor/Councilors: Mayor: Resolution No. 06- (is adopted or fails) by a (unanimous, or however votes were split) vote. Tie votes =failure to pass 9:15 PM 10. PUBLIC HEARING (QUASI JUDICIAL): REFUGE AT FANNO CREEK (Site Development Review SDR 2005-00002/Sensitive Lands Review SLR 2005-00017, 18, 19 dam' 201Adjustment VAR2005-00055 dam' 56) On January 10, 2006, Council approved a motion to set a Public Hearing for the Refuge at Fanno Creek Condominium Project to consider whether the Council should hear this matter and the scope of applicability of a railroad easement. a. Open Public Hearing - Mayor b. Staff Report City Attorney and Community Development Department C. Declarations or Challenges Do any members of Council wish to report any ex parte contact or information gained outside the hearing, including any site visits? Have all members familiarized themselves with the application? Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? d. Public Testimony e. Close Public Hearing COUNCIL AGENDA -JANUARY 24, 2006 page 4 19 I Council Discussion g. Council Consideration • 11. CONSIDER APPLICATION FOR THE GANG RESISTANCE EDUCATION AND AWARENESS TRAINING (GREAT) GRANT • Staff Report Police Department • Council Discussion • Council Consideration: Direct staff to apply for the GREAT grant. 12. COUNCIL LIAISON REPORTS 13. NON AGENDA ITEMS 14. 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. MO) PM 15. ADJOURNMENT • i:Wm1calhy%cca120061060124.dm COUNCIL AGENDA -JANUARY 24, 2006 page 5 20 f ate[ l D ca Cote S T O E L 900 S. W. Fifth Avenue. Suitt 2600 Portland. Oregon 97204 RIVES v YYY~~~"` main 503.224.3380 L L P fax S03.2Z0.2480 D www.stocl.com ATTORNEYS AT LAW ROBERT D. VAN BROCKLIN Direct (503) 294-9660 January 24, 2006 rdvanbrocklin@stoel.com BY HAND DELIVERY Tigard City Council 13125 SW Hall Boulevard Tigard, OR 97223 Re: Response of Spectrum Development to Request to Review the Final Order of the Hearings Officer Regarding Refuge at Fanno Creek (SDR 2005-00002; SLR 2005- 00017,18,19, & 20; VAR 2005-00055 & 56) Dear Tigard City Council Members: Stoel Rives LLP represents Spectrum Development ("Spectrum"), the applicant for the above • referenced land use approvals relating to the development project at 10225 SW North Dakota Street, Tigard, Oregon, known as Refuge at Fanno Creek. On December 22, 2005, Hearings Officer J. Richard Forester issued a final order approving Spectrum's applications for the Refuge at Fanno Creek (the "Final Order"). Pursuant to a Public Hearing Notice received by Spectrum January 13, 2006, the Tigard City Council (the "Council") has scheduled a public hearing for January 24, 2006 to consider a request that the Council exercise its authority under ORS 227.180(1)(a) to review the Final Order. In response to the Public Hearing Notice, Spectrum submits this response. Spectrum will also present oral testimony at the hearing. At the January 10, 2006 Council meeting, Mr. John Frewing submitted a written request with attached documents asking that the Council exercise its authority under ORS 227.180(1)(a) to review the Final Order (the "Request"). The Request was not on the Council's agenda and not noticed to the public. Spectrum was not present at that meeting and did not have an opportunity to respond to the Request. However, Spectrum understands that Mr. Frewing argued that the Council should review the Final Order because, in Mr. Frewing's view, Spectrum does not have access rights for an alternative access route to the Refuge at Fanno Creek. Mr. Frewing also was candid that he was seeking this action from the Council because he was unable to pay the fee to appeal the Final Order. For the following reasons, Spectrum requests that the Council deny the request to review the Final Order. Mr. Frewing asks the Council to second guess a legal conclusion of the Hearings Officer. In his Final Order, the Hearings Officer concluded that Spectrum has the necessary easement rights for Oregon Washington California Utah PoMnd 1-2217257.1 0063198-00003 21 Tigard City Council January 24, 2006 Page 2 an alternative access to Refuge at Fanno Creek (Final Order at 10). The Hearings Officer reached this conclusion after reviewing a 1965 Bargain and Sale Deed (the "Deed") reserving the easement in question. The easement language in the Deed, quoted by the Hearings Officer, states: "Subject to an easement to Members of the Public for access to that certain Southern Pacific Railway Under-Pass laying approximately one thousand feet northwesterly of Southwest Dakota Street under the Southern Pacific Railway tracks and westerly of the parcels herein conveyed." Mr. Frewing had argued that the easement only provides access to the railroad's property and does not allow the public to cross the railroad's property under an existing railroad trestle. The Hearings Officer specifically rejected that argument, stating that the quoted easement language contradicts Mr. Frewing's argument because it allows the public to use the easement "under the railroad." (Id.) The Hearings Officer, a lawyer with significant experience in such matters, necessarily concluded that the legal effect of the easement language in the Deed is to grant the public the right to cross the railroad's property. The Council should deny the Request because Mr. Frewing provides no legal justification for the Council to upset the Hearings Officer's legal determination. The Council also should deny the Request because Mr. Frewing provides no new information and is mistaken about the basis for the Hearings Officer's decision in the Final Order. Nothing in the Request is new information, and the arguments in, and all of the documents attached to, the Request were before the Hearings Officer. What is more, Mr. Frewing's Request is based on a mistaken understanding of the easements that provide access to the Refuge at Fanno Creek. He states that Spectrum relies on a 1995 "Easement 9500015055" as the basis for access. He goes on to argue that this easement runs "from Cascade Blvd TO the RR property, but not ACROSS the railroad property." From this he argues that Spectrum cannot cross the railroad's property and therefore does not have an access right to Refuge at Fanno Creek. Mr. Frewing is both correct and wrong. He is correct that the 1995 easement provides access from Cascade Boulevard to the railroad property. He is wrong when he says that this is the easement Spectrum relies on for access across the railroad to the Refuge at Fanno Creek. The 1965 easement reserved in the Deed picks up where the 1995 easement stops and completes access to the Refuge at Fanno Creek by running across the railroad property and under the railroad tracks. These two easements together provide the rights necessary for the public to access the Refuge at Fanno Creek. Spectrum relies on both easements, and the Hearings Officer Portlnd 1-2217257.1 0063198-00003 22 Tigard City Council January 24, 2006 Page 3 specifically concluded that the 1965 easement in the Deed provides access across the railroad property. In short, Mr. Frewing is simply mistaken. There is no basis for the Council to review the Final Order. For the forgoing reasons, Spectrum respectfully asks the Council to deny the Request. If, however, the Council decides to review the Final Order, Spectrum reserves the right to respond and provide additional evidence. Respectfully submitted, Robert qVBrocklin • RVB/pjn cc via fax: Mr. Tim Ramis Mr. Gary Firestone Mr. Tom Coffee Ms. Cathy Wheatly • Portlnd 1-2217257.1 0063198-00003 23 REFUGE AT FANNO CREEK - JOHN FREWING - JANUARY 24, 2006 TESTIMONY On January 10, City Council agreed to hold a hearing on the question of whether there is an appropriate access easement under the Southern Pacific right-of-way. Discussion on that date was that several questions were to be addressed, including: - Should City Council be reviewing this matter - Was the railroad notified and did it express a view in the proceeding below - Did the hearings officer citation address an easement under the railroad - Is there evidence outside the record that an easement under the railroad exists Discussion concluded that if there were not an appropriate easement under the railroad, the hearings officer approval of the development would be in error and a different application would necessarily be required to be filed. I incorporate by reference the comments, argument and information submitted to you on January 10, requesting this hearing. The notice of this hearing indicated that TCDC 18.390 was applicable and that a staff report would be available seven days before the hearing; because it was not available, I am presupposing what issues may arise in testimony from others. Without the benefit of a staff report, my views on the easement issues and the consequences of the facts are as follows: • A This is a proper issue for City Council to review. I raised it in my initial comments on this development (November 14, 2005), was confronted by applicant with a package of new/different but supposedly applicable easements prior to the Hearings Officer hearing on December 12, 2005, and after review of those easements have properly raised it to you in accordance with state law. B The requirement for an applicant to own or otherwise control the proposed development site is not clearly stated in TCDC 18.705, as cited in the notice of this hearing, but I believe exists only in the application form provided by the director, which form is specified but not detailed in TCDC 18.390. C The City Council properly can review the "action" (hearings officer decision). ORS 227.178. Since it is not a formal `appeal', it is debatable whether such review should be limited to the decision and its record, or should encompass new testimony, evidence, comment, rebuttal, etc. as a de novo review. I believe the scope of the review can properly be limited to a review of the record, but perhaps, as you have done, to the issue of an easement under the railroad and any truly derivative issue. D At the more narrow scope of review, I believe the citation and conclusion by the hearings officer was in error because the meets-and-bounds description of the easement cited by the hearings officer does not include any property within the railroad property and you should simply reverse his action, making a finding that his citation does not include any easement through the railroad property. 24 E If some easement outside the record below is found to exist, a significant question is appropriate; whether such easement is for the development and use specified in the application, or is it for some more limited purpose and activity; ie does it allow excavation at the base of the trestle piling, does it allow development of a roadway, does it allow modification of the conduit which is positioned below the framing of the trestle, does it allow public use, etc. F Examination of the historic documents related to the property of the proposed development site may show a private driveway along the EAST side of the railroad, extending north from North Dakota St about 1000 feet (and crossing over lower Ash Creek on a bridge) and then passing under the railroad at the trestle under review at this hearing; this was never a road, just as the proposed primary access, a driveway along the WEST side of the railroad has never been a road. The TCDC defines a `road' as a `street', which is defined as an `accessway'. The word `access' is defined (TCDC 18.120.030 A.3.) as follows: "The place, means or way by which pedestrians, bicycles and vehicles enter or leave property. A private access is an access not in public ownership and is controlled by means of deed, dedication or easement." The proposed area under the railroad shows no evidence of being "controlled by means of deed, dedication or easement", ie a private access, and neither shows any evidence of being a public access. The same holds true for the proposed long access on the WEST side of the railroad to the buildings of the development. Hence, there is no `accessway' to the proposed development at all. This shortcoming needs correction in any new • application, since there is proposed a variety of commercial space and multiple homeowners on the Refuge at Fanno Creek, but no homeowners association to carry out the commitments of Tigard approval. G The need for an alternate access to the proposed sites of development exists because the primary access (north from North Dakota Street) has flooded regularly in the past (and repeatedly during the past month of rains) and will flood again, even with the proposed fill of the proposed `driveway'. I attach to this testimony a December 22, 2005 photo of the flooding across the `way' on the west side of the railroad. This flooding occurs because the existing culverts (which are proposed to remain) are inadequate to pass the waters of Ash Creek. I have examined the adequacy of these culverts and conclude that they do not meet the requirements of Clean Water Services, in their Design and Construction Manual at Section 3.05.4. Attachment A This section requires that culverts shall convey and contain at least the peak runoff for the 25-year design storm. As proof of this situation, I have contacted the United States Geological Survey office here in Portland (Suzanne Miller) and attach our email correspondence concluding that our December 2005 storms, while many, did not on any day exceed a storm with 5-year recurrence probability. Attachment B This was true for Fanno Creek as a whole at North Dakota Street and for its smaller tributaries such as Ash Creek. This comment is added as support for the conclusion that elimination of this alternate access from the proposed development would be a major change in design and require a new development application. 25 H The City review process (Type IIIA hearing before hearing officer) was legally insufficient in that the railroad was not notified as required by city code. I attach to this testimony the Notice of Hearing, the map of affected lands, and the mailing list used by Tigard to notify the public of the proposed Refuge at Fanno Creek. Attachment C The map has two colored sections, one to the west of the railroad and one to the east, showing property owners who were notified; the railroad itself is not colored nor included on the mailing list. I believe this is because Tigard's mailing list is derived from Washington County tax lot listings and the railroad property is assessed by the State of Oregon rather than Washington County, so that their property is not listed by Washington County and did not appear on the Tigard mailing of notice. G Applicant provided a number of `easements', which purportedly were all that affect the proposed Refuge at Fanno Creek in his final rebuttal to the hearings officer. These easements do not include an important easement appropriate to this site. The Tigard Comprehensive Plan explicitly states as Policy 8.2.8 d.2 (Volume II, Policy 8-9) that "The City SHALL (my emphasis added) adopt the following auto and roadway improvement strategy in order to accommodate existing and planned land uses in the Washington Square Regional Center: Nimbus to Greenburg Connection: Extend SW Nimbus Avenue to meet Greenburg Road. This would be a 5-lane roadway with bike lanes and sidewalks, but no on-street parking." The proposed development does not include any easement for such roadway required by the Comprehensive Plan. Tigard approval of the Refuge at Fanno Creek thereby violates the mandatory requirements of its Comprehensive plan, effectively eliminating the possibility . of the required roadway. In email correspondence with Tigard's Current Planning Director (Bewersdorff) dated January 6, 2006, he stated that "The City Engineer looked at the feasibility of construction of the collector. In early 2004, he estimated the cost of construction of the collector at $38 million and that it would not happen for 20 to 30 years, if ever built..... The City Engineer conditioned the Refuge approval to submit a plan to address the locational issues." Attachment D Such approval does not meet the Comprehensive Plan requirement to plan for the required roadway and does not make any finding of feasibility; it is therefore an improper deferral of approval by the city. The City Engineer has no authority to override the Comprehensive Plan, if a plan change is desired, there is an established legislative method to make such change, which has not been used, again making the City's approval improper. The required roadway, which shows on drawings of the approved Washington Square Regional Center plan, passes exactly over the property involved in the Refuge at Fanno Creek application (see WSRC plan, a matter of record in Tigard). Tigard is obligated to implement ALL of the provisions of the WSRC plan when a development is proposed, not `cherry pick' those elements which it will follow. I would appreciate the opportunity to respond to testimony (evidence, arguments) by others along with enough time to analyze such testimony; two weeks is a normal practice n my a perience. Jo Fr ing 7110 W Lola Lane, Tigard, OR 97223, ;frewinga,teleport.com 26 ~A d. If the projected increase in surface water runoff leaving a proposed development will cause or contribute to damage from flooding to existing buildings or dwellings, the downstream stormwater system shall be enlarged to relieve the identified flooding condition prior to development, or the developer must construct an on-site detention facility. 3.05.3 Review of Downstream System a. For each development constructing new impervious surface of more than 5,000 square feet, or collecting and discharging more than 5,000 square feet of impervious area, the design engineer shall submit documentation, for review by the District, of the downstream capacity of any existing storm facilities impacted by the proposed development, except for the construction of a detached single family dwelling or duplex. The design engineer must perform a capacity and condition analysis of the drainage system downstream of the development. 1) The analysis shall extend downstream to a point in the drainage system where the additional flow from the proposed development site constitutes 10 percent or less of the total tributary drainage flow. • 2) If the additional flow from the proposed development drops to less than 10 percent of the total tributary drainage flow then the analysis will continue for the lesser of: a) One-quarter (1/4) of a mile; or b) Until the additional flow constitutes less than 5 percent of the total tributary drainage flow. b. When the downstream analysis does not continue for at least one-quarter (1/4) mile, the design engineer will provide a stamped Certification of Investigation that states the design engineer has visually investigated the downstream system for at least one-quarter (1/4) mile downstream and is aware of no observable downstream impacts to structures. 3.05.4 Conveyance System Hydraulic Standards The conveyance system shall be designed to convey and contain at least the peak runoff for the 25-year design storm. Structures for proposed pipe systems must be demonstrated to provide a minimum of 1.0 foot of freeboard between the hydraulic grade line and the top of the structure or finish grade above pipe for 25- year post development peak rate of runoff. Design surcharge in pipe systems shall not be allowed if it will cause flooding in portions of a habitable structure, Storm and Surface Water Rules Chapter 3 - - Page 24 27 including below-floor crawl spaces, or otherwise create a hazard or danger to the health and safety of the public. The 25-year design shall be supplemented with an overland conveyance component demonstrating how a 100-year event will be accommodated. This overland component shall not be allowed to flow through or inundate an existing building. Flows in streets during the 25-year event shall not run deeper than 4 inches against the curb or extend more than two feet into the travel lane. Open channel systems shall be designed for minimum one foot freeboard from bank full provided no structures are impacted by the design water surface elevation. 3.05.5 Catch Basin System Standards a. Standard Catch Basin System: All catch basins shall be sumped. The main storm line shall not pass through any catch basins or sumped manholes unless approved by the District. No more than three catch basins may be connected in series before connecting to the main storm line. A ditch inlet or field inlet may be connected directly to the end of the main storm line. b. Series Catch Basin System: Unsumped catch basins are allowed, provided a sumped manhole is constructed below the unsumped catch basins before the flow enters the main storm line. No more than three unsumped catch basins may be constructed above a Bumped manhole. The main storm line may not pass through the catch basins or sumped manholes. No ditch inlet or field inlet may be part of a series of unsumped catch basins. C. Flow-through Catch Basin System: This system is allowed within an arterial or major collector road, provided the main line storm pipe has a design velocity of at least three (3) feet per second. Unsumped catch basins, ditch inlets, and field inlets which are properly channelized are allowed to connect directly to the main storm line. An adequately sized water quality manhole is required at the downstream end of the flow- through system. 3.06 Storm Manhole and Pipe Design Standards 3.06.1 Application For pipe systems which convey flows from or through water quality sensitive areas; a local representative of Oregon Department of Fish and Wildlife (ODFW) or other applicable state or federal agency shall be contacted to determine if fish passage is required and to identify site specific design criteria. All culverts shall be designed for fish passage in accordance with ODFW guidance for Fish Passage Storm and Surface Water Rules Chapter 3 - - Page 25 28 John Frewing to From: "Suzanne J Miller' <sjmiller@usgs.gov> To: <jfrewing@teleport.com> Cc: "Suzanne J Miller' <sjmiller@usgs.gov> Sent: Monday, January 23, 2006 9:32 AM Attach: 14206900.txt; 14206950.txt Subject: fanno creek John, Tom Herrett, of this office, asked me to run a recurrence interval for our 2 fanno creek sites, which I am attaching in a data file. The December 22, 2005 flow data is as follows: 14206900 - Fanno Creek at 56th Avenue, Portland 12/22/05 = 203 cfs* (greater than a 2-year event) Highest flow for December 2005 was: 12/28/05 = 298 cfs (less than a 5-year event) 14206950 - Fanno Creek at Durham 12/22/05 = 615 cfs (less than a 1.25 year event) Highest flow for December 2005 was: 12/28/05 = 1,000 cfs (less than a 5-year event) 0* cubic feet per second (See attached file: 14206900.txt)(See attached file: 14206950.txt) If you are interested in obtaining a FEMA flood map, try their website at: http://msc.fema.gov The recurrence interval data was based on period of record peak streamflow, through the 2004 water year. Please let me know if you have any questions. Jo Miller Suzanne Jo Miller Technical Information Spec. U.S. Geological Survey 10615 S.E. Cherry Blossom Drive Portland, OR 97216 voice: (503) 251-3201 fax: (503) 251-3470 email: sjmiller@ sgs.gov 29 14206900.txt 1 U. S. GEOLOGICAL SURVEY ANNUAL PEAK FLOW FREQUENCY ANALYSIS Following Bulletin 17-B Guidelines Program peakfq (Version 4.1, February, 2002) PROCESSING DATE/TIME 2006 JAN 23 05:35:41 PROCESSING OPTIONS Plot option = None Basin char output = None Print option = Yes Debug print = No Input peaks listing = Long Input peaks format = WATSTORE peak file 1 • U. S. GEOLOGICAL SURVEY ANNUAL PEAK FLOW FREQUENCY ANALYSIS Following Bulletin 17-B Guidelines Program peakfq (Version 4.1, February, 2002) Station - 14206900 FANNO CREEK AT 56TH AVE, AT PORTLAND OR 2006 JAN 23 05:35:41 I N P U T D A T A S U M M A R Y Number of peaks in record = 19 Peaks not used in analysis = 0 Systematic peaks in analysis = 19 Historic peaks in analysis = 0 • Page 1 30 14206900.txt Years of historic record - 0 0 Generalized skew 0.130 Standard error of generalized skew = 0.550 Skew option = WEIGHTED Gage base discharge = 0.0 User supplied high outlier threshold = User supplied low outlier criterion = Plotting position parameter 0.00 NOTICE Preliminary machine computations. User responsible for assessment and interpretation. WCF134I-NO SYSTEMATIC PEAKS WERE BELOW GAGE BASE. 0.0 WCF162I-SYSTEMATIC PEAKS EXCEEDED HIGH-OUTLIER CRITERION. 1 730.0 WCF195I-NO LOW OUTLIERS WERE DETECTED BELOW CRITERION. 54.8 1 Station - 14206900 FANNO CREEK AT 56TH AVE, AT PORTLAND OR 2006 JAN 23 05:35:41 ANNUAL FREQUENCY CURVE PARAMETERS LOG-PEARSON TYPE I II FLOOD BASE LOGARITHMIC EXCEEDANCE STANDARD DISCHARGE PROBABILITY MEAN DEVIATION SKEW SYSTEMATIC RECORD 0.0 1.0000 2.3012 0.2381 0.466 Page 2 31 14206900.txt BULL.17B ESTIMATE 0.0 1.0000 2.3012 0.2381 0.298 ANNUAL FREQUENCY CURVE DISCHARGES AT SELECTED EXCEEDANCE PR OBABILITIES ANNUAL 'EXPECTED 95-PCT CONFI DENCE LIMITS EXCEEDANCE BULL.I7B SYSTEMATIC PROBABILITY' FOR BULL. 1 7B ESTIMATES PROBABILITY ESTIMATE RECORD ESTIMATE LOWER UPPER 0.9950 56.8 61.9 48.8 33.3 78.9 0.9900 63.1 67.6 55.8 38.3 86.1 0.9500 85.3 87.8 80.2 57.1 110.9 0.9000 101.1 102.4 97.2 71.2 128.5 0.8000 125.3 125.1 122.8 93.4 155.9 0.5000 194.7 191.7 194.7 156.6 240.9 0.2000 314.3 312.1 322.5 253.1 420.1 0.1000 410.1 412.8 432.3 321.2 588.4 0.0400 551.3 567.0 609.3 413.7 866.4 0.0200 672.0 703.7 777.9 487.9 1127.0 0.0100 806.6 861.0 986.9 566.9 1440.0 0.0050 957.0 1042.0 1249.0 651.7 1813.0 0.0020 1183.0 1323.0 1710.0 773.7 2416.0 0.6667 154.8 ( 1.50-year flood ) 0.4292 214.4 ( 2.33-year flood ) 1 Station - 14206900 FANNO CREEK AT 56TH AVE, AT PORTLAND OR Page 3 32 14206900.txt • 2006 JAN 23 05:35:41 I N P U T D A T A L I S T I N G WATER YEAR DISCHARGE CODES WATER YEAR DISCHARGE CODES 1974 200.0 1996 733.0 1975 237.0 1997 502.0 1976 196.0 1998 236.0 1977 92.0 1999 283.0 1978 76.0 2000 152.0 1991 197.0 2001 97.0 1992 141.0 2002 314.0 1993 186.0 2003 240.0 1994 236.0 2004 134.0 1995 182.0 Explanation of peak discharge qualification codes PEAKFQ WATSTORE CODE CODE DEFINITION D 3 Dam failure, non-recurrent flow anomaly G 8 Discharge greater than stated value X 3+8 Both of the above L 4 Discharge less than stated value K 6 OR C Known effect of regulation or urbanization H 7 Historic peak 1 Station - 14206900 FANNO CREEK AT 56TH AVE, AT PORTLAND Page 4 33 14206900.txt OR 2006 JAN 23 05:35:41 EMPIRICAL FREQUENCY CURVES WEIBULL PLOTTING POSITIONS WATER RANKED SYSTEMATIC BULL.I7B YEAR DISCHARGE RECORD ESTIMATE 1996 733.0 0.0500 0.0500 1997 502.0 0.1000 0.1000 2002 314.0 0.1500 0.1500 1999 283.0 0.2000 0.2000 2003 240.0 0.2500 0.2500 1975 237.0 0.3000 0.3000 1994 236.0 0.3500 0.3500 1998 236.0 0.4000 0.4000 1974 200.0 0.4500 0.4500 1991 197.0 0.5000 0.5000 1976 196.0 0.5500 0.5500 1993 186.0 0.6000 0.6000 1995 182.0 0.6500 0.6500 2000 152.0 0.7000 0.7000 1992 141.0 0.7500 0.7500 2004 134.0 0.8000 0.8000 2001 97.0 0.8500 0.8500 1977 92.0 0.9000 0:9000 1978 76.0 0.9500 0.9500 1 U. S. GEOLOGICAL SURVEY ANNUAL PEAK FLOW FREQUENCY ANALYSIS Following Bulletin 17-B Guidelines Program peakfq (Version 4.1, February, 2002) End PEAKFQ analysis. Stations processed 1 Number of errors 0 • Stations skipped 0 Page 5 34 • Page 1 of 2 John Frewing From: "John Frewing" <jfrewing@teleport.com> To: "Suzanne J Miller' <sjmiller@usgs.gov> Sent: Monday, January 23, 2006 10:35 AM Subject: Re: fanno creek Suzanne, Thanks very much for running your recurrence frequency program for Fanno Creek at two points. As maybe Tom told you, I am interested in Fanno Creek at North Dakota St in Tigard, which is midway between your two stations. It seems fair to me to say that at North Dakota Street, Fanno Creek flow was similarly not more than a 5-year flood. I am also interested in the flooding which occured in Ash Creek, a trib to Fanno Creek which joins Fanno Creek at North Dakota St in Tigard. It is roughly similar in watershed size to Farm Creek above your SW 56 St station. I think your data for Fanno Creek at SW 56th St is roughly comparable to Ash Creek and again, it would be fair to say that the flooding at the mouth of Ash Creek in December again did not exceed more than a 5-year flood. I say this, recognizing that individual storm cells pass over smaller watersheds and can produce flooding of greater or less magnitude than for a stream with larger watershed; but it would be very unlikely that a cell over Ash Creek in December, 2005 produced a 25, 50 or 100 year flood when a gaged nearby watershed of roughly similar size only saw flooding of less than a 5-year flood. Is my thinking correct regarding interpolation of flooding estimates between USGS stations and regarding transferrence (interpretation) of flooding data, in reasonably nearby subbasins of similar size? I am not looking for I extreme accuracy, but only a conclusion of whether or not flooding in Fanno Creek and Ash Creek at North Dakota St in Tigard exceeded a 25-year flood. Thanks, John Frewing J' 35 AOL NOTICE OF PUBLIC HEARING The following will be considered by the Tigard Hearings Officer on Monday November 14, 2005 at 7:00 PM at the Tigard Civic Center - Town Hall, 13125 SW Hall Blvd., Tigard, Oregon. Both public oral and written testimony is invited. The public hearing on this matter will be conducted in accordance with Chapter 18.390 of the Tigard Municipal Code, and the rules of procedures adopted by the Hearings Officer. Testimony may be submitted in writing prior to or at the public hearing or verbally at the public hearing only. Failure to raise an issue in person or by letter at some point prior to the close of the hearing accompanied by statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeal based on that issue and failure to specify the criterion from the Commun;'- Development Code or Comprehensive Plan at which a comment is directed precludes an appeal based on that criterion. Further information may be obtained from the Planning Division (staff contact: Mathew Scheidegger) at 13125 SW Hall Blvd., Tigard, Oregon 97223, or by calling 503-639-4171. A copy of the application and all documents and evidence submitted by or on behalf of the applicant and the applicable criteria are available for inspection at no cost. A copy of the staff report will be made available for inspection at no cost at least seven (7) days prior to the hearing, and copies for all items can also be provided at a reasonable cost. SITE DEVELOPMENT REVIEW (SDR) 2005-00002/ SENSITIVE LANDS REVIEW (SLR) 2005-00017, 189 19 & 201ADJUSTMENTS (VAR) 2005-00055 & 56 ➢ REFUGE AT FANNO CREEK-< REQUEST: The applicant is requesting Site Development Review approval to construct two commercial office buildings totaling 26,000 square feet and three, 3-plex buildings equaling nine residential units on an 8.33 acre site. Sensitive Lands Review is required as the subject site has slopes greater than 25%, drainageways, wetlands, and 100-year floodplain. Thy. applicant is also requesting an Adjustment to the required access width from 24 feet to 22 feet and an Adjustment to the r maximum front yard setback standard in the Washington Square Regional Center to increase the setback from 20 feet to approximately 920 feet. LOCATION: 10225 SW North Dakota Street; WCTM 1S13513C, Tax Lot 1200. ZONE: MUE-1 and MUE-2: Mixed Use Employment Districts. The MUE-1 and 2 zoning district is designed to apply to areas where .mployment uses such as office, research and development and light manufacturing are concentrated. Commercial and etail support uses are allowed but are limited, and residential uses are permitted which are compatible with employment ;haracter of the area. Lincoln Center is an example of an area designated MUE-1, the high density mixed use employment district. The Nimbus area is an example of an area designated MUE-2 requiring more moderate densities. o WPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.360, 18.370, 18.390, 18.520, 18.630, 8.705, 18.715, 18.720, 18.725, 18.745, 18.755, 18.765, 18.775, 18.780, 18.790, 18.795 and 18.810. Ci- of T 0200RAPHIC INFORMATION SYSTEM AREA NOTIFIED (50W) uuseeoosoo O D n g 1313eA2001°, FOR: Alex Stout n131A2090 1 nt9AAOaelen RE: I S 135BC 1200 13useeooeot ~ U94A2o1130 111311120°9 1113"100170 Q' O Property owner information Qo a„ 13x11001110 1313311008900 is valid for 3 months from AA2aa o A0 o the date printed on this map. p D AA o WAS 0~ 1 091 SHADY BL 6A2a1a eo 0 t1uAAOaleoo J!L 72 AD Q y AND ° INDSO T 1379x000902 rj 4A0041 e 1 10 a 9 900 JQ' AS 7200 13 woo A0 11 p2 x 131353900100 -ST I R PL 19195103 1311A02 a AO 79 1 me ° o 0 A2A0010 7 1 JOIN 2A0oe 01340A0380 w > 131710140140 o ° 0 o 1313x0111300 ~ 9130 p too 1 ST ORTH DAK A N DA a w xo uusc9oono x10x sx 00 0 0 400 800 Feet 0409 00 131390200:00 x 13»9cwoao0 r V- 526 feet O u 32120 at 131x1141340 d City of Tigard 0 n to no GREEN Information on this map is for general location only and f should be verified with the Development Services Division. 1 U 13125 SW Hall Blvd TIPARD ST Tigard, OR 97223 (503) 639-417 1 hltpWwwa.ci.ligard.or. us LLU±, Plot date: Sep 16, MUD; C:lmagiclMAGIC03.APF Community Development 1 S134AD-07400 1 S134DA-00700 ALLIES JASON B BESE SCOTT P & CYNTHIA R 10569 SW WINDSOR PL 11060 SW 106TH AVE ~GARD, OR 97223 TIGARD, OR 97223 1 S1358B-00501 1 S134DA-08200 AMB PROPERTY L P BOGGS BILLY L BY GEORGE MCELROY & ASSOC 11310 SW BUFFALO PL 3131 S VAUGHN WAY STE 301 TIGARD, OR 97223 AURORA, CO 80014 1S 358C-00600 1S134AD 06400 AM ROPE L P BORGES TAMMY L AND BY GEO MCELROY & ASSOC NOBRIGA SCOTT A 313 VAU WAY STE 301 10618 SW WINDSOR PL RORA, CO 8 14 TIGARD, OR 97223 1 S_135 BC-00700 1 S134DA-04200 A PROPER L P BROOKS SUSAN BY GE CELROY & ASSOC 10557 SW NORTH DAKOTA ST 3131 A N WAY STE 301 TIGARD, OR 97223 ORA, CO 8 14 1 S134AD-09200 1 S134DA-07500 AMES RICHARD W & MIZUHO BUTORI EUGENE R TRUST & 10787 SW 106TH AVE BUTORI VIRGINIA A CREDIT SHELTER T TIGARD, OR 97223 BY BUTORI EUGENE F TR 7645 SW CEDAR PORTLAND, OR 97225 9135CA-00800 1 S134DA-03900 ANDEREGG JOINT LIVING TRUST CANFIELD BRET & BY ANDEREGG FRED CHARLES/BEULAH CO DIEDERICH MORIAH 17146 SE HWY 212 10575 SW NORTH DAKOTA ST CLACKAMAS, OR 97015 TIGARD, OR 97223 1 S 134AD-08900 1 S134AD-07600 AUGUST STEVEN EDWARD & CARRINGTON NITA JANE BONNIE LYNN 53-378W KAM HIGHWAY 10617 SW WINDSOR CT HAUULA, HI 96717 TIGARD, OR 97223 1 S 134AD-08201 1 S 135CA-00700 BAGHA MERAT CHINA CLOUD TRADERS LLC 7917 NW BLUE POINTE LN 5406 NE 71ST ST PORTLAND, OR 97229 VANCOUVER, WA 98661 1 S134AD-05100 1 S134DA-08300 BAILEY BRIANIMELANIE COLE DONALD R/NANCY A 10800 SW 108TH CT 11320 SW BUFFALO PL TIGARD, OR 97223 TIGARD, OR 97223 4AD-07500 1 S 135 BB-00500 40RHAM JEREMY K & STACY N CORNELL 11 LLC & 10577 SW WINDSOR PL CASCADE BLVD CENTER LLC TIGARD, OR 97223 BY ELLIOTT ASSOC INC 50 SW PINE STE 200 PORTLAND, OR 97204 38 1 S134DA-09400 1 S134AD-05000 DAKOTA MEADOWS HOMEOWNERS ASSN GASCHKE TIMOTHY LEONARD & BY BEACON HOMES INC SUSAN MARY i20 SW PIONEER CT STE E 10826 SW 108TH CT LSONVILLE, OR 97070 TIGARD, OR 97223 1 S134DA-09600 1 S134 DA-08000 >DATA EADO OMEOWNERS A SSN GAUTHIER ROCHELLE MES INC 11280 SW BUFFALO PL EER CT STE E TIGARD, OR 97223 LLE, R 97070 1 34DA-09500 1 S134AD-07700 DA A MEAD HOMEOWNERS ASSN HASHMAT ABDUL WAHEED BY BEA OMES INC 10603 SW WINDSOR PL 9120 PIO R CT STE E TIGARD, OR 97223 SONVILLE, OR 97070 1 S134DA-09800 1 S134AD-08200 DAKOTA MEADOWS HOMEOWNERS ASSOC HOOVER LARRY E & VIRGINIA L PO BOX 230666 10570 SW WINDSOR CR TIGARD, OR 97281 TIGARD, OR 97223 1 34DA-09300 1 S 134AD-09300 DA A ADOWS OWNERS OF HOPMAN LANCE LOT - 19585 SW CELEBRITY ST 0 ALOHA, OR 97007 04AD-08600 1 134AD-09600 DOEBELE ERIC M HO M INC 10553 SW WINDSOR CT 0 TIGARD, OR 97223 1S134DA-07400 1S134DA-07100 DONALDSON TERRY HUGHES JANICE M 11220 SW BUFFALO PL 11201 SW BUFFALO PL TIGARD, OR 97223 TIGARD, OR 97223 1 S134 DA-07700 1 S134AD-08500 DORAN LIVING TRUST JACKSON PHILLIP TRUST & BY ARLENE DORAN TRUSTEE ANDREWS TERESA TRUST 16000 SW 129TH TER BY PHILLIP D JACKSONITERESA ANDR TIGARD, OR 97224 10544 SW WINDSOR CT TIGARD, OR 97223 1 S 134 DA-07800 1 S 134AD-06600 DUMSER BRUCE T & JACKSON RYAN & SHANA KIDWELL KRISTINA 1 10586 SW WINDSOR PL 11260 SW BUFFALO PL TIGARD, OR 97223 TIGARD, OR 97223 ORAYMOND. D-04500 i S 134AD-04600 FAND KAY JANSSEN RONALD H AND MARCIA O'DIERNO ROBERTA M 4080 SW 99TH 10705 SW BLACK DIAMOND WAY BEAVERTON, OR 97005 TIGARD, OR 97223 39 1 S 135BC-0050D 1 S135BC-01201 JOHN DURBIN & ASSOC OF OREGON LL MBM HOLDING COMPANY LLC 1325 FOURTH AVE STE 940 659 NW PACIFIC GROVE DR 0TTLE, WA 98101 BEAVERTON, OR 97006 1 S134AD-06800 1 35BC-01200 JOHNSEN DIRK G & LAUREN L MB LD COMPANY LLC 10562 SW WINDSOR PL 659 FIC GROVE DR TIGARD, OR 97223 VERTON, 97006 1 S 135BC-01000 1 S134AD-06500 KADEL RICHARD A MCCLELLAND JULIE ANN 9350 SW TIGARD ST 10602 SW WINDSOR PL TIGARD, OR 97223 TIGARD, OR 97223 1 S 1358 B-00600 1 S134AD-07000 KP VENTURES LLC MYRON DONALD USANDRA W 2519 NW MARSDEN PL 10526 SW WINDSOR PL PORTLAND, OR 97229 TIGARD, OR 97223 1S134AD-09500 1S135CB-00100 KRAL GEORGE L NATIONAL SAFETY COMPANY 10753 SW 106TH AVE 17010 SW WEIR RD TIGARD, OR 97223 BEAVERTON, OR 97007 15134AD-08100 1 135C6-00101 L Y COMPANY LARSON SEAN W & LEISL a25i~007 10594 SW WINDSOR CT TIGARD, OR 97223 1 S134AD-07300 1S134AD-08400 LIPSCOMB THOMAS R III & JANIELL NORQUIST DAVID V & SHRIJANA 10557 SW WINDSOR DR 10556 SW WINDSOR CT TIGARD, OR 97223 TIGARD, OR 97223 1 S134DA-07200 1 S135CB-00800 LITTLE LAURA L OREGON STATE OF 11200 SW BUFFALO PL DEPT OF TRANSPORTATION TIGARD, OR 97223 RIGHT OF WAY SECTION 355 CAPITOL ST NE RM 420 SALEM, OR 97301 1 S134AD-08000 1 S134AD-07800 LOGAN LEONARD B OTT AASE B 10606 SW WINDSOR CT 10619 SW WINDSOR PL- TIGARD, OR 97223 TIGARD, OR 97223 DA-00100 1 S 134DA-07300 L SK LINDA D LIV TRUST OVERBY CHRISTA & TY D LINDA D LUSKTR 11210 SW BUFFALO PL 1025 NW COUCH ST #1415 TIGARD, OR 97223 PORTLAND, OR 97209 40 1 S134DA-03400 1 S134AD-06700 PASCUZZI INVESTMENT LLC RIEHL DELBERT J & DEBORAH L 10250 SW NORTH DAKOTA 31637 NE WAND RD 0ARD, OR 97223 TROUTDALE, OR 97060 1 135CB-00200 1 S134AD-06202 PA Z ESTMENT LLC ROBINSON CONSTANCE & 1025 H DAKOTA ROBINSON LYNN ET AL AA'SR 23 BY ASSET TAX CONSULTING PO BOX 590773 SAN FRANCISCO, CA 94159 1 S 135BC-00900 1 S134AD-06200 ONSTANC & PAULSON LIMITED LIABILITY CO >ROBINLY<NA-L BY RICHARD G PAULSON SR 1511 NE 150TH AVE ULTING PORTLAND, OR 97230 CO, CA 94159 1 S 134AD-04700 1 134AD-06201 PHAM ADRIAN D R081 ON CONS ANCE & 10735 SW BLACK DIAMOND ROBINS 64 ET AL TIGARD, OR 97223 BY AS ONSULTING PO 590773 N FRANCISCO, CA 94159 1S134DA-07600 1S134AD-06301 PIERCE SCOTT H & R INSON CONSTA E & PIERCE DEAN H ROB ON LY T AL 11240 SW BUFFALO PL BY ASSE CONSULTING TIGARD, OR 97223 PO B 59077 S, FRANCISCO, CA 94159 1 134AD-06900 1 S135BC-01100 QUINN LINDA LEE ROBINSON FAMILY TRUST 2105 PEREGRINE CT BY E LEE & EVELYN L ROBINSON TRS WEST LINN, OR 97068 PO BOX 91305 PORTLAND, OR 97291 1 S134DA-07900 1 S134AD-07100 RAMSEY DOVIE L ROSS DAVID E & CHRISTINE C 11270 SW BUFFALO PL 10518 SW WINDSOR PL TIGARD, OR 97223 TIGARD, OR 97223 1 S 134AD-09400 1 S134DA-08100 RDQ PROPERTIES LLC SACK MELISSA F 2105 PEREGRINE CT 11290 SW BUFFALO CT WEST LINN, OR 97068 TIGARD, OR 97223 1 S134DA-00800 1 S134AD-05200 RICHARDS JOHN A & JULIE A SAUNDERS F H AND CONNIE L 11030 SW 106TH AVE 10805 SW 108TH CT TIGARD, OR 97223 TIGARD, OR 97223 OICKS 4AD-09000 1 S134AD-07200 DOUG R & JENNIFER M SHIRES JO ELLEN 10805 SW 106TH AVE 10545 SW WINDSOR PL TIGARD, OR 97223 TIGARD, OR 97223 41 1S134AD-04800 1S134DA-04100 SNODGRASS DREW M & WILLIAMS FAMILY TRUST MONTY CHRISTINE L BY WILIAMS JAMES ESSEL 65 SW NOVARE PL 3402 NE 141 STAVE ARD, OR 97223 VANCOUVER, WA 98782 1X 1S134DA-04000 TOF WIL MS FAMILY UST 1L BLVD BY WILI ES ESSEL T 7223 340 141 VE NCOUVER, W 98782 1S134DA-1050 1S134AD-08800 TI RD OF WOITKE LARAINE 131 HALL BLVD 2 ANTON WAY T AR D, OR 97223 NOVATO, CA 94945 1 135 BC-0100 , 1ALL BLVD TPARLD. OF T OR 97223 1S 34DA-104 TIG D OF 131 HALL BLVD T ARD, O 7223 04AD-07900 TON K1ET T & TUAN T 10620 SW WINDSOR CT TIGARD, OR 97223 1 134DA-03800 VE OURT OW F ALL LOTS IX N- 1 S134AD-09100 VITAL[ JOHN C & MICHELE L 10793 SW 106TH AVE TIGARD, OR 97223 1 S 134 DA-00900 VOLLMULLER HENDRIK E 11000 SW 106TH AVE TIGARD, OR 97223 WTAD-08700 SON TERRY C 10579 SW WINDSOR CT TIGARD, OR 97223 42 Nathan and Ann Murdock Mildren Design Group Box 231265 Attn: Gene Mildren Wrd, OR 97281 7650 SW Beveland Street, Suite 120 Tigard, OR 97223 Sue Rorman 11250 SW 82nd Avenue Tigard, OR 97223 Naomi Gallucci 11285 SW 78th Avenue Tigard, OR 97223 Michael Trigoboff 7072 SW Barbara Lane Tigard, OR 97223 Brad Spring 7555 SW Spruce Street ~ard, OR 97223 Alexander Craghead 12205 SW Hall Boulevard Tigard, OR 97223-6210 Gretchen Buehner 13249 SW 136th Place Tigard, OR 97224 John Frewing 7110 SW Lola Lane Tigard, OR 97223 CPO 4B 16200 SW Pacific Highway, Suite H242 Tigard, OR 97224 goo 4M Pat Whiting 8122 SW Spruce Tigard, OR 97223 43 'ITV nE TIGADn - GACT IAITCRMU) WPM( ~i rnr Brooks Gaston 206 Princess inburg, TX 78539 Don & Dorothy Erdt 13760 SW 121 st Avenue Tigard, OR 97223 Ellen Beilstein 14630 SW 139th Avenue Tigard, OR 97224 Martha Bishop 10590 SW Cook Lane Tigard, OR 97223 Vanessa Foster 13085 SW Howard Drive Tigard, OR 97223 0 Susan Beilke 11755 SW 114th Place Tigard, OR 97223 CPO 4B 16200 SW Pacific Highway, Suite H242 Tigard, OR 97224 Patricia Keerins 12195 SW 121st Avenue Tigard, OR- 97223 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Gretchen Buehner 13249 SW 136th Place Tigard, OR 97224 44 John Frewing From: "Dick Bewersdorff' <DICK@tigard-or.gov> To: <jfrewing@teleport.com> Cc: <BShenman@commnewspapers.com>; <sbeilke@europa.com>; "Cheryl Caines" <CHERYLC@tigard-or.gov>; "Gary Pagenstechee' <Garyp@tigard-or.gov>; "Gus Duenas" <Gus@tigard-or.gov>; "Kim Mcmillan" <Kim@bgard-or.gov>; "Susan Ross" <SUSANR@tigard- or.gov>; "Tom Coffee" <Tomc@tigard-or.gov>; <brian@tualatinriverkeepers.org> Sent: Friday, January 06, 2006 11:16 AM Subject: Re: Refuge at Fanno Creek (SDR 2005-00002 et al) John: I have not yet assigned a planner to the project and may not depending on whether they go ahead or it goes it is a matter that goes to the permit coordinator. The old application number was SDR 2004-0006. The applicant let the application lapse and it expired. Under ORS 227.175, the $250 fee applies to those decisions where there was not a public hearing. The appeal fee for the refuge is $2387. As I am sure you are aware, the TSP establishes on a general location for a collector. It does not provide a specific alignment that can be used for construction. A specific alignment study is not in the capital improvements work program or their priorities. The City Engineer looked at the feasibility of construction of the collector. In early 2004, he estimated the cost of construction of the collector at $38 million and that it woud not happen for 20 to 30 years if ever built. Given the need for a more specific alignment and the lack of funds to do the study, the City Engineer conditioned the Refuge approval to submit a plan to address the locational issues. As you might guess, there are also significant nexus and proportionality limits for any specific development in relation to the proposed collector. Sincerely, Dick Bewersdorff Dick Bewersdorft'dick@ci.tigard-or.gov "John Frewing" <jfrewing@teleport.com> 01/05 7:24 AM Dick, With the departure of Matt Scheidegger, who was the responsible planner, I write to you regarding several issues on Refuge at Fanno Creek. If there is a new planner responsible for this development, would you please forward these questions to him/her? 1. What was the application number/name for the earlier Black Bull development proposed for this site and what was the disposition of that application? le2. From the staff report, i believe that this application is being considered using a Type III procedure (Type IIIA); see page 34/55. Earlier this week, at city hall, Kristi told me that after consultation with you, the appeal fee for this development is some $2300. I looked 45 up ORS 227.175 which governs development permits. In this statute, under subpara (I 0)(b), it states that the maximum appeal fee is $250. Could you confirm for me that the Oregon statute governs in this situation? Thanks very much. 3. How does the city permit this development at a site where the approved TSP shows a through public street connecting Nimbus with North Dakota, without requiring such street to be provided? In another case (Ash Creek Estates), the applicant proposes inclusion of a public street similarly shown on the TSP, saying that it is 'required' to do so. As you can surmise, I am considering an appeal of the hearing officer's decision on Refuge at Fanno Creek, so time is of the essence in getting answers to the above questions. Thanks very much. 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