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DCA2008-00005
PCA2ooOooc5 • III a = LAND USE PROPOSAL DESCRIPTION TIGARD 120 DAYS = N/A FILE NO.: DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 FILE TITLE: SENSITIVE LANDS PERMIT REQUIREMENTS APPLICANT: City of Tigard Attn: Phil Nachbar, Redevelopment Manager 13125 SW Hall Boulevard Tigard, OR 97223 REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [MC 18.130, 18.380, 18.390 and 18.775] DA 1E COMMENTS SENT: JANUARY 13,2009 DA 1'E COMMENTS DUE: JANUARY 27, 2009 DATE DLCD NOTICE WAS SENT: DECEMBER 23,2008 (45 days prior to first evidentiary hearing) DECISION MAKING BODY BELOW: ❑ TYPE I ❑TYPE II ❑ TYPE III ® TYPE IV ® PLANNING COMMISSION (MON.) DA 1'E OF HEARING: FEBRUARY 23,2009 TIME: 7:00 PM ® CITY COUNCIL (TUES.)DATE OF HEARING: MARCH 10,2009 TIME: 7:30 PM COMPONENTS RELATED TO THE PROJECT AVAILABLE FOR VIEWING IN THE PLANNING DIVISION ® PROPOSED ORDINANCE(1 week prior to hearings) ® STAFF REPORT(1 week prior to hearings) ❑ ® PROPOSED AMENDMENTS ® DLCD NOTICE ❑ STAFF CONTACT: Phil Nachbar. Redevelopment Manager (503) 718-2557 • PRB-APP.HELD BY: • ill CITY OF TIGARD PLANNING DIVISION . LAND USE PERMIT. APPLICATION , City of Tigard Permit Center 13125 SW Hall Blvd., Tigard, OR 97223 T I=GAAR D Phone: 503.639.4171 Fax:503.598.1960 r J File# 2 —170 7 Other Case# • Date JA 12-+1 06 By FPNivitsW- Receipt# Fee 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(III) ❑ Zone Change Annexation(IV) ❑ Conditional Use (III) ❑ Sensitive Lands Review(I,II or III) IX Zone Ordinance Amendment(IV) ❑ Historic Overlay(II or III) ❑ Site Development Review(II) ❑ Home Occupation(H) ❑ Subdivision (II or III) LOCATION WHERE PROPOSED ACTIVITY WILL OCCUR(Address if-available) Citywide TAX MAPS&TAX LOT NOS. NA TOTAL SITE SIZE ZONING CLASSIFICATION NA NA APPLICANT* City of Tigard MAILING ADDRESS/CITY/STATE/ZIP 13125 SW Hall Blvd.,Tigard, Oregon 97223 PHONE NO. FAX NO. 503-639-4171 PRIMARY CONTACT PERSON PHONE NO. Phil Nachbar 503-718-2557 PROPERTY O WNER/DEED HOLDER(Attach list if more than one) NA MAILING ADDRESS/CITY/STATE/ZIP PHONE NO. FAX NO. *When the owner and the applicant are different people, the applicant must be the purchaser of record or a lessee in possession with written authorization from the owner or an agent of the owner. The owners must sign this application in the space provided on the back of this form or submit a written authorization with this application. PROPOSAL SUMMARY(Please be specific) To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. • APPLICATIONS WILL NOT BE ACCEPTED WITHOUT ALL OF THE REQUIRED SUBMITTAL ELEMENTS AS DESCRIBED IN THE"BASIC SUBMITTAL REQUIREMENTS"INFORMATION SHEET. is\curpin\masters\land use applications\land use permit app.doc THE APPLICANT SHALL CERTIFY THAT: ♦ If the application is granted, the applicant shall exercise the rights granted in accordance with the terms and subject to all the conditions and limitations of the approval. • All the above statements and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, map be revoked if it is found that any such statements are false. • The applicant has read the entire contents of the application,including the policies and criteria, and understands the requirements for approving or denying the application(s). SIGNATURES OF EACH OWNER OF THE SUBJECT PROPERTY ARE REQUIRED. Owner's Signature Date Owner's Signature Date Owner's Signature Date Owner's Signature Date Owner's Signature Date ///a-/b9 Applicant/Agent/Representative's Signature Date Applicant/Agent/Representative's Signature Date • • " Memorandum of Tigard M TIGARD emorandum To: Planning Division From: Phil Nachbar, Redevelopment Manager Re: Amendment to Sensitive Lands Permit Requirements (18.775.070.B.5) • Date: January 12, 2009 Narrative: The current Sensitive Lands Permit Requirements do not allow pedestrian / bicycle pathways to be constructed below the elevation of the average annual flood. The City, as applicant, proposes to remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow the City or developers to locate a pedestrian or bicycle pathway in areas below the annual average flood elevation. There are potential public benefits to locating pathways in areas that may be below the average annual flood elevation. These include: 1) access to and appreciation of natural areas by the public that would otherwise not be achievable, 2) enhanced access and connectivity. Tigard's recently updated Parks, Recreation, Trails, and Open Space section of its Comprehensive Plan(12 -11-2007) specifically calls for both active recreation, and "undeveloped areas for nature-oriented recreation ...within parks and opens space" (Goal 8.1.B), and trail-related activities (Policy 6) that are accessible to its population. As part of the update, Tigard has approved the policy to "preserve and, where appropriate, acquire and improve natural areas located within a half mile of every Tigard resident to provide passive recreational opportunities" (Policy 2). Removal of Section 18.775.070.B.5 will improve the ability of Tigard to meet these comprehensive plan goals. As an example, the City adopted the Fanno Creek Park and Plaza Master Plan in February 2008. This master plan provides direction for the implementation of two key projects within the City Center Urban Renewal Plan: Fanno Creek Park and the Downtown Plaza. One aspect of the master plan calls for the realignment of trails to allow the public to access and appreciate natural areas of the park that are currently inaccessible. Without approval of this Narrative—Amendment to Sensitive Lands Permit Requirements 18.775.070.B.5 Page 1 amendment, it would not be possible to construct Fanno Creek Park as approved in the adopted master plan. The original intent of this Section 18.775.070.B.5 remains unclear. No or few other jurisdictions have this requirement in their codes. Some of the possible reasons for inclusion of this section in the Code include: perceived impact on floodplain requirements, maintaining year-round pedestrian accessibility (out of the annual flood elevation), public safety related concerns, reducing potential maintenance associated with inundated trails, and the perception that locating trails within the flooded areas would have a negative impact on the natural flora and fauna of a habitat. The purpose.of the Sensitive Lands Chapter of the Tigard Development Code is to A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare. Removal of Section 18.775.070.B.5 does not negatively impact, but supports Statewide Planning Goals including Statewide Planning Goal 5 (Natural Resources). • Narrative—Amendment to Sensitive Lands Permit Requirements 18.775.070.B.5 Page 2 • • PRE-APPLICATION NOTES City of Tigard December 18,2008 STAFF PRESENT: Gary Pagenstecher APPLICANT: Phil Nachbar PROPERTY LOCATION: Floodplain, City-wide TAX MAP/LOT#: NA PROPOSAL DESCRIPTION: To change the development code text removing Section 18.775.070.B.5: COMP PLAN DESIGNATION: Open Space ZONING:Various NEIGHBORHOOD MEETING A neighborhood meeting is not required for the CDC text change. NARRATIVE Include a narrative that responds to the applicable review criteria. The narrative must contain the text of the applicable review criteria, findings of fact relative to each criterion, and a conclusion as to whether the criterion has been met. • (Note: the following list is intended to provide guidance in preparation of your application. Additional criteria may be identified dependant upon the nature of the specific application, or as other issues are raised. In other words, this is not an exhaustive list of all criteria. It is the applicant's responsibility to ensure that all applicable standards are met.) APPLICABLE REVIEW CRITERIA: Zoning Map and Text Amendments 18.380.020 A. Legislative amendments. Legislative zoning map and text amendments shall be undertaken by means of a Type IV procedure,as governed by Section 18.390.060G. 18.390.060 Based on the information provided, the text amendment request will be a Type IV Process, with a public hearing before the planning commission. The Planning Commission then makes a recommendation to City Council to either approve the request as proposed,modify the request, or deny the request. A subsequent hearing(or hearings) is then held by the City Council. The recommendation by the Commission and the decision by the Council shall be based on f /consideration of the following factors: . 1. The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes \<, Chapter 197; [Goals 1,Public Involvement;Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7,Areas Subject to Natural Hazards;Goal 8 Recreational Needs;] 2. Any federal [FEMA] or state statutes or regulations found applicable; 3.Any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan,Title 3,Water Quality and Flood Management] 4.Any applicable comprehensive plan policies; [Goal: 1,Public Involvement; Goal 2,Land Use Planning;Goal 7,Hazards; Goal 8,Parks,Recreation,Trails,and Open Space];and 5.Any applicable provisions of the City's implementing ordinances [l'DC 18.130, 18.380, 18.390,and 18.775]. Application Fees for Zoning Text Amendment (Legislative): NA (City Application) Decision timeline is at least 4 months from receipt of a complete application. The 120-day rule is not applicable to legislative changes. PREPARED BY Gary Pagenstecher �' a g Associate Planner M 2 DLCD• Notice of Adoption THIS FORM MUST BE MAILED TO DLCD O f` 3 WITHIN 5 WORKING DAYS AFTER THE FINAL DECISION PER ORS 197.610,OAR CHAPTER 660-DIVISION 18 Jurisdiction: City of Tigard Local file number: DCA2008-00005 Date of Adoption: 8/18/09 Date Mailed: 8/18/09 Was a Notice of Proposed Amendment (Form 1) mailed to DLCD? YesDate: 12/23/2008 ❑ Comprehensive Plan Text Amendment ❑ Comprehensive Plan Map Amendment ® Land Use Regulation Amendment ❑ Zoning Map Amendment n New Land Use Regulation ❑ Other: Summarize the adopted amendment. Do not use technical terms. Do not write "See Attached". A Community Development Code Amendment amending Section 18.775.070.B.5, removing a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead; require that pedestrian/bicycle pathway projects within the floodplain include a wildlife habitat assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals. Does the Adoption differ from proposal? Yes,Please explain below: The Council added the requirement that pedestrian/bicycle pathway projects within the floodplain include a wildlife habitat assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals: Plan Map Changed from: N/A to:N/A Zone Map Changed from: N/A to:N/A Location: Citywide Acres Involved: 0 Specify Density: Previous: N/A New: N/A Applicable statewide planning goals: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 XX ® x ® X Was an Exception Adopted? ❑ YES ® NO Did DLCD receive a Notice of Proposed Amendment... 45-days prior to first evidentiary hearing? ® Yes ❑ No If no, do the statewide planning goals apply? ❑ Yes ❑ No If no, did Emergency Circumstances require immediate adoption? ❑ Yes ❑ No DLCD file No. Please list all affected State or Fede lgencies, Local Governments or SpeciOistricts: City of Tigard Local Contact: Gary Pagenstecher Phone: (503) 718-2434 Extension: Address: 13125 SW Hall Boulevard Fax Number: 503-718-2748 City: Tigard Zip: 97223-8189 E-mail Address: garyp @ tgard-or.gov ADOPTION SUBMITTAL REQUIREMENTS This form must be mailed to DLCD within 5 working days after the final decision per ORS 197.610,OAR Chapter 660-Division 18. 1. Send this Form and TWO Complete Copies (documents and maps) of the Adopted Amendment to: ATTENTION: PLAN AMENDMENT SPECIALIST DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT 635 CAPITOL STREET NE, SUITE 150 SALEM, OREGON 97301-2540 2. Electronic Submittals: At least one hard copy must be sent by mail or in person, but you may also submit an electronic copy, by either email or FTP. You may connect to this address to FTP proposals and adoptions: webserver.lcd.state.or.us. To obtain our Username and password for FTP, call Mara Ulloa at 503-373-0050 extension 238, or by emailing mara.ulloa @state.or.us. 3. Please Note: Adopted materials must be sent to DLCD not later than FIVE (5) working days following the date of the final decision on the amendment. 4. Submittal of this Notice of Adoption must include the text of the amendment plus adopted findings and supplementary information. 5. The deadline to appeal will not be extended if you submit this notice of adoption within five working days of the final decision. Appeals to LUBA may be filed within TWENTY-ONE (21) days of the date, the Notice of Adoption is sent to DLCD. 6. In addition to sending the Notice of Adoption to DLCD, you must notify persons who participated in the local hearing and requested notice of the final decision. 7. Need More Copies? You can now access these forms online at http://www.lcd.state.or.us/. Please print on 8-112x1 i green paper only. You may also call the DLCD Office at (503) 373-0050; or Fax your request to: (503) 378-5518; or Email your request to mara.ulloa @state.or.us - ATTENTION: PLAN AMENDMENT SPECIALIST. http://www.lcd.state.or.us/LCD/forms.shtml Updated November 27, 2006 0 U.S. Postal Servicem, C: Attn: Patty P=rung (Do RE:�1DC.A2008-00005 --*�. r , • Sensitive Lands Permit Requirements y3 "Notice of Adoption" rl _ m mPostage . �� -1. Certified Fee 11101101 J3L ' C3 Return Receipt Fee ostm Q 4 (Endorsement Required) _ ; \5Here V 6: Restricted Delivery Fee t t1,t 4,- 0 (Endorsement Required) Q S:r i r-R }r,,C..' c0 Total Postage&Fees '. t{JJ ' ru tTo I= Street,Apt: ATTN: PLAN AMENDMENT SPECIALIST hor PO Box' Oregon Dept.of Land Conservation&Development 635 Capital Street NE,Suite 150 City,State.; iy • • Mayor Dirksen Council President Wilso• Yes Councilor Bueh - Yes Councilor - -nderson Yes Co i or Webb Yes 9:43:10 PM -- 8. CONSIDERATION OF PROPOSED ORDINANCE FOR A DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) (Continued from July 14, 2009.) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks,Recreation,Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. a. Mayor Dirksen announced this hearing is continued from July 14,2009. Mayor Dirksen advised that the public hearing had been closed;however,it is now recommended that the hearing be reopened to receive testimony on the Code changes proposed by the City Council on July 14,2009. City Attorney Ramis confirmed that the City Council had given direction to staff regarding changes in languages. Staff has prepared the language changes and indicated the options for the City Council's consideration. The hearing should be opened to address those specific changes. City Attorney Ramis confirmed for Mayor Dirksen that among the comment letters received,there were letters that raised the question about whether the proposal was in compliance with Metro's regulations. The City referred that question to Metro and the August 11,2009,email communication form Brian Harper of Metro constitutes Metro's response. Metro agrees with the analysis of the City and disagrees with the claim that the City's proposal violates Metro's rules. Mayor Dirksen paused the meeting to give the City Council members a few minutes to review the written information supplied to the City Council. 9:46:30 PM b. Staff Report: Associate Planner Pagenstecher presented the Staff Report. The City Council packet provided revised findings. A copy of the written staff report is on file in the City Recorder's office. Associate Planner Pagenstecher referred to the written comments submitted most recently from Mr. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -AUGUST 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 19 of24 .. w • • Frewing and Ms.Beilke and distributed to the City Council. These comments are on file in the City Recorder's office. c. Public Testimony: Staff recommended that Council open the hearing to allow interested parties to comment on the proposed changes to the code amendment. Testimony should be limited to only the text changes proposed by Council at their July 14th hearing and the revised findings in support of those changes. Brian Wegener signed in to speak,but declined to do so at this time. 9:47:45 PM John Frewing, 7110 SW Lola Lane, Tigard, Oregon provided comment and suggested changes to what staff has called "Option 3." A copy of Mr. Frewing's written testimony is on file in the City Recorder's office. d. Staff response to Mr. Frewing's testimony: 10:08:07 PM Associate Planner Pagenstecher responded to the "clear and objective standards" issue presented by Mr. Frewing. There are requirements for clear and objective standards. There is also the option for a discretionary approval process. Cities are required to have the clear and objective standards, which the City of Tigard met with the sensitive lands code revision adopted in 2007. In addition, staff thinks that this Development Code amendment meets the Metro Code standards: The implementing ordinance provisions of such a discretionary process specify that the property owners have the choice of proceeding either under the clear and objective approval process, which each city or county must have, and require a level of protection for enhancement of the fish and wildlife that meets or exceeds the level of protection or enhancement that would be achieved following the clear and objective standards. Associate Planner Pagenstecher said with this section pertains to pathways in a floodplain. It is likely that property owners and the implementers of the pathway will be the City. The level of protection is significantly above that of the clear and objective standards previously adopted. Nowhere else is there a requirement for a wildlife assessment. This proposal is consistent with the discretionary approval process,which is provided for under the Metro standards. Councilor Buehner said she agreed with Mr. Frewing's comment that we should be using the term wildlife habitat assessment all the way through instead of just saying wildlife assessment. Associate Planner Pagenstecher said he would have to no objection to that. He added that he agreed with Mr. Frewing's observation that the wording should be clarified to indicate that the designs for the pathways shall include the wildlife habitat assessment. Both wording amendments would be diminimus changes. Community Development Director Bunch noted that Mr. Frewing made a comment about the Tualatin River Basin Rules. The City complied with the Tualatin River Basin Rules by adopting an ordinance in 2006. The City meets Metro requirements. Mayor Dirksen declined Mr. Frewing's request to respond to the staff comments. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -AUGUST 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 20 of24 • Brian Wegener of Tualatin Riverkeepers said he attended many of the Goal 5 meetings and acknowledged that Council-President Wilson also attended these meetings. A large part of that Tualatin Basin plan is Clean Water Services' Design and Construction standards for vegetated corridors. He described onsite mitigation and restoration standards that might address Mr. Frewing's concerns. Constructing a trail in this type of corridor may improve the habitat because of the wise and innovative standards by Clean Water Services. Mr. Wegener said he was initially concerned that some land not in the stream corridor was in the annual flood area. After looking at the maps, he did not see anything that would raise that concern. Clean Water Services Design and Construction Standards are included in the Tigard Code by reference. 10:14:40 PM He said he did not know whether this would meet the clear and objective standards; however he said he thinks the intent of the Tualatin River Basin group was to use those as the clear and objective standards. Council President Wilson said he supported the two small changes for clarification: "...pedestrian/bicycle pathway projects within the floodplain shall include a wildlife habitat assessment that shows the proposed alignment minimizes the impact to significant wildlife habitat..." 10:15:45 PM City Attorney Ramis recommended that if the City Council voted to adopt the document to state in the motion that Mr.Brian Harper's (Metro) communication is included as part of the findings. City Attorney Ramis said he thought this communication contained a good description of Metro's interpretation of its rules. In response to a question from Councilor Buehner, City Attorney Ramis advised the City Council to describe its intent in its motion to change the words wildlife assessment to wildlife habitat assessment. 10:16:31 PM Motion by Councilor Buehner, seconded by Councilor Webb, for adoption of Ordinance No. 09-11, - including the diminimus changes substituting wildlife habitat assessment for wildlife assessment and including, Pedestrian/bicycle pathway projects... and also including Mr. Harper's memo dated August 11,2009,as part of the findings. 10:17:20 PM City Recorder Wheatley read the following. ORDINANCE NO. 09-11 — AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT THE PEDESTRIAN/BICYCLE PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE *{HABITAT} ASSESSMENT THAT SHOWS THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT WHILE BALANCING THE COMMUNITY'S RECREATION AND ENVIRONMENTAL EDUCATIONAL GOALS (DCA2008-00005),AS AMENDED. *City Attorney Ramis advised the title in the final version would be amended according to the motion. Councilor Buehner agreed with City Attorney Ramis' that this was her intent with how the motion should be worded. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -AUGUST 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 21 of24 • • The motion was approved by a unanimous vote of City Council present. Mayor Dirksen Yes Council President Wilson Yes Councilor Buehner Yes Councilor Henderson Yes Councilor Webb Yes 9. CONSIDER FORWARDING A REQUEST TO WASHINGTON COUNTY TO FORM CPO 4T Assistant City Manager was available to answer questions as she prepared the staff report that is on .e in the City Recorder's office. Mayor Dirksen said he would recommend the resolution be modified to ad: A resolution of the Tigard City Council requesting that the Washington County Board of Commissioner remove land within the Tigard City limits from CPO 4B and CPO 4M and consider creation of CPO 4T,which would ake provisions for the automatic transfer of property to CPO 4T. Assistant City Manager Newton said this was a good change since this is a decision at is to be made by the County and we can only make a request that they consider Tigard's proposal. or Dirksen said a possible outcome of this would be that the City would be removed without another C D• being formed. Council President Wilson noted that Councilor Henderson had requeste. this Consent Agenda Item be removed for separate consideration due to his concerns. Councilor -nderson said he was concerned that removing the City of Tigard would devastate CPO 4M and leave th.se people without much of a significant area. He also referred to the Durham area that would be impacts.. Councilor Henderson said he has had conversations individually with City Council members regar.'• past problems. He said he would prefer that more discussion be held and said this looks to be a divisive .ction. He noted that Commissioner Rogers said he was agreeable to discuss this matter. Councilor Hen. rson questioned whether this action was a step forward to achieve a compromise or whether it was .'•'sive. He commented that the CPO's role was only for information gathering. Mayor Dirksen said he could see where Cou or Henderson was coming from on several of his concerns. Mayor Dirksen referred that this was why •- recommended the wording changes for the resolution as this would open the door for dialogue. He s d he was particularly sensitive to the possible plight of the Durham area and also for CPO 4M. Mayor D' sen noted CPO 4M sent a letter. Councilor Henderson said CPO 4M was only saying they were neutral o• this at this time;they were not saying"we are neutral forever..." They clarified in their letter they were -utral because they would not be able to discuss this matter for a couple of months. Councilor Buehner said s , has been heavily involved in the CPO process advising she was one of the founders of CPO 4K,which bro , off from 4B in about 1996. The area served by CPO 4K is approximately the same size or smaller of wha ould remain in 4B. The CPO process was set up by the County a long time ago when the County was mu smaller. The County has not done an update on the CPO's for at least 20 years. A couple of the CPC s that exist are huge—in excess of 100,000. This is an untenable number of people to function as a n-.•hborhood organization. Councilor Buehner strongly agrees that the City should follow Beaverton's 1: dership and pull out because we have our own neighborhood associations. The primary job of CPO's is t. get information out to citizens and to provide an opportunity for citizens to get information back to TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -AUGUST 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 22 of24 • • 8:05:53 PM ayor Dirksen added to Council President Wilson's comments on a ;ens recommended within the Plan that ar- .spirations. There are many things within the Plan that cann. .e done right away or, possibly, things that can ne,-r be done;however,if we do not aspire to accomplis• ese things,then they will never get done. 8:07:27 PM Motion by Counc. •. tuehner,seconded by Co cilor Henderson,to adopt Resolution No. 09-53. RESOLUTION NO. 09- — A SOLUTION ADOPTING THE CITY OF TIGARD'S PARK SYSTEM MASTER PLAN The motion was approv-: my a unanim•. vote of City Council present. Mayor Dirksen Yes Council Pres',-nt Wilson Yes Council. :uehner Yes Co - ilor Henderson Yes .uncilor Webb Absent 8:08:16 PM 6. CONTINUATION OF LEGISLATIVE PUBLIC HEARING FROM MAY 12, 2009 — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7,Hazards; Goal 8, Parks,Recreation,Trails,and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. a. Mayor Dirksen announced that this is a continuation of a legislative public hearing from May 12,2009. b. .City Attorney Ramis advised the procedure read into the record in the previous hearing is the procedure being followed. If, since that time, there have been any ex parte communications or if anyone has discovered a conflict,this would the time to disclose. There were no declarations or challenges. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES-July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 7 of 24 • • c. Associate Planner Pagenstecher presented the staff report. The Council packet materials included the supplemental staff report dated June 29, 2009, which repackaged the information from the previous proceedings, added new Goal 5 findings,and included staff's response to public testimony heard at the May 12,2009,City Council hearing. The staff report includes the staff's and Planning Commission's recommendation for wildlife assessment in the Proposal Summary, Section 1. The Options Analysis presented to the Planning Commission is in the Alternatives to Proposal, Section 7. The Two-Year Flood Inundation Exhibit presented at the first Planning Commission hearing was attached for reference. The new Goal 5 findings are on Page 9 in the staff report and are also contained in the Supplemental Goal 5 findings,dated July 7,2009,the City Council received in the City Council newsletter. Associate Planner Pagenstecher referred to the staff's response to the public comments contained in the staff report. • d. Public Comment Mayor Dirksen requested public comment be restricted to new information. John Frewing,7110 SW Lola Lane,Tigard,Oregon advised his concern with this amendment is that the proposed requirement for a wildlife assessment is not a clear and objective approval standard. Mr. Frewing advised he sees it as simply a submittal requirement. He referred to his previous testimony and said that"wildlife assessment"has not been defined as he requested. 8:12:25 PM Mr. Frewing referred to a response from Associate Planner Pagenstecher on a comment Mr. Frewing had made. Mr. Frewing said that Associate Planner Pagenstecher advised that because Tigard previously adopted an ordinance,which implemented the Nature in the Neighborhoods Program that it could not have included a requirement for a wildlife assessment. Mr. Frewing said this sentence does not make sense. The Metro Code requires clear and objective standards. The staff report does not say that this is a clear and objective standard and Mr. Frewing said he did not think this was a clear and objective standard where there should be one. Even if, at some earlier date, Tigard adopted an ordinance to comply with Metro programs,what is occurring now is a"take away." One can say we are coming"out of compliance"with what we had on the day that we adopted the ordinance that brought us into compliance with Metro programs. Mr. Frewing said there would be no reason not to incorporate the clear and objective standards requirement of Metro,including a clearer definition of a wildlife assessment into this regulation. 8:14:19 PM Mr. Frewing said the discussion of the Parks Master Plan,just approved by the City Council,is also new information. He said he thinks the Parks Master Plan is an aspirational document and has very little to say about what open space will actually be protected in future years. He said he would prefer that there would be more specifics in this regard rather than the specifics in other regards because of the importance of open space and greenspaces to the people of Tigard. He said he is happy that there is a Park Master Plan,but it does not take the place of defining those areas where we will not have trails, the natural areas. Tigard needs to be move forward on planning open spaces by saying where we are going to have trails and where we are not going to have trails. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 8 of 24 • • 8:15:37 PM Mr. Frewing advised he has not seen the Goal 5 findings submitted on July 7, 2009, and said he would like an opportunity to look at them and provide comments. He asked for additional time so he could review the findings. 8:16:35 PM Associate Planner Pagenstecher apologized to Mr. Frewing regarding the additional Goal 5 findings for which Mr. Frewing had not had a chance to review. Associate Planner Pagenstecher referred to the sentence that Mr. Frewing said did not make sense. He advised that he meant to convey that Metro has already found that Tigard complies with the Nature in Neighborhoods. Whatever criteria we would come up with would be over and above compliance. Associate Planner Pagenstecher said he was not asserting that wildlife assessment criterion was clear and objective. Mr. Frewing responded that when Metro approved Tigard's compliance with Nature in Neighborhoods,it included the requirement that no trails will be built below the annual average flood. Now,we are taking that away. If this is approved, then we will have something less than we had when we complied_with Nature in the Neighborhoods. Associate Planner Pagenstecher summarized that the background section of the staff report identifies why the existing criterion is an ineffectual elevation standard. The wildlife assessment is a way to identify sensitive habitats that we do not have today. In staff's opinion,we are not giving away anything—we are gaining a tool to site trails and design them for the preservation of habitat. Mr. Frewing acknowledged this was clear statement. 8:18:57 PM e. Staff Recommendation Associate Planner Pagenstecher recommended the City Council approve the proposed Development Code Amendment and adopt the proposed ordinance. f. City Council Questions Councilor Henderson referred to the Sensitive Lands Permit (Item B) where it states that, "Within a 100-year floodplain -- The hearings officer shall approve, approve with conditions, or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied." He said he does not know what "approved with conditions" means. Would the hearings officer be allowed to make more conditions? City Attorney Ramis responded that this language means that the hearings officer would have the discretion to impose conditions so long as those conditions were designed to assure that the application complied with the criteria. Some unrelated condition could not be invented. To the extent the hearings officer's judgment is that it is necessary to limit the project to be sure it complies with the criteria, then that kind of condition is allowable. Councilor Henderson asked about this section,as it would pertain to the wildlife assessment. City Attorney Ramis, and Associate Planner Pagenstecher concurred, that he would think a valid condition would be one that ties the design of the project to whatever the wildlife assessment says is necessary to protect habitat. Associate Planner Pagenstecher added that the wildlife assessment would result in a series of recommendations regarding how to preserve habitat and those would be then required of a design to satisfy the hearings officer that the proposal complied with that criteria. g. Mayor Dirksen dosed the public hearing and called for consideration of the proposed ordinance,which includes the supplemental findings prepared by the City Attorney's office dated July 7,2009. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 9 of 24 • . Motion by Councilor Buehner, seconded by Council President Wilson,to adopt Ordinance No. 09-11, including the supplemental findings prepared by the City Attorney's office dated July 7,2009. ORDINANCE NO. 09-11 - AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS LOCA 1'ED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT PEDESTRIAN/BICYCLE PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE ASSESSMENT TO ENSURE THAT THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT(DCA2008-00005). 8:23:15 PM City Council discussion followed: Councilor Buehner said she appreciated the memorandum from the City Attorney, which she found helpful in answering questions she had regarding Goal 5. With respect to the specifics of the ordinance and the discussion resulting from Mr. Frewing's comments regarding Metro's standards, she said that Metro is also responsible for pushing and assisting us in getting the various trails completed,such as the Fanno Creek Trail. Other jurisdictions are also looking at trails within the annual floodplain to meet Metro's requirements. Councilor Buehner advised she did not think this ordinance would affect our relationship with Metro with regard to greenspaces. 8:24:24 PM Council President Wilson said he agreed with Councilor Buehner. He said he thinks the language regarding the wildlife assessment could be dearer to assist the hearings officer in imposing conditions. He said he was also concerned, as he stated in the previous hearing, that we needed to balance the needs of wildlife with the recreational needs of people. This could be interpreted that to minimize the impacts to wildlife that extreme measures could be required, such as requiring eight-feet high boardwalks or pushing a trail to the absolute edge of the property making it less functional or less attractive for pedestrians to use. He did not think this was the intent of the ordinance. Council President Wilson said he would prefer to modify the sentence to reflect this. 8:25:48 PM Mayor Dirksen suggested that the ordinance could be adopted this evening and have staff go back to develop a clearer statement. He said that it appears that what the City Council is looking for with the wildlife assessment is to find the balance between wildlife habitat and the needs of citizens. He said it was sufficiently clear to him regarding its purpose. Council President Wilson suggested wording such as, "A wildlife assessment shall be conducted and used to ensure that the proposed alignment balances impacts to significant to wildlife habitat with the recreational goals of the community." 8:26:54 PM Councilor Buehner indicated she would be fine with the change suggested by Council President Wilson. She asked City Attorney Ramis if the City Council could approve the ordinance tonight with the direction that staff comes up with a different definition? City Attorney Ramis suggested the City Council give staff direction and staff would come back to the City Council with adjusted language and, perhaps adjusted findings,to support that language and then have a final adoption. 8:27:33 PM Councilor Henderson agreed with the City Attorney's recommendation. He said there was a question at the last hearing whether the proposed ordinance would affect all of the greenways. He would like to TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 10 of 24 1111 410 have a clear definition. Councilor Henderson said the citizens want to use greenways and he would like to find a way for this to happen. 8:28:09 PM In response to a request for Mayor Dirksen for Council President Wilson to describe the changes he would like,Council President Wilson advised: "I'd like to do two things. I'd like to achieve a balance instead of just to minimize because that is sort of an extreme thing. But, I'd also like to indicate that the wildlife assessment be used to actually inform the design, that the design respond to it in some way — not just that you do one..." Mayor Dirksen suggested the following wording: "...it shall include a wildlife assessment that shows that the proposed alignment minimizes impacts on significant wildlife habitat." The above wording would make it clear that not only would an assessment have to be prepared, but also the conclusion of the assessment would be that there is no significant impact. 8:29:08 PM Councilor Buehner commented that the Mayor's suggested wording might fall within Council President Wilson's concern that the balance might be leaning so far in favor of protecting the wildlife, that you have effectively minimized the viability of a trail in a reasonable location. She said she believed Council President Wilson's proposal was for a balance of interests. Council President Wilson said there are clearly trade-offs. The best thing for wildlife might be to build no path. He said he wants the Code to acknowledge that we are possibly causing some habitat degradation; however,we are going to do it in such a way that we consider the needs of wildlife and, if it is something extreme (i.e., an endangered species is severely impacted) then we might choose not to do it. He said that if it is common wildlife and a minor imposition, then we ought to design it in such a way that is the most desirable route for recreational purposes. 8:30:47 PM Mayor Dirksen read proposed wording suggested by City Manager Prosser: "Pedestrian and bicycle pathways within the floodplain shall include a wildlife assessment that shows that the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community recreational and environmental educational goals." 8:31:13 PM Council consensus was for support of the above language. The Council also discussed whether they could approve the proposed ordinance tonight. City Attorney Ramis apprised the City Council of his concern insofar as he would like the staff to have the opportunity to review the language against the findings they have made, particularly related to Goal 5, to make sure that we are still in the parameters of Goal 5 and Metro's requirements. 8:31:44 PM Mayor Dirksen agreed that it would be better for staff to review and have this come back before the City Council again. TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 11 of24 8:32:03 PM Community Development Director Bunch said the findings are now saying that trails are no different from the other conflicting uses currently allowed in these areas. Staff will need to research this to develop an affirmative statement that the language meets the intent of the City Council. He recommended for this to come back to the City Council at a later date. 8:33:03 PM City Manager Prosser advised this matter could be scheduled for the August 11, 2009, City Council meeting. Consideration of Ordinance No. 09-11 was carried forward to August 11,2009. 8:33:44 PM City Attorney Ramis advised that the record,at this point,is closed. There will be no further testimony. 8:34:01 PM 7. CONTINUATION OF PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING TREE REMOVAL DCA2009-00001 GISLATIVE PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMEND■ NT ' . ARDING TREE REMOVAL (DCA2009-00001) —COUNCIL GOAL#1B—UPDATE T- TREE COD' 0 MEET COMPREHENSIVE PLAN REQUEST: o amend the current Tigard Development Code to clarify how an appli .nt for development is to demonstrate ..mpliance with the City's stated preference for tree protection .ver removal wherever possible. The comp - - text of the proposed Code Amendment can be view:. on the City's website at http://www.tigard-or.gov .de_ amendments. LOCATION: Citywide Z• •1E: All City Zoning Districts APPLICABLE REVIEW • TERIA: Community Development C..e Chapters 18.380, 18.390, and 18.790; Comprehensive Plan Police 1.1.2, 1.1.3, 1.2.1, 1.2.6,2.1.2,2.1.14, 2.1.24,2.2.1,2.2.6, 2.3.1,2.3.6, 6.1.6, 6.2.3,6.2.4,and 6.2.5;Metro Function. Ian Titles 1,2,and 3;and S . ewide Planning Goals 1,2,and 6. a. Mayor Dirksen opened the public hearing, .ch w.: continued from May 12,2009. 8:34:29 PM b. City Attorney Ramis reviewed the hearing ► ocedures. • c. Declarations or Challenges: None. d. Staff Report: Community Dev- opment Department 8:37:57 PM Associate Planner Fl. ,d presented the staff report for this matter. He referr-: to the Planning Commission reco • ended changes to Chapter 18.790 of the Development Code,which - ates Tree Protection. Th- hanges were before the City Council. Staff also included additional suggestions in response to p • 'c comments, feedback from City Council, and advice from the City Attorney. These additional s :estions were also before the City Council. (Changes were contained in a document marked " xhibit A" and also discussed in a memorandum marked as "Attachment 4" in the City Counc. meeting packet.) 8: •:43 PM TIGARD CITY COUNCIL/LCRB/CCDA MINUTES -July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 12 of24 120 DAYS =N/A 41110 DATE OF FILING: 8/17/2009 ae DATE MAILED: 8/18/2009 CITY OF TIGARD Washington County, Oregon NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Number: DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 Case Name: SENSITIVE LANDS PERMIT REQUIREMENTS Applicant's Name/Address: City of Tigard 13125 SW Hall Boulevard Tigard,OR 97223-8189 Owner's Names/Addresses: N/A Address/Location of Property: Citywide Tax Map/Lot Nos.: N/A A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS APPROVING A RE QUEST FOR A DEVELOPMENT CODE AMENDMENT(ORDINANCE NO. 09-11). THE CITY OF TIGARD PLANNING COMMISSION AND CITY COUNCIL HAVE REVIEWED THE APPLICANT'S 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 PLANNING COMMISSION HELD A PUBLIC HEARING TO RECEIVE TESTIMONY ON FEBRUARY 23, 2009 AND APRIL 6, 2009 FOR THE PURPOSE OF MAKING A RECOMMENDATION TO THE CITY COUNCIL ON THE REQUEST. THE CITY COUNCIL ALSO HELD A PUBLIC HEARING TO RECEIVE TESTIMONY ON MAY 12, 2 09,_JULY 14, 2009 AND AUGUST 11, 2009 PRIOR TO MAKING A DECISION ON THE REQUEST. THIS DECISION HAS BEEN BASED ON THE FACTS,FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER Subject: > A Community Development Code Amendment amending Section 18.775.070.B.5, removing a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead; require that pedestrian/bicycle pathway projects within the floodplain include a wildlife habitat assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals. At the August 11, 2009 public hearing, the Council approved the subject application as amended. ZONE: Citywide. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement• Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal[FEMA] or state statutes or regulations; Applicable METRO regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]- Applicable Tigard Comprehensive Plan Goals [Goal 1, Public Involvement; Goal 2 Land Use Planning Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances [TDC Chapters 18.380, 18.390 and 18.775]. Action: > ® Approval as Amended ❑ Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper, posted at City Hall and mailed to: ® Affected Government Agencies ® Interested Parties Final Decision: THIS IS THE FINAL DECISION BY THE CITY AND IS EFFECTIVE ON SEPTEMBER 10, 2009. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Division, Tigard City Hall, 13125 SW Hall Boulevard, Tigard, Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA) within 21 days according to their procedures. Questions: If you have any questions, please call the City of Tigard Planning Division or the City Recorder at (503) 639-4171. .• 4111 1111 CITY OF TIGARD,,OREGON TIGARD CITY COUNCIL ORDINANCENa;09- AN c).RDINANCEI AMENDING THE'TIGARD Oc),NIMIJNITY-.DE_WLOPMENT.GQDE:SE .-N1ON 18.775.070.B.5, REMOVING A CRITERION WHICH:PROHENTS A11 AY 'LOCATED WITHIN • OR ADJACENT TO ThE FLOODPLAIN TO BE_BELO\V.THE.ELEVATION OF THE .AVERAGE . ANNUAL FLOOD AND,. 'INSTEAD, REQUIRE THAT ..PEOESTRIAN/l3ICYCI F. PATHWAY PAOJEC4S WralIN THE PLOOPPLAININCLWE WILDLIFE NABITAT ASS. S.SNIEN717 THAT SHOWS THE PROPOSED ALIGNMENT MINIMIZES IMPACPS:. TO SIGNIFICANT WILDLIFE HABITAT WHILE .BALANCING THE COMMUNITY'S RECREATION AND ENVIRONMENTAL EDUCATIONAL GOALS ,.(DCA20081'700005),.AS_AMENDED* . . Nr/aEREAS, -the.:Qty'$..Tlanning Division hs.reqUeSted.:to ,aniencl,Chapter 18:775 - ;SenSitive'Lands. of the Tigard Development Code to remove a criterion which-probihit.s.padways.located within or adjacent to the floodplain to be below the•elevation of the average annual flood and, instead, require that pedestrian/bicyr:Ie pathwaypiojects within the flOodplairi include aQillife habitat assessinentthat.shows-theprOposed,alignMent • minimizes impacts to significant wildlife habitat while balancing the community's recreation and:onvitonmental, educational goals;and WHERE-AS, notice was proVided to the Department Land Conservation and Development 45 days-priorto the first evidentiary ptiblic hearing;-arid. WHEREAS, the Tigard Planning Commission held public hearings on February 23, 2009. and April.6,2009, and recommendedapproval ofthepropOsed:arnendinent,as amended torequire..a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant-wildlife habitat;and . WHEREAS, notice of the public hearings was published in the;Tigard Tunes.Newspaper at least'1'0 business days prior to the public hearings;and WHEREAS, the Tigard-.City Council has considered .applicable Statewide Planning Goals and Guidelines adopted un der Oregon Revised Statutes' Chapter'197; any federal: or state statutes or regulations found. applicable; any.:appliCable:Metto regulations, Any applicable.Con-ipithethive Plan Policies, and any applicable provisions of the.City's implementing ordinances;'arid WHEREAS,the,City Council has fOundAe..fdllowing:-to be the only applicable review criteria: The Statewide Planning:GoalS.and Guidelines adopted Wider Oregon.'Revised StardteS Chapter 197.[Goat'1,. Public Involvement, Goal 2,Land Use Planning; Goal:5,,Natural Resources,,:Scenic....aucl Historic Areas, and Open Spaces, Goal 7, Areas Subject to Natural.Hazards; -Goal Si Recreational Needs]; .Applicable federal [FEMA] or state statutes or regulations, Applicable METRO. ;regulations [Metro Urban Growth Management,Functional Plan, Title 3, Water•Quality and Flood..Management; and Title 13, Nature. in: • Neighborhoods],: Applicable Tigard.Comprehensive Plan-Goals.[Goal 1,Public Involvement, Goal 2, Land Use.Planning; Goal 5, Natural Resources and Historic Areas;Goal 7, Hazards, Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances. U11)C.Chapters 18.380, 18.390and.18.775]. ReOniler's No The rixiiitinadoPting Ordinance No,09-.11 was: "Motion hy.Cpunciorfrliiclitier„seconded Iv'Councilor Webb,for adoption.of including di,niiniutis changes stibitittaing habitat assessment":for wildlife.assesstpee.and iteltiding,,,edestrian7*Cle:pathWay pnijects..,'"and also including,Mr:Harper's memo dated August 11 2002,as pan of the findings!'Mr.:Huper's memo. is on file in the:City'Recorder's.office to pan of the August 11,2009- Council meeting packet:rtmerials for•AgendalteinNo.8. ORDINANCE No.09- J I Page 1 ffr •• • WHEREAS, the Tigard City Council held public hearings on May l2 . 14th, and August 11,-r 2009 to contider the'proposed amendment;and WHEREAS, I.-the Tigard.City 'Council has determined that the proposed development code .amendment is consisetif with the applicable review criteria,and that approving the request would be in the best.interestnfthe • City Of Tigard: NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: T.tie;;specific text artiencitnent attached -at "EXHIBIT A" to this Ordinance _hereby adopted and approved bythe-City Council. SECTION-2: The :findings in the June 29, 2009:Supplemental Staff Report to the City Council, City . • Attorney's-Supplemental Findings (Amended July 22, 2009), Minutes of the Februaty 23, 2009 and April 6, 2009 Planning Commission hearings, and the Minutes of the May 12th, July 14th, and August 11th 2009 to.uncil:hearings:are hereby a4i:ipted. in explanation of the 'Council's decision. SECTION 3:. This ordinance Shall,be effective 30 days after its:passage by the Council; signature by the ,Mayo4, ci posting:4-the tity1:2Lecorder. PASSED: By:1-0) i t\1D.U-S vOte.of ail:Council Members-present after being,mid by:riutriber and title Only; thit -.t• day Catherine Wheatley,City.Recorder _ • APPROVED:: By Tigard:City Council this ri-k— day o-f ,dS 00 . , 1,( Craig se.n,Mayor A....roved as to form: 011F rA III '4 =.11 City Attorney aoo? Date • ORDINANCE No.09- ) Page 2 .4• -V • EXHIBIT A . . DCA2008-00005' SENSITIVE LANDS PERMIT.RE.QUIREMENTS. Thi . . text arnèndineiit mp1oys the..folloWirig formatting: • [$:Etiketliketiihi--:Text tolie:refilbVed [Bold italics] - Text to be added 18-.1.7561:0 Sensitive Land Perinits • A. Permits:required. An applicant, who v.4.§114 to develop.-within a sensitive.area .defined in Chapter 18775;must obtain a permit in-certain situations.Depending on the nature and intensity of the proposed activity within a sensitive:area,either a Type II or Type III permit is required, as delineated in Sections 18:775.020.Tand 18:775:0200 The approVal.triteria for various ltindS-•of.senSitiVe areas, e.g., floodplain, are presented in Sections 18.775.070.11. .18.775.070E below B. Within the 100 year floodplain The Hearings,Officer shall approve,.-approve With:dinditiOnS or deny an application request within the100,yeat,floodplain based.upon findings that all of the following-criteria .havebeensatified: • Land form alterations'shall prekrve;of.enhanc'e-the:floodplain storage function.and.maintenance of the • zero-foot rise •floodway shall not .result in, any encroachments, including fill, new construction, substantial improvements And btlier. development unless certified hya,-Tegistp4 professional engineer that the.encroachment will not testiltin any increase inflood levels during the,basellood discharge; 2.land form alterations or developments within the 100-.year floodplain shall be'allowed only in areas: designated is cP0.1111Prgial 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 defined in Chapter 18.120.of-the Community-Development Code shall be-allowed.in:areas designated. reSidennal subject.to applicable zbning•standaids; 3. Where a land form alteration,or development is perniitted•to: occur Within.the,floodplain it will not result in any increasein the water surface elevation of the 100,year-f1Ood; 4. The land form.alteratiOn..ordevelopment plan includes a pedestrian/bicycle pathway-in accordance with the adopted pedestriantbicycle pathway plan,unless the construction of said pathway is deemed by the Hearings,-(XfiCeras tintimely, • lans4er-thc.pcdcstritui/bi' eyele-paddieat&that-neTpathway-Will-be*elevievatiert of an _ oetioge-Oninini-fle-ock'Redestilaii/NcyclepathWajlprolectS within the floodplain.shall-include wildlife habitat assessment that shows the proposed.alignment mininliZes_impacts--to significant. wildlife habitat while 'balancing the community?s,recreation and-environmental:educational goals. 6.The-necessary.U.S.-ArroyCorps of Engineers and State of Oregon Land Board,Di‘risibh_b1State. 1-4.04,,aid CWS .4n4.4ppti?tiral.$-:shall be.obtained;'and. 7. Where land form alterations .and/or development are allowed within and Adjacent to the ilbo-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/bityclepathwayPlan. • • t Gary Pagenstecher From: Brian Harper [Brian.Harper @oregonmetro.gov] - 3-eJ 1da 1 e4-)-) g Sent: Tuesday, August 11, 2009 4:10 PM To: jfrewing 0,2(-01 1 Cc: Tim O'Brien; Gary Pagenstecher Subject: FW: Tigard Removal of Goal 5 Protection II.69 Counc�l mokion 'includ Ps Mr. Frewing, •11.i5 d00.4..4y-wAn4- QS C, -{'nnciirlgls. Orc!'m u'ida N./o. brt- My apologies for not responding sooner. I wanted to make sure that I assembled all the necessary information to answer your inquiry prior to contacting you. First,thank you for bringing this item to our attention here at Metro. It is sometimes difficult to track all of the changes that can and do occur at the local level on a day-to-day basis. Second, I was able to talk to Gary Pagenstecher with the City of Tigard this afternoon. He provided me with a copy of the information packet that will be in front of the Tigard Council tonight, as well as an explanation of the course of action that the City is taking in regards to trail construction. Based on this information, internal discussion here at Metro, and discussion with City staff, Metro has no clear objection to this change. There are several reasons why Metro has reached this determination: Exempted uses and development that are allowed under the Metro Title 13 Model Ordinance are allowed in local jurisdictions development standards. Currently,the Metro Title 13 Model Ordinance, Section 2.E allows limited types of development, redevelopment, operations, and improvements, including the following: 1. Low-impact outdoor recreation facilities for public use, outside of Water Quality Resource Areas, including, but not limited to, multi-use paths, access ways, trails,picnic areas, or interpretive and educational displays and overlooks that include benches and outdoor furniture,provided that the facility meets the following requirements: 'a. It contains less than 500 sq.ft. of new impervious surface; and, b. Its trails shall be constructed using non-hazardous,pervious materials, with a maximum width of four feet. • In terms of clear and objective standards related to Title 13,the issue is slightly more complicated. Tigard clearly exerted a clear and objective standard previously by forcing this type of pathway development out of designated sensitive lands. However,Title 13 also requires a discretionary standard in addition to a clear and objective one,for all types of potential development as it relates to protected Title 13 areas. In this respect, Tigard did not previously provide a discretionary process for trail development (that I am currently aware of). Under their new proposal, the submittal of a wildlife assessment clearly classifies as a Discretionary Process for construction of a trail. The clear and objective standard would be to not develop in the protected area, but if it was still deemed necessary to do so, an additional wildlife assessment would be required before construction could be approved. (I realize that there is still the question of what a "wildlife assessment" entails, but the • intent is above and beyond a clear and objective standard). • You state in your e-mail that the recreation and environmental education goals of Tigard's Comprehensive Plan will override any impact on Goal 5 resources. Metro would contend that is not the intent of Tigard's proposed changes, nor the outcome. In this instance,Tigard is requiring a Wildlife Assessment for the direct purpose of weighing the potential benefits of a proposed trail against the potential costs it might have towards a Goal 5 resource area. Realistically, State and Regional Planning goals are not mutually exclusive. There are many instances where local, regional or state planning goals are at direct odds with one another. It was the goal of Title 13 to encourage the protection of valuable natural resources,while also taking into consideration that there will be instances where local jurisdictions must make decisions about prioritization of planning goals. In some instances, it is reasonable to expect that the construction of a trail, which will help meet a recreation/education/activity goal will take precedent over a habitat protection goal, provided all steps possible 1 are taken to minimize impac.the resource. In this case, Metro is conent that the City of Tigard understands this concept and will be adopting regulations to this effect. Again, I wish to express our thanks for your effort to bring this matter to our attention. It is important that we work together with members of the public to scrutinize local land use decisions as they apply to our valuable natural resources. I do hope that the above explanation is clear and helps to clarify Metro's position on this matter. If you have any further questions of myself or questions in general regarding Title 13, please do not hesitate to contact me. Brian Harper Assistant Regional Planner Metro 503-797-1833 office 503-797-1930 fax brian.harper@oregonmetro.gov www.oregonmetro.gov Metro I People Places. Open Space From: jfrewing [mailto:jfrewing @teleport.com] Sent: Monday, August 10, 2009 3:11 PM To: Tim O'Brien; Brian Harper Subject: Tigard Removal of Goal 5 Protection Tim O'Brien Brian Harper Gentlemen, This memo reports what I believe is an action which takes City of Tigard out of compliance with its earlier commitment to Nature in the Neighborhoods provisions (Goal 5) of the METRO code. Tigard has been a member of the Tualatin Basin Natural Resources Coordinating Committee for some time, and a year or so ago reviewed its development code for adequacy with the recommendations of the TBNRCC and made several changes for compliance: METRO and DLCD then approved the code provisions of the member Washington County cities and county as compliant with the METRO Nature in the Neighborhoods regulations and Goal 5. Recently, Tigard has acted toward a change in its regulations which seriously impact (ie, detract from protection of) the fish and wildlife resources of the city. The city development code, upon enactment of the TBNRCC provisions, included (and had included for some time) a provision that for sensitive lands, plans for any pathway on sensitive lands would be required to show such pathways to be located above the elevation of the annual average flood. A recent proposal (a 'post acknowledgement plan amendment, PAPA), would have simply eliminated such requirement, allowing pathways even closer to streams and their important wildlife habitat, including Goal 5 resources. In the course of public review, the city proposal has been modified, still allowing pathways lower than the elevation of the annual average flood, but requiring "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and 2 environmental educational goals."'�is change allows a new conflicting u the areas below the level of'the annual average flood, which is the very area where many riparian plants an animals depend on close access to streams, lakes and wetlands. Goal 5 resources are in this area below the level of the annual average flood. Pathways in this area below the level of the annual average flood will conflict with Goal 5 resources; the findings by Tigard for their proposed change even state that the conflict will be that "necessary to achieve the City's recreation and environmental education goals." — indicating that there will be no balancing (no„. consideration), but that the recreation and environmental education goals override any impact on Goal 5 resources. The Goal 5 resources are thereby not protected as required by state law. Additionally, while this revised language widens the area of concern, from the elevation of the annual average flood to the floodplain (100-year flood level), it replaces a clear and objective criterion with one which is essentially a submittal requirement—submittal of a piece of paper (actually, it doesn't even require submittal of a study as part of an application!). The METRO code, at 3.07.1330 B.5 requires that even for TBNRCC cities, local codes must comply with "All other provisions of this Metro Code Section 3.07.1330 ....". The very next code section, METRO code 3.07.1330 C requires that implementing ordinances "shall contain clear and objective standards" and goes on to define 'clear and objective'. Tigard staff and legal counsel agree that their proposed code change is subject to state Goal 5 and METRO regulations as approval criteria. The proposed Tigard rule is not clear and objective. It does not contain a fixed numerical standard, it is not a nondiscretionary requirement (such as 'above the annual average flood elevation') and it is not a performance standard that 'describes the outcome to be achieved, specifies the objective criteria to be used in evaluating outcome or performance, and provides a process for application of the performance standard, such as a conditional use or design review process.' The Tigard City Council is scheduled to adopt its revised rule, described above, on August 11, 2009, to be effective 30 days later. Please review this matter and take action to enforce the protective measures for fish and wildlife in the Tigard code as of the date of its METRO approval in accordance with Title 13. Please let me know of your review and enforcement actions. Thanks, John Frewing 7110 SW Lola Lane, Tigard, OR 97223 ifrewingPteleport.com 503-245-5760 3 I . 410 •8 AGENDA ITEM No. 8 Date: August 11, 2009 TESTIMONY • SIGN-UP SHEETS Please sign on the following page(s) if you wish to testify before City Council on: LEGISLATIVE PUBLIC HEARING: CONTINUATION OF JULY 14, 2009 PUBLIC HEARING - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA 2008-00005) Testimony limited to only the,text changes • proposed by Council at the July 14, 2009 Public Hearing and the revised findings in support of those changes. This is a City of Tigard public meeting,subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly available to all members of the public. The names and addresses ofpersons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Due to Time Constraints City Council,May Impose a Time Limit on Testimony I/Adm/Cathy/CCSignup/Leg.PH Development Code Amendment DCA 2008.00005 • • - AGENDA ITEM No. 8 August 11, 2009 PLEASE PRINT This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly available to all members of the public. The names and addresses ofpersons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Proponent-(Speaking In Favor) Opponent-(Speaking Against) Neutral Name,Address&Phone No. Name, ess&Phone No. Name,Address&Phone No. --t-�6-1.4; :,, t�3 n 1223 Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. • Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. • • Name,Address&Phone No. Name,Address&Phone No. Name,Address&Phone No. S August 10, 2009 t 04 Mayor Dirksen and Council Members Tigard, Oregon RE: Development Code Amendment (DCA) 2008-00005/ Sensitive Lands Permit Requirements Dear Mayor Dirksen and Council Members: We are writing to comment on the City of Tigard's most recent proposal to remove and/or change the wording of Section 18.775.070.B.5 of the Sensitive Lands Code (SLC) Permit requirement which reads in part that"No pathway will be below the elevation of an average annual flood." Fans of Fanno Creek is a local advocacy group for Fanno Creek and its tributaries with many members who donate significant time and effort during the year to plant native vegetation and remove non-native species. While many of our members use trails for various reasons, we do not support any building of new trails that would in any way cause negative impacts to our natural resources. We believe that 18.775.070.B.5 is a necessary part of the code and should NOT be removed nor changed as is currently proposed. We submitted previous comments regarding this code change and thus have standing in this matter. Today, our additional comments concern the most recent proposed wording for the Code Amendment which is proposed as "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals." • Just stating that a wildlife assessment will be done does not mean or prove that impacts to significant wildlife habitat will be "minimized". This was clearly demonstrated when a wildlife assessment was conducted for the proposed Fanno Creek trail north of the library, and despite the fact that both a turtle specialist and ODFW opposed the trail alignment due to its negative impacts to turtles and turtle nesting habitat, the hearings officer still ruled in favor of putting the trail on that site. How were impacts "minimized" in this case? A great deal of disturbance to significant wildlife on that site will occur due to not only the trail and where it is going to be located, but the amount of use it will get, including dogs and "noise" due to trail users, and this in turn will preclude turtles or other sensitive species from using that significant habitat. Users will not stay on the trail, that is a given as they go off trail anywhere a trail goes in,that occurs everywhere in the city and the region and is a major problem as people and dogs disturb wildlife,trample vegetation and really cause significant damage to resources, including"significant habitat". 0' • The proposed removal of the original wording for this part of the SLC, and the new wording which would allow trails anywhere in the floodplain, actually will take the City of Tigard out of compliance with its earlier commitment to the Nature in Neighborhoods provisions of Goal 5 of the Metro code. The findings by Tigard for this proposed change states that the conflict between balancing the protection of significant wildlife habitat and meeting recreation and environmental education goals will be"necessary to achieve the City's recreation and environmental education goals". This clearly indicates the city of Tigard will not be able to "balance"those needs but rather intends to put more emphasis on the recreation end of it and little toward really protecting significant wildlife habitat and the species that reside in these habitats. In conclusion, we OPPOSE dropping the original wording of this part of the Sensitive Lands Code and we OPPOSE the new proposed wording as it would allow trails anywhere in the floodplain in the city of Tigard and would have disastrous affects on water quality, wildlife habitat and the many species that use these habitats. Tigard has failed to develop in this matter"clear and objective standards" as required by METRO code 3.07.1330 C as required by METRO when implementing ordinances. The current language change proposed is not a performance standard nor does it propose a numerical standard by which to judge what effects this proposed language change could have on our natural areas and significant habitats, and until this is all done in a satisfactory manner, this code must stay as it is. Thank you for your consideration in this matter. Sincerely, Susan Beilke, Board Member Fans of Fanno Creek I can - _`e Ski o fl TESTIMONY OF JOHN FREWING AUGUST 11, 2009 CAPA.).) • BEFORE THE TIGARD CITY COUNCIL � ,1q m • REGARDING PATHWAYS IN SENSITIVE LAND AREAS, DCA 2008-00005 .J �j, i 4 I am John Frewing, 7110 SW Lola Lane,Tigard, OR 97223. I would like to provide comment and suggested changes to what staff has called 'Option 3' in the matter of regulating pathways in sensitive land areas of Tigard, filed as DCA 2008-00005. Comment 1: Clear and Objective Standards. Option.3 requires that a wildlife assessment 'show'certain results. The use of the word 'show' is not a clear and objective standard;there are an infinite number of variations to the meaning of'show'. There are various degrees of 'show'as well as a variety of ways of'showing'. The same problem exists with the words 'minimize impacts to significant wildlife habitat while balancing(unspecific) recreation and environmental goals. I have attached to this testimony, as Attachment A,the METRO code, Sections 3.07.1330, Paragraphs BS and C, which point out how the proposed Tigard wording fails to comply with the METRO regulations in this regard, which in turn are required to meet state planning Goal S. Paragraph B5 notes that cities like Tigard,as members of the Tualatin Basin Natural Resources Coordinating Committee (TBNRCC), can;comply with the METRO's Nature in the Neighborhoods program by adopting certain comp plan and code provisions approved by METRO, but continues, saying, "All other provisions of this Metro Code Section 3.07.1360, shall still apply to each city and county that is a member of TBNRCC." The very next section, Paragraph SC, is clear in requiring that". . . implementing ordinances relied upon by a city or county to comply with this title shall contain clear and objective standards." This paragraph goes on to define clear and objective standards. It is my view that the proposed Tigard words are not clear and objective standards because they do not meet the METRO definitions,which include the following criteria: 1. It must contain a fixed numerical standard, such as a fixed distance. The Tigard words have no fixed standard for limiting the location of pathways on sensitive land areas,only the reference to 'balancing' certain interests. 2. Or it is a nondiscretionary requirement, such as prohibiting grading beneath the dripline of a protected area. The exiting Tigard regulation has such a requirement, le no pathway below the elevation of the average annual flood, but the proposed wording eliminates any such nondiscretionary requirement. 3. Or it is a performance standard that describes the outcome to be achieved, specifies the objective criteria to be used in evaluating outcome or performance, and provides a process for application of the performance standard. Under the proposed Tigard wording,the outcome can vary anywhere between habitat protection and recreational use (ie does not describe the outcome to be achieved)and has no objective criteria to 4- be used in evaluating the outcome of a particular pathway proposal,and there is no provision fora process for application of the (non-existing) performance standard. In preparation for this evening, I have written to the principal METRO planners responsible for enforcement of regulations regarding Nature in the Neighborhoods and Goal 5, pointing out this noncompliance and asking them to enforce their code provisions on Tigard in this matter. See Attachment B. Tigard code and staff and findings all acknowledge that the subject code words are subject to Goal 5 review, namely,that"DCA 2008-00005 'amends a ... portion of an acknowledged plan or land use regulation (that was) adopted in order to protect a significant Goal 5 resource", see the third paragraph of Supplemental Goal 5 Findings amended July 22, 2009. Comment 2: Sentence structure of the approval criterion. The proposed Tigard wording fits with TDC 18.775.070B as one of several approval criteria for a Sensitive Land Permit application request. However, the proposed wording does not refer to the content of an application, but refers to the pathway itself. As a result,the proposed criterion doesn't make sense, ie a pathway itself does not include a wildlife assessment. I believe the sentence structure should be changed to read: Submitted designs, plans and evaluations for pedestrian/bicycle pathways within the floodplain shall include a wildlife habitat assessment which shows that the proposed alignment . . . . Comment 3: Wildlife assessment versus wildlife habitat assessment. The proposed Tigard wording uses two different terms to describe the study required to be submitted. A wildlife assessment studies actual wildlife, while a wildlife habitat assessment studies the environment of interest(including observed wildlife)to determine what wildlife either does or can live at that location during some life stage. I urge you to consistently use the term 'wildlife habitat assessment'. To be effective,a 'wildlife assessment' must be done over at least several seasons and perhaps years to observe wildlife on the site, whereas a 'wildlife habitat assessment can be done in a shorter time; the latter looks at the resources on the site which different species of wildlife use during their different life stages,whether or not a particular individual of such species is actually seen onsite. In earlier comments regarding this code change, I have provided you with 'national'examples of wildlife habitat assessments, but there has been no staff or council response; I don't know if you have even looked them over. With this comment, I provide you with a 'local' outline for a wildlife habitat assessment—that which is used by METRO in their greenspace and natural area assessments. I urge you, in a spirit of compliance and cooperation,to adopt this METRO outline as a clear and objective standard for a wildlife habitat assessment. See Attachment C. :::Comment 4: Compliance with recommendations of wildlife habitat assessment. The present record includes conflicting statements regarding compliance with the recommendations of the wildlife habitat assessment. I will point these statements out to you: j 4- • In the 'Supplemental Goal 5 Findings for DCA 2008-00005'amended July 22 (Attachment 4 to this City Council Agenda Item), it is stated at the bottom of page 1: "Pathways established in the floodplain will accordingly conflict with the Goal 5 resources to the minimal extent necessary to achieve the City's recreation and environmental education goals." This wording clearly indicates that there will be NO, NONE, ZERO compromise of recreation/education goals for protection of wildlife habitat. It concerns me greatly. It says that the recreation/education goals will be achieved,at whatever impact to wildlife habitat is necessary. This seems to violate the discussion of City Council at its July 14 meeting, when 'balance'was introduced as a consideration in pathway location and design. Another conclusion is printed in the minutes of the July 14 City Council meeting(at 8:35:16): "Associate Planner Pagenstecher added that the wildlife assessment would result in a series of recommendations regarding how to preserve habitat and these would be then required of a design to satisfy the hearings officer that the proposal complied with that criteria." This wording clearly states that the recommendations of the wildlife habitat assessment are to be mandatory. The person/s performing the wildlife habitat assessment are presumably professionals in their field, but have no special knowledge or skills regarding achievement of the city recreation/education goals. Thus,there would be no compromise from the actions necessary to preserve habitat. I ask this evening that the City Council resolve these major differences in the record as to how the wildlife habitat assessment will be used in design and compliance with code requirements. As you might imagine, my opinion is that the Pagenstecher words are better than the (anonymous) supplemental findings of Attachment 4. Comment 5: Impact on Goal 5 resources. I believe that the proposed code changes impact Goal 5 resources which were not previously subject to the impact of pathways (see Tigard agreement in Supplemental Findings, paragraph 5). Such new impacted areas are 'significant Goal 5 resources' because they lie on the Tigard adopted map of Significant Fish and Wildlife Habitat Areas and the impact of pathways is 'adverse' as acknowledged by Tigard staff. I believe that the proposed code changes do not protect those resources as asserted in the Supplemental Findings because they allow 'conflicting uses' in areas previously protected and the simple requirement for some kind of assessment, coupled with compromise towards recreation/education goals,does not offer any specific protection of anything. The findings specify, but the record does not support City Council approval of even the evaluation outlined there, namely'an inventory of sensitive habitat and species on the project area, an analysis of the impacts of the proposed path, recommended mitigation measures to minimize impacts, ODFW review, and public -comment.' If these are necessary elements of the wildlife habitat assessment,they should be included in the regulation itself. Mitigation,though mentioned, is not protection of wildlife habitat resources; it might include restoration of some area miles away. While ODFW review is specified,there is no commitment to comply with their expertise and 4- recommendations. Because of these deficiencies in protection of Goal 5 resources, both this regulation change and specific project proposals should be made subject to the state "Environmental, Social, Economic and Energy Analysis" (ESEE) prepared in accordance with OAR 660-023-040. The findings err further in saying that the impacts resulting from adoption of DCA 2008- 00005 are not 'significantly different effects'than on any Goal 5 resource (including resource location). The current regulations permit conflicting uses in some areas of the floodplain, but not below the elevation of the annual average flood. The city has already considered and made key decisions on the importance of the area below the elevation of the annual average flood by prohibiting pathways there. The proposed code change does not propose any specific limits on the conflicting uses of pathways and does have significant adverse effects on the few remaining Goal 5 resources of Tigard. Furthermore, the riparian areas of interest under DCA 2008-00005, are protected ONLY by the existing code words of TDC 18.775.070B o the other alleged protections in the Supplemental Findings all have exemptions which would not protect these resources. Based on the above, I find that DCA 2008-00005 presents new conflicting uses on sensitive lands(Goal 5 resources) below the level of the annual average flood and that changing the Tigard code as proposed will not be sufficient to protect these resources and will leave these resources exposed to adverse;effects and loss. Attachment A METRO Code on 'clear and objective standards' Attachment B Email to METRO (Tim O'Brien, Brian Harper)asking for Goal 5 enforcement Attachment C METRO Wildlife Habitat Assessment Methodology(2001) Ilk 411VM (B) Ensuring that publicly-owned parks and open spaces that have been designated as natural areas and are not intended for future urban development are managed to maintain and enhance the quality of fish and wildlife habitat that they provide; and (C) Pursuing funding to support local park, open space, and habitat acquisition and restoration, such as with local bond measures, System Development Charge (SDC) programs, Federal Emergency Management Act (FEMA) grants, or other funding mechanisms; 4 . District Plans . a. Adopt one or more district plans that apply over portions of the city or county, and demonstrate that, for the remainder of its jurisdiction, the city or county has a program that complies with either Metro Code Section 3. 07 . 1330 (B) (1) or Metro ; Code Section 3.07. 1330 (B) (2) . If a city or county adopts one or more district plans pursuant to this paragraph, it shall demonstrate that, within each district plan area, the district plan complies with Metro Code Section 3.07. 1330 (B) (3) . District plans shall be permitted under this subsection only for areas within a common watershed, or which are within areas in adjoining watersheds that share an interrelated economic infrastructure and development pattern. Cities and counties that choose to develop district plans are encouraged to coordinate such district plans with other entities whose activities impact the same watershed to which the district plan applies, including other cities and counties, special districts, state and federal agencies, watershed councils, and other governmental and non-governmental agencies . b. The City of Portland shall develop a District Plan 01 that complies with Metro Code Section 3. 07 . 1330 (B) (4) (a) , in cooperation with the Port of Portland, that applies to West Hayden Island; or S. For a city or county that is a member of the Tualatin , Basin Natural Resources Coordinating Committee (the (Effective 4/25/07) 3.07 - 87 r 1 "TBNRCC, " which includes Washington County and the cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Sherwood, Tigard, and Tualatin) , amend its comprehensive plan and implementing ordinances to comply with the maps and provisions of the TBNRCC Goal 5 Program, attached hereto' and incorporated herein by reference, adopted by the TBNRCC on April 4, 2005 (the "Tualatin Basin Program") , subject to the intergovernmental agreement entered into between Metro and the TBNRCC. All other provisions of this Metro Code Section 3. 07. l3330, as well as Metro Code ection 3.07 .13601 shall stillly to each city and county that is a mentar of e t TR` A In . addition, in order for a city or county that is a member of the TBNRCC to be in compliance with this functional plan, the following conditions must be satisfied: a. Within the compliance timeline described in Paragraph 6 of the Intergovernmental Agreement entered into between Metro and the TBNRCC, the TBNRCC and its members comply with the six steps identified in section B of Chapter 7 of the Tualatin Basin Program; b. Clean:Water 'Services approves and begins implementing its Healthy Streams Plan; c. The TBNRCC members agree to renew and extend their partnership to implement the projects on the Healthy Streams Project List and target projects that protect and restore Class I and II Riparian Habitat, including habitat that extends beyond the Clean Water Services "vegetated corridors, " and the TBNRCC shall continue to coordinate its activities with Metro and cooperate with Metro on the development of regional public information about the Nature in Neighborhoods Initiative; d. The city or county has adopted provisions to facilitate and encourage the use of habitat- friendly development practices, where technically feasible and appropriate, in all areas identified as Class I and II riparian habitat areas on the Metro Regionally Significant Fish and Wildlife Habitat Inventory Map. Table 3.07-13c provides examples of the types of habitat-friendly 'n On file in the Metro Council office and copies available from the Metro Planning Department. (Effective 4/25/07) 3. 07 — 88 • development practices that shall be encouraged and considered; e. The city or county has adopted provisions to allow for the reduction of the density and capacity requirements of Title 1 of the Urban Growth Management Functional Plan, Metro Code Sections 3. 07. 110 to 170, consistent with Metro Code Section 3.07.1330 (H) . Particularly, the provisions shall (1) apply only to properties that were within the Metro urban growth boundary on January 1, 2002; (2) require the protection of regionally significant habitat on the property, such as via a public dedication or restrictive covenant; and (3) allow only for a reduction in the minimum number of units required to be built based on the amount of area protected as provided in part (2) of this paragraph. In addition, cities and counties will be required to report to Metro as provided in Metro Code Section 3. 07. 1330 (H) (3) ; f. The city or county complies with the provisions of Metro Code Section 3.07. 1330 (B) (1) to (B) (3) as those provisions apply to upland wildlife habitat in territory added to the Metro urban growth boundary after December 28, 2005. For example, (1) each city and county shall either adopt and apply Metro' s Title 13 Model Ordinance to upland wildlife habitat in new urban areas, (2) substantially comply with the requirements of Metro Code Section 3.07 . 1340 as it applies to upland wildlife habitat in new urban areas, or (3) demonstrate that it has implemented an alternative program that will achieve protection and enhancement of upland wildlife habitat in new urban areas comparable with the protection and restoration that would result from one of the two previous approaches described in this sentence; and • g. The TBNRCC and the city or county complies with the monitoring and reporting requirements of Metro Code Section 3.07.1360. C. The comprehensive plan and implementing ordina ®s relied upon by a city or county to comp y w th this title shall contain clear and obiective standards . A standard—Mail be considered clear and objective if it meets any one of the following criteria: (Effective 4/25/07) 3. 07 - 89 L • i 1. It is a fixed numerical standard, such as fixed distance (e.g. ee or land area (e.g. "1 acre") ; 2 . It is a nondiscretionar re uirement, such as a requirement tha grading not occur beneath the dripline of a protected tree; or 3. It is a performance standard that describes the outcome to be achieved, specifies the ob ec ive iteri to be used in evaluating outcome or re tormance, an provid a process for a•.lication n- the ,erf• man - s = dard suc as a c.nitional use or design review rocess. D. In addition to complying with subsection (C) of this section, the comprehensive plan and implementing ordinances that a city or county relies upon to satisfy the requirements of this title may include an alternative, discretionary approval process that is not clear and objective provided that the comprehensive plan and implementing ordinance provisions of such a process: 1. Specify that property owners have the choice of proceeding under either the clear and objective approval processewhich each city or county must have pursuant fo subsection (C) of this section, or under the alternative, discretionary approval process; and 2 Require a level of protection for, or enhancement of, the fish and wildlife habitat that meets or exceeds the level of protection or enhancement that would be achieved by following the clear and objective standards described in subsection (C) of this section. E. Use of Habitat-Friendly Development Practices In Regionally Significant Fish And Wildlife Habitat. 1. Each city and county in the region shall: a. Identify provisions in the city' s or county' s comprehensive plan and implementing ordinances that prohibit or limit the use of the habitat- friendly development practices such as those described in Table 3. 07-13c; and b. Adopt amendments to the city' s or county' s comprehensive plan and implementing ordinances to remove the barriers identified pursuant to subsection (E) (1) (a) of this section, and shall (Effective 4/25/07) 3.07 - 90 4 Page 1 of 2 • rewin• From: "jfrewing"<jfrewing@teleport.com> To: <Tim.o'brien@oregonmetro.gov>; <Brian.harper @oregonmetro.gov> Sent: Monday,August 10, 2009 3:11 PM Subject: Tigard Removal of Goal 5 Protection Tim O'Brien Brian Harper Gentlemen, This memo reports what I believe is an action which takes City of Tigard out of compliance with its earlier commitment to Nature in the Neighborhoods provisions(Goal 5) of the METRO code. Tigard has been a member of the Tualatin Basin Natural Resources Coordinating Committee for some time, and a year or so ago reviewed its development code for adequacy with the recommendations of the TBNRCC and made several changes for compliance. METRO and DLCD then approved the code provisions of the member Washington County cities and county as compliant with the METRO Nature in the Neighborhoods regulations and Goal 5. Recently,Tigard has acted toward a change in its regulations which seriously impact (ie, detract from protection of)the fish and wildlifexresources of the city. The city development code, upon enactment of the TBNRCC provisions, included (and had included for some time) a provision that for sensitive lands, plans for any pathway on sensitive lands would be required to show such pathways to be located above the elevation of the annual average flood. A recent proposal (a 'post acknowledgement plan amendment, PAPA), would have simply eliminated such requirement, allowing pathways even closer to streams and their important wildlife habitat, including Goal 5 resources. In the course of public review, the city proposal has been modified, still allowing pathways lower than the elevation of the annual average flood, but requiring "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals." This change allows a new conflicting use in the areas below the level of the annual average flood, which is the very area where many riparian plants and animals depend on close access to streams, lakes and wetlands. Goal 5 resources are in this area below the level of the annual average flood. Pathways in this area below the level of the annual average flood will conflict with Goal 5 resources; the findings by Tigard for their proposed change even state that the conflict will be that "necessary to achieve the City's recreation and environmental education goals."—indicating that there will be no balancing (no consideration), but that the recreation and environmental education goals override any impact on Goal 5 resources. The Goal 5 resources are thereby not protected as required by state law. Additionally, while this revised language widens the area of concern, from the elevation of the annual average flood to the floodplain (100-year flood level), it replaces a clear and objective criterion with one which is essentially a submittal requirement—submittal of a piece of paper(actually, it doesn't even require submittal of a study as part of an application!). The METRO code, at 3.07.1330 B.5 requires that even for TBNRCC cities, local codes must comply with "All other provisions of this Metro 8/10/2009 Page zof2 Code Section 3.07.1330 ....". The very next code section, METRO code 3.07.1330 C requires that implementing ordinances "shall contain clear and objective standards" and goes on to define 'clear and objective'. Tigard staff and legal counsel agree that their proposed code change is subject to state Goal S and METRO regulations as approval criteria. The proposed Tigard rule is not clear and objective. It does not contain a fixed numerical standard, it is not a nondiscretionary requirement (such as 'above the annual average flood elevation') and it is not a performance standard that 'describes the outcome to be achieved, specifies the objective criteria to be used in evaluating outcome or performance, and provides a process for application of the performance standard, such as a conditional use or design review process.' The Tigard City Council is scheduled to adopt its revised rule, described above, on August 11, 2009, to be effective 30 days later. Please review this matter and take action to enforce the protective measures for fish and wildlife in the Tigard code as of the date of its METRO approval in accordance with Title 13. Please let me know of your review and enforcement actions. Thanks, John Frewing 7110 SW Lola Lane,Tigard, OR 97223 ifrewing @teleport.com 503-24S-5760 8/10/2009 r 4fral rh METRO 2001 WILDLIFE HABITAT ASSESSMENT METHODOLOGY The following Wildlife Habitat Assessment (WHA) data collection and numerical rating system is a modification of one that was originally developed for site-specific use in the City of Beaverton in 1983 as part of their statewide planning Goal 5 update (we define a"site" as a contiguous habitat patch surrounded by other land use types). The original methodology was designed by a technical advisory team consisting of staff from the City of Beaverton, Portland Audubon Society, U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, Oregon Department of Fish and Wildlife, and the Wetlands Conservancy. Since that time, it has been used in Washington County, Gresham and in the entire Portland metropolitan region, including the Willamette Greenway, as well as Eugene and other areas statewide. Selecting a widely used protocol is advantageous because it potentially allows for comparison and repeatability of data over space and time. The methodology in its current form was modified based on input from Jennifer Thompson(U.S. Fish and Wildlife Service), Holly Michael (Oregon • Department of Fish and Wildlife), and Tom McGuire (formerly City of Portland, currently with Adolfson and Associates) and Barb Grover(City of Portland). We thank them for their technical assistance. Each time this methodology has been used, it has been slightly modified and refined to address the specific needs of local jurisdictions and the Oregon Department of Land, Conservation, and Development (DLCD). For example, Metro has added data columns for the presence of downed wood and nonnative plants, two major urban habitat issues; in addition, we have altered the Water Quality category to reflect channel and bank morphology and stability rather than basing it on water quality, which we are currently not equipped to measure in the field. In addition, Metro did not use three categories from the score sheet: flora, uniqueness of habitat type, and interspersion. We recorded relevant information but omitted scores from the first two categories because we were using the inventory to test our GIS model, which did not consider specific habitat types. We did not score or use interspersion because small-scale habitat juxtapositions are not always advantageous for urban wildlife, as such interspersion often points to habitat fragmentation and deleterious edge effects. The WHA is inherently biased towards vegetative types with woody structure. This is one of the drawbacks of using a generalized methodology for assessing multiple habitat types—habitats that are potentially of great importance, such as native grasslands and oak savannas, may receive low ratings due to natural lack of structural diversity. Yet many habitat specialists rely on these habitats. For this reason, Metro emphasizes the importance of delineating such rare, important habitats in a separate step during the planning process, rather than relying solely on a generalized methodology such as the WHA(unless all potential habitat patches are equally assessed). The WHA is one tool among many that should be utilized in thoughtful wildlife habitat planning. The following is a discussion of that methodology as it was applied by Metro in the Portland metropolitan region. The methodology involves identifying and evaluating parameters that make sites good or potentially good wildlife habitat areas. There are two parts to the methodology: 1. A narrative description of the site. 2. A numerical rating of various wildlife habitat parameters. NARRATIVE DESCRIPTION A narrative description of the site and survey conditions, including weather, topography, vegetation, wildlife habitat features, human use and habitat enhancement potential, are completed at each site using a standard inventory form(see attached form called Wildlife Habitat Assessment Narrative Sheet). 1 NUMERICAL RATING The numerical rating system(see attached forth called Wildlife Habitat Assessment Scoring Sheet) reviews each site in terms of its potential for wildlife. The system is based on the fact that all wildlife has three basic requirements for survival: food, water and cover. Each site is to be evaluated in terms of relative quantity, quality, diversity and seasonality of the components that appear at the site. Also considered are human disturbance, the proximity to other aquatic and upland areas, unique or rare features, and wildlife, flora and habitat types. Note that the"Score Existing" and"Score Enhanced" refer to existing conditions versus the site's potential if successful restoration efforts were implemented; these potential restoration activities should be documented in the narrative description under"Restoration Potential." This rating system was meant to assess the relative values of aquatic and upland habitats. It was not intended to provide a comprehensive analysis of each site. Information derived from the rating sheets should be used in tandem with the narrative descriptions. However, if performed during the same year by the same well-trained field crew, the WHA scoring methodology allows for general comparisons of wildlife habitat quality between a wide variety of habitat types. This consideration and time required in the field are the primary advantages of using a qualitative methodology such as the WHA.over a quantitative one. DESCRIPTION OF VARIABLES Photos List photo roll and exposure numbers, or whether digital camera was used (if digital camera used, first photo should identify site so as not to confuse exposures). If no photos are taken, state so. Site ID A space is provided for the observer to label each site with an individual identification number or code. These codes will be predetermined. Site Name Name of park(s), property owner, or address of site. Thomas Guide Map page and grid number so anyone can find their way to the site. Directions Directions to the site and entry point. Give directions from nearest major road. Indicate the boundaries of the extent of the site surveyed (you may mark this on the map if preferred). The table on the Scoring Sheet consists of 20 components that are evaluated for each site. The 20 components are divided into six general categories: 1. Water 2. Food 3. Cover 4. Human disturbance • 5. Unique features 6. Important habitat features Consistency of scoring can only be accomplished through extensive group training at the same sites, in combination with periodic"calibration" sessions in which the group reassembles and ensures that scoring is consistent among individuals. In most cases, scoring should be based on the degree to which the site is in a natural vs. unnatural/disturbed condition and to account for variety of native habitat types and natural conditions. 2 • Note that any whole number within the point range for each category may be used; for example, if the range of choices is 0, 4 or 8, an observer could assign any whole number between 0 and 8. This will help prevent the observer from having to make arbitrary judgment calls if a criterion appears to fall between categories. WATER Four aspects of water characteristics on a site are included on the rating form: seasonality and quantity; channel morphology, complexity and alteration; proximity to cover; and diversity(e.g. ephemeral and perennial streams, ponds and wetlands). All of these factors play an important role in the site's significance to wildlife. It is important to note that the relative value of these aspects compared to most other components (food, cover, human disturbance and unique features)was higher. The reason for this weighting of the relative value of the water component was that wetlands and riparian habitats are disproportionately important to wildlife. Therefore, it is possible that a site with good water resources but lesser values under other categories would rank higher than an upland site with better food and cover values. Seasonality and quantity:This aspect refers to the amount of water available on site and its seasonality. Year-round water is extremely important to most wildlife species, particularly in an urban setting where habitat fragmentation may isolate habitat patches from other water sources. For example, this could include a perennial stream where there is evidence of associated ephemeral(seasonal)wetlands (indicated by vegetation) and/or dry side channels (indicating presence of ephemeral streams). Ephemeral streams and wetlands provide important habitat to fish and amphibians that is different from perennial sources. A site with a perennial stream but no evidence of other water sources such as those described above should receive a score of 6 or 7, weighted by the size of the stream and its relative importance to the patch. For example, if the habitat patch is very large but only has one small stream present, certain non- mobile groups such as amphibians would have a hard time getting to the stream from the outer edges of the patch, thus this site would receive a 6 instead of 7. A site with only seasonal or ephemeral sources would receive a 4. A site without any apparent water resources should receive a zero in this category. Channel morpholoay,.complexitv,and alteration;Metro changed this criterion (formerly "quality")because we did not feel that stagnant or seasonally flushed water could accurately reflect water quality without more technical measurements. Furthermore, we were unlikely to be able to ascertain the flushing frequency of such water sources. Thus we selected a criterion that is particularly important to instream and other aquatic habitat because it reflects alterations in the hydrologic regime. However, we have weighted this criterion somewhat lower than the other three aquatic criteria because the simple presence of water is critically important to so many terrestrial species, and the WHA is generally geared towards terrestrial wildlife habitat. Streams with altered hydrologic regimes are unable to support the same quantity and quality of instream wildlife. For example, urban streams often become "flashy" —that is, during a storm event water levels both rise and drop more quickly than in undisturbed conditions. This causes bank erosion and other effects, changing the channel form and composition of the substrate. One result is that aquatic invertebrate communities are typically simplified, presumably resulting in reduced food resources for both instream (fish and aquatic amphibians) and terrestrial vertebrates (birds, some small mammals, and terrestrial amphibians). Water quality is also typically lower in these sites due to sedimentation and toxins that enter the stream from impervious surfaces and storm drains. High-scoring sites should show little evidence of degradation; signs of stream degradation include channel incision and containment (i.e.,'not allowed to meander), evidence of erosion(rootlets, undercutting, toppling woody vegetation, bare soil) along the banks, and heavy sedimentation within the streambed. .Other factors, such as oil sheen, sewerage smell, pipes and culverts, or excessive trash in and near the stream, may also downgrade this criterion. Healthy streams should contain a good supply of large wood. 4- 3 • Ponds and wetlands may also show evidence of human-induced alterations. For example, some constructed wetlands may not perform functions adequately imitating those found in natural wetlands, and some human-made ponds may be armored, dammed or otherwise altered. Levees and dikes are another form of modification. Some wetlands may appear to have been drained and/or filled. Such water resources are probably not as valuable to wildlife as "natural" ponds and wetlands, and should receive a somewhat lower score under this criterion. Other factors similar to those mentioned above (e.g., unstable banks, oil sheen, etc.) also generally apply to these water sources. Proximity to cover:,Wildlife will use water more if it is close to vegetative cover. This allows escape from predators and protection from weather extremes. The closer and more dense the cover, the more important the water source to many species. Dense cover immediately adjacent to a water source gave the site a value of 8, nearby cover a value of 4, and no cover a value of 0. Diver i : A site with a mixture of wetland, stream and open pond or lake has higher wildlife value than a site with only one of these features. Lowest scores have no water present at the site(score= 0); sites with only one water source receive 4 points; sites with> 1 water source (two different types of streams [ephemeral and perennial], a stream and a pond, pond and wetland, etc.)receive a score of 8. Sites receiving the highest scores should have more than one type of water available, with at least one perennial (available year-round) source. FOOD Food is a basic requirement for any organism. Wildlife species cannot survive in one area for any appreciable period of time without food. The greater the variety and quantity of food, the greater the potential for serving the needs of more wildlife species. The three aspects included under food are variety, quantity, and seasonality. Metro altered these criteria slightly (formerly variety, quantity and seasonality, and proximity to cover)because most food resources are cover. Variety: The variety of f6od on a site was rated from 8 (high) to 0 (low). We recognize that any intact food web includes plant matter, insects, and other animals; however, we focus here on plants because that is what can be readily assessed using this methodology. The presence of insects and other wildlife depends largely on water and plant resources, thus non-plant food resources are covered to some degree under other categories. A site with little or no"food plant" species—for example, a site dominated by reed canarygrass or Scot's broom- receives a score of zero, whereas a site with limited food such as one dominated by Himalayan blackberry receives a score of 2-4 (depending on whether it is a native species, which would score higher), and a site with several food species may receive a score of 4-8. Native flowering plants are also a food source, but should not count into the scoring as much as fruits, nuts and berries. uanti : This aspect measures the amount of food and its availability. Sites having large quantities of food available received a value of 8, and sites with little or no food available received a value of 0. To receive the maximum score, food plants should be primarily native. For example, sites limited primarily to blackberry patches could receive a score of 2, whereas similar quantities of a native source would receive a 3. Keep in mind the 3-dimensional nature of food availability. Seasonality:This aspect measures the year-round availability of food. Sites which provide food year-round received a value of 8, and those sites providing limited food seasonally received a value of 4. Sites with food available in only one season received a score of 2. This has to do with the timing of fruiting or seed setting. For example, spring plants include Indian plum, salmonberry, ferns, fungi, and flowering plants (including maples). Summer plants include red-osier dogwood, salmonberry, thimbleberry; strawberry, Oregon ash, red alder, blackberries and cherries. Fall plants include salal, Oregon grape, hawthorn, rose hips, ocean spray, Douglas' spirea, blackberries, Oregon ash, red alder and oaks. Wintertime food sources might include hazelnut and other nuts, oak, snowberry, and conifers; highest scoring sites should include such food resources. 4 - • COVER The aspects of cover included here (structural diversity, variety and seasonality, and nesting and denning sites) attempt to describe the physical environment of the site from a number of perspectives that are important to wildlife. Structural Diversity: What is looked for in this category is the vertical stratification of the vegetation on a site. That is, is there only one layer of vegetative cover(e.g., lawn or one layer of shrub, such as Himalayan blackberry) or are there two,three or more layers. The most diverse structural system in our area would be multi-layered, with a ground layer of herbaceous vegetation(sedges, grasses, ferns, herbaceous plants, etc.), a second layer consisting of shrubs(Himalayan blackberry, snowberry, Oregon grape, etc.), perhaps another layer of taller shrubs(red or blue elderberry, Indian plum, red osier dogwood, vine-maple, ninebark), a short tree layer(Pacific or red-osier dogwood, hazelnut, saplings of taller species), and finally the tall canopy layer(Douglas-fir, Western hemlock, big-leaf maple, black cottonwood, Oregon ash, Oregon white oak, etc.). The highest scoring sites should have a range of age and size classes. The more layers present,the greater the surface area for feeding, traveling and breeding available to a wider diversity of wildlife species. In general, woody vegetation(tree and shrub cover) are more important than herbaceous cover in the types of habitat we are surveying. However, certain plants such as sword fern also provide invaluable cover to low-dwelling creatures. Values range from 8 for high structural diversity to 0 for low or no structural diversity. Variety and seasonality: This reflects the variety and year-round availability of plants within each vegetative layer. Variety of cover is important from cover, feeding and reproductive standpoints. The greater the variety of cover, and the longer it is available to wildlife through the year(e.g., conifers and sword ferns provide better winter cover), the more important the habitat. For example, a forested wetland with a mixture of rushes, sedges, spirea and willows will be a much more important wildlife habitat area than a wetland with a monoculture of reed canary-grass. Variety values range from 8 for high variety to 0 for no or low variety. Reed canarggrass monocultures should receive a 1, mowed lawns a 0. tin _and denning sites: This criterion refers to structures such as snags, cavities, stumps, large downed wood, vegetative cover, clumps of mistletoe, large trees, logs, undercut banks, brush piles, root wads, bird and bat boxes, old unused buildings, and reptile/amphibian hybernacula such as rocky outcrops and rock piles. Sites with a variety of nesting and denning sites may receive up to four points. The third part of the form includes values in addition to food, water and cover. The components examined include human disturbance, unique features and important habitat features. HUMAN DISTURBANCE Disturbance is examined from two perspectives--modifications to the physical habitat and actual on- or near-site audible or visible disturbances. The previous (non-Metro)version dealt more with natural disturbances; while we recognize that natural disturbances are very important agents of influence on wildlife communities, the natural disturbance regime in urban areas(e.g. fire, landslides, flooding) is often suppressed or highly modified by human activities. In addition, it is a judgment call as to whether such natural disturbances are beneficial or detrimental to wildlife. Thus Metro altered these criteria to clarify their meaning and reflect more human-related disturbances, and also increased their range of values to reflect the importance of human disturbance to wildlife and habitat in the urban setting. When scoring these and other criteria, keep in mind the extent of disturbance relative to habitat patch size. Habitat modification. structures, etc;This category was used to assign a higher value to those sites with little physical modification and to reflect the fact that the removal or disturbance of physical components (food,water, cover) is detrimental to wildlife. The presence of structures, human trails, roads and paved areas, houses, playgrounds, sewer and stormwater manholes, outfalls or pipes, homeless camps, trash piles, etc. alter natural habitat. Significantly modified habitats such as lawns also fall within this category. Houses and buildings intrude light into habitats at night and are also usually sources of further disturbances. Some species seem to be human-avoiders; for example, larger habitat patches with no roads, 4- 5 • . • trails, etc. in the patch's interior may provide very important"interior habitat" for some disturbance- sensitive=species such as Neotropical migratory songbirds. In general, the more physical alterations to a habitat patch, the more altered the wildlife community is likely to become. For example, a moderately wide habitat patch(75-100 m)with some lawn and houses adjacent to the patch but some (>25%)intact natural forest and/or other natural habitats, might receive a 4. A large patch with a major trail or several minor trails, but little other disturbance, would receive a 5 or 6, whereas a smaller patch with the same amount of trails and disturbance might receive from 2-4, depending on the amount of disturbance relative to the habitat patch size. Direct human disturbance eo Ile on_trails and elsewhere oices road,not'e sets_etc : Even if an area is highly disturbed from a physical perspective, it may receive little human use. Human and human-related(domestic animal) disturbances can be very detrimental to wildlife. This criterion deals specifically with humans(on foot or in vehicles) and their pets, and refers to human-associated disturbances that can be directly seen, heard, or otherwise detected. Examples include road noise, voices, music, construction and industrial noise, lawnmowers, dogs barking, or humans, dogs or cats seen. It is recognized that time and date will influence this criterion; for example, a park visited on the weekend or after school hours may have more humans and pets around. However, that is something we cannot address here without more time and money, thus.we can only estimate these influences based on what we see and hear. To compensate for this flaw we assigned a somewhat lower range of scores for this criterion (0-6 rather than 0-8 for the Physical Disturbance category). A site with multiple human (or pet)related disturbances such as road noise, barking, presence of or sounds from humans(voices, chainsaws,,music, etc.)receives a low score, whereas a site where none of these influences are heard or seen receives a 6. WILDLIFE Because this is a qualitative rather than quantitative survey method, there are some problems with this criterion, such as: differences in observer expertise, differences in wildlife detectability due to weather, changes in wildlife communities over seasons, and non-standardized amounts of time spent at various sites. As a result, Metro does not at this time intend to use the resulting criterion score in the final analysis phase. However, we would still like your professional opinion of each site's score. Note that Metro has altered this component, which previously relied specifically on the presence of so-called "sensitive species" (those that are identified through an at-risk categorization in state or federal lists). If sensitive species were used, then sites with none detected but with very good habitat would be effectively downgraded, and that is not our intent here. In addition, in-depth searches would need to be conducted in order to locate and identify any of the large number of sensitive species that could be found in the urban region, and that is beyond the scope of this project. Another means of estimating sensitive species presence is to use the Oregon Natural Heritage Program(ONHP) data, but that is too coarse-grained for our use at this time. However, scores based on ONHP data(as well as any sensitive species actually detected onsite) could be added in the office at a later date as the data improves. Thus Metro has altered this score to more reflect wildlife diversity, and relative rarity in the urban region. Metro also moved two subcategories, flora and unique habitat types, to the narrative description, because(1) we are not scoring these subcategories and (2) a better written description of unique and valuable features can be made. Wildlife: Many sites in the urban region will not receive the highest possible score in this category, reflecting the general depletion of certain large mammals and loss of habitat specialists, as well as habitat loss and alteration. For wildlife, the highest-scoring sites might have large mammals such as elk, bear, cougar, bobcat, etc. present, and this is likely only in sites such as Forest Park or perhaps Oxbow(and would''be hard to document with our level of effort). Alternatively, a site with a diverse array of native wildlife species such as beaver, muskrat, otter, Neotropical migratory songbirds, and other species may receive the highest score. The presence or signs of presence of any "Sensitive Species" (see Metro's species list)would automatically bump a site up to the highest score in this category. Bald Eagles provide one example. 6 • Known habitat specialists or animals that are relatively rare in the urban region, such as presence or sign of Pileated or Hairy Woodpeckers, oak specialists such as White-breasted Nuthatch, Acorn Woodpeckers, Western gray squirrel(also a sensitive species), unusual reptiles, mammals or amphibians, or what appears to be a very good mix of native wildlife species could increase the score in this category up to the maximum even if no sensitive species were found to be present. If only common wildlife were apparent except for Pileated Woodpecker sign, the site should receive a 1 or 2. A site with high abundance of nonnative species such as European Starlings but few other species beyond the commonplace should receive a 0. Presence of a heron rookery would increase a site's score to 4 because of its importance to a large number of water-dependent birds. Bats are of particular interest in the urban setting, thus bridges and structures should be quickly checked for crevices>_ 1/2". IMPORTANT HABITAT FEATURES Interspersion with other habitats: Habitats are important to one another in the sense that a number of different habitat types and habitat patches adjacent to one another can provide an overall diversity of vegetative cover, food, and often water, as well as the potential for wildlife to move between patches. Therefore, an isolated site surrounded by pavement, buildings, bare ground, etc. would receive a lower interspersion value than if the site were surrounded by other habitat types, such as wetlands (emergent, forested, shrub), upland forests, shrubby areas or meadows. Sites receiving the highest scores would have other habitat patches nearby, and some of those habitat patches would be different habitat types than the site. The interspersion ranges from 6 for high interspersion to 0 for low interspersion. Downed wood,old stumps and snags. The scientific literature indicates that downed wood is a ._ fundamentally important habitat element for terrestrial insects, amphibians and small mammals. Downed wood also provides critical refugia for instream wildlife (addressed in"Channel morphology"), and ultimately derives from terrestrial`sources. Snags are included here because they are future sources of downed wood, therefore indicate the continued presence of downed wood over time. Although there is some overlap with the "Nesting and denning sites" category within Cover, the importance of large downed wood justifies snag inclusion here. Sites with little or no downed wood, old stumps or snags receive a score of 0, sites with a moderate amount of such features receive a 4, and sites with relatively high amounts of woody sources receive an 8. Percent nonnative nlantst Nonnative insects, birds and other animals are generally associated with nonnative plants, whereas native animals generally prefer native plants. Nonnative organisms are a major threat to biological diversity, particularly in urban ecosystems. Edge habitats tend to contain more nonnative plants than interior habitats, thus it is important to mentally average the overall percent nonnative cover across edge and interior habitats. Nonnative plants could also have been included in the Habitat Modification criterion under Human Disturbance;we chose to place nonnatives under Important Habitat Features because they have the potential to influence several other categories(e.g., food, cover, unique features). We have assigned different scores to each vegetation layer, recognizing that all layers are important, but some more so than others. The herb layer, with short generation times, is usually the first to"go nonnative," and is not as important to wildlife in general as the shrub layer. The shrub and canopy layers provide critical nesting habitat, cover, and food to native insects, birds and other wildlife in our region, thus these two layers are assigned greater potential point values than the herb layer. For each layer, the lowest score reflects a strong nonnative component (e.g., > 25% overall nonnative),whereas the highest score reflects primarily native plant cover(e.g., >95% natives). TOTAL SCORE This can be done in the office. Each site received a total score by adding up the points on the WHA Scoring Sheet. 7 4- • WILDLIFE HABITAT ASSESSMENT NARRATIVE SKEET Portland Metro Region Observer Name(s): Date and time: Site ID: Site Name: 1. Weather Wind: - Precipitation: ❑None ❑Mist ❑Lt rain ❑Med rain ❑Hard rain ❑Other ❑ Snow Percent cloud cover: 0 0% ❑ 33% ❑ 66% ❑ 100% Temperature: 2. Physical parameters Site dimensions and acreage (calculate using GIS; attach map for each site): General topography(flat, rolling, ravine, bluff, etc.): Table 1: Water features within the surveyed area(ponds, lakes, streams, wetlands, etc.; fill in table): Number,size Isolated or connected to T e or extent Condition describe stream? wetlands Ve etatlon? st Major structures, roads, playgrounds, parking lots, etc.: 3. Vegetation Table 2: Vegetation type(s), dominant species in each vegetation layer(herbaceous, shrub, tree canopy), and approximate percentages of each habitat type (use Johnson and O'Neil's 2001 scheme): Habitat Type WATR RWET RWET WLCH WODF WECR FIELD AGPA URBN Approx.% cover Dominant herb species Dominant shrub species e 5 m Dominant canopy spp >5m • • Table 3: General estimate of percent tree and shrub cover: %Cover.. <5% 5-25% 26-50% 51-75% 76-100% Herb Shrub Cano, Table 4: Snag abundance and size relative to size of habitat .atch General abundance Absent Low Medium High Small dbh <10 Medium dbh 10-24" Lame dbh >24" Comment on general health and vitality of habitat. Is there new vegetative recruitment? Different aged trees? Flora: If there is a particular species of plant present that is sensitive or unique in some way, list it here. Include unusually significant findings such as large clumps of ninebark, red-osier dogwood, very large trees, etc. If Oregon White Oak or other species of interest is present but not dominant its presence and relative abundance should be documented. rite of habitat tune: List the presence and extent of rare habitats such as oak/madrone, native grasslands (basically absent, but include non-reed canarygrass grasslands that look good), and bottomland hardwood forest(should be cottonwoods present). 4. Wildlife Species observed (herps, fish, birds, mammals) or known to be present (include wildlife sign, such as rubs, scrapes, tracks and droppings, woodpecker sign, etc.): 5. Human disturbance List human uses and use by domestic animals: List proximity to residential/developed areas, and type of nearby developments/land use (may be done from aerial photos in office if not visible in the field): Use aerial photos to assess interspersion with other natural areas (done in the office, not in the field). 4 9 • • 6. Current restoration efforts and restoration potential: Comment on evidence of restoration and enhancement efforts currently on the site (include notes on apparent success or failure): Comment on enhancement and/or maintenance that would improve habitat. Be sure to link this information closely to the"Enhanced Score" category on the scoring sheet. ❑ Remove non-native plants: type prevalence ❑ Upland (non-streambank) plantings are needed(describe): ❑ Streambank plantings are needed (describe): O Slope stabilization: ❑ Trash or other cleanup (describe): ❑ Other(describe): O Other(describe): 7. Additional comments: General description of other habitat features (food sources, bird feeders, roosting, perching, nesting, etc.): Other unique or outstanding features: Other notes and comments: 8. Aerial photograph "to do's:" ❑ Delineate the habitat surveyed (all sites) ❑ Confirm or correct wetlands, if possible (use an encircled check- /; add new ones not on map) ❑ Correct stream lines when possible ❑ Mark significant patches of reed canarygrass, Himalayan blackberry, other invasives ❑ Mark important rare habitat patches ❑ Mark important single features(very large trees, etc.) ❑ Label habitat types (Johnson and O'Neil scheme) ❑ Label possible restoration sites(when not apparent from invasive delineations) 10 • GI WILDLIFE HABITAT ASSESSMENT SCORING SHEET Portland Metro Region Observer(s): Date: Photos?No Yes Roll &Exp# Site ID: Site name Thomas Guide# Directions to site entry and extent of area surveyed: Score Score Component Range of Values Existing Enhanced Comments Seasonality and None Moderate Good uanti 0 4 8 g Channel morphology, Poor Moderate Good com+1exi alteration 0 3 6 Proximity to cover None Near Adjacent IS 0 4 8 Diversity(streams, Zero One Two Three+ scuds wetlands 0 4 6 8 Variety Low Medium High 0 4 8 A Quantity Low Medium High O 0 4 8 Seasonality Low Limited Yr-round 0 4 8 Structural diversity Low " Medium ' High 5 0 4 8 Variety and seasonality Low Medium High 0 0 . 4 8 L) Nesting and dewing Low Medium High sites 0 2 4 . Habitat modification, High Medium Low i 1 structures etc. 0 4 8 Direct human disturb. High Medium Low (trails,road noise,pets) 0 3 6 Wildlife Not diverse Somewhat Very Very�, Flora Not 0 2 unique Somewhat D+ not field. 1 i 0 2 4 Rarity of habitat type Not rare Somewhat Very Do not field. 0 3 4 Interspersion with other Low Medium High Done in office using aerial photos. habitats 0 3 6 Do not score in field. E-1 Downed wood,old Low Medium High 1 stum+s snaL 0 4 8 r' t %nonnative herbs 100% 80% 50% 10% 0% 0 1 2 3 4 ,.0 — - - 100/x75% 50% 25/010% 5/0 0 �o nonnative shrubs o 0 5 o e o 0 1 2 3 4 5 6 i %nonnative canopy >10%e 5% 3% 0 0 2 3 6 Existing Enhanced TOTAL SCORE: 11 t.. • :.,f'�. City of Tigard v Tigard Business Meeting — Agenda �a:...:::a::..�..aie..,:...:�"pia -......;..c.t•:ns�a?v�;�a�tisv'.ter.° x°V .'�.auv.�a_::av±-r,ra ea�,nvn:r:vre •:..;�.,'rS:G�m"=::�s "' e, ��...3P-'.� TIGARD CITY COUNCIL &LOCAL CONTRACT REVIEW BOARD(LCRB) MEETING DATE: August 11, 2009 MEETING LOCATION: City of Tigard— Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an.agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the CityManager. 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 7:30 p.m. Assistive Listening Devices are available.for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, ext. 2410 (voice) or 503-684-2772 (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 503-6842772 (11)D - Telecommunications Devices for the Deaf). CABLE VIEWERS: The regular City Council meeting is shown live on Channel 28 at 7:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m. Sunday 11:00 a.m. Friday 10:00 p.m. Monday 6:00 a.m. SEE ATTACHED AGENDA TIGARD C ITY COUNCIL/LCRB AGENDA— Au:ust 11, 2009 City of Tigard 13125SW Hall Blvd.,Tigard,OR 9 7223 I 503-639-4171 I www.tigard-or.gov I Page 1 of 4 1.1111 411 City of Ti a, g Tigard Business Meeting — Agenda iF J G°AIU) 'u�,,... ..i . •v. .aw -...xrYn.,aos.'. '.pt.p '�:.ur eantvMm+w..xaavtip w O rd,.- `-.rx :-.,p zns*s p.s,z.;,vama tp.-se..pw .,pa.p.:a:.-; „-:,a .,.t.p uw.;u TIGARD CITY COUNCIL &LOCAL CONTRACT REVIEW BOARD(LCRB) MEETING DATE/TIME: August 11, 2009/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard - Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 6:30 PM STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) and (i) to discus real property transaction negotiations and the performance evaluation of the chief executive officer pursuant to standards, criteria, and policy directives adopted by the governing body. 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 maybe held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. 7:30 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 &J.iaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 PM 2. CITIZEN COMMUNICATION(Two Minutes or Less,Please) • Citi7Pn Communication- Sign Up Sheet • Follow-up to Previous Citi7Pn Communication 7:45 PM 3. CONSENT AGENDA: (Tigard City Council and Local Contract Review Board) These items are considered 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 City Council Minutes for June 9, 16,and 23,2009 • 3.2 Receive and File: a. Council Calendar b. Tentative Agenda TIGARD CITY COUNCIL/LCRB AGENDA— Au• ust 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard, OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of 4 3.3 ,. Approve a Contracmith the Oregon Economic and Co unity Development Department (OECDD) as Part of American Recovery and Reinvestment AN(ARRA) Stimulus Program Worth $4,796,000 and Authorize the CityManager to Sign the Contract. 3.4 Approve a Local Agency Agreement (No. 25,365) with the State of Oregon: Surface Transportation Program- Urban;SW Main Street: 99W to Rail Corridor 7:55 PM 4. PUBLIC HEARING ON A PROPOSED BALLOT MEASURE FOR THE NOVEMBER 3, 2009, ELECTION FOR GENERAL OBLIGATION BONDS FOR PARKS,OPEN SPACE AND TRAILS a. Open Public Hearing b. Staff Report: Public Works Department c. Public Testimony d. Council Discussion e. Close Public Hearing f. City Council Consideration: Resolution No.09- 8:10 PM 5. OONSIDER APPROVING A PETITION PROPOSING THE FORMATION OF A SPECIAL AQUATIC DISTRICT(TIGARD-TUALATIN AQUATIC DISTRICT) a. Staff Report b. City Council Discussion c. City Council Consideration: Resolution No 09- ` . 8:25 PM 6. INFORMATIONAL PUBLIC HEARING- FORMATION OF SEWER REIMBURSEMENT DISTRICT NO. 45 (SW HOODVIEW DRIVE) a. Open Public Hearing b. Declarations or Challenges c. Staff Report: CommunityDevelopment Department d. Public Testimony e. Staff Recommendation f. Council Discussion g. Close Public Hearing h. City Council Consideration: Resolution No.09- 8:40 PM 7. INFORMATIONAL PUBLIC HEARING- FORMATION OF SEWER REIMBURSEMENT DISTRICT NO.46 (SW BAYLOR STREET) a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony e. Staff Recommendation f. Council Discussion g. Close Public Hearing h. City Council Consideration: Resolution No.09- _ TIGARD CITY COUNCIL/LCRB AGENDA— August 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 3 of 4 8:55 PM 8. CONSIDERATION OF OPOSED ORDINANCE FOR DEVELOPMENT w COPE AMENDMENT REGARDI SENSITIVE LANDS PERMIT REJIREMENTS (DCA2008-00005) - - - TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) (Continued from July 14, 2009.) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use. Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations.found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300,Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7,Hazards;.Goal 8,Parks,Recreation, Trails, and.Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18..380,.18.390 and 18.775]. a. - Staff Report: Community Development Department b. Council Discussion c. Council Consideration: Ordinance No. 09- 9:15 PM 9. CONSIDER FORWARDING A REQUEST TO WASHINGTON COUNTY TO FORM CPO 4T a. Staff Report: Administration Department b. Council Discussion c. Council Consideration: Resolution No. 09- 9:30 10. COUNCIL LIAISON REPORTS 11. NON-AGENDA ITEMS 925 PM 12. ADJOURNMENT I:\ADM\CATHY\CCA\2009\090811 business.doc TIGARD CITY COUNCIL/LCRB AGENDA— Au:ust 11, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 503-639-4171 www.tigard-or.gov g I � g -or.gov I Page 4 of 4 • • Agenda Item# Meeting Date August 11,2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Title Sensitive Lands Permit Requirements (DCA2008-00005) to remove criterion 18.775.070.B.5, which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. Prepared By: Gary Pagenstecher Dept Head Approval: City Mgr Approval: CP C+� ISSUE BEFORE THE COUNCIL Should the Council approve a Development Code Amendment to Section 18.775.070.B.5, removing a.criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and,instead;require that pedestrian/bicycle pathways within the floodplain include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals? STAFF RECOMMENDATION It is recommended the City Council approve the proposed Development Code Amendment through adoption of the appended ordinance (Attachment 1) as amended by the Planning Commission and revised by City Council, which reads: "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals." Furthermore,staff recommends that Council open the hearing to allow interested parties to comment on the proposed changes to the code amendment Testimony should be limited to only the text changes proposed by Council at their July 14th hearing and the revised findings in support of those changes. KEY FACTS AND INFORMATION SUMMARY On July 14, 2009 the City Council closed the public hearing to deliberate the proposed development code amendment. Discussion focused on the intent of the proposed wildlife assessment criterion: "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." Council expressed concern that the original language was unclear and too restrictive with respect to trail alignments that might otherwise be indicated in the adopted Pedestrian/Bicycle Plan. Councilors wanted to see language that would balance competing interests of wildlife habitat protection and recreation use. The above language was prepared in response to this direction. Council also directed staff to ensure that the new language is supported by findings prepared by staff and the City Attorney. Staffs response is that this is the case. The appended Memo (Attachment 3) provides the basis for Staffs conclusion by comparing the proposed language to other options. OTHER ALTERNATIVES CONSIDERED A number of options have been considered through this process. The above referenced memorandum identifies three other options which were considered in arriving at the proposed language. • • 4 , CITY COUNCIL GOALS The proposed amendment does not directly relate to City Council's 2009 or Five Year Goals. However, the addition of a criterion for the protection of wildlife for paths proposed in the floodplain would update the code to be consistent with new Comprehensive Plan policies that support habitat protection (Comprehensive Plan Goal 8.1, Policies 6 and 17 and Goal 8.2, Policy 2). ATTACHMENT LIST Attachment 1: Revised Ordinance Exhibit A: Revised Proposed Code Text Changes Attachment 2: Draft City Council Meeting Minutes for July 14, 2009 Attachment 3: Staff Memo to the City Council, dated July 28, 2009 Attachment 4: City Attorney Supplemental Findings (Amended July 22,2009) FISCAL NOTES There is no fiscal impact anticipated for this action. However, at the time the City initiates pathway development in the floodplain, the additional cost of a wildlife assessment would be expected. • • • CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 09- AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT PEDESTRIAN/BICYCLE PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE ASSESSMENT THAT SHOWS THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT WHILE BALANCING THE COMMUNITY'S RECREATION AND ENVIRONMENTAL EDUCATIONAL GOALS. (DCA2008-00005). WHEREAS, the City's Planning Division.has requested to amend Chapter 18.775 — Sensitive Lands of the Tigard Development Code to remove a criterion which prohibits pathways located within or adjacent to the floodplain to be below,the elevation of the average annual flood and, instead; require that pedestrian/bicycle pathways within the floodplain include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals;and WHEREAS, notice was provided to the Department of Land Conservation and Development 45 days prior to the first evidentiary public hearing;and WHEREAS, the Tigard Planning Commission held public hearings on February 23, 2009 and April 6, 2009, and recommended approval of the proposed amendment, as amended to require a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; and WHEREAS, notice of the public hearings was published in the Tigard Times Newspaper at least 10 business days prior to the public hearings;and WHEREAS, the Tigard City Council has considered applicable Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; any federal or state statutes or regulations found applicable;.any applicable Metro regulations; any applicable Comprehensive Plan Policies; and any applicable provisions of the City's implementing ordinances; and WHEREAS,the City Council has found the following to be the only applicable review criteria: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal [FEMA] or state statutes or regulations; Applicable METRO regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard Comprehensive Plan Goals [Goal 1,Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances [MC Chapters 18.380, 18.390 and 18.775]. ORDINANCE No. 09- Page 1 • WHEREAS, the Tigard City C cil held public hearings on May 12th,fitly 14th, and August 11, 2009 to consider the proposed amendment;and WHEREAS, the Tigard City Council has determined that the proposed development code amendment is consistent with the applicable review criteria, and that approving the request would be in the best interest of the City of Tigard. NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The specific text amendment attached as "EXHIBIT A" to this Ordinance is hereby adopted and approved by the City Council. SECTION 2: The findings in the June 29, 2009 Supplemental Staff Report to the City Council, City Attorney's Supplemental Findings (Amended July 22, 2009), Minutes of the February 23, 2009 and April 6, 2009 Planning Commission hearings, and the Minutes of the May 12th, July 14th, and August 11'h 2009 Council hearings are hereby adopted in explanation of the Council's decision. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only, this day of , 2009. Catherine Wheatley,City Recorder APPROVED: By Tigard City Council this day of ,2009. Craig Dirksen,Mayor Approved as to form: City Attorney Date ORDINANCE No. 09- Page 2 • S EXHIBIT A .,: x ..:.5 .;.. -.,....,:.:-:-..,af. •.: ...r.,4a:f• ,.ixv. =;✓t.:i:, ..2., :.ry:•. - :ry,_ S.T.- - k a'• `=.fir., %u•: "<.>'.t: sew ,a.':'4 - -- s?"'.?' 7` :maw dI??E'. .S ,. .✓- _.. _-�k-. < �,. ..<-,a.. ;,...x.•,.,,:;`.2 :.,....n.r>°+i'.;. k' :..1 ,.i°, •:J` :-f.: K';#`: .r";'Y.;`k .'.2. .E.J.: ,.r., ..:h l�,.-n�r.,... - -,.tip° "�S P,3 h:t�_ e./. ,3: -:l�f •.31 _M �.1?'t2�;,. '- n;- - ,�.'�- '-r•.,r.:...r, :a� .,�M :._�:;,. .`:;'#"::.s•.�Y%�#.�..� .a r, �%'r:. ..4:, .:t=.,:- ,:z°.di==r_>;�. :»�>- ,{ "'eF' 1''-%� :Ln ,p ir° i� a_L'"M.�Yq'�� �.•'"6, "�'..._,n. .'{Y%�P:. - ?rv3'::i}i'iC.'{::, b.>'•}:;'s., '<�,d•-ii.s =i*,.iR:. T. 'K` Lre n•.:R7._; r:�l::iY?.'.• t" '.°.�i;..r'i..f..,:,,:-., -'qYt-p - - :i",'.'r',`-1'c, E). $. 'i'•`k .�Y:.t�<v A4�_r,f°.." _ �S:aG:.=:.fa f.� :' ..Z x: iL-;ar `va:w41,-aim.a::4.'-S-`° -r: '4' _ _ �p �j:. :., d..sk=1r - `}t t � "`:c;>' -�.:`'�� .u,..rV ��:+..' '' !M� �:n3:k�E> :LZ. �- �.•7tTh?s:f. -I�:A .in. aniYi'�N.x Fe -�4 �.t�r�' :•i?'.; <`t. ,t^ x'r`�, - - :•t,.:. .�'''.7:^G:•,.::'-:`Y�i�4' ,.;..•-}n.,.. :"�:;.:_..:.:a.a• =T,lus,4:texamend�ient.-ei�'1'0::s�the:':fo�o y,:,o "l+ir. .?:�q_.,F_." �, !r:� i�'�^•t{ -44',°d a.nl+". try§ :3 ./' --{,. - -3 L-'t r �.' ,v7+. w fir','`?"�-�''a;:'.. "�f v.,/;>:[:is 4'y'r.';: .k�., �'t:.' *..f`°e,.w•_�n.. - va.,y.'4:: .g ��::,> 5.-,.-^.v. ""tsl -°-i:. .-3.- - - ?i'x'is�'r'�°t...:- i - 4 'd �.kyr. t :^ (: p u°`t :Bold�tt Iris. :�TexG,�o�1``"�ac�decl� ..y .�. G°L.SV__..,.+r....,-,.,w..:t... .,..4rtC.tv,':Y.,ee}_<!-J1.•,..e.x..se�.R c:,.Y. ;'.....,.man -.�•n>-.r..+-.....,.... +t .. _ ,.. ,....•,r.,��4�" ..�., :.<'e,F... ...... .....__...Z'i^>. __ ,_�.:'nom::•...._ ,.::S.:r.,.n-... . 18.775.070 Sensitive Land Permits A. Permits required. An applicant, who wishes to develop within a sensitive area, as defined in Chapter 18.775,must obtain a permit in certain situations. Depending on the nature and intensity of the proposed activity within a sensitive area, either a Type II or Type III permit is required, as delineated in Sections 18.775.020.F and 18.775.020.G. The approval criteria for various kinds of sensitive areas, e.g., floodplain, are presented in Sections 18.775.070.B— 18.775.070.E below. B. Within the 100-year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied: 1. Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero-foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; 2. 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 defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; 3. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100-year flood; 4. The land form alteration or development plan includes a pedestrian/bicycle pathway in accordance with the adopted pedestrian/bicycle pathway plan,unless the construction of said pathway is deemed by the Hearings Officer as untimely; average—antieed; Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals. 6.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 7. Where land form alterations and/or development are allowed within and adjacent to the 100-year floodplain, the City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the comprehensive plan. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. • • ATTACHMENT 2 , Draft Minutes—Excerpt July 14, 2009 DCA2008-00005—Sensitive Lands Permit Requirements 8:08:16 PM 6. CONTINUATION OF LEGISLATIVE PUBLIC HEARING FROM MAY 12, 2009 — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) is*, f ` REQUEST: To remove Section 18.775.070.B.5 of the Sensitiveann'ds° ermit requirements which reads: `N st "5. The plans.for the pedestrian/bicycle pathway indicate that no pathwA 4f7, bebelow the elevation of an average annual flood;". Removal of thi .`se sction would allow'Zaways to be installed in areas which would benefit the public's access toy=:and„educational appreciation of ecological areas. On April 6, 2009, the Planning Commission'rec uumended the City Council replace the subject section with "Pedestrian/ cycle pathways within Vitilialptlie floodplain shall include a wildlife assessment to ensure that-,." .. osed alignment�°minimizes impacts to alks significant wildlife habitat." LOCATI N: eC t isle. COMPREHENSIVE PLAN DESIGNATION: All City Comprehe v.Plan` Des a •r . ZONE: All City Zoning Districts. APPLICABLE REVIEW, O w TEA: °e: ° tatewide Planning Goals and Guidelines adopted under Oregon Revfised Statutes Cha .t1'97 [Goal 1, Public Involvement; p g �:� ���� per. � [ , Goal 2, Land Use Planning; Goal, ' Natural Res&i ce cenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject ,to-Natural Hazards a"and Goal 8 Recreational. Needs]; any federal [FEMA ors e statutes'or' egulations found applicable; any applicable METRO regulation t tions 3.07.300, Urban Growth Management Functional Plan; and Title 3xater Quality and good Management]; any applicable Comprehensive Plan Policies; [Go ;$ 1, Public Involvemen oal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, 1 R creation, Trails, and Ope> ce]; and any applicable provisions of the City's implementing .`ord :•a es [1 DC 18.130, 1 .- Z 6 18.390 and 18.775]. ttf a. I` 'sor Dirksen anno i ced that this is a continuation of a legislative public hearing from 009. ,t b. City Attfl ° . s advised the procedure read into the record in the previous hearing is the pray.;'.ure being followed. If, since that time, there have been any ex parte communications or if anyone has discovered a conflict, this would the time to disclose. There were no declarations or challenges. c. Associate Planner Pagenstecher presented the staff report. The Council packet materials included the supplemental staff report dated June 29, 2009,which repackaged the information from the previous proceedings, added new Goal 5 findings, and included staff's response to public testimony heard at the May 12, 2009, City Council hearing. 1 � Page.. • • The staff report includes the staffs and Planning Commission's recommendation for wildlife assessment in Proposal Summary, Section 1. The Options Analysis presented to the Planning Commission is in the Alternatives to Proposal, Section 7. The Two- Year Flood Inundation Exhibit presented at the first Planning Commission hearing was attached for reference. The new Goal 5 findings are on Page 9 in the staff report and are also contained in the Supplemental Goal 5 findings, dated July 7, 2009, the City Council received in the City Council newsletter. Associate Planner Pagenstecher referred to the staff sresponse:to:the public comments contained in the staff report. d. Public Comment St y Mayor Dirksen requested public comment be restric t ' o new informatio lV:' (VV r John Frewing, 7110 SW Lola Lane, Tigard, Oregon at3tsect his .concern with this amendment is that the proposed requirement�for a wildlife asses,f=•ent is not a clear and objective approval standard. Mr. Firewuig advised he seed as simply a submittal requirement. He referred to his previous testirrioiy and!said1that "wildlife assessment" has not been defined as he requested 8:12:25 PM � r Mr. Frewing referred]o to response frOli Associate Planner Pagenstecher on a • comment Mr. Fre• . ,' made. Mr:'Frewing said that Associate Planner Pagensteeheru?41vised tha'U &use Tigard previously adopted an ordinance, which n p1emented+':tlie Nature in they vghb.o'rhoods Program that it could not have included 4,3-;:-equirement foragwildlife asses�"ment. Mr. Frewing said this sentence does not make ,A< sense. The Metro 04:requires ear and objective standards. The staff report does e?, not say that this is a clew and objective standard and Mr. Frewing said he did not think '' :y;* this was a clear and objective standard where there should be one Even if, at some ` 'erlier date, Tigard adopted an ordinance to comply with Metro programs, what is - ''occurting now is a ;`=take away." One can say we are coming "out of compliance" with whaPWethad on the"day that we adopted the ordinance that brought us into compliance with'Metro programs. Mr. Frewing said there would be no reason not to incorporate the clearlidYobjective standards requirement of Metro,including a clearer definition of T a wildlife::4ssessment into this regulation. 8:14:19 PM Mr. Frewing said the discussion of the Parks Master Plan, just approved by the City Council, is also new information. He said he thinks the Parks Master Plan is an aspirational document and has very little to say about what open space will actually be protected in future years. He said he would prefer that there would be more specifics in this regard rather than the specifics in other regards because of the importance of open space and greenspaces to the people of Tigard. He said he is happy that there is a Park Master Plan, but it does not take the place of defining those areas where we will not have trails, the natural areas. Tigard needs to be move forward on planning open - 2IPage • • • spaces by saying where we are going to have trails and where we are not going to have trails. 8:15:37 PM Mr. Frewing advised he has not seen the Goal 5 findings submitted on July 7, 2009,and said he would like an opportunity to look at them and provide comments. He asked for additional time so he could review the findings. 8:16:35 PM Associate Planner Pagenstecher apologized to Mr. Frewigg regarding the additional Goal 5 findings for which Mr. Frewing had not had a. lianceo r� ew. ��b Associate Planner Pagenstecher referred to thesentence tlaa`t�' SE owing said did not make sense. He advised that he meant to corrveythata\4' etro as;• ready found that Tigard complies with the Nature in Neighborhoods > lhatever criteria cn uld come up with would be over and above compliance. Associate„Planner Pagen 1&leer said he was not asserting that wildlife assessment criterion as clear and objective. Mr. Frewing responded that when Metro approved Tigard's'k compliance with Nature in Neighborhoods,it included the requirenzeiil:ghat no trails will?h e built below the annual average flood. Now, we are taking..th1 a `? f this is approved, then we will have something less than we had whe ewe complli th Nature in the Neighborhoods. Associate Planner Pagenstecher s aaril�cl thati$ b kground section of the staff report identifies why the existing crteri n is an ne ectual elevation standard. The wildlife assessment is a ways i identify sensitive habitats that we do not have today. In staff's opinion,we are r otYgIving away an ,w o s ,we are gaining a tool to site trails and design them for the prese,rvarion of habitat h.r. Frewing acknowledged this was clear state e 8:18:57;aM e. Staff Recom nenda e, kip Associate Planner Pastecher recommended the City Council approve the proposed evelopment Code Axiiendment and adopt the proposed ordinance. f. City; ocil Quesons Councilot Yenderson referred to the Sensitive Lands Permit (Item B) where it states that, "Within a 100-year floodplain -- The hearings officer shall approve, approve with conditions, or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied.” He said he does not know what "approved with conditions" means. Would the hearings officer be allowed to make more conditions? City Attorney Ramis responded that this language means that the hearings officer would have the discretion to impose conditions so long as those conditions were designed to assure that the application complied with the criteria. Some unrelated condition could not be invented. To the extent the hearings officer's judgment is that it is necessary to limit the project to be sure it complies with the criteria, then that kind of condition is allowable. Councilor Henderson asked about this section, as it would pertain to the wildlife assessment. City Attorney Ramis, and 3IPage • • • Associate Planner Pagenstecher concurred, that he would think a valid condition would be one that ties the design of the project to whatever the wildlife assessment says is necessary to protect habitat. Associate Planner Pagenstecher added that the wildlife assessment would result in a series of recommendations regarding how to preserve habitat and those would be then required of a design to satisfy the hearings officer that the proposal complied with that criteria. g. Mayor Dirksen closed the public hearing and called for consideration of the proposed ordinance, which includes the supplemental findings prepared by the City Attorney's office dated July 7,2009. Motion by Councilor Buehner, seconded by_ Council Priesi ent Wilson, to adopt tLE:�, Ordinance No 09-11, including the supplemental find ,ngs� xeaared by the City � . Attorney's office dated July 7, 2009. AMENDING 3t&TIGARD ORDINANCE NO 09-11 - AN ORDINAN.CJ�;�=�� ,, s�;:: rz.�xA COMMUNITY DEVELOPMENT CODE SECTION18 775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS L GATED WITHIN OR ADJACENT TO THE FLOODPLAW. TO BE BF.I.O\',TIT `'ELEVATION OF THE AVERAGE ANNUAL FLCOT�'" =D, INST '. ®; REQUIRE THAT PEDESTRIAN/BICYCLE PAT)'IWAYS THIN -`THE FLOODPLAIN INCLUDE A WILDLIFE ASSES NT1,i O =yUE THAT THE PROPOSED ALIGNMENT MINIMIZES:; i PAk! S T.O'4SIGNIFICANT WILDLIFE HABITAT (DCA2008-00005)° Ip1 8:23:15 PM K;;tMy `" •-dk.r-r4. City cdls fission followed•, (Councilor Buehn' cl she app caated the memorandum from the City Attorney, which she found he ful�n answering questions she had regarding Goal 5. With respect • to the specifics of :o ordinance and the discussion resulting from Mr. Frewing's " t;<s omments regarding Metro's standards, she said that Metro is also responsible for ;� ping and assistings in getting the various trails completed, such as the Fanno Creek ons are also looking at trails within the annual flood lain to meet kratl=�ther juris g floodplain .Aquirennts. Councilor Buehner advised she did not think this ordinance woulld t. c ou•"r relationship with Metro with regard to greenspaces. 8:24:24 PSI Council President Wilson said he agreed with Councilor Buehner. He said he thinks the language regarding the wildlife assessment could be clearer to assist the hearings officer in imposing conditions. He said he was also concerned, as he stated in the previous hearing, that we needed to balance the needs of wildlife with the recreational needs of people. This could be interpreted that to minimize the impacts to wildlife that extreme measures could be required, such as requiring eight-feet high boardwalks or pushing a trail to the absolute edge of the property making it less functional or less attractive for pedestrians to use. He did not think this was the intent of the ordinance. Council President Wilson said he would prefer to modify the sentence to reflect this. • • 8:25:48 PM Mayor Dirksen suggested that the ordinance could be adopted this evening and have __, staff go back to develop a clearer statement He said that it appears that what the City . Council is looking for with the wildlife assessment is to find the balance between wildlife habitat and the needs of citizens. He said it was sufficiently clear to him regarding its purpose. Council President Wilson suggested wording such as, "A wildlife assessment shall be conducted and used to ensure that the proposed alignment balances impacts to significant to wildlife habitat with the recreational goals of the community." 8:26:54 PM . =w�. Councilor Buehner indicated she would be fine with the change^,suggested by Council President Wilson. She asked City Attorney RatM1s if the City:Council could approve the ordinance tonight with the direction that staff Gomes lip with a different definition? City Attorney Ramis suggested the City Councils giv staff direction;and :staff would come back to the City Council with adjusted langi g'an'd,perhaps adjus"fed findings, to support that language and then have a final adopton. -''8:27:33 PM >- Councilor Henderson agreed with the.Citv'Attor ey s recommendation. He said there was a question at the last hearing whether the.proposed ordinance would affect all of the greenways. He would like to have:a cleat definiton ;Councilor Henderson said the citizens want to use greenwamlidkAvotilil like to7findia way for this to happen. 8:28:09 PM ... �W ;tea^;'- --u. In response to a regyix�'es x' ayor Dirksen mfor Council President Wilson to describe the changes he v�ould like, t ounril President Wilson advised: `, BUY :4r :r;�' , 4, ' a`�'` dC Tx mss �` .•#. 4'07' '; "I'd like ito d .„two things I'd like to achieve a balance instead of just to .4 minimize because that is rt of an extreme thing. But, I'd also like to indicate 1$0x`'* that the wildlife wilellifei assessment be used to actually inform the design, that the ifili a.4, design respo ° to it in some way—not just that you do one..." A 1Vrayor+Dirksen suggested the following wording: " ,4f,� ;it shall include a wildlife assessment that shows that the proposed alignment ;f4k- ? P P 1 1 minimizes impacts on significant wildlife habitat" 4 The above wording would make it clear that not only would an assessment have to be prepared,but also the conclusion of the assessment would be that there is no significant impact. 8:29:08 PM Councilor Buehner commented that the Mayor's suggested wording might fall within Council President Wilson's concern that the balance might be leaning so far in favor of protecting the wildlife, that you have effectively minimized the viability of a trail in a reasonable location. She said she believed Council President Wilson's proposal was for a balance of interests. Council President Wilson said there are clearly trade-offs. The 5jPage • • best thing for wildlife might be to build no path. He said he wants the Code to acknowledge that we are possibly causing some habitat degradation; however, we are going to do it in such a way that we consider the needs of wildlife and,if it is something extreme (i.e., an endangered species is severely impacted) then we might choose not to do it. He said that if it is common wildlife and a minor imposition, then we ought to design it in such a way that is the most desirable route for recreational purposes. 8:30:47 PM Mayor Dirksen read proposed wording suggested by City Manager Prosser: "Pedestrian and bicycle pathways within thi'floodpla�in shall include a wildlife iii;p::;.l,,,,,i „.t assessment that shows that the proposed alignn en.a,;� • es impacts to significant wildlife habitat while balancing the come unit' recreational and environmental educational goals." ?% it y__ � 8:31:13 PM ' Council consensus was for support of the above languagergsThe Council also discussed whether they could approve the proposed ordinance toivght,tl City Attorney Ramis apprised the City Council of his conce Insofar as he would l ke tfhe staff to have the opportunity to review the languagegamst:°Elie findings theylave made, particularly related to Goal 5, to make sure that;e are s 3ie.parrneters of Goal 5 and Metro's requirements. as t �r� 'if!., : fi e3/4 ° 8:31:44 PM ; ;.4:., ,_ . ` 3 Mayor Dirksen agreed t at it would be b ez or staff to review and have this come back before the City(ion cihagain.''',i.41:: , 44-0,x4firp,t• ,,,,,,,,T.,..4 Community Deve O ent Director:a$unch said the findings are now saying that trails are no different froie other conflicting uses currently allowed in these areas. Staff Wit.. will need to researcher to develop an affirmative statement that the language meets . '- . e intent of the City , ouncil. He recommended for this to come back to the City =.'®uncil at a later date 8: 31v1 . City.A Ta�.ri. : :..tosser advised this matter could be scheduled for the August 11, 2009, City Co cil Meeting. w Consideration of Ordinance No. 09-11 was carried forward to August 11, 2009. 8:33:44 PM City Attorney Ramis advised that the record, at this point, is closed. There will be no further testimony. Wage • ATTACHMENT 3 , City of Tigard oiam, 411f, Memorandum oIrqu r)� To: Mayor Craig Dirksen and Members of the City Council From: Gary Pagenstecher, Associate Planner Re: Continued Hearing for DCA 2008-00005 Sensitive Lands Permit Requirements Date: July 28, 2009 Council Direction On July 14, 2009 the City Council closed the public hearing to deliberate the proposed development code amendment. Discussion focused on the intent of the proposed wildlife assessment criterion: "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." Concern was expressed that this language could be made clearer and may be too restrictive with respect to trail alignments that might otherwise be indicated in the adopted pedestrian/bicycle plan. Councilors wanted to see language that would balance competing interests of wildlife habitat protection and recreation use. Summary of Options The following options are provided to give context to the recommended Option 3. Options range from retaining the criterion (Option 1), to removing it altogether (Option 4). Two other options include amended language to "facilitate" wildlife protection (Option 2), and to explicitly balance the competing interests of resource protection and recreation use with wording suggested by City Manager Prosser and supported by Council during the July 14th Council hearing (Option 3). Consistency with Goal 5 Options 1 through 3 would add additional Goal 5 resource protection (requiring a wildlife assessment for pathways in the floodplain) beyond those already provided by the City's Sensitive Lands Ordinance (Section 18.775). In 2006 Council adopted revisions to the Sensitive Lands chapter to comply with Metro's Nature in Neighborhoods Policy (Ord. 06-20). The Department of Land Conservation.and Development (DLCD) has acknowledged the City's Comprehensive Plan and implementing code as being consistent with the statewide planning goals. Therefore, in addition to the City Attorney's Revised Supplemental Findings dated July 22, 2009, staff finds that the recommended language for the proposed development code amendment (Option 3) is consistent with Metro and State Goal 5 regulations. 1 . • Option 1— retain proposed criterion: Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat. Pros: Retaining the proposed development code amendment language would provide information on wildlife and wildlife habitat in the project area. Strict application of the standard could preclude path alignments in certain habitat areas in order to preserve the quality of the habitat to its maximum extent. The requirement for, a wildlife assessment implements Comprehensive Plan Goal 8.1, Policy 17 and Goal 8.2, Policy 2, which support habitat protection. Cons: Minimizing impacts to wildlife habitat could preclude alignments of pathways in accordance with the adopted pedestrian/bicycle plan. Option 1 does not provide any siting or design flexibility with respect to impacts to wildlife habitat. Option 1 may limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature-oriented recreation in Fanno Creek Park and other locations. • Option 2 — revise proposed criterion: The design and alignment of pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to facilitate protection of significant wildlife habitat. Pros: This proposed revision would also provide information on wildlife and wildlife habitat in the project area. The habitat information would then be available to the project designer to account for that habitat in a manner that is protective, while allowing flexibility in path alignment and design. Trail connectivity and access to natural areas for nature-oriented recreation would be assured. The requirement for a wildlife assessment implements Comprehensive Plan Goal 8.1, Policy 17 and Goal 8.2, Policy 2, which support habitat protection. Cons: Option 2 does not prioritize habitat protection but rather allows for it among competing uses. Option 2 may result in trail designs and alignments that adversely impact wildlife habitat. The language does not make explicit the competing goals of resource protection and park development. Option 3 — revise proposed criterion: Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals. Pros: This language is explicit with respect to the competing goals of resource protection and park development. Minimizing impacts to wildlife is prioritized but tempered with the 2 • • programmatic goals of locating paths within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a wildlife assessment implements Comprehensive Plan Goal 8.1, Policy 17 and Goal 8.2, Policy 2, which support habitat . protection. Balanced consideration of parks, recreation, trails and open space implements Comprehensive Plan Goal 8.2, Policy 1. Cons: Option 3 may result in pathways with greater impact to wildlife habitat than with the existing language in Option 1, but still less impact than without the habitat assessment requirement. Option 4—remove proposed criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation and without a wildlife assessment, consistent with an adopted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public: Recommendation Staff recommends Option 3 to facilitate balancing the community's natural resource and recreation goals for planned park pathway improvements within the floodplain. The proposed criterion revision would provide wildlife habitat information and allow design flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future, pursuant to the Park System Master Plan. *Staff recommends the Council open the hearing for public comment to allow interested parties to comment on the proposed change in language to the proposed development code amendment. • • 3 • • ATTACHMENT 4 Supplemental Goal 5 Findings for DCA2008-00005 Amended July 22, 2009 (For the Supplemental Staff Report to City Council, dated June 29, 2009) OAR Chapter 660, Division 23 sets out "Procedures and Requirements for Complying with Goal 5." OAR 660-023-0010(5) defines "post-acknowledgement plan amendment" ("PAPA") to include "amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation." The Department of Land Conservation and Development ("DLCD") has acknowledged the City's Comprehensive Plan and implementing code as being consistent with the statewide planning goals. DCA 2008-00005 is therefore a PAPA. A PAPA must apply Goal 5 if the PAPA would affect a Goal 5 resource. OAR 660-023- 0250(3). As potentially relevant, DCA 2008-00005 would affect a Goal 5 resource if it "amends a ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," or it allows new "conflicting uses." OAR 660-023- 0250(3). DCA 2008-00005 amends TDC 18.775.070(5), a provision of the Sensitive Lands chapter of the TDC. A stated purpose of the Sensitive Lands chapter is to "Implement Statewide Planning Goal 5." TDC 18.775.010(E). Therefore, DCA 2008-00005 "amends a. ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," and Goal 5 must be applied pursuant to OAR 660-023-0250(3)(a). Tigard Comprehensive Plan Chapter 5, Natural Resources and Historic Areas, protects the Goal 5 resources of fish and wildlife habitat, wetlands, streams, groundwater, and historic and cultural resources. These protections are implemented through the Sensitive Lands regulations at TDC 18.775. DCA 2008-00005 would allow the establishment of pedestrian pathways in the floodplain. Subsequently proposed pathways could impact Goal 5 resources within the floodplain that were not previously subject to the impact of pathways. However, the existing program to protect these Goal 5 resources remains sufficient to protect those resources and remains in compliance with Goal 5, for the following reasons: 1) DCA 2008-00005 limits new conflicting uses. OAR 660-023-0010(1) defines conflicting use, in pertinent part, as a use "that could adversely affect a significant Goal 5 resource." DCA 2008-00005 allows the establishment of pathways in floodplains, but limits such pathways to locations which are suitable for minimizing the impact onto significant wildlife habitat, as is ensured by the mandatory wildlife assessment. The wildlife assessment ensures the protection of Goal 5 resources within the floodplain by requiring an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path, recommended mitigation measures to minimize impacts and ODF&W review, and public comment. Pathways established in the floodplain will accordingly conflict with the Goal 5 resources to the minimal extent necessary to achieve the City's recreation and environmental education goals. Supplemental Goal 5 Findings for DCA2008-00005,Amended July 22,2009 For the Supplemental Staff Report to City Council, dated June 29,2009 Page 1 •• • 41111 •2) DCA 2008-00005 does not result in significantly different effects on any Goal 5 resources. The current, acknowledged Sensitive Lands regulations permit conflicting uses which • have potentially similar impacts to pathways. Uses that are permitted outright to be located within the floodplain include Community Recreation (excluding structures) and farm uses (excluding structures). TDC 18.775.020(B)(2),(3). Such uses pose similar potential impacts to Goal 5 resources, and unlike the pathways allowed by DCA 2008-00005 do not require a Sensitive Lands permit to be obtained. In adopting the Sensitive Lands program, the City has already considered and made key decisions regarding the relative importance of Goal 5 resource sites and a range of conflicting uses. DCA 2008-00005 allows pathways that have similar impacts to the currently allowed conflicting uses, and are subject to additional requirements such as the wildlife assessment. It is evident that the proposed PAPA limits conflicting uses and does not result in any significantly different effects on Goal 5 resources. Furthermore, pathways allowed by DCA 2008-00005 remain subject to the additional protections of the Sensitive Lands regulations, which further limit impacts on Goal 5 resources. Such applicable regulations include requirements to obtain a Sensitive Lands permit (18.775.020(G); 18.775.070), engage in interagency coordination (18.775.030(C)), compliance with the general provisions for floodplain areas (18.775.040), and where applicable, compliance with the general provisions for wetlands (18.775.050). Additionally, pathways would remain prohibited in locally significant wetlands and along the Tualatin River, Fanno Creek, and South Fork of Ash Creek without an accompanying Environmental Social, Economic and Energy Analysis ("ESEE") prepared in accordance with OAR 660-023-040. TDC 18.775.090(A); 18.775.130. Based on the above, it is found that DCA 2008-00005 presents the same kind of conflicting uses contemplated and allowed under the current Sensitive Lands regulations and Goal 5 resource protection program, and that the existing protections under the Sensitive Lands regulations is still sufficient to protect the Goal 5 resources within the floodplain. Supplemental Goal 5 Findings for DCA2008-00005,Amended July 22,2009 For the Supplemental Staff Report to City Council,dated June 29, 2009 Page 2 • Patty Lunsford From: Gary Pagenstecher Sent: Tuesday, July 21, 2009 11:17 AM To: 'jfrewing' Cc: Sue Beilke; Ron Bunch; Dick Bewersdorff; Patty Lunsford Subject: RE: Change of Sensitive Lands Code, DCA2008-00005 Attachments: DCA2008-00005 Supplemental Staff Rpt(Attachment 3).docx; DCA 2008-00005 Supplemental Findings-City Attorney.doc John, In response to your inquiry below: 1) As you requested, with this email I have attached copies of the July 9, 2009 Supplemental Staff Report and Supplemental Findings for Sue Beilke. 2)You are correct that 18.390.080.E.4, requiring the staff report to be available 7 days prior to the hearing, applies to the legislative process and the subject development code amendment. The staff report was made available 7 days in advance. However, the additional findings from the City Attorney do not necessarily have to be included in the staff report, although it would have been preferable. It is always nice to have everything in advance but it is not uncommon to have additional information provided to the Council after the 7-day period. In a legislative hearing, the Council has the authority to approve, revise and finalize what they adopt. As the hearing was continued to a time certain (August 11, 2009)the City will not re-notice the application. It is likely the Council will open the hearing for public comment at the hearing as the proposed development code amendment language may change in response to the Council's direction at their July 14 hearing. You will have an opportunity to review the staff memo and proposed language 7 days in advance of the upcoming hearing and testify at the hearing if the Council opens the hearing for public comment, as expected. Gary Gary Pagenstecher, AICP Associate Planner City of Tigard Community Development 13125 SW Hall Blvd. Tigard OR 97223 503-718-2434 garyp @ tgard-or.gov From: jfrewing [mailto:jfrewing @teleport.com] Sent: Wednesday, July 15, 2009 8:04 PM To: Ron Bunch; Gary Pagenstecher Cc: Sue Beilke Subject: Change of Sensitive Lands Code, DCA2008-00005 Ron and Gary, Two requests. 1)Could you please send an electronic copy of your July 9,2009 memo and supplemental findings to Sue Bielke,who was unable to be at the hearing last evening? Sue had comments on natural resource issues and might benefit from seeing your supplemental findings. 1 2)As a legislative change,this code milk is governed first of all by 19.390.060. But th p rovisions of 18.390.080 are also applicable. I am concerned that 18.390.080 E.4 regarding provisions of a staff report at least 7 days before the required hearing has not been complied with. The first I found out about the changed findings of your July 9,2009 memo was last night at the hearing. The packet I reviewed last week for the hearing last night did not have the memo in it. Of course it is obvious that July 9 is less than seven days before the hearing of July 14. Please consider re-noticing the hearing for DCA2008-00005, and as a party,please inform me how I can participate by providing testimony regarding your July 9,2009 memo altering the findings of the applicant. Thanks, John Frewing • 2 • • Patty Lunsford From: Dick Bewersdorff Sent: Friday, July 17, 2009 10:02 AM To: Ron Bunch; Gary Pagenstecher Cc: Patty Lunsford Subject: RE: Change of Sensitive Lands Code, DCA2008-00005 The additional findings do not necessarily have to be included in the staff report. In a legislative hearing, the Council has the authority to approve, revise and finalize what they adopt. The attorney' s findings were in addition. It is always nice to have everything in advance but it is not uncommon to have changes made as part of the hearing process. The staff report was made available 7 days in advance. I know of nothing in the law or code that limits the type of materials Mr. Frewing has concern with. Original Message From: Ron Bunch Sent: Thursday, July 16, 2009 8:01 PM To: Gary Pagenstecher; Dick Bewersdorff Subject: Fw: Change of Sensitive Lands Code, DCA2008-00005 What's your opinion? Do we need to have the atty's office review this? Thanks Ron Original Message From: jfrewing <jfrewing @teleport.com> To: Ron Bunch; Gary Pagenstecher Cc: Sue Beilke <sbeilke @europa.com> Sent: Wed Jul 15 20:03:35 2009 Subject: Change of Sensitive Lands Code, DCA2008-00005 Ron and Gary, Two requests. 1) Could you please send an electronic copy of your July 9, 2009 memo and supplemental findings to Sue Bielke, who was unable to be at the hearing last evening? Sue had comments on natural resource issues and might benefit from seeing your supplemental findings. 2) As a legislative change, this code revision is governed first of all by 19.390.060. But the provisions of 18.390.080 are also applicable. I am concerned that 18.390.080 E.4 regarding provisions of a staff report at least 7 days before the required hearing has not been complied with. The first I found out about the changed findings of your July 9, 2009 memo was last night at the hearing. The packet I reviewed last week for the hearing last night did not have the memo in it. Of course it is obvious that July 9 is less than seven days before the hearing of July 14. Please consider re-noticing the hearing for DCA2008- 00005, and as a party, please inform me how I can participate by providing testimony regarding your July 9, 2009 memo altering the findings of the applicant. Thanks, John Frewing 1 • • City of Tigard Memorandum To: City Council From: Gary Pagenstecher, Associate Planner Re: Supplemental Goal 5 Findings for DCA 2008-00005 Sensitive Lands Permit Requirements (Agenda Item# 6,July 14, 2009 Council Meeting) Date: July 7, 2009 The City Attorney has prepared the attached Supplemental Goal 5 Findings for the Supplemental Staff Report to City Council for DCA 2008-00005 contained in the Council Packet for the July 14, 2009 Council Meeting. The supplemental findings provided by the City Attorney complement the findings provided on page 6, 9, and 10 of the Staff Report. The City Attorney believes the supplemental findings are applicable as identified in the body of the findings. The findings provide a more detailed rational for the conclusion that the proposed development code amendment presents the same kind of conflicting uses contemplated and allowed under the current Sensitive Lands regulation and Goal 5 resource protection program and that the existing protections under the Sensitive Lands regulations is still sufficient to protect the Goal 5 resources within the floodplain. The supplemental findings support approval of the proposed code amendment. • • Supplemental Goal 5 Findings for DCA2008-00005 July 7, 2009 (For Supplemental Staff Report to the City Council, Page 6) OAR Chapter 660, Division 23 sets out "Procedures and Requirements for Complying with Goal 5." OAR 660-023-0010(5) defines "post-acknowledgement plan amendment" ("PAPA") to include "amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation." The Department of Land Conservation and Development ("DLCD") has acknowledged the City's Comprehensive Plan and implementing code as being consistent with the statewide planning goals. DCA 2008-00005 is therefore a PAPA. A PAPA must apply Goal 5 if the PAPA would affect a Goal 5 resource. OAR 660-023- 0250(3). As potentially relevant, DCA 2008-00005 would affect a Goal 5 resource if it "amends a ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," or it allows new "conflicting uses." OAR 660-023-0250(3). DCA 2008-00005 amends TDC 18.775.070(5), a provision of the Sensitive Lands chapter of the TDC. A stated purpose of the Sensitive Lands chapter is to "Implement Statewide Planning Goal 5." TDC 18.775.010(E). Therefore, DCA 2008-00005 "amends a ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," and Goal 5 must be applied pursuant to OAR 660- 023-0250(3)(a). Tigard Comprehensive Plan Chapter 5, Natural Resources and Historic Areas, protects the Goal 5 resources of fish and wildlife habitat, wetlands, streams, groundwater, and historic and cultural resources. These,protections are implemented through the Sensitive Lands regulations at TDC 18.775. DCA 2008-00005 would allow the establishment of pedestrian pathways in the floodplain. Subsequently proposed pathways could impact Goal 5 resources within the floodplain that were not previously subject to the impact of pathways. However, the existing program to protect these Goal 5 resources remains sufficient to protect those resources and remains in compliance with Goal 5, for the following reasons: 1) DCA 2008-00005 limits new conflicting uses. OAR 660-023-0010(1) defines conflicting use, in pertinent part, as a use "that could adversely affect a significant Goal 5 resource." DCA 2008-00005 allows the establishment of pathways in floodplains, but limits such pathways to locations which are suitable for minimizing the impact onto significant wildlife habitat, as is ensured by the mandatory wildlife assessment. The wildlife assessment ensures the protection of Goal 5 resources within the floodplain by requiring an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path,recommended mitigation measures to minimize impacts and ODF&W review, and public comment. The extent to which a pathway established in the floodplain conflicts with the Goal 5 resources will be necessarily minimal. 1 • • 2) DCA 2008-00005 does not result in significantly different effects on any Goal 5 resources. The current, acknowledged Sensitive Lands regulations permit conflicting uses which have potentially similar impacts to pathways. Uses that are permitted outright to be located within the floodplain include Community Recreation (excluding structures) and farm uses (excluding structures). TDC 18.775.020(B)(2),(3). Such uses pose similar potential impacts to Goal 5 resources, and unlike the pathways allowed by DCA 2008- 00005 do not require a Sensitive Lands permit to be obtained. In adopting the Sensitive Lands program, the City has already considered and made key decisions regarding the relative importance of Goal 5 resource sites and a range of conflicting uses. DCA 2008- 00005 allows pathways that have similar impacts to the currently allowed conflicting uses, and are subject to additional requirements such as the wildlife assessment. It is evident that the proposed PAPA limits conflicting uses and does not result in any significantly different effects on Goal 5 resources. Furthermore, pathways allowed by DCA 2008-00005 remain subject to the additional protections of the Sensitive Lands regulations, which further limit impacts on Goal 5 resources. Such applicable regulations include requirements to obtain a Sensitive Lands permit (18.775.020(G); 18.775.070), engage in interagency coordination (18.775.030(C)), compliance with the general provisions for floodplain areas (18.775.040), and where applicable, compliance with the general provisions for wetlands (18.775.050). Additionally, pathways would remain prohibited in locally significant wetlands and along the Tualatin River, Fanno Creek, and South Fork of Ash Creek without an accompanying Environmental Social, Economic and Energy Analysis ("ESEE") prepared in accordance with OAR 66-023-040. TDC 18.775.090(A); 18.775.130. Based on the above, it is found that DCA 2008-00005 presents the same kind of conflicting uses contemplated and allowed under the current Sensitive Lands regulations and Goal 5 resource protection program, and that the existing protections under the Sensitive Lands regulations is still sufficient to protect the Goal 5 resources within the floodplain. 2 - ;Aid 3 o9 Sf2-n .:i+VQ Culf\_. May 12, 2009 i C. Mayor Dirksen and Council Members aJ-Q-n G■ QOM. % C. Tigard, Oregon RE: Development Code Amendment(DCA)2008-00005/ Sensitive Lands Permit Requirements Dear Mayor Dirksen and Council Members: We are writing to comment on the City of Tigard's proposal to remove and/or change the wording of Section 18.775.070.B.5 of the Sensitive Lands Code(SLC)Permit requirement which reads in part that"No pathway will be below the elevation of an average annual flood." Fans of Fanno Creek is a local advocacy group for Fanno Creek and its tributaries with many members who donate significant time and effort during the year to,plant native vegetation and remove non-native species. While many of our members use trails for various reasons, we do not support any building of new trails that would in any way cause negative impacts to our natural resources. We believe that 18.775.070.B.5 is a necessary part of the code and should NOT be removed for a number of reasons. • 18.775.070.B.5- During many discussions with city and staff about this code section, there has been a marked lack of a complete definition for what"average annual flood" actually means. One suggestion was that it meant and would be measured as a"two year flood" event would be. In addition, there is a lack of knowedge as is commented in staff summary„ as to why this is actually in the code. Before any changes/delections to a Sensitive Lands code is made;it behooves the city of Tigard to have a clear definition of the code as well as a clear understanding of what removing from the code would mean for Sensitive Lands/natural resources and their protection and conservation. We asked the city staff(Phil Nachtbar) in April of 2009 to conduct an analysis of what removal of this part of the code would mean. There has been no response, other than a continual verbage, now from staff,that removal would not, "by itself, result in trails being build in areas to the detriment of natural resources including rare,or state and federally listed species." So, how did staff arrive at this conclusion? What analysis was done? Was a hydrology study done? We see no evidence anywhere in the record that any effort was made to qualify or quantify how natural resources and fish and'wildlife species might potentially be.impacted by removal of this part of the SLC. Until this is done, it is simply not possible to state there will be no detrimental affects from building trails in these SL areas, and hence it cannot be concluded that the city can meet the requirements of Goals 5 Band and Title 3 and 13 if it removes this section of the SLC. Staff has argued that the average annual flood can be measured as a `two-year' flood, but as far as we can tell this has never been done using actual stream flow data, etc. We believe that the city is incorrect on this, for they fail to actually address the actual "average annual flood",which is based on the `average' flood of the area on an annual basis not a two year basis,and should be calculated based on actual annual flow data for Fanno Creek. • s We reviewed data from USGS from 2001 —early 2009, including the peak stream flows for Fanno Creek measured at the nearest USGS gage off Durham Road(from Fanno Creek at the point where it flows under Hall Blvd.). USGS is the only agency that actually collects stream . flow data for this area. Water year Date of annual flood Flow of annual flood, cfs 10/01-9/02 1/8/02 1030 10/02-9/03 1/31/03 1180 10/03-9/04 12/14/03 623 10/04-9/05 3/27/05 641 10/05-9/06 12/28/05 1010 10/06-9/07 12/14/06 964 10/07-9/08 12/3/07 1670 10/08- 1/2/09 1650 The most recent four years average annual flood flow(AAFF)was 1323 cfs, while for the prior four years it was 868 cfs. For the entire past eight years,the average AAFF was 1095 cfs, slightly more than for the 1996 annual peak flow(also the year of the 100 year flood event). In 1996,the stream flow caused the stream surface to be at least 18".above the surface of Hall Blvd., at 142.37MSL. The data provided above shows that the AAFF is equal to or just above the 1996 annual peak flood level at Hall Blvd, or 142.37 MSL. This also means that the annual average flood elevation at Hall Blvd. approximates that of the 1996 annual peak flow, and this means that it is approximately 18"above curb level at the north end of the Hall Blvd. bridge. We have attached photos(Attachment A)taken in December,2007 by Brian Wegener of the Tualatin Riverkeepers, of footage taken during a peak flow event that clearly shows Hall Blvd. under water(see table above for the stream flow data): These photos show the high water level on Hall Blvd. as well as at the point of where Fanno Creek Trail meets Hall Blvd. on the west side of the highway. During some events such as this in the past,I have been on Hall Blvd.. when water depth was well over 12-18" in height. These annual flood events are happening with more frequency and will continue to increase in frequency and height with continued development. . What comes next into question is the cost at which trails are built and maintained? Steve Martin of the city Parks department submitted comments saying trails posed little maintenance and maintenance costs to the city. The staff report also states that the Public Works department said removal of this section of the SLC "wasn't an issue". This is contrary to what Brian Rager of Public Works told my neighborhood in September of 2008, stating at a public meeting for folks living along Summer Creek, and when asked if the city would ever build a trail across or along Summer Creek, he said they had no plans to put a trail in this area nor would they ever consider putting a trail through this area due to the fact that it is a sensitive habitat. I hear refer to the Attachment C which clearly shows the bank of Fanno Creek failing next to the trail and the fact that CWS has stated the trail will need to be removed and will not be replaced with the Remeander project for Fanno Creek. This trail should have never been built this close to the bank, and will be very costly to the city to remove. Yearly flooding is eroding the bank,etc. and contributes to unsafe conditions for trail users. I also believe it was built below • • the average annual flood in 1994 and was a violation of this part of the code. By removing the SLC, as a citizen I interpret this to mean the city will build trails wherever they want to and may indeed build them again in areas that flood annually and that may cause great expense to hardworking citizens and may also be quite unsafe. • Staff argues that removal of this part of the Sensitive Lands code will not negatively impact Statewide Planning Goal 5 (Natural Resources). Staff is also wrong on this argument, for in fact removal of this section of the code could have severe negative impacts on our natural resources,especially in these areas that"flood annually." With increased development in Tigard and surrounding cities, our creeks and wetlands now flood more frequently and at greater volume and velocities every year(as data above shows). This has negative impacts on both habitat and fish and wildlife, and this annual flooding will only get worse in coming years. Adding trails to these areas that flood annually will only serve to increase these , negative impacts,by adding increased impervious surface, degrading water quality, degrading habitats, some already in poor condition, and putting people at greater risk. In addition, costs of trail maintenance of some trails could greatly increase due to the costs of trail maintenance for repairs, upkeep, etc. • Staff argues that the "original intent of the part of the code remains unclear." However, staff then proceeds to list"perceived"reasons as to why the code is included. Their"perceived" reasons are exactly correct, in that yes,this part of the code does indeed help to: • Lessen impacts on floodplains, • Helps to alleviate public safety concerns, • Reduces potential maintenance associated with inundated trails, • Reduces negative impacts to habitat and the"flora and fauna" associated with those important habitats Negative impacts from removing the code could include • add impervious surface areas to the wetlands, • would fragment habitats, • would create barriers to wildlife moving through these significant habitats and • would degrade water quality • would create safety issues for the public using these trails in flooded areas. • Staff argues in their memorandum for this proposal that removing this part of the code would allow Tigard to build trails in areas of Fanno Creeek Park"currently inaccessible." Do we really want to do this? Almost all of the Park is currently accessible to the public right now and those areas that don't have trails are this way for a good reason,they are wetlands that flood annually or are wet year-round. Fanno Creek Park, as well as all of our other creeks and adjacent wetlands in Tigard, are classified as"Significant Habitat Areas", and the Park is rated as an area with the"Highest Habitat Value". This means that these areas receive the highest level of protection under Goal 5 in order to protect habitat,water quality, and the fish and wildlife that live in these areas. Placing trails in these currently inaccessible significant habitat areas would have negative impacts to these important habitat areas by adding impervious surface(trails), increasing disturbance to fish and wildlife, especially State listed Sensitive-critical species such as the Western.Pond Turtle, increasing dogs and other pets to the area and increasing the amount of human debris/garbage to these significant habitat areas. M i We refer here to Attachment B, which shows the bank of Fanno Creek failing just east of Hall Blvd. Before any trail or bridge would be placed in this area. The banks need to be restored in good condition in order to protect the stream, associated habitats and fish and wildlife iin this area. This is not being proposed. Mr. Tom Murtagh,the ODFW fish biologist for this region, looked at this very bank and had the following comments; the bank failure problem on Fanno Creek at this site contributes to deteriorating stream function which negatively affects Federally ESA listed winter steelhead including juveniles that may use this area for over-wintering refugia. Mr. Murtagh also highly recommended that this area should first be restored and the banks repaired BEFORE any bridge or any structure be placed in this area. ODFW's habitat biologist has also submitted a letter to the city stating they oppose removal of this code section. How has the city responded to these concerns? According to Policy 4 of the Natural Resources section of the CP; this Policy states that "The City shall actively coordinate and consult with landowners, local stakeholders,and governmental jurisdictions and agencies regarding the inventory, protection, and restoration of natural resources". • Tigard's Comprehensive Plan (CP) - Staff argues that removal of this section of the code will improve the ability of Tigard to meet the newly revised comprehensive plan goals, including"providing passive recreational opportunities such as trails in parks and open spaces." Keeping this part of the code intact will NOT in any way prevent Tigard from meeting the goals, as there already exist numerous trails throughout our city including both the Fanno Creek regional trail which goes through Fanno Park, and numerous other trails throughout our parks and open spaces. In addition,the on-going Trail Study has identified numerous short trail segments in uplands that will help to meet the comprehensive plan goals for trails and nature-oriented recreation. According to the updated Comprehensive Plan, Tigard already has over 9 miles of completed trails, which include over 1.5 miles of trails within Fanno Creek Park already. In fact, Tigard is in the process of building new trails in significant habitat areas and have received necessary permits to build trails in significant habitat areas, even with this section of the code in place with the current wording. Rather,the removal of this section of the code will actually Violate two policies of the revised Comprehensive Plan(CP),Parks, Recreation, Trails and Open Space section of the CP, Policy 6, which states that"The City shall acquire and manage some open spaces to solely provide protection of natural resources:...". And Policy 1.7 of this section.ofthe CP states that"The City shall maintain and manage its parks and open space resources in ways that preserve, protect, and restore Tigard's natural resources, including rare, or state and federal listed species,...". This application has failed to adequately address both of these policies by proposing to remove a section of the SLC without an adequate analysis of what impacts could occur to rare and state and federally listed species in significant habitat if this code was removed. Placing trails in these sensitive wetlands that flood annually will violate both of these policies of, the comprehensive plan as well as the Sensitive Lands code. Putting pathways in areas that flood annually including near stream banks creates 1) impervious surface areas or if it is a boardwalk, creates an obstruction in wildlife habitat and fragments existing"significant habitat"; 2) puts people in areas that provide"significant, critical habitat"for imperiled species including Western Pond Turtles, which by state and federal law must be protected and in which are highly sensitive S to human disturbance including noise from people walking,talking, biking, etc; 3) introduces dogs and other pets that should not be allowed in Significant Habitat areas; and 4) increases debris, garbage, etc: that will enter the area. Finally, removing this section of the code in no way protects, preserves or restores habitat or species since it will only serve to have multiple negative impacts on our precious natural resources. The city must meet and fulfill ALL of the CP policies„they can't lust pick and choose which ones they want to address. • The staff report states that"removal of this SLC does not, by itself, result in trails being build in areas to the detriment of natural resources including rare,or state and federally listed species". Staff goes on to say that the.CWS.DCS_provide additional protection. This is not true for these DCS are designed to.address water quality and flood management and in no way do they address the needs of fish and wildlife species, nor their particular habitat needs,which may be protected-by keeping this section of the SEC and not removing it. Trail buffers as-required by CWS are often glaringly inadequate in protecting wildlife habitat requirements since they are often too small to meet wildlife needs. Staff goes on to say that"trails do not generate pollution and by themselves are.not a.source of impact to sensitive habitats or species." This is totally untrue. How can anyone state this when we are now having to remove trails out of sensitive areas (Fanno Creek Park) and are presently involved in a sensitive lands issue regarding the placement of a trail that will impact a State sensitive listed species (western pond turtles)? Trails can often fragment habitat, fragment wildlife movement corridors, create impervious surfaces, asphalt trails degrade and the material goes into-our waterways, people on trails cause disturbance to and disrupt wildlife movement and activities, trails bring in dogs which are highly disturbing to wildife, and many more negative impacts can occur due to trails. Once a trail is put in an area, trail users often create "side trails" that further degrade habitats and disturb wildlife. • Staff fails to mention that in the Fanno Creek Master Plan is also included a project to improve Fanno Creek through remeandering one section of Fanno Creek, improving bank stability, and also by increasing the available habitat for the Western Pond Turtle, an imperiled and State and Federal listed species that is found in the park. Fans of Fanno Creek met on-site with Clean Water Services and the Oregon Department of Fish and Wildlife in 2007 and 2008;these meetings included discussions of the Fanno Creek improvements and possible trail construction and alignments. Both agencies recommended that the current trail on the southwest side of the park be removed in order to reduce the negative impacts it has to the creek,the creek bank and the wetlands, and that NO NEW TRAILS be built in the newly created remeander/wetlands area of the park. This was agreed upon in order to protect the habitat and to give fish and wildlife, including turtles which need quiet,backwater-areas away from human disturbance in which to grow and thrive,a place of refuge in the park: The public can still see and appreciate this area from a distance when it is completed as well as enjoy almost the entire rest of the park from the current existing trails. • Fanno Creek is listed,as "Essential Salmonid Habitat"which means that any addition or removal of material associated with path construction creates a need for a DSL permit. Staff in their report fail to address this and how this DSL regulation affects their proposal to delete . this section of the code. • Staff failed to consider Metro's "Green Trails Guidelines for Environmentally Friendly Trails"; One section discusses how to site a potential trail route and evaluate impacts to natural resources. It states that routes should"avoid negative impacts to wildlife habitats and water resources and that this is achieved by routing the trail around these resources." It is crucial that staff and the city as a whole get on board with the rest of the region by adopting these Green trail guidelines and standards in order to truly protect and conserve our important natural resources. Dropping the proposed section of the SLC is the wrong"route"to take! • Wildlife Assessment—The proposed new language includes wording that states"shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to.sinn.ificant wildlife.habitat". Conducting a wildlife.assessment does not ensure that an alignment would minimize impacts, it only states an assessment would be done. In addition, in some cases we would want to make sure impacts were avoided completely, especially if it involved, federal or state listed species, sensitive or rare species in a particular area. This is supported by the policy#s 6 and 17 imthe CP as noted above. We recommend that the city in any circumstance where Sensitive.Lands are involved, conduct a..Biological Assessment (BA),that would include an analysis of habitat and species,their habitat needs, condition of habitats in the area of concern, and how these species and habitats might be negatively impacted by a trail, etc. Then,an analysis would need to be conducted both qualitatively and quantitatively of just how the potential impacts would be avoided or in some cases minimized. Any projects that would potentially affect fish species if ESA listed would need to be consulted with ODFW and NOAA Fisheries. A biological assessment would also give the city much needed baseline data(also required in the revised CP) of our natural resources in Tigard and would further the goals of protecting and restoring our precious natural resources. In conclusion, we request that the Tigard City Council DENY the City of Tigard's request to remove this important section of the Sensitive Lands Permit section of the Development Code, in order to protect our natural resources and to fully meet Tigard's obligations under Goal 5, Title 3, Title 13 and the Tigard Comprehensive Plan. Thank you for the opportunity to comment. Sincerely, Sue Beilke, Board member,Fans of Fanno Creek Board member,Friends of Tigard/Bull Mtn. Trails • ---,..... - - -- •• • •. ' .•• ... • •<•••• . :. . 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': 'tiz:s 1 i4teF \? f. +r �. •,....x .. ,40.• ` J1:+• 4' 1 .• .......s..>;.K!a2!.:' .< :..A r: r.' ......�x...... .. 4. r. % -f1 •x .. •�� 'ka 1 ' }. r't tw ii 5' ^, x! zf F4L -_•%x ' <.:: fie!..., I - i ....*: :.�'•°,>q-4....4.4.4.. ... .....,..•ti,.::.,w:_": r � .r � r• ., < • • ' .: w , ,:: 4.4.4.4.•:�jy fi..� , -.•. te ' •• p •_ • . :.' .+om• 0,06 . • iiii. . • .., t's•!^ �,:��aiA ,,�: . to. .. yYs : .f. 0` • g"w. . h 4::F:4-::: ., .'y. ,. .. r #1:1!':::'::-Mt•Y. +°' .. !:v.♦.x...:: w.. 8::..4.1'. ':.s :`:{r$.x8a: I :::••••-•• • • ' •- "•'' • * • • • !Or: • • • . .• • • • • • • '• - •• • •... • • • •....4•;•4•:-. •• • ••—• • •• • • ,t the F.A.cr..P.11.-ea ter •I. • • • ••• • • e ree: :. • : • . FROM :5IWA FAX NO. :5036213025 . May. 12 2009 02:00PM P2/3 • • Department of Fish and Wildlife r Northwest Region Theodore R,Kulongoski,Governor 18330 NW Sauvie island Road �- - ` �-,t1�, ./..�- �(1 Portland, OR 97213 • 34b try/ I�l�eO1 (503) 621-3488 0 Coagj( (503) 657-2050 6./.)-U? OREGON iI* •Wildlife May 12, 2009 • Tigard City Council City of Tigard 13125 SW Hall Blvd Tigard,,OR 97233 • Dear Tigard City Council, The Oregon Department of Fish and Wildlife (OUFW) would like to provide the following comments regarding the City of Tigard's proposal to remove section 18.775.070.B.5 of the Sensitive Lands Code with the caveat that a wildlife assessment will he performed. ODFW recommends that natural resource assessments should consider the type of habitats present to determine the potential impacts to natural resources. Wildlife assessments often do not identify use by all species present. Even if species are not present at the time of the assessment, this does not mean that the habitats will not be used by species in the future. As stated in a previous letter to the Tigard Planning Commission, the Oregon Conservation Strategy (WNW 2006) identifies riparian habitats, including associated floodplains and terraces, as a priority habitat. Riparian habitats have declined from historic levels and are now greatly reduced in area and connectivity. Riparian habitats are critical for fish and wildlife and contain a high level of species diversity. Healthy riparian habitats also provide important ecological services for water quality, such as protection from bank erosion, decreased water temperature, and fi.l.tering of runoff. ODFW is concerned with allowing trails and bicycle paths to be placed in riparian and associated floodplain habitats. ODFW does not believe that fish and wildlife will he adequately protected if.the City of T..igard removes section 18.775.070.13.5 of the Sensitive Lands Code even if a wildlife assessment is performed. • FROM :SIWA • FAX NO. :5036213025 May. 12 2009 02:01PM P3i3 _ The Oregon Department of Fish and Wildlife would like to thank the City of Tigard.for the opportunity to provide comments. Please feel free to contact me with any questions. Sincerely, 11-../ Mischa Connine Habitat Biologist • • • • • • • � Cathy Wheatley t oR v From: Craig Prosser Sent: Tuesday, May 12, 2009 3:55 PM To: Ron Bunch; Dick Bewersdorff; Cathy Wheatley 'Lc) Subject: FW: Sensitive Land Permits: Frewing Testimony elk FYI From: Craig Dirksen [mailto:craigd @tigard-or.gov] Sent: Tuesday, May 12, 2009 1:15 PM To: Liz Newton; Craig Prosser; Councilmail Councilmail Subject: FW: Sensitive Land Permits: Frewing Testimony From: jfrewingJSMTP:JFREWING(c�TELEPORT.COM1 Sent: Tuesday, May 12, 2009 1:13:28 PM To: Craig Dirksen Subject: Sensitive Land Permits: Frewing Testimony Auto forwarded by a Rule Mayor Dirksen and Councilors, Below is my prepared testimony for tonight's consideration of changes to TDC 18.775 regarding sensitive land permits. Thanks, John Frewing SENSITIVE LANDS PERMIT REQUIREMENTS MAY 12, 2009 TESTIMONY OF JOHN FREWING The proposed changes to TDC Chapter 18.775 eliminate the requirement that pathways in Tigard's sensitive lands (100-year floodplains) be above the elevation of the annual average flood. The replacement wording has two problems which should cause it to be deferred and revised. A This change in regulation has not been 'coordinated' as called for in ORS 92. This statute calls for review by other relevant jurisdictions and incorporation of their comments wherever possible. I don't believe this change has been reviewed by METRO and their staff. B Title 13, Nature in the Neighborhoods, a regulation issued by METRO calls for protection of sensitive lands, including those in the 100 year flood plain. Among the requirements of this regulation is one that calls for clear and objective standards for protection of these sensitive lands, including significant habitat areas. The proposed wording, which calls for a wildlife assessment is not clear and objective as defined in the METRO regulation. Please ask city staff to coordinate this proposed rule change with METRO and include clear and objective standards, such as exist presently. Thank you. John Frewing 7110 SW Lola Lane, Tigard, OR jfrewing @teleport.com 1 <• - • • _ 1111 q city-ofTigard ; - Tigard.Business .Meeting—',Agenda :TIGARD: TIGARD:CITY:COUNCIL MEETING DATR; May'10,:409: p:m.,,Study'Session;'730 p.m: Business Meeting MEETINGLOCATION: City TigardH Town Hall,'131125'SW'Hall Blvd‘,Tigard;OTh 97223 PUBLIC NOTICE:: Anyone wishing to speak on an agenda item.should sign on the appropriate sign-up sheet(s): 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 inhitifeg dr less..'LltingetinattetS,can-he,§etfof a future,Agendabrcontacting either the Mayor or the City Uanager., Times noted are estimated,it is recommended that persons interested in leScifyirig:,bepresent,by 7:15 ri.m. to sign in on theltestimonysign,in sheet. Business agenda items can be heard in any order after 730p m ASsistiVe:Listening Devices are available for persons with impaired:hearing and Should„be scheduled for Council meetings by noon,on the Monday pciCif,to the Council meeting Please call 503,639,4171, ext. 2410 (voice) Ot,503684-277 (Tf.".0-'TeleetirriiiinnicatIbri§Devices for the Deaf): Upon:requegtdi-e:C:ity will:also endeatror.tn:4trange--foti.tie,following s' vices ■ Qualified Sign language interpreters for persons with speech or hearing impairments,and e. Qualified bilitignaliriterpretert. Since thete.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 500 p.in. on the Thursday preceding the..ineeiing'hy calling: 5036394171,ext.2410 (voice)or 893-0$42772,app--Teleconioinkatiorts Devices for the Deaf). SEE ATTACHED AGENDA. CABLE VIEWERS: 'The:regular City COuncilmeetingis shown live on Channel 28:ar:7:3U pan. The,meering Will be _rebroadeast at.thelbllo*ingtirries:on,Charinel Thursday .60 pm., Sunday 11:00:. Friday. '10:00 p.m. :Monday 6:00:a.m. TIGARD'CITY-COUNCIL/LCRB 2000 City of Tigard- I 13125 SW Hall-Blvd..;Tigard-,OR 97223: I 503-639-4171 I www:tigarcl-or:gov I Page 1,;ol'5 • • City orrig4d Tigard Business: Meeting Agenda TIOARD CITY COUNCIL LOCAL CONTRACT REVIEW:BOARD:(LCRB) MEETINGDATE/TIME: May 12,2009-630 pm Study Session,730 p.m.Business Meeting MEETING LOCATION: tit of Tigard:—Town Hall, 13125 SW Hall,Blvci.,Tigard,OR 97223: • EXECUTIVE SESSION::The"Tigoo City Council will go into Executive Session under:ORS 191660(2)..(6.) in discuss real property transaction negotiations: All discussions are confidential and those present may disclose nothing from the Session Representatives of tho:.#0* IteClia,„Oe.0110*ed to attend Executive: Sessions,as provided by',ORS 191660(4);but must not,disclose,any:information discussed. Na Executive Session may be held for the'purpose of taking any final action or making any final gksisiori,Executive Sessions are closed to the public. • STUDY SESSION DikuSSNarriing the City-O‘Vried.ReSidence arid:Property-it 13335 SW'Hall Boulevard o PublicAVorks Department; > Status of Street Maintenance fee Public'Outreach Comthunity Development:Department •7:3o rAi 1. BUSINESSNEETINQ 1:1 CalLto Order-City Council&'Local Contract Review:Board Roll Cali 1:3 Pledge of Allegiance. 1:4 Council Coriinicatioris&Lion Reports • 1.5 Call to Council and-Staff fOr Non-AgendaIte.ms` PROCLAMA:TIONS: A. PROCLAIM MAY 17-23,2009 AS EMERGENCY MEDICAL SERVICES-WEEK B. ADOPT THE HEADQUARTERS AND THE HEADQUARTERS, COMPANY 41' BRIGADE: COMBAT TEAM • :MayorDirksen TIGARD'CITY COUNCILACRI3 AGENDA"wy 12;2009 City of Tigard; I 13125 SWHaI1 Blvd.,Tigard,OR 97223, I 503-6394171 1 www:tigard,or.gov I Rage Zol5• • • 3. CrnzEN COmiktNic.:ATION-OltioMiotite -otte4;Pie.4§0, • Tigard iii0';'sopos#00tpzpioy Acknowledge and Commend AlexalCaribergsi:fOr Her'Efforts-,as.the Trig40.High School Student Envoy tb-die City Tig#4--,ResbliitionNO,, F011ow.-Up to,Previotis Citizen Communication Citizen Sign lip Sheet 4. CONSENT AGENDA (Tigard City Council and Local Contract Review.Board) These items are considered routine arid niay be enacted in one motion without separate discusSion. .Anyone may request that an item be remoyedby mritionfordiscusOonand separate.action. MOdoii.to: 4,1 Approve:City Council Minutes for;March24,.April,14 and April 25,,2009: 42 Receive:and File: a. CouricitCalendat b. 'TentatiVe,Agenda. 43'; WitharaW the City's Participation inthe.Tualniiii-BaSin Witer,SUpply Prcijeet(TBWSPYand Terniinate- . the City's Membership in the Joint Water:Commission 070, 4.4 ,Approve Intergovernmental.Agreement between the Cities:.oEBeavertdn, Tigard, and Washington,. County Regarding Barrows Road Road Bridge 45 .R-04ppoitit..troq'TYCerT0,the'TreeT,Board=Resolution No.09-_ 46 .Approve Intergovernmental Agreement'With..Washington County for Right-of-',Way-Services: on the GreenburgRoad/HighWay:99W,Main StreetInterketiortProjeCt • ,.CoruentAgenda,4tems:R:emovedfiirSOataie:Dirciariort...41y items requested*kremovedfrcitu.the::CouseutA:gemia: jef sepOte:AitySsibn,gill be considered iMmediatefr after"be'Council/Local Contract Reviewl3mortimi.iloted on thate; .items wbicbdo,not ueeddiScusiibn. 5.; piscussioN.-wItti $,T1:14.towcINNy.putmicKAND ul5cEsENTAI1 V :I.A.imy•GALIZIO; -- .LEGISLATIVE.BRIEFING 1D: -Administration Department G:, INFORMATION PUBLIC 14P_ARING — CITY.COUNCIL T . CONSIDER ADOPTING THE CITY. OF TIGARD'S 20-YEAR FACILITIES:HAN -4. Open.PnhliCLfiearirig b.. StaffReport: -Community,DevelopmentDepartment Testimony Proponents -Opponents d. ;Staff Recommendation. CoUnCiIQueStions. Close Public Heating- _ COunCil.Consideradon: ResOltitiOnNo.09; T.IGARD CITY-CPUNCT-1.1/1XAS AGENDA--;MAY.:12' 2009 City of-Tigard, 1 13125 SW:171-a11.131vd.,Tigard,OR 9.7223. I .501-6394171 I :www:tigard-..or,gov. Page.:3,of5 • 7. LEGISLATIVE, PUBLIC HEARING _ PROPOSED .DEVELOPMENT :CODE AMENDMENT REGARDING REMOVAL(DCA2009-00001): COUNCIL:GOAL.#1B'—UPDATEJTHE'TREE CODE TO ME- ET COMPREHENSIVE'PLAN REQUEST: To>.ainend-the;curient'Tigard'DevelopiiientCode to clarify how,an.applicarit:for-development is to demonstrate compliance.With ahe..0 ty's .stated preference'for tree protection lover:removal'wherever possible: 'The..coinplete text of the;proposed Code Airieiidinent can be Viewed on the City's website at http://www:tigard=oi:gov_/code_amendments: LOCATION: Citywide .ZONE::All City:Zoning Districts; ,APPLICABLE ,REVIEW CRITERIA:' ;Community-Development Code. Chapters 18380, '18:390;,and: 18:790;Comprehensive Plan.Policies 1;1:2,1;1;3, 1:2:1,1:2:6,2422,21,14;,2:1.24,2:2;1,:2;2:6,,2:3:1,.2:3:6,6.1:6, 623,624;and;6.2.5;:Metro:Functional Plan Titles.1,.2;and 3;:and Statewide..Plarining Goals 1,2,and;6. a, Oj err iblic Hearing b, e. :Declarations.or Challenges Staff Repr: m Department d.. Public Testimony Proponent-'Opponents e.. Staff Recommendation E Council-Questions g, Close Public Hearirig .h. ,Council.Consideration:' Ordinance No.09- 8; LEGISLATIVE PUBLIC, 'HEARING PROPOSED` DEVELOPMENT' CODE., AMENDMENT' .REGARDING :SENSITIVE:LANDS PERMIT REQUIREMENTS ;(DCA2008-00005) TO .REMOVE CRITERION THAT PROHIBITS PATHWAYS;,LOCATED WITHIN OR .ADJACENT` TO THE FLOODPLAIN TO BE 'BELOW THE "ELEVATION OF THE ANNUAL AVERAGE .FLOOD. (1,8:775:070.B:5), REQUEST: To remove'Section 1.8.775:07.0.8:5 of the Sensitive Lands;Permitrequirementswhich:reads: "5, The plans'for Alie'pedestrian/bi ycle pathway indicate:,tliat•-no pathway will be below';the:-elevation;of,an: average,annual flood;". Removal of'this section would.allow pathways:to be:installed in'areas which-would 'benefit.the'public''s access to:and„educational appreciation.'of ecological areas. On.:April 6,:2009,;the Planning, .Commission recommended. the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall.include:a wildlife assessment to ensure,.that`the proposed. alignment.:.minitnizes impacts to significant wildlife habitat” :LOCATION: Citywide. COMPREHENSIVE PLAN' DESIGNATION::: All -City Comprehensive Plan Designations;: `ZONE: All City Zoning, Districts: APPLICABLE REVIEW CRITERIA:: The Statewide Planning:Goals and Guidelines-adopted under. 'Oregon Revised'Statutes':Chapter, 197, [Goal 1, Public Involvement;.Goal 2; Land;'Use,Planning: Goal 5 :Natural Resources,,Scenic and_Historic Areas, and Open Spaces; 'Goal 7,Areas Subject to Natural Hazards; and Goal''8 Recreational Needs]; any federal. [FEMA] or. state:statutes or regulations found:applicable; any •applicable:METRU;regulations;'[Metro Code Sections;,3:07.300,Urban,-:Growth Management Functional.:Plan; arid.Title.3; Water. Quality and-Flood:Management], any_applicable Comprehensive Plan'Policies; [Goal Public Involvement;' Goal.2,Land.Use.Planning=Goal 7-,:Hazards;Goal 8;•Parks,.Recreation;Trails,and-Open. 'Space];�and:any•;applicable.•p ovisions'of the City's'iinplenlentin ordinances C 18.130;:18.380, 1$:390:arid; 18.775]. 'TIGARD.CITY COUNCIL%LCRB AGENDA—MAY'12; 2009 City'of Tigard I 13125 SW Fja11,Blvd.,Tigard,OR 97223: I ,503-639=417,1 I ;www:tigard-or.gov I Page 44)45 • • • a. open Public Healing b. Declarations:or Challenges c:: Si- 0Repor6 Community Development Department d.. Public Testimony: Proponent-Opponents' ,Stiff Recoiriinendation f: Council:Questions g. ,Close PUblie.Hearing h. COunell:Consideration:, Ordinance No.09- 9. COUNCIL.LIAISON;REPORTS 10. NON AGENDA ITEMS 11. EXECUTIVE SESSION:The Tigard City Council may go into Executive Session. Ifan Exectitive,Session Is called to order,the appiciptiate.OM.4itation will be announced identifying:the applicable statute.All discussions are confidential and those present may disclose nothingrfromthe Session Representatives of the news media are allowed to attend Executive Sessions as provided by ORS 192.600(4),:bni'Must not disclose Anyinformationdiscussed.No:Executhre,Session:may be held for the purpose of taking any final action or• ñ1äIciñ any filial EjtecigiVe, e: SiOn -ite.:_ciOgeartel-the 12. STUDY SESSION: ■ Proposed Park Bond VOterAttitude Survey o :StaffReport Administration Department 13. ADJOURNMENT M\CATHYCCA\2009\09051Zdoe TIGARD:CITY'COUNCIL/tCRR AGENDA=MAY 12; 20(9 City orrigagi I 13,125 SW,Hill Blvd.,Tigatcl,OR:97?9 3 I '501763 941 7,1; I Nrmv,tigardor.gov ,Page 5 ar5 • • City of Tigard tit etttAtf v"' Tigard Business Meetin g — Agenda irk itaieMsk1/411 TIGARD QTY COUNCIL it LOCAL CONTRACT REVIEW BOARD(LCRB) MEETING DATE: July 14, 2009 MEETING LOCATION: City of Tigard- Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication -. items are asked to be two minutes or less'.. Longer matters can be'set for'a`future.Agenda by contacting either the Mayor or the CatyManager. Tunes noted are estimated; it is recommended that persons..interested in testifying:be present by 7:15 p.m: to sign in on the testimony ysign in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the.Council:meeting., Please'call:503-639-4171, ext 2410 (voice) or 503-684-2772 (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 (`1')D - Telecommunications Devices for the Deaf). CABLE VIEWERS: The regular City Council meeting is shown live on Channel 28 at 7:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m. Sunday 11:00 a.m. Friday 10:00 p.m. Monday 6:00 a.m. SEE ATTACHED AGENDA TIGARD CITY COUNCIL/LCRB/CCDA AGENDA— July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of 5 - J 11111 Eh City of Tigard ' ' :ry Tigard Business Me etin g — �e nda TIGARD QTY COUNCIL &LOCAL CONTRACT REVIEW BOARD(LCRB) MEETING DATE/TIME: July 14, 2009/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard- Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 6:30 PM STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) and (h) to discus real property transaction negotiations and for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. 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. . ➢ Discuss City Manager Evaluation Criteria- Human Resources.Department ➢ .. I-5_South Study- Mayor Dirksen Letter 7:30 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 &I.iaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 PM 2. CITIZEN COMMUNICATION(Two Minutes or Less,Please) • Citizen Communication- Sign Up Sheet • Follow-up to Previous Citizen Communication 7:40 PM 3. PROCLAMATIONS a. PROCLAIM TIGARD AS A2010 CENSUS PARTNER b. SUPPORT GIVE 10 TELL 10 CAMPAIGN • Mayor Dirksen TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of 5 • • 7:45 PM 4. CONSENT AGENDA (Tigard City Council and Local Contract Review Board) 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: 4.1 Approve Gty Council Minutes for May 12 and 19,2009 4.2 Receive and File: a. Council Calendar b. Tentative Agenda c. Notes from June 30,2009 Fifth Tuesday Meeting 4.3 Adoption of Tigard Police Officers Association (TPOA) New Collective Bargaining Agreement for FY 2009-2011,and Authorization of City Manager to Sign - Resolution No. 09- 4.4 Approve an Updated Employment Agreement for the City Manager, Extending the Term and Incorporating Amendments 4.5 Approve Budget Amendment #` to Recognize the Edtivard Byrne Grant Revenue in the Amount of $86,099 for the Police Department- Resolution No.09-. 4.6 .Reappointment of Board Members David Burke and Cecilia Nguyen,Appointment of Scott Hancock • as Board..Member and Appointment of John Storhrn_and.Grace:Amos` as Alternates _to.ahe.Tigard, • Library Board-`Resolution No 09- • ' 4.7 Approve :Application to the Department of Justice for a Strategic Enhancement Mentoring Program • Grant . .. • 4.8 •Approve Application to the Department of Justice fora Gang Prevention Youth Monitoring Program Grant 4.9 Authorize Submission of an Energy Efficiency and Conservation•Block Grant to Install a New Energy. Star Roof on theTermit Center 4:10 Approve Intergovernmental'Agreement with:Washington County Accepting.$142;000;in Community. Development Block Grant Funds for Garrett Street Sidewalk Iri=fill:::.. 4.11 Approve Workers'Compensation Insurance for Volunteers-Resolution No.09- 4.12 Approve Standard UtilityFranchise Agreement with Electric Lightwave LLC - Resolution No. 09- 4.13 Approve Wetland Mitigation Site Deed Restriction on City Property 4.14 Local Contract Review Board: a. Authorize Gty Manager to Negotiate and Sign a Three-Year Municipal Lease with Panasonic • Finance Solutions b. Award Contract for Audiometric Services c. Award Contract for Application of Slurry Seal on Various City Streets under the FY 2009-10 Pavement Major Maintenance Program 7:45 PM 5. ADOPT PARK SYSTEM MASTER PLAN- Resolution No.09- TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—July 14, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 3 of 5 • • 8:05 PM 6. CONTINUATION OF LEGISLATIVE PUBLIC HEARING FROM MAY 12, 2009 - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning:Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300,Urban Growth Management.Functional Plan; - and Title-3, Water: Quality and Flood Management]; any applicable Comprehensive Plane.Policies;'[Goal:°1;.:.: Public Involvement; Goal 2,Land Use Planning; Goal 7,Hazards; Goal8;Parks,Recreation, Trails,and Open Space]; and any applicable:provisions of the City's implementing ordinances [TDC 18.130,:.18.380, 18.390 and 18.775]. a. Open Public Heating b. Declarations:or.Challenges. c. Staff Report: CommunityDevelopment Department d. Public:Testimony: Proponent- Opponents e. .Staff Recommendation. f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No.09- 8:40 PM 7. CONTINUATION OF PUBLIC HEARING-PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING TREE REMOVAL DCA2009-00001 LEGISLATIVE PUBLIC HEARING - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING TREE REMOVAL (DCA2009-00001) - COUNCIL GOAL# 1B - UPDATE THE TREE CODE TO MEET COMPREHENSIVE PLAN REQUEST: To amend the current Tigard Development Code to clarify how an applicant for development is to demonstrate compliance with the City's stated preference for tree protection over removal wherever possible. The complete text of the proposed Code Amendment can be viewed on the City's website at http://www.tigard-or.gov/code_ amendments. LOCATION: Citywide ZONE: All City Zoning Districts APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380, 18.390, and 18.790; Comprehensive Plan Policies 1.1.2, 1.1.3, 1.2.1, 1.2.6,2.1.2, 2.1.14,2.1.24,2.2.1,2.2.6,2.3.1,2.3.6,6.1.6, 6.2.3, 6.2.4, and 6.2.5;Metro Functional Plan Titles 1,2,and 3; and Statewide Planning Goals 1,2,and 6. TIGARD CITY COUNCIL/LCRB/CCDA AGENDA—July 14, 2009 City Tigard 13125 SW Ha ll Blvd.,'Tigard,OR 97223 503-639-4171 I www.tigard-or.gov P a ge4ofS a. Open Public Hearings • b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony. Proponent- Opponents e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No.09- 9:35 PM 8. COUNQL LIAISON REPORTS 9. NON-AGENDA ITEMS 9:40 PM 10. ADJOURNMENT I/ADM/Cathy/OC'A/2009/090714.doc • TIGARD CITY COUNCIL/LCRB/CCDA AGENDA-July 14, 2009 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 1 www.tigard-or.gov I Page 5 of 5 • Agenda Item# 6 Meeting Date July 14,2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda Tide Sensitive Lands Permit Requirements (DCA2008-00005) to remove criterion 18.775.070.B.5, which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. Prepared By: Gary Pagenstecher Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Should the Council approve a Development Code Amendment to Section 18.775.070.B.5, removing a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and,instead, require that pedestrian/bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat? STAFF RECOMMENDATION It is recommended the City Council approve the proposed Development Code Amendment as amended and recommended by the Planning Commission. KEY FACTS AND INFORMATION SUMMARY Currently, the Tigard Development Code, Section 18.775.070.B.5, stipulates that within the floodplain, "plans for the pedestrian/bicycle pathway indicate that no pathway be below the elevation of an average annual flood." It became apparent through the City's design development process for Lower Fanno Creek Park that strict implementation of this criterion would severely limit where trails could be located, as most of Lower Fanno Creek Park between Hall Blvd. and Main St. in Downtown Tigard would likely be below that elevation. On February 23, 2009, the Planning Commission held a public hearing to consider the Community Development Department request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove criterion 18.775.070.B.5. The Commission received substantial public comment on the proposal principally concerned with wildlife protection and water quality. The Commission decided to continue the hearing and directed staff to prepare an options analysis. On April 6, 2009, the Planning Commission resumed the hearing and discussed the options analysis (April 6, 2009 Memo) prepared by staff with additional input from the interested parties. The Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain "where practicable" to achieve project objectives, requiring a natural resource assessment, and changing the elevation to "ordinary high water". Public testimony clearly favored siting and designing pathways that avoid impacts to wildlife habitat and water quality and opposing the removal of the elevation standard. The Planning Commission approved (5-1) a motion to recommend that City Council approve Option 3.c,which replaces the elevation standard with the requirement for a wildlife assessment. i • S On May 12, 2009, City Council held a public hearing to review the matter. Council heard additional public testimony and after some discussion decided to continue the hearing to a time certain (July 14), pending revised findings to address any new information. This Supplemental Staff Report contains revised findings for the proposed code amendment as recommended by the Planning Commission and addresses the new information submitted at the May 12, 2009 Council Hearing. Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. The proposed code amendment is legislative and would apply to all floodplains within the City. OTHER ALTERNATIVES CONSIDERED The April 6, 2009 Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain where practicable to achieve project objectives,requiring a natural resource assessment, and changing the elevation to "ordinary high water". CITY COUNCIL GOALS The proposed amendment does not directly relate to City Council's 2009 or Five Year Goals. However, the addition of a criterion for the protection of wildlife for paths proposed in the floodplain would update the code to be consistent with new Comprehensive Plan policies that support habitat protection (Comprehensive Plan Goal 8.1, policies 6 and 17 and Goal 8.2,policy 2). ATTACHMENT LIST Attachment 1: Ordinance Exhibit A: Proposed Code Text Changes Attachment 2: Draft City Council Meeting Minutes for May 12, 2009 Attachment 3: Staff Report to the Planning Commission dated June 29, 2009 FISCAL NOTES There is no fiscal impact anticipated for this action. However, at the time the City initiates pathway development in the floodplain, the additional cost of a wildlife assessment would be expected. AK' • CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 09- AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS LOCA ED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT PEDESTRIAN/BICYCLE PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE ASSESSMENT TO ENSURE THAT THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT (DCA2008-00005). WHEREAS, the City's Planning Division has requested to amend Chapter 18.775 — Sensitive Lands of the Tigard Development Code to remove a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead; require that pedestrian/bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;and WHEREAS,notice was provided to the Department of Land Conservation and Development 45 days prior to the first evidentiary public hearing;and WHEREAS, the Tigard Planning Commission held public hearings on February 23, 2009 and April 6, 2009, and recommended approval of the proposed amendment,as amended to require a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;and WHEREAS, notice of the public hearings was published in the Tigard Times Newspaper at least 10 business days prior to the public hearings;and WHEREAS, the Tigard City Council has considered applicable Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; any federal or state statutes or regulations found - applicable; any applicable Metro regulations; any applicable Comprehensive Plan Policies; and any applicable provisions of the City's implementing ordinances;and WHEREAS, the City Council has found the following to be the only applicable review criteria: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas. Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal [FEMA] or state statutes or regulations; Applicable METRO regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard Comprehensive Plan Goals [Goal 1,Public Involvement; Goal 2,Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances [WC Chapters 18.380, 18.390 and 18.775]. ORDINANCE No. 09- Page 1 WHEREAS, the Tigard City Coil held public hearings on May 12th a*July 14th 2009 to consider the proposed amendment;and WHEREAS, the Tigard City Council has determined that the proposed development code amendment is consistent with the applicable review criteria,and that approving the request would be in the best interest of the City of Tigard. NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The specific text amendment attached as "EXHIBIT A" to this Ordinance is hereby adopted and approved by the City Council. SECTION 2: The findings in the June 29, 2009 Supplemental Staff Report to the City Council, Minutes of the February 23, 2009 and April 6,2009 Planning Commission hearings,and the Minutes of the May 12th and July 14th 2009 Council hearings are hereby adopted in explanation of the Council's decision. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor,and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only,this day of ,2009. Catherine Wheatley,City Recorder APPROVED: By Tigard City Council this day of, ,2009. Craig Dirksen,Mayor Approved as to form: City Attorney Date ORDINANCE No. 09- Page 2 • • EXHIBIT A .. :.,._..__.,,,.:�_-� ..,-,:.:,-::n,....,�>,z,,; ,�,w; R:.-.:.,^�-.::w:�vx.,��+,u„xr,++.: ,.,,.,�...K° ��.�..F�,s,.:a,*,k ,. v�.M,� .a-°•:.:,«�.t;,,=z,�,','�`�p1='.+... a x.-A'�".�i; •.,� � , ."��_ y�,:�,� � ��� ����� �DCA2008..00.005�`° '�:�. .,,�.. „ r- s'=, _.s�'�.s ' ,*��:x•+.• :a�:s;.,,c•Rxt�'% �_`• .`�� ,�,� �,=,tip ',n2..zix�;e;,e;,�zaatt;Yv"" ` �. �-�: ; :����: °IT r�IANDS"PERMITRE U �':.�;� �-�,,=:-�., a. .:. :�- �� ���.-SEN:S NE �_ - Q., IREMENTS.��_r��v �. �;�. .n..M .. ,. n - ="=ate- , {,�-;2j ":e '.x` �„�,s,.. ->5�,..�” �...tr,��:s:< `�`',-.,... `�.�•_lfi;�zr"-k;. r��^ ;.,.:;:�,.•:.'��'xt:i� `� �•_'G.', ':afi�-'_'V i; `%cst°ara`i .*. �t'�f"y !'�#a..,c< '7. - �"' a ;4`"� s,w .��'ai .;:�sg:.�Via; ""' �°��;�.�. i'.„`� .i'1...Y++ Tµ9° ..`£` S .5 '..�,.�"�� m. ��C.:�°s,,s, .ct >;r�^ �', .��y `,x4s.c�;�'K���*.w. :..n.; '•s..�. �,x�-��.- '< ..:t ,.:•...:�. s�3 _ v �F.., ?cwt ':�..x• *t .:;�-s-,x, 1f:r.x."°.', .�,r s>'.3`•.` 's:w' :,au''�. .s Ufa :n y'w i-F`E„ <,�<.:��_�-f`�`R,�yyb:,..._ '�' :4e :.' .x S:' .k,,. .:'"•;. .,t'r t- y '`w'„,„s.=. -,..:Y-^-,•>,.a n,a ..: *0;':A iF-F::;:<,< #s, __ x..-, ^�,"i: �,. ;,�j �`�s ,� .iay�s,��,.,< �sx����: "'" %�.=�`�•�L�rE��� .ra'� ��=��;.;��',x..",�•y,^,'"�- r��t,°��'^'^ -,+T� i� '*„''' 51 '�s�ih°- � �.YZS=:f ;$�'✓ ' ..'��.5_ �• zl "r hk��='a �F s:S�`"� c� S �- �'s+ This text amendment;em l'oysthesfollo, yy„ fformatti ;.x PA ;•� ; "s= :- «�:,rYr-�.r;J 3, 110. .,,�=m i "-"'�'''Vz.' 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'Ya-, tF�z`,�:`i T,a"'z* r,`'»ems, "`^^t... �L' 24 -ni 7• s a'f-% .y .q'S.,.i.>zs ..-s...:c e_w •:,>.•. ..'C_ ; -4',i ,... w .. .,*...., s: h=.'. 7:�u?'':!y °Y .X x `"�,;+" ,"9 —Text-to:,bexemoved��.�:��� ��:.��_' :.,�.�,<;. �vtu-,��;;fi;�•-'max- •-.�:��=d:�.' - „>�',��.4��:•�_..,F-�;=,:..�::>.. ,^ ..-.��. -_...,.Y�.-**"' a;:.•: .-..., t .. .,.a...;, 2c �;,� ....-_.-t L�w:.w;: ..„t��r�i- -. r rs✓.::M :�]'.'!_=*;'�'a•,s.:r.:!.-:-�,^a,�. a.x- .'xtk*.azxi8 .•,x�."`'-u`�= .,,„4.°>:w:Y...,?-.axc_ `�_... 18.775.070 Sensitive Land Permits A. Permits required. An applicant, who wishes to develop within a sensitive area, as defined in Chapter 18.775, must obtain a permit in certain situations. Depending on the nature and intensity of the proposed activity within a sensitive area, either a Type II or Type III permit is required, as delineated in Sections 18.775.020.F and 18.775.020.G. The approval criteria for various kinds of sensitive areas, e.g.,floodplain, are presented in Sections 18.775.070.B— 18.775.070.E below. B. Within the 100-year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied: 1. Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero-foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; 2. 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 defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; 3. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100-year flood; 4. The land form alteration or development plan includes a pedestrian/bicycle pathway in accordance with the adopted pedestrian/bicycle pathway plan, unless the construction of said pathway is deemed by the Hearings Officer as untimely; 5. I.- . . - .-. . . .. • .- ._ . - - • . of an average annual flood; Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; 6. 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 7. Where land form alterations and/or development are allowed within and adjacent to the 100-year floodplain,the City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the comprehensive plan. This area shall include portions of a suitable elevation_for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. • • ATTACHMENT 2 Exceipt: Council Meeting Minutes of May 12, 2009: 8:40:26 PM 8. LEGISLATIVE PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive_Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this lecti`o would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Comfnission recomme ded the City Council replace the subject section with `Pedestrian/bicycle pathways withiiir�3the floodplain shall include a wildlife assessment to ensure that,, tllie proposed alignment ` es4impacts to significant wildlife habitat" LOCATION:: Citywide:zA COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan';>Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA ,„,The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter\197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5?katural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to a Nat Ha ards; and Goal 8' Recreational Needs]; any federal [FEMA] or state statutes or �regulatioisfuiid applicable; any applicable METRO regulations; [Metro Code Sections 3.07.340, 1J1,1% ,n cth3Management Functional Plan; and a >. :\.+" f Title 3, Water uali,;;sa > • and Flood Mana emit]; any aphcable Comprehensive Plan Policies; [Goal 1, Public,Involvement;,; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Tra'ils�.°and Open;Space]; and anpapplicable provisions of the City's implementing ordinances [1'llC't1'81>30, 18=380, 18.390 and 775]. 8:40:555:Ptil a. City A'ttomey Ramis reviewed the hearing procedures. City Attorney Ramis added 411 there might l e many'°issues,for the City Council to resolve this evening, he asked the City Councilth>at when it directs the staff to prepare the final ordinance that they give ip 'staff some additional °'time to prepare the final version of the ordinance with '>s$ccompanying "findings for the Council's consideration. This might require a continuance of the hearing. b. Declarat n or Challenges: None 8:44:55 PM f,N c. Mayor Dirksen opened the public hearing. d. Associate Planner Pagenstecher presented the staff report. • This application was brought forward by the Community Development Department. 1 ( Page • • • The standard in question prohibits trails to be below the average annual flood. It was perceived that this might prohibit trail alignments for the Fanno Creek Park plans. o The proposal was brought to the Planning Commission. Substantial public comment was received with the primary issues being wildlife protection and water quality protection. • There were a number of comment letters from agencies and interested parties. • The Planning Commission decided this should be aired more broadly to address the issues raised. . o Staff developed an options paper (include& the' City Council meeting gip.' packet) to provide for wildlife protectionsin lieu of the elevation standard. . A • The option (3.c) recommended by the PlanningComiiussion removes, as originally proposed, average annual flood elevation and replaces it:a nth a wildlife assessment requirement. This pertains to floodplainsthrug out the whole City. 8:47:39 PM ,,,,,v, Councilor Buehner referred to the-communication ;received today fromY the Oregon Department of Fish and Wildlife. She sadZshe uriders'tands their concern, but it does not appear that they were aware we were going to include a wildlife assessment Associate Planner Pagenstecher said he had aveoiiversation with Fish and Wildlife Habitat Biologist Mischa kO„,,, e and he note I tliat she referenced the wildlife assessment in her letter. The4etteidoes not comment,onithe efficacy of the standard that currently exists and does riot gi e any_ edit to a,Wildlife assessment requirement Associate Planner Pagenstecher said he'belieees the Department has a general stance against incursiorns?unto sensitive a eas ` tS. <<e£ Councilor Buehner recalled a hearing` , number of years ago regarding the Maplecrest subdivision One of<the proposals asst build a path to a bridge that the developer would build�overv,a l dbhave t continue to an existing path on the other side. ; .,'Concerns were ra�4f 5ed regarduirk)A issues. Associate Planner Pagenstecher said ADA`hissues were not°raised for this application. The trail for Maplecrest was a small neighborhood\trail ui. ar'riparian area, but not in a floodplain. The trails to be z accommodated<in the floodplai.n are regional trails (in this case, the Fanno Creek trail), '` I-which has a standard design of 12-foot widths rather than a three-foot wide soft path. \jA tie main question is can you balance access to nature and recreation with resource (wildlife) protection? Council? Buehner referred to an area of the trail in Beaverton that floods regularly. Has thisssue come up in the context of their portion of the Fanno Creek trail? Associate Planner Pagenstecher said he has not consulted with Beaverton but added that Tigard Public Works staff members say that inundation occurs on average six times a year for one to several days. This represents an inconvenience, but people generally stay away when the areas are flooded. The maintenance associated with those inundations has not been a significant issue. 8:52:22 PM • S Councilor Henderson asked about barring access during times of flooding and if there was any special construction needed for the sensitive areas? Associate Planner Pagenstecher said this proposal does not address the questions. Usually, as Councilor Henderson indicated,people use common sense and stay away from flooded areas. 8:53:42 PM Council President Wilson said the intent of the wildlife analysis, as he understands it,is to try to minimize negative impacts to wildlife. He said he assumed an analysis would not be done until there was a project proposal. The intents not to stop the project, but to determine whether impacts could be minimized. Heeit d a potential example of a typical conflict along Fanno Creek with beavers andtheir tendency to raise the water level. There is an inherent conflict between human'use arnd the use of by animals. At .40". �'. ~aid some point, the space will need to be shared. Council President Wilson said he is not sure what the intent of the wildlife assessmentis.FThe statedintent is to minimize; at some point someone has to make a value judgment -- who make;;this decision and on what basis? 4 8:55:42 PM .. max; ` Associate Planner Pagenstecher agreed witli Council President Wilson in that this is a balancing act. The proposed options go to eaquestion that if you have a program such as a regional trail thaii7iNenerally aligned withafloodplain and you have other standards that require developin nt to, provide easemenyfor trails and floodplains, then a trail access is called for. `You can design as ound the wildlife habitat; the important thing is to know what wildlife~resource exists there. Currently we do not have any regulatory}tools to ensureywildlife protection. Council President Wilson respondedto`Asskcsate Planner Pagenstecher's explanation observing that, apparently, this is ;=_resource "fo the decision ,makers but it does not necessarily impose any .s ',E fix_. particular;approval criteria; it is simplyinformation that the decision makers can use Associate Plaaier Penstecher affirmed that the designer could use the information to ,"° ; ; ' change ate snentlaiccordmgly:or4use�certain construction techniques; i.e., permeability or"aniZelevated boardwalk to address those particular wildlife habitats. sd<. Public Testimony :w °"• Eric Lindstrom, 6801 SW Canyon Crest Drive, Portland OR 97225 testified. Mayor q`' Dirksen advised Mr. Lindstrom the City Council received his comments given to Planni the ng Commission. Mr. Lindstrom acknowledged his comments are on snitIN recordand said he needs to address what has been out on record. He has exception to make to one of the major points regarding tonight's proposal. He said, "It states categorically that this change in the code will not impact negatively...the wildlife protection in that region...and that's categorically not true." This will affect sensitive areas because it brings pathways into areas that are not currently allowed. He asked the City Council to recognize that while this is being brought to the City Council as a problem related to a plan that the City is advancing, there are other properties coming online over the next several years this proposal will affect. Mr. Lindstrom said it was interesting there is a proposal that 3IPage . IP cannot be implemented because "it runs into its own code." He said the proposal to change the code does not make sense to him and does not sound like a good process. 9:00:23 PM Mr. Lindstrom commented that this ordinance would apply to the property from Bonita Road to Durham Road. He said the City Council would be opening a "Pandora's box" in that area even if a recreational problem is solved "here." A serious watershed problem might be created downstream in Tigard. He said he is hoping the City Council will send this back to the Plai ing Commission and planners and ask them to come up with a more creative process to allow the City to implement as much of its plan as needed whiat lethe same time preserve the standard that is "serving you so well in e ste Wardship of your watershed - resources." ,. u . \ 9:01:22 PM 9. • John Frewing, 7110 SW t ola'>Iane . TigardOR advised hey serif n written comments to the City Council this"afternoon that,.he will sums ze and make additional comments. He said Council President Wilson raised a good point How do you balance the desire to have people inter t with natural areas of the City and at the same time protect�:thekwildlife? The City1 as tnot done a general citywide plan determining what areas sh\oi1ldkbe dedicated to fist iwlldlife and areas dedicated to people/recreation. He said he is crit c-4,4 the Forest,Service because they try to do V . may:; '_ ,. V all activities in every acre and h�s, concetned that the City is using that same approach .:,Here needs to be4plan to '4,14-''for areas of wildlife and areas of . asp. giNs Y recreation and;;segregate theseareas. Previous comments noting concern for wildlife stemmeel4from the fact there would be additional trails. We are carving up p vim, the wildlife areas`ginto small pieces‘>ational and regional studies have found that the size df the(piece;„of.natural are_eis key to making it successful for wildlife. For ate:.. � �c.•:'?i, �f` ,;, that reason;N Frewng says e thinks there needs to be a different approach to trail location mithe,City of Tigard. N , ran,, A" ,".4,,,, .; <a Mr. Fwirig�clarifieclrcomments he sent in earlier. He said this change in regulation ` has not been coordinated with Metro. Coordination is called for in Tigard's a<<,;a �,s� Comprehensive Plan and coordination is defined in state law and state rules `requiring affected agencies be given an opportunity to review and to incorporate titeir comments. Metro has regulations dealing with this type of application. Nt4ittiN Msetro;s Title 13, Nature in Neighborhoods, calls for protection of sensitive lands incl tiding those in the 100-year floodplain. In Tigard and Washington County,Title 13 says that the Tualatin Basin Partners developed an alternative scheme for Nature in Neighborhoods. There are additional requirements in Title 13 for every jurisdiction in the Metro area. One of these additional requirements states that the cities shall have clear and objective standards for protection of these sensitive lands including significant habitat areas. Mr. Frewing said he did not think a wildlife assessment was a clear and objective standard and needs more study and clarification. 4IPage Mr. Frewing referred to 18.775.050 M regarding non-residential construction in 100-year floodplains, there is a requirement that the base elevation/floor of any structure shall be above the 100-year floodplain. Any structure below that level shall be water proofed and made flood resistant. He said he thinks this section calls for trails to be above the 100-year floodplain and this is the reasonable standard rather than the annual average flood or the more general call for a wildlife assessment. • Sue Bei lke, 11755 SW 114th Place, Tigard, OR adviseddshe is a Board member of Fans of Fanno Creek. The Fans have many member who work hard to protect and restore natural resources. She said they believ 4at removal of this part of the Code should not occur for a number of reasons ,,One section of the Code addresses annual average flood and they have not received a good definition of average annual flood. The answer from staff was that'i isabout the same as a second year flood. She advised that she and-Mr. Frewing Iravedone quite a bit of investigation into what they thoughttwould be the.average annnalQoo d She said this information is contained on;.the,material distributed to the Ci ^Council. They got this data from the Durham Roadga%ge which''is.actual hard data 9:09:28 PM Ms. Beilke referred to the e, S of Fanno Creek They have information that the annual average flood is increasuig,,,which makes''sense;,:due to what has happened with urban development. This willaffect where traile are placed. If this section of the Code is removed, there isthe potential,to°.pnt,trails in areas where we would not necessarily want them. She referred to the problem of annual flooding and bank erosion `She ciied Attachment`( of her material which is a picture of Fanno Creek �; P Trail"°that has tobe removed at agreat cost to the City. She believes this piece of the trailis currently in the averageannual flood and referred to photographs ilk - supporting hepostion Count r Buehner said this is one of the reasons that .°, Clean WaterServices Ys going sfo remeander the creek and significantly reduce the odds;of\floodingxa in this area The City is cognizant of this situation. This project will sign hcandy change the dynamics of what will happen in the park. 9:11:22 PM Bielke"°referred to comments in the packet from Facilities/Parks Manager Martin that(there are no costs to trail maintenance. She contended there are many 'costs an44 r photos represent an example of a huge cost to the City. The trail is nocgoinito be replaced there. There are other costs to trails. For example, asphalt erodes resulting in stream bank. Many times,in average annual floods,people go around the trail, step on the adjacent ground, trample plants and compact the soils. This type of situation results in costs that we have to pay for as part of maintenance of trails and this has not been addressed. — - - SIPage • • 9:12:09 PM Ms. Bielke referred to the staff's statements regarding why this part of the Code was put into place (Page 3 of her comments). 9:12:41 PM Ms. Bielke disagrees with staff when they refer to some new policies in the Comprehensive Plan that removal of this section of the Code would meet. You cannot pick and choose your policies. There are new policies in the Code that removal of this section of Sensitive Lands Code would,not meet For example, Policy 6 states that the City shall acquire and manage,sollise,open spaces to solely provide protection of natural resources. Policy 17(another new policy) is that the City shall maintain and manage its parks and o!n°s''"ace resources in ways that will preserve, protect, and restore natural resources includm re or state and federally listed species. She said she does not thuk we\have donean adequate analysis of how removal of this section of the Code would address thosek;policies and how it would affect our natural resources. We need to make sure we aremeeting all of our policies in our Comprehensive Plan °:" 0,\ 9:14:09 PM NigNO Ms. Bielke commented„on the wildlife assessment She agreed with Mr. Frewing's comment that a wildlife assessment needs to lie defined. There are questions that need to be addressed. HerArecommendation is that*dota biological assessment as many other agencies do. This would include a reviewrof the habitat and the species that might be in the areiVand peTforiri_ a>,qualitative and quantitative analysis regarding how;a project mighttimpact the habitat and the species. Another policy is neededz'i tle Comprehensive Plan to increase our baseline information on habitat in T ; -d. 9:15:29 PM F . VIs. Bielke asked the 1VIay and Council to have staff do further analysis before this y ~section,of the en esitive Lands code. ANN e. Staff Recommendation NkiN 'U ,, Associate Planner Pagenstecher responded to Mr. Lindstrom's comments that the '°'staff reportR said that no impacts would result from removal of the standard. Staff listened carefully to public comment and included the wildlife assessment criteria in lie of;t i t standard of elevation. Staff agrees that impacts will occur and should be mimmiied. One could argue that it is not clear and objective, but it is also a ,{S performance standard in that staff wants to minimize impacts to the wildlife resource. Mr. Pagenstecher said the City is not alone in protecting the resource. We rely on other agencies permitting processes;i.e. DSL and CWS. The City also has direction from the Comprehensive Plan and the Transportation System Plan to provide for a regional trail. The Development Code ensures that development provides for a pedestrian/bicycle pathway in accordance with adopted plans. There is a lot of support for including pathways in floodplains. As both Mr. Frewing and Ms. Bielke mentioned, we do not want to adversely impact natural resources anymore than we have to, so the issue is one of balancing these two things as our Comprehensive Plan seeks to accomplish. Staff thinks the Code amendment is more effective in protecting the resource than the previous Code criteria. We do not suffer any loss by taking out the elevation standard. Community Development Director Bunch noted Mr. Frewing's reference to 18.775 about habitable structures and the way they are to be sited to avoid flood damage. A pathway is not necessarily a habitable structure. Community Development Director Bunch concurred with Associate Planner Pageii echer's statement that Tigard is not alone in the pathway siting "business's or the management of these • resources. Clean Water Services is involved. Weco%rnplied with Title 13, Nature in the Neighborhood,with our Sensitive Lands.ordinance.=tThe City undertook efforts to coordinate this post-acknowledgement plan amendment with the Oregon AVAN Department Land Conservation and Development,which provides a clearinghouse for comment. PMv: fi Community Development Director Bunch:i referred to the issue raised regarding Comprehensive Plan policies. This is the opportunity for the City Council, as the legislative body, to wengfi th.,eQ�, policies that it.y decides are applicable. The City Council can choose a policl%= o emphasize over otl erssand decide which ones are more important to the co rrimumty gtl s instance we have pathways, recreation, and wildlife habitat. Count twill go"tthrongh,the,process, make its decisions, and • the staff will=develop appropriate:ffindings Nity 9:209 PM N45 C ty'4omey Ramis pointed out thatiat least one of the witnesses indicated that a portion'f the tes onyyoffered was new. This is material that staff had not seen >z::before and not,,discussedA:prev ously in public hearings. If this is the case, the City it " Couch migl t want to consider continuing the proceeding after giving some directiion_ to staff Aahen, those arguments and issues can be considered and AVN N . ,:fix= ,nom ads uat fin re ared in response. Staff also needs to determine whether it , q �._.�dings p�:p P 4±a �r-� needs to add�the additional evidence. 9:21:18 PINK:' CouncilorHenderson concurred on the continuation. 9.21.2$PM Council President Wilson referred to the Willamette Greenway as a statewide goal that requires a greenway trail. This has been in existence since 1973. He asked if staff knew the approximate date the City of Tigard's Sensitive Lands code was adopted. Associate Planner Pagenstecher advised the code was adopted in 2006 and was updated in 2007 for the Nature in Neighborhoods. Assistant City Manager Newton advised she was a City Planner when the first Comprehensive Plan was written. It was around 1983 that the first Development Code written and this included a Sensitive Land section. Council President Wilson said 18.775.080 B 5 7IPage • implies that a pedestrian/bicycle pathway was previously going to be required and this only speaks to where it would be required. 9:23:39 PM Community Development Director Bunch said staff members have reviewed the Development Code and numerous statements in the Code will be cleaned up. 9:24:17 PM Council President Wilson said that it appears that we have had the intent to put a trail on Fanno Creek for a long time. At some poind8?77 5 070 B.5 was probably inserted along with a number of other code proons dealing with the floodplain. He said he thinks the argument could be language is a mistake because it obviously prevents completing the plan. I yor,Dirksen said "This isn't even a rule. It is a statement with regard,to,an`\existin Mari:,I think it's ironic that No 4 above it actually requires thatvany`laiidform alterat4k ithin the 100-year floodplain have a pedestrian/bicycle pathway. Council President Wilson agreed that the wording is contradictory He\said, "We want to build another piece of it now, and we're recognizing...there's;;a\problem:,,, He's not seeing that this language, as has been suggested from testimony received, was put in the Code to protect wildlife. He said wildlife is an important concern. At some point,we need to have a conversation abut wildlife inside the;City,and what degrees of protection are appropriate. " ,. a. ; . . 9:26:28 PM ,. ::.,. Mayor D,irksen asked about coordination with:other planning partners and whether �>..:..\ :max.•'�" £`3y`� there .was a° rieeel or a requirement for this thik Code language to be considered by Metro�or anyone„else before the City of Tigard could consider this change. Air sociate,,PlannerPagenstecher adoaisVed the staff provided notice to DLCD, Metro and othersg o e original intent to remove this section of Code. No comment was n- '-received. I-I added`"tliaf Wwhen tfie options analysis was done, staff contacted Metro vtliN 'to'discuss thekissue of trail design. Metro provided a useful trail handbook for this kindrofsituation :todesign trails,alignments,and indicate techniques for minimum • u impact:'Itis implicitlyac'knowledged there will be conflicts and that trails will be in sensitive areas. Metro did not say to Tigard that we should not put trails in flood lainsV or there was an elevation that was relevant. Instead, they provided the ' _;,,?City with information about design. 9'28:20 VM Council President Wilson asked if there was any precise way to determine the ele ation of average annual flood? Associate Planner Pagenstecher said that there is and that Ms. Beilke alluded to a calculation based on observed data in the field. Every reach of stream has variable data. Not all stream sections are measured at the same frequency. For this particular reach of Fanno Creek within the City, he said he did not know if specific measurements were taken. Associate Planner Pagenstecher said he thought there was about a dozen times they could average; however,that was not significant enough to make a determination. The consultants for us were tending to use the two-year flood as a proxy;DSL used this data as well. • 9:29:44 PM Mayor Dirksen said he recommended that the City Council follow the City Attorney's suggestion to close the public hearing, continue the matter, and direct staff to produce findings based on what was heard tonight. Council would then consider an ordinance at a later date. 9:30:12 PM City Manager Prosser advised the first opportunity to bring this matter back to the City Council would be July 14,2009. 9:31:20 PM City Attorney Ramis suggested that the proceeding be continued. It might be that that the staff will have additional information they might want to present. Therefore, he recommended against dosing the heann aThis would not preclude the City Council from giving comment s°and direction. 9:31:40 PM Councilor Buehner requested if the Baring was continued that it be'limited to the issues brought forward this evening. `4: 'si= 9:32:03 PM After some discussion, City:Attorney Ramis suggestedthe hearing be continued with the understanding that;if the"staff=introduces rig'facts or language, there will be an opportunity for the public to address:only the new material. 9:32:30 PM ,\ K_ Councilor Buehner said ` ve have a long-range plan to provide for access for the pub'lie'along Farb Creek. This isa;supported by Metro and by all the cities in the ».there area people ave o concerned about important the natural habitat and acknowledged ,,,,, t r ems. protecting -to `keep peoples out of areas such as floodplains. Councilor Buehner is very concerned that wemaintain an opportunity for the public to use the public parks provided for them"'a that they have paid for with their tax dollars. They should have an opportunity`{to see this "wonderful creek that we have that comes through xr• this community...and I want to make sure that our citizens are aware that we are =trying to protect their rights to have the opportunity to use the park, while at the =same time,being sensitive to protecting the park. We are spending very large sums of`noney to restore the park and the creek the way it was before it was fouled up many many years ago. There is a middle place. We don't have to keep the public totally out of its own public park." 9:34:23 PM Mayor Dirksen, with the City Council's permission, announced he would continue the hearing to the date certain of July 14, 2009, for the purpose of reviewing staff findings and potential comment on any new information. 9:34:48 PM (break) I:\ADM\CATHY\CCM\2009\Excerpts\draft minutes- code amendment sensitive lands ph 5-12-09.docx Wage • • ATTACHMENT 3 Hearing Date: July 14,2009 Time: 7:30 PM • (Continued from Ma 12,2009 - y-: •tip— :'vr:- "t 'fit Viz?•" a:.�. {7`,i�o` �4fi':i 3�;C:.t';>;Dr%` - :yclt'rs;,t«a^ - �.'f�e3Ci ':.tiSY::i:;Yt,4`..ri�'„ f.+ - �".1<'�^y'���':':.r,-�.,r.,°'= sa�;Trr�. 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'iY,iz.:� ' _l.t1Q-', :.:`,*. 4t:r....``;.. i*' -i <i^cra�,l,.rgrtigFSrx'r.it X_?av3:f.•r=°r�+.'.4r..:.'wr:;:.rssfc?i,'..rr�f...a.,..�,. �:�i .i,�a'.iL-<...:�Nr>�A:Ctit�?.n.':3�c:ve��....,.rv.�A*.,;�:R;a'n.:.n_>o{:._,� yt t.:•:;.;....:,H•_T�.:_,... -. a SECTION I. APPLICATION SUMMARY CASE NAME: SENSITIVE LAND PERMIT REQUIREMENTS CASE NO.: Development Code Amendment (DCA) DCA2008-00005 PROPOSAL: As recommended by the Planning Commission, remove criterion 18.775.070.B.5 for pathway development in the floodplain which reads "The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood,” and instead, require that "pedestrian/bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." APPLICANT: City of Tigard OWNER: NA 13125 SW Hall Blvd. Tigard, OR 97223 APPLICANT'S Gary Pagenstecher,Associate Planner AGENT: 13125 SW Hall Blvd. Tigard, OR 97223 ZONE: All City Zoning Districts within the floodplain LOCATION: Floodplain,Citywide. APPLICABLE REVIEW • CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]]; Applicable federal [FEMA] or state statutes or regulations; Applicable METRO regulations tro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard comprehensive plan policies [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances [I'll 18.380, 18.390, and 18.775]. SECTION II. STAFF RECOMMENDATION - s._u-c.� - ':f* _ -.2�-•.-.•:',k`� �i- :.r ki:r.;'t' r.',z'i.+ ':'-[}�tlF..;,A1:.�a��5�`Sa3i='da,. 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Fr�Y�, ..s�,. '=t.:. �-Y,�•i-�,l.=.sv�sr;•.3 }t- '�:r,`?';v:,,r,. ...'xt-'-'_. .gat_. .7, .*_�;_', '3 --wx f•1-_ � :?� T;• :,zu,->"+ -�'{��. -.G{t'--�::.-.a ,:.r'Z -a>�z,•P.r.?,�Sr> .rt,�4.r'+ri, ±tom..",*;�,,:Ti Y�•,. t.....3, a�;�r,". -r•lr,.-.:t`-•, v.r �t,:,•�}�--;, `,r��:'�•:o"�r.'-"��•::c.�..a'�,a''��,�t��'--�>:.'�+.U'..tk_ ,.:�',:"..:v��.,..•�1;.......3-..:,._::,S:LS±-,�a.,t,,,t+,..•>3��.� s;��x�I.,�,,..:+c.r,•ts.,,:;;t'�.,< �i s}r..,�.h....._...r.��YS*:a�.,..,sr. . SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 1 OF 16 • • SECTION III. BACKGROUND INFORMATION Currently, the Tigard Development Code, Section 18.775.070.B.5, stipulates that within the floodplain, "plans for the pedestrian/bicycle pathway indicate that no pathway be below the elevation of an average annual flood." It became apparent through the City's design development process for Lower Fanno Creek Park that strict implementation of this criterion would severely limit where trails could be located, as most of Lower Fanno Creek Park between Hall Blvd. and Main St. in Downtown Tigard would likely be below that elevation. The average annual flood elevation is calculated from recorded stream flow data for any given reach of stream. As this data is not readily available, a proxy of the 2-year flood elevation (see Figure, Lower Fanno Creek Park Existing and Proposed Trail Alignment with 2 year Inundation Extents) shows that the majority of the existing trails are below the 2-year flood elevation. The Sensitive Lands Chapter of the development code otherwise requires development plans within the floodplain to provide for pedestrian/bicycle pathways at a suitable elevation within the floodplain in accordance with the adopted pedestrian/bicycle pathway plan (18.775.070.B.4/7). The Park System Master Plan includes the adopted pedestrian/bicycle pathway plan, which contains general alignments of the regional Fanno Creek trail throughout the City's floodplain. Past decisions permitting trails in the floodplain show that the elevation criterion has been unevenly implemented, sometimes not included in the findings and at other times included, but without findings of fact with respect to the annual average flood calculation. The purpose behind the criterion (although without legislative history) is thought to pertain to facilities maintenance. However, according to the Tigard Public Works Department (see Public Works comments on page 15 of this report), inundation has not been a significant maintenance problem for existing paths within the floodplain. In addition, staff reviewed other Portland area floodplain development codes and found that no other jurisdiction employs this, or similar, elevation criteria for pathway development within the floodplain. On February 23, 2009, the Planning Commission held a public hearing to consider the Community Development Department request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove criterion 18.775.070.B.5. The Commission received substantial public comment on the proposal principally concerned with wildlife protection and water quality. The Commission decided to continue the hearing and directed staff to prepare an options analysis. On April 6, 2009, the Planning Commission resumed the hearing and discussed the options analysis (April 6, 2009 Memo) prepared by staff with additional input from the interested parties. The Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain "where practicable" to achieve project objectives, requiring a natural resource assessment, and changing the elevation to "ordinary high water". Public testimony clearly favored siting and designing pathways that avoid impacts to wildlife habitat and water quality and opposing the removal of the elevation standard. The Planning Commission approved (5-1) a motion to recommend that City Council approve Option 3.c,which replaces the elevation standard with the requirement for a wildlife assessment. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 2 OF 16 • • On May 12, 2009, City Council held a public hearing to review the matter. Council heard additional public testimony and after some discussion decided to continue the hearing to a time certain (July 14), pending revised findings to address any new information. This Supplemental Staff Report contains revised findings for the proposed code amendment as recommended by the Planning Commission and addresses the new information submitted at the May 12, 2009 Council Hearing. At the hearing, Eric Lindstrom,John Frewing and Sue Bielke provided additional written and oral comment, which staff has addressed below. SECTION IV. PUBLIC COMMENT Eric Lindstrom Mr. Lindstrom said, "It [Staff Report] states categorically that this change in the code will not impact negatively...the wildlife protection in that region...and that's categorically not true." This will affect sensitive areas because it brings pathways into areas that are not currently allowed. He asked the City Council to recognize that while this is being brought to the City Council as a problem related to a plan that the City is advancing, there are other properties coming online over the next several years this proposal will affect (e.g., from Bonita Road to Durham Road). Mr. Lindstrom said it was interesting there is a proposal that cannot be implemented because "it runs into its own code." He said the proposal to change the code does not make sense to him and does not sound like a good process. He said he is hoping the City Council will send this back to the Planning Commission and planners and ask them to come up with a more creative process to allow the City to implement as much of its plan as needed while at the same time preserve the standard that is "serving you so well in the stewardship of your watershed resources." Staff Response: The original staff report was conclusory in its assertion that removal of the criterion would not adversely affect the protection of sensitive habitat. It is reasonable to believe that some adverse affect may occur with construction of new trails in the floodplain.Additional trails are planned to complete the regional Fanno Creek trail,including the segment between Bonita and Durham roads. The degree of adverse impact will be a function of how well the alignment and design of the trails adequately addresses wildlife habitat protection. Under the current proposed development code amendment, a wildlife assessment would be required to inform the alignment and design of future trails in the floodplain. The background section of this Staff Report describes how ineffectual the elevation criterion has been with respect to its conflict with other standards requiring paths within the floodplain, its limited utility for facility maintenance, and the unavailability of data establishing the average annual flood. With the Options Analysis Memo staff has substantively addressed creative ways to achieve balance between resource protection and recreation access. Option 3.c includes a wildlife assessment requirement in lieu of the elevation criterion, to explicitly address wildlife protection when building trails in the floodplain. Sue Beilke Ms. Beilke argues for retaining the elevation criterion to reduce potentially substantial costs of trail maintenance. She worries that without the elevation criterion there is the potential to put trails in areas where there is a problem of annual flooding and bank erosion in addition to adverse impacts to wildlife habitat Ms. Beilke provides Durham Road gauge annual average flood data to demonstrate the data is available to implement the standard. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 3 OF 16 • • Ms. Bielke takes issue with staff's analysis with respect to the new policies in the Comprehensive Plan, for example, Goal 8, Policy 6 states that the City shall acquire and manage some open spaces to solely provide protection of natural resources; Policy 17 states the City shall maintain and manage parks and open space resources in ways that will preserve,protect, and restore natural resources induding rare or state and federally listed species. Ms. Bielke supports the wildlife assessment requirement although believes it needs to be defined. She recommends doing a biological assessment as many other agencies do. This would include a review of the habitat and the species that might be in the area and perform a qualitative and quantitative analysis regarding how a project might impact the habitat and the species. Ms. Bielke believes another policy is needed in the Comprehensive Plan to increase our baseline information on habitat in Tigard. Staff Response: The background section of this Staff Report describes how ineffectual the elevation criterion has been, as mentioned above. Other standards, such as CWS Design and Construction Standards, and site conditions, such as the dynamic nature of stream morphology over time, contribute to trail alignment and design considerations. The elevation criterion is an absolute that currently does not allow for any flexibility with trail alignment. Many of the trails within the floodplain are likely below the average annual flood. In some cases, for example when trails must cross the creek,maintaining the average annual flood would not be possible unless elevating it,which presents other problems. Availability and variability in the average annual flood data (as shown in Ms. Beilke's written comments) also show the difficulty in establishing a functional measurement for the Durham Road reach of Fanno Creek or other reaches where no gauge data has been recorded. Ms. Beilke identifies the Comprehensive Plan goals and policies that contribute to the protection of significant natural resources without addressing the goals and policies that encourage access to natural areas to provide a diverse recreation experience for the public. This staff report (pages 9 through 11) identifies the applicable Comprehensive plan goals and policies and concludes that a balance must be found in implementing competing goals. Staff has proposed a performance standard"a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat" where the wildlife assessment would include an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed 'path, and recommended mitigation measures to minimize impacts. Staff believes that these three steps are implicit in the proposed standard. To ensure adequacy of the wildlife assessment, any wildlife assessment submitted with an application would be subject to ODF&W review,public comment,a public hearing,and a Hearings Officer review and decision. Ms. Bielke believes another policy is needed in the Comprehensive Plan to increase our baseline information on habitat in Tigard. Goal 5.1,Policy 10 of the City's Comprehensive Plan states: "The City shall complete a baseline inventory of significant natural resources and update or improve it as necessary, such as at the time of Comprehensive Plan Periodic Review, changes to Metro or State programs, or to reflect changed conditions, circumstances, and community values." The Comprehensive Plan also includes action measures i through vii that Council could prioritize to implement Policy 10. John Frewing Mr. Frewing said the proposed code amendment has not been coordinated with Metro. Mr. Frewing said he did not think a wildlife assessment was a clear and objective standard, as required by Metro,and needs more study and clarification. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 4 OF 16 • Mr. Frewing referred to 18.775.050.M regarding non-residential construction in 100-year floodplains and suggested that this section calls for trails to be above the 100-year floodplain and this is the reasonable standard rather than the annual average flood or the more general call for a wildlife assessment. Mr. Frewing commented that there needs to be a different approach to trail location in the City of Tigard,with an effort to determine what areas should be dedicated to fish/wildlife and areas dedicated to people/recreation. He stated that national and regional studies have found that the size of the piece of natural area is key to making it successful for wildlife. Staff Response: Notice was provided to DLCD, Metro, and others of the original intent to remove this section of the Code; no comment was received. Additionally, staff contacted Metro to discuss the issue of trail design. Metro provided a useful trail handbook, Green Trails, Guidelines for Environmentally Friendly Trials, for trail design, alignment, and techniques to minimize impacts. The handbook acknowledges that sometimes trails will be in sensitive areas and offers methods to address conflicts. Metro's Urban Growth Functional Plan (3.07.1330.C) requires that "the comprehensive plan and implementing ordinances relied upon by a city or county to comply with this title shall contain clear and objective standards." The proposed wildlife assessment criterion could not have been relied upon by the City of Tigard for compliance with the Nature in Neighborhoods program because the code amendment for compliance was adopted by Council in December 2006 (Ord. 06-20). Mr. Frewing's reference to 18.775.050.M refers to nonresidential construction in floodplain areas and the way they are to be sited and designed to avoid flood damage. The standard refers specifically to "floor" elevation and, as such,would indicate habitable structures. The standard is not applicable to pathways. The suggestion of a new approach to identify areas dedicated to fish/wildlife warrants consideration and echoes Ms. Beilke's desire for a baseline inventory analysis to facilitate such an approach. The Draft Parks and Recreation Master Plan Update (May 2009) identifies the "open space" park type as including areas set aside solely for the protection of natural resources such as fish and wildlife habitat. The draft plan does not identify the amount of open space that is dedicated to this limited use and instead appears to be oriented to providing access to maximize the utility of the limited park lands available. The draft plan finds that an additional 70 acres of public open space will be required to meet a service level of 4.25 acres/1,000 persons by 2028. Ensuring adequate open space areas set aside solely for the protection of natural resources will be a work in progress as the updated master plan is implemented. SECTION V. APPLICABLE CRITERIA, FINDINGS AND CONCLUSIONS Tigard Development Code Section 18.380.020, Legislative Amendments to this Title and Map, states that legislative zoning map and text amendments shall be undertaken by means of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment would apply to all City zoning districts throughout the City. Therefore, the amendment will be reviewed under the Type IV legislative procedure as set forth in the chapter. This procedure requires public hearings by both the Planning Commission and City Council. Section 18.390.060.G establishes standard decision-making procedures for reviewing Type IV applications. The recommendation by the Commission and the decision by the Council shall be based on consideration of the following factors: 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 5 OF 16 • • Findings and conclusions are provided below for the five listed factors on which the recommendation by the Commission and the decision by the Council shall be based. STATEWIDE PLANNING GOALS AND GUIDELINES Statewide Planning Goal 1—Citizen Involvement: This goal outlines the citizen involvement requirement for adoption of Comprehensive Plans and changes to the Comprehensive Plan and implementing documents. FINDING: This goal has been met by complying with the Tigard Development Code notice requirements set forth in Section 18.390. A notice was mailed to all identified interested parties and the notice was additionally published in the Tigard Times newspaper prior to the hearing. After the Planning Commission public hearing, additional notice will be published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. Statewide Planning Goal 2—Land Use Planning: This goal outlines the land use planning process and policy framework. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. The Development Code implements the Comprehensive Plan. The Development Code establishes a process and standards to review changes to the Comprehensive Plan. As discussed within this report, the Development Code process and standards have been applied to the proposed amendment. Statewide Planning Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces This goal seeks to protect natural resources and conserve scenic and historic areas, and opens spaces. FINDING: The Depaitnient of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 5 — Natural Resources and Historic Areas, and policies is discussed later in this report. Statewide Planning Goal 7 -Areas Subject to Natural Hazards This goal seeks to protect people and property from natural hazards. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 7 - Hazards and policies is discussed later in this report. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 6 OF 16 • • Statewide Planning Goal 8 - Recreational Needs This goal addresses the recreational needs of the citizens of the State and visitors, and where appropriate, to provide for the siting of necessary recreational facilities including destination resorts. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 8 - Parks, Recreation, Trails, and Open Space Statewide and policies is discussed later in this report. CONCLUSION: Based on the findings above and the analysis provided under the Comprehensive Plan section of this report, staff finds that the proposed text amendment is consistent with applicable Statewide Planning Goals. APPLICABLE FEDERAL OR STATE STATUTES AND REGULATIONS The Federal Emergency Management Agency (FEMA) has jurisdiction over development in the floodplain. The purpose of FEMA and related statutes is to ensure that a floodplain management program is in place so that Flood Insurance Requirements are met. FINDING: One of the purposes of the Sensitive Lands Ordinance (18.775) is to `B) implement comprehensive plan and floodplain management program." The standards contained in the floodplain section effectively implements FEMA Flood Insurance Requirements. The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance requirements, which among other standards ensures that the "zero rise" in the floodplain is maintained. The "zero rise" requirement, which remains in the ordinance, ensures that any construction or improvement within the floodplain will not result in any increase in water surface elevation of the 100-year flood. The Department of State Lands (DSL) in conjunction with the Army Corps of Engineers regulate the waters of the state and wetlands, respectively. FINDING: Another cited purpose of Sensitive Lands Ordinance (18.775) is to "A) Maintain integrity of rivers, streams, and creeks". The Department of State Lands regulates Waters of the State, and the Corps of Engineers regulates wetlands. These organizations require separate permits, and these permit requirements are not affected by removal of Section 18.775.070.B.5. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment would not affect consistency with any applicable federal or state statutes or regulations. APPLICABLE METRO REGULATIONS Title 3 (Metro Code Sections 3.07.310—3.07.370) —Water Quality, Flood Management The goal of the Stream and Floodplain Protection Plan (Title 3) is to protect the region's health and public safety by reducing flood and landslide hazards, controlling soil erosion and reducing pollution of the region's waterways. Title 3 specifically implements the Oregon Statewide Land Use Goals 6 and 7 by protecting streams, rivers, wetlands and floodplains by avoiding, limiting or mitigating the impact on these areas from development. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 7 OF 16 • • Title 3 contains performance standards to protect against flooding. The standards limit development in a manner that requires balanced cut and fill and requires floor elevations at least one foot above the flood hazard standard. The areas subject to these requirements have been mapped and adopted by the Metro Council, specifically, the FEMA 100-year floodplain and the area of inundation for the February 1996 flood. Title 3 also contains performance standards related to streams, rivers and wetlands. The purpose of these standards is to protect and allow enhancement of water quality. The water quality areas are rivers and streams with a protected vegetated corridor width depending on the slope of the stream and the number of acres drained by the stream. Typically, the vegetated corridor is 50 feet wide. The performance standards require erosion and sediment control, planting of native vegetation on the stream banks when new development occurs and prohibition of the storage of new uses of uncontained hazardous material in water quality areas. FINDING: In 2002, the City of Tigard adopted Comprehensive Plan and Code Amendments to comply with Title 3 of Metro's Urban Growth Management Functional Plan, which outlines water quality and flood management requirements for the region. The adopted standards.were based on a unified program developed by local governments in the Tualatin Basin and implemented through the Clean Water Services District's (CWS) Design & Construction Standards, which provides for vegetated stream corridor buffers up to 200 feet wide and mandating restoration of corridors in marginal or degraded condition. In addition, Clean Water Services, local cities, Washington County, Metro, and Tualatin Hills Park and Recreation District, partnered on a parallel effort to develop the CWS Healthy Streams Plan (HSP), an updated watershed plan designed to enhance the functions of the Tualatin Basin surface water system and address the Clean Water Act and Endangered Species Act (ESA). The purposes of the City's Sensitive Lands Chapter 18.775.010 include: "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." Item "D" clearly implements Title 3 of the Metro Urban Growth Management Functional Plan. The elevation criterion for paths in floodplains in Section 18.775.070.B.5 is not a part of the CWS Design and Construction Standards (DCS), which are intended to implement Metro Title 3. The CWS DCSs explicitly allow trails in the floodplain and provide standards for their location and design. The removal of section 18.775.070.B.5 of the Sensitive Lands Chapter would not affect compliance with Metro Title 3. Title 13 (Metro Code Sections 3.07.130 - 3.07.1370) - Nature in Neighborhoods The purpose of this title is to conserve, protect and restore a continuous ecologically viable streamside corridor system that is integrated with upland wildlife habitat and the surrounding urban landscape. FINDING: City Council adopted a code amendment in December 2006 (Ord. 06-20) implementing Metro's Nature in Neighborhoods program. the City adopted the Significant Habitat Areas Map and voluntary habitat friendly development provisions that seek to protect the wildlife habitat identified within the community. The provisions include an opportunity for low impact development practices that can reduce impacts to the identified resources. Compliance with Metro's program did not require standards for trial location or design. Removal of the elevation criterion will not affect consistency with Title 13. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 8 OF 16 • CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with Metro's Urban Growth Management Functional Plan, Title 3,Water Quality and Flood Management and Title 13,Nature in Neighborhoods. APPLICABLE TIGARD COMPREHENSIVE PLAN GOALS and POLICIES Comprehensive Plan Goal 1: Citizen Involvement Goal 1.1 Provide citizens, affected agencies and other jurisdictions the opportunity to participate in all phases of the planning process. FINDING: The City has mailed notice of the Planning Commission hearing to interested citizens and agencies. The City published notice of the February 23, 2009 Planning Commission hearing. After the Planning Commission public hearing, additional notice was published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. With these public involvement provisions, the proposed zone change is consistent with the applicable Citizen Involvement policies. Comprehensive Plan Goal 2: Land Use Planning Goal 2.1: Maintain an up-to-date Comprehensive Plan, implementing regulations and action plans as the legislative foundation of Tigard's land use planning program. Policy 12 states "the City shall provide a wide range of tools such as design standards . . . that encourage results such as . . . protection of natural resources." FINDING: Staff believes that the proposed code amendment requiring a wildlife assessment will better protect wildlife resources than the elevation standard proposed to be replaced. The Background section of this Staff Report describes how ineffectual the elevation criterion has been with respect to its conflict with other standards requiring paths within the floodplain,its limited utility for facility maintenance, and the unavailability of data establishing the average annual flood. A wildlife assessment requirement would have the potential to identify and protect natural resources and provide a tool to help balance competing goals of resource protection and recreation access. Comprehensive Plan Goal 5: Natural Resources and Historic Areas Goal 5.1 Protect natural resources and the environmental and ecological functions they provide and, to the extent feasible, restore natural resources to create naturally functioning systems and high levels of biodiversity. Policy 1 states "the City shall protect and, to the extent feasible, restore natural resources in a variety of methods to: C) maximize natural resource function and services including fish and wildlife habitat and water quality and D) result in healthy and naturally functioning systems containing a high level of biodiversity." Policy 2 states "the City shall demonstrate leadership in natural resource protection through the use of sustainable building practices and low impact development strategies, to the extent feasible, on all City projects." SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 9 OF 16 • Policy 4 states "the City shall actively coordinate and consult with landowners, local stakeholders, and governmental jurisdictions and agencies regarding the inventory, protection, and restoration of natural resources. FINDING: Pathways located within the floodplain may adversely affect wildlife habitat. The proposed code amendment would replace an ineffective elevation standard with a requirement to provide a wildlife assessment to minimize adverse impacts to wildlife habitat. The proposed amendment would provide path alignment flexibility to implement competing recreation goals, but in a way that would maximize wildlife habitat biodiversity, consistent with Policy 1. City-sponsored path development projects within the floodplain often involve design and natural resource consultants to help design the alignment of proposed pathways (e.g., Fanno Creek Park & Plaza Master Plan). This process involves a literature search and employs the most current best management practices to ensure the City has the capacity to provide leadership in natural resource protection, consistent with Policy 2. With the proposed code amendment requirement for a wildlife assessment, pathway development projects in floodplains would involve a wildlife biologist to prepare the assessment, be reviewed by ODF&W through the City's standard notification process, be subject to public notice and comment, a public hearing, and a Hearings Officer review and decision, consistent with Policy 4. Comprehensive Plan Goal 7: Natural Hazards To protect people and property from natural hazards FINDING: Applicable policies under this goal include landslides, and flooding. The City uses steep slopes to define sensitive lands in the Community Development Code and has special requirements for development in these areas. The City coordinates with several agencies to mitigate the risk of flooding. The FEMA designated floodplain is used to administer the national flood insurance program (NFIP). The Sensitive Lands Chapter of the Tigard Community Development Code ensures compliance with FEMA and the national flood insurance program. The proposed text amendment does not impact floodwater flows and storage areas, and therefore, does not conflict with FEMA or Comprehensive Plan policies regarding flooding. Comprehensive Plan Goal 8: Parks, Recreation,Trails, and Open Space Goal 8.1 Provide a wide variety of high quality park and opens spaces for all residents, including both: A) developed areas with facilities for active recreation; and B) undeveloped areas for nature-oriented recreation and the protection and enhancement of valuable natural resources within the parks and open space system. Policy 4 states "the City shall endeavor to develop neighborhood parks (or neighborhood park facilities within other parks, such as a linear park) located within a half mile of every resident to provide access to active and passive recreation opportunities for residents of all ages." Policy 6 states "the City shall acquire and manage some open spaces to solely provide protection of natural resources and other open spaces to additionally provide nature-oriented outdoor recreation and trail-related activities." Policy 17 states "the City shall maintain and manage its parks and open space resources in ways that preserve, protect, and restore Tigard's natural resources, including rare, or state and federally listed species, and provide `Nature in the City' opportunities." SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 10 OF 16 • • FINDING: The proposed develeopment code amendment, removing the elevation criterion, will provide greater flexibility to construct trails in areas needed to provide access to active and passive recreational opportunities, consitent with Policy 4. The Draft Parks and Recreation Master Plan Update (May 2009) identifies the "open space" park type as including areas set aside solely for the protection of natural resources such as fish and wildlife habitat. The draft plan does not identify the amount of open space that is dedicated to this limited use and instead appears to be oriented to providing access to maximize the utility of the limited park lands available. The draft plan finds that an additional 70 acres of public open space will be required to meet a service level of 4.25 acres/1,000 persons by 2028. Ensuring adequate open space areas set aside solely for the protection of natural resources will be a work in progress as the updated master plan is implemented. However, the proposed develeopment code amendment, removing the elevation criterion, will provide greater flexibliltiy in the design of access to nature- oriented outdoor recreation and trail-related activities, consistent with Policy 6. The removal of criterion 18.775.070.B.5 and the construction of trails below the average annual flood does not, in itself, result in trails being built in areas to the detriment of natural resources including rare, or state and federally listed species. Clean Water Services (CWS) Design and Construction Standards(Section 3.05.7 and 8) implemented through the Tigard Development Code provides protection to sensitive habitats by maintaining a required buffer for trails located within the vegetated corridor. The siting of trails in natural resource areas containing listed species is subject to the review and recommendations of Oregon Department of Fish and Wildlife. If designed correctly, trails can serve to protect sensitive flora and fauna by serving as a way to channel pedestrians away from them. The proposed code amendment would require a wildlife assessment that would enable this protection to occurr, consistent with Policy 17. Goal 8.2 Create a Citywide network of interconnected on- and-off-road pedestrian and bicycle trails Policy 1 states "the City shall create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods, parks, open spaces, major urban activity centers, and regional recreational opportunities utilizing both public property and easements on private property." Policy 2 states "the City shall design and build greenway trails and paths to minimize their impact on the environment, including on wildlife corridors and on rare, and state or federally listed species." FINDING: The removal of criterion 18.775.070.B.5 would provide the flexibility to construct trails in areas that would otherwise be prohibited. A wildlife assessment requirement would have the potential to identify and protect natural resources and provide a tool to help balance competing goals of resource protection and recreation access, consistent with Policies 1 and 2. CONCLUSION: Based on the analysis above, staff finds that the proposed text amendment is consistent with Comprehensive Plan Goal 1, Citizen Involvement;Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; and Goal 8, Park, Recreation, Trails, and Open Space. APPLICABLE PROVISION OF THE CITY'S IMPLEMENTING ORDINANCES TDC 18.380 Zoning Map and Text Amendments The purpose of this chapter is to set forth the standards and process governing legislative and quasi- judicial amendments to this title and zoning district map. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 11 OF 16 • • FINDING: Section 18.380.030 requires that zoning map and text amendments be undertaken by means of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment is a Type IV procedure as defined in this Section and has been processed in accordance with Type IV procedures per 18.390.060.G. TDC 18.775 Sensitive Lands The purposes of the City's Sensitive Lands Chapter 18.775.010 include: "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." FINDING: The purposes of the Sensitive Lands Ordinance are implemented by the standards included in the chapter. The elevation standard in criterion 18.775.070.B.5 does not contribute to implementation of any of the five listed purposes. It is likely that the criterion was included in the code to address facility maintenance with respect to any adverse affects of annual inundation of pathways. This issue is addressed by.the Public Works comments on page 15 of his report. Pedestrian use of the trail system where pathways have been constructed below the average annual flood elevation is not considered a public safety concern. People would not have access during the time of inundation. There is no flash flooding that occurs in the area so that persons using a trail would not be stranded or overcome by a flood event. Therefore, the proposed amendment allowing the siting of trails in areas within the average annual flood is consistent with the purposes of the Sensitive Lands Chapter (18.775). TDC 18.390 Decision Making Procedures The purpose of this chapter is to establish a series of standard decision-making procedures that will enable the City, applicant and all interested parties to reasonably review applications and participate in the local decision-making process in a timely manner. FINDING: The proposed text amendment was completed in compliance with all procedural requirements of Section 18.390. Two public hearings were noticed and scheduled, one before the Planning Commission and one before Council. Notice has been provided 10 days prior to hearing dates to the required parties. The Staff Report addresses the required decision-making considerations of Section 18.3909.060 which include: 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. CONCLUSION: Based on the analysis above, the proposed text amendment is consistent with the applicable provision of the City's implementing ordinances. SECTION VI. STAFF ANALYSIS Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100-year Floodplain) includes seven approval criteria for development within the 100-year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3), restrict uses in certain zones (2), ensure agency permitting (6), and provide for a pedestrian/bicycle pathway (4, 5, and 7). SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 12 OF 16 • • Of the three pathway criteria, criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian/bicycle pathway plan; criterion 5 restricts the elevation of a pathway to be higher than the average annual flood; and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. The potential conflict with criterion 5 arises for several reasons: a) the adopted pedestrian/bicycle plan is often too generalized to provide guidance in siting pathways, and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling, boardwalks, or re-siting outside the floodplain or in portions of the floodplain that exceed the average annual flood. Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it "where practicable."This may explain the way in which the criterion has been implemented in past decisions. Discussion To support the practicable application of criterion 5, other standards and programs must be considered. The City relies on other agency development standards such as Corps/DSL and CWS when developing pathways within the floodplain. In addition, the City has direction from the Comprehensive Plan and the Transportation System Plan to provide for a regional trail. There is public support for including pathways in floodplains as evidenced in the planning processes for these plans. The Development Code ensures that development provides for a pedestrian/bicycle pathway in accordance with adopted plans. Public comment clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. As both Mr. Frewing and Ms. Bielke mentioned, we do not want to adversely impact natural resources anymore than we have to when providing pathways per approved plans. Potential conflicting goals and policies in the Comprehensive Plan and criterion in the Development Code for natural resource and floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. As discussed earlier; the effectiveness of the elevation criteria is questionable with respect to its intended purpose to minimize facility maintenance. Therefore, removing the criterion would avoid the sometimes troubling definition of "practicability." Replacing the elevation standard with the requirement for a wildlife assessment would address concerns for wildlife protection directly. Staff has proposed a performance standard"a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat"where the wildlife assessment would include an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path, and recommended mitigation measures to minimize impacts. Staff believes that these three steps are implicit in the proposed standard. To ensure adequacy of the wildlife assessment, any wildlife assessment submitted with an application would be subject to ODF&W review,public comment,a public hearing,and a Hearings Officer review and decision. The Planning Commission supports Option 3.c (below) to minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future,pursuant to the Park System Master Plan. The proposed development code amendment is an opportunity for the City Council, as the legislative body, to weigh the policies that it decides are applicable. The City Council can choose a policy to emphasize over others and decide which ones are more important to the community. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 13 OF 16 • • SECTION VII. ALTERNATIVES TO APPROVAL • The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Option 1—retain criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7) which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian/bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature-oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence, absence, or quality of habitat at any location. Option 2—revise criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature-oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. Option 3—revise criterion: a. Pedestrian/bicycle pathways within the floodplain shall be sited above the elevation of the average annual flood, where practicable, and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant-wildlife habitat;or b. Pedestrian/bicycle pathways within the floodplain shall be sited above Ordinary High Water, where practicable, and shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or c. Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 14 OF 16 • Pros: a. The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2, policy 2). The habitat assessment would also complement CWS standards for trail location within vegetated corridors. b. The elevation standard, if kept, would be more easily implemented if changed to "OHW" from "average annual flood" (In March 2009, DSL changed their elevation reference for determining applicability of the removal/fill law from the 2-year flood elevation to OHW) c. Removing the elevation standard would not in practice, diminish trail protection or increase maintenance (PW memo) and because existing"1'DC wetland and CWS vegetated corridor protections are in place to guide trail alignments. Cons: Additional cost to the applicant for a natural resource assessment. Option 4—remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adopted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. SECTION VIII. ADDITIONAL CITY STAFF & OUTSIDE AGENCY COMMENTS The City of Tigard Long Range Division was notified of the proposed code text amendment but did not comment. The City of Tigard Engineering Department reviewed the applicant's proposal and had no objection to the proposal. The City of Tigard Public Works Department, Steve Martin, Park and Facilities Manager reviewed the applicant's proposal and provided the following comment: The question of the maintenance on the Fanno Creek trail and flooding came to my attention. It should be noted that,with the exception of a bridge that needs to be lengthened to get the footings further outside of the stream banks, flooding has only a small impact on the maintenance of the trails along Fanno Creek. The flood waters inundate the trail a few times each year, usually for less than a day, though occasionally for a couple days. My estimate is that flooding occurs roughly 6 times or less each year. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 15 OF 16 • • The maintenance after the flooding is usually confined to the occasional sweeping, or shoveling of the trail where it is lower than the surrounding landscape. In those places the sediment will settle, while in most areas, the sediments flow over the asphalt and leave a light dusting that quickly dissipates. After most of the flood events, no special action is taken because there is not much sediment left on the trail. The edge of the trail is mowed for pedestrian safety and this results in a mowed buffer of 2 to 3 feet of low vegetation, usually field grass. The short flood times do not seem to cause much erosion in these areas, especially when the vegetation is thick. As a side note, in some parks we have noticed erosion in planting areas where the grass and vegetation are not allowed to grow, such as around trees or light posts. The maintenance of the asphalt trail in the flood areas does not seem to be much different from the trails that are not in the flood zones. The same problems are seen on the trails regardless of the trail location. Spalding, sinkholes, and cracking of the trail are the most common problems, and occur as commonly on trails out of the flood zone as on trails in the flood zone. The most important factors in the longevity of the trail seem to be if the trail was properly installed and the grade of asphalt. We spend many times more hours on both litter and vegetation maintenance along trails than cleaning up after high water. The City of Tigard Arborist reviewed the proposal and had not objections to it. The Division of State Lands, Oregon Department of Fish and Wildlife, US Army Corps of Engineers, METRO, and DLCD were notified of the proposed code text amendment but provided no comment. June 29, 2009 PREPARED BY: Gary Pagenstecher DATE Associate Planner June 29, 2009 APPROVED BY: Dick Berwersdorff DAl'E Planning Manager SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 7/14/09 PUBLIC HEARING,STAFF REPORT TO THE CITY COUNCIL PAGE 16 OF 16 [ • • The motion was approved by a unanimous vote of City Council present. Mayor Dirksen Yes Council President Wilson Yes Councilor Buehner Yes • Councilor Henderson Yes Councilor Webb Absent 8:40:26 PM 8. LEGISLATIVE PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008-00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation,Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. 8:40:55 PM a. City Attorney Ramis reviewed the hearing procedures. City Attorney Ramis added there might be many issues for the City Council to resolve this evening, he asked the City Council that when it directs the staff to prepare the final ordinance that they give staff some additional time to prepare the final version of the ordinance with accompanying findings for the Council's consideration. This might require a continuance of the hearing. b. Declarations or Challenges: None 8:44:55 PM c. Mayor Dirksen opened the public hearing. d. Associate Planner Pagenstecher presented the staff report. • This application was brought forward by the Community Development Department. • The standard in question prohibits trails to be below the average annual flood. It was perceived that this might prohibit trail alignments for the Fanno Creek Park plans. TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 8 of 16 • • o The proposal was brought to the Planning Commission. Substantial public comment was received with the primary issues being wildlife protection and water quality protection. • There were a number of comment letters from agencies and interested parties. • The Planning Commission decided this should be aired more broadly to address the issues raised. o Staff developed an options paper (included in the City Council meeting packet) to provide for wildlife protections in lieu of the elevation standard. • The option (3.c) recommended by the Planning Commission removes, as originally proposed, average annual flood elevation and replaces it with a wildlife assessment requirement. This pertains to floodplains throughout the whole City. 8:47:39 PM Councilor Buehner referred to the communication received today from the Oregon Department of Fish and Wildlife. She said she understands their concern, but it does not appear that they were aware we were going to include a wildlife assessment. Associate Planner Pagenstecher said he had a conversation with Fish and Wildlife Habitat Biologist Mischa Connine and he noted that she referenced the wildlife assessment in her letter. The letter does not comment on the efficacy of the standard that currently exists and does not give any credit to a wildlife assessment requirement. Associate Planner Pagenstecher said he believes the Department has a general stance against incursions into sensitive areas. Councilor Buehner recalled a hearing a number of years ago regarding the Maplecrest subdivision. One of the proposals was to build a path to a bridge that the developer would build over a creek and have it continue to an existing path on the other side. Concerns were raised regarding ADA issues. Associate Planner Pagenstecher said ADA issues were not raised for this application.The trail for Maplecrest was a small neighborhood trail in a riparian area,but not in a floodplain. The trails to be accommodated in the floodplain are regional trails (in this case, the Fanno Creek trail),which has a standard design of 12- foot widths rather than a three-foot wide soft path. The main question is can you balance access to nature and recreation with resource (wildlife) protection? Councilor Buehner referred to an area of the trail in Beaverton that floods regularly. Has this issue come up in the context of their portion of the Fanno Creek trail? Associate Planner Pagenstecher said he has not consulted with Beaverton but added that Tigard Public Works staff members say that inundation occurs on average six times a year for one to several days. This represents an inconvenience, but people generally stay away when the areas are flooded. The maintenance associated with those inundations has not been a significant issue. 8:52:22 PM Councilor Henderson asked about barring access during times of flooding and if there was any special construction needed for the sensitive areas? Associate Planner Pagenstecher said this proposal does not address the questions. Usually people use common sense and stay away from flooded areas. 8:53:42 PM Council President Wilson said the intent of the wildlife analysis, as he understands it, is to try to minimize negative impacts to wildlife. He said he assumed an analysis would not be done until there was a project proposal. The intent is not to stop the project, but to determine whether impacts could be minimized. He cited a potential example of a typical conflict along Fanno Creek with beavers and their tendency to raise the water level. There is an inherent conflict between human use and the use of by animals. At some point, the space will need to be shared. Council President Wilson said he is not sure what the intent of the wildlife assessment is. The stated intent is to minimize; at some point someone has to make a value judgment--who makes this decision and on what basis? TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 9 of16 • • 8:55:42 PM Associate Planner Pagenstecher agreed with Council President Wilson in that this is a balancing act. You can design around the wildlife habitat; the important thing is to know what wildlife resources exist in the subject area. Currently we do not have any regulatory tools to ensure wildlife protection. Council President Wilson responded to Associate Planner Pagenstecher's explanation observing that, apparently, this is a resource for the decision makers but it does not necessarily impose any particular approval criteria; it is simply information that the decision makers can use. Associate Planner Pagenstecher affirmed that the designer could use the information to change alignment accordingly or use certain construction techniques; i.e., permeability or an elevated boardwalk to address wildlife habitats. d. Public Testimony • Eric Lindstrom, 6801 SW Canyon Crest Drive, Portland OR 97225 testified. Mayor Dirksen advised Mr. Lindstrom the City Council received his comments given to the Planning Commission. Mr. Lindstrom acknowledged his comments are on record and said he needs to address what has been "put on record." He has exception to make to one of the major points regarding tonight's proposal. • He said, "It states categorically that this change in the code will not impact negatively...the wildlife protection in that region...and that's categorically not true." This will affect sensitive areas because it brings pathways into areas that are not currently allowed. He asked the City Council to recognize that while this is being brought to the City Council as a problem related to a plan that the City is advancing, there are other properties coming online over the next several years this proposal will affect. Mr. Lindstrom said it was interesting there is a proposal that cannot be implemented because "it runs into its own code." He said the proposal to change the code does not make sense to him and does not sound like a good process. 9:00:23 PM Mr. Lindstrom commented that this ordinance would apply to the property from Bonita Road to Durham Road. He said the City Council would be opening a"Pandora's box"in that area even if a recreational problem is solved "here." A serious watershed problem might be created downstream in Tigard. He said he is hoping the City Council will send this back to the Planning Commission and planners and ask them to come up with a more creative process to allow the City to implement as much of its plan as needed while at the same time preserve the standard that is "serving you so well in the stewardship of your watershed resources." 9:01:22 PM • John Frewing, 7110 SW Lola Lane, Tigard, OR advised he sent in written comments to the City Council this afternoon that he will summarize and make additional comments. He said Council President Wilson raised a good point: How do you balance the desire to have people interact with natural areas of the City and at the same time protect the wildlife? The City has not done a general citywide plan determining what areas should be dedicated to fish/wildlife and areas dedicated to people/recreation. He said he is critical of the Forest Service because they try to do all activities in every acre and he is concerned that the City is using that same approach. There needs to be plan to zone for areas of wildlife and areas of recreation and segregate these areas. Previous comments noting concern for wildlife stemmed from the fact there would be additional trails. We are carving up the wildlife areas into small pieces. National and regional studies have found that the size of the TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 10 of16 • • • piece of natural area is key to making it successful for wildlife. For that reason,Mr. Frewing says he thinks there needs to be a different approach to trail location in the City of Tigard. Mr. Frewing clarified comments he sent in earlier. He said this change in regulation has not been coordinated with Metro. Coordination is called for in Tigard's Comprehensive Plan and coordination is defined in state law and state rules requiring affected agencies be given an opportunity to review and to incorporate their comments. Metro has regulations dealing with this type of application. Metro's Title 13, Nature in Neighborhoods, calls for protection of sensitive lands including those in the 100-year floodplain. In Tigard and Washington County, Tide 13 says that the Tualatin Basin Partners developed an alternative scheme for Nature in Neighborhoods. There are additional requirements in Tide 13 for every jurisdiction in the Metro area. One of these additional requirements states that the cities shall have clear and objective standards for protection of these sensitive lands including significant habitat areas. Mr. Frewing said he did not think a wildlife assessment was a clear and objective standard and needs more study and clarification. Mr. Frewing referred to 18.775.050 M regarding non-residential construction in 100-year floodplains, there is a requirement that the base elevation/floor of any structure shall be above the 100-year floodplain. Any structure below that level shall be water proofed and made flood resistant. He said he thinks this section calls for trails to be above the 100-year floodplain and this is the reasonable standard rather than the annual average flood or the more general call for a wildlife assessment. • Sue Beilke, 11755 SW 114th Place, Tigard, OR advised she is a Board member of Fans of Fanno Creek. The Fans have many members who work hard to protect and restore natural resources. She said they believe that removal of this part of the Code should not occur for a number of reasons. One section of the Code addresses annual average flood and they have not received a good definition of average annual flood. The answer from staff was that it is about the same as a second year flood. She advised that she and Mr. Frewing have done quite a bit of investigation into what they thought would be the average annual flood. She said this information is contained in the material distributed to the City Council. They got this data from the Durham Road gauge,which is actual hard data. 9:09:28 PM Ms. Beilke referred to the CFS of Fanno Creek. They have information that the annual average flood is increasing, which makes sense due to what has happened with urban development. This will affect where trails are placed. If this section of the Code is removed, there is the potential to put trails in areas where we would not necessarily want them. She referred to the problem of annual flooding and bank erosion. She cited Attachment C of her material, which is a picture of Fanno Creek Trail that has to be removed at a great cost to the City. She believes this piece of the trail is currently in the average annual flood and referred to photographs supporting her position. Councilor Buehner said this is one of the reasons that Clean Water Services is going to remeander the creek and significantly reduce the odds of flooding in this area. The City is cognizant of this situation. This project will significantly change the dynamics of what will happen in the park. 9:11:22 PM Ms. Bielke referred to comments in the packet from Facilities/Parks Manager Martin that there are no costs to trail maintenance. She contended there are many costs and her photos represent an example of a huge cost to the City. The trail is not going to be replaced there. TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 11 of16 • • • There are other costs to trails. For example, asphalt erodes resulting in stream bank. Many times, in average annual floods, people go around the trail, step on the adjacent ground, trample plants and compact the soils. This type of situation results in costs that we have to pay for as part of maintenance of trails and this has not been addressed. 9:12:09 PM Ms. Bielke referred to the staff's statements regarding why this part of the Code was put into place (Page 3 of her comments). 9:12:41 PM Ms. Bielke disagrees with staff when they refer to some new policies in the Comprehensive Plan that removal of this section of the Code would meet. You cannot pick and choose your policies. There are new policies in the Code that removal of this section of Sensitive Lands Code would not meet. For example, Policy 6 states that the City shall acquire and manage some open spaces to solely provide protection of natural resources. Policy 17 (another new policy) is that the City shall maintain and manage its parks and open space resources in ways that will preserve, protect, and restore natural resources including rare or state and federally listed species. She said she does not think we have done an adequate analysis of how removal of this section of the Code would address those policies and how it would affect our natural resources. We need to make sure we are meeting all of our policies in our Comprehensive Plan. 9:14:09 PM Ms. Bielke commented on the wildlife assessment. She agreed with Mr. Frewing's comment that a wildlife assessment needs to be defined. There are questions that need to be addressed. Her recommendation is that do a biological assessment as many other agencies do. This would include a review of the habitat and the species that might be in the area and perform a qualitative and quantitative analysis regarding how a project might impact the habitat and the species. Another policy is needed in the Comprehensive Plan to increase our baseline information on habitat in Tigard. 9:15:29 PM Ms. Bielke asked the Mayor and Council to have staff do further analysis before this section of the Sensitive Lands code. e. Staff Recommendation Associate Planner Pagenstecher responded to Mr. Lindstrom's comments that the staff report said that no impacts would result from removal of the standard. Staff listened carefully to public comment and included the wildlife assessment criteria in lieu of that standard of elevation. Staff agrees that impacts will occur and should be minimized. One could argue that it is not clear and objective, but it is also a performance standard in that staff wants to minimize impacts to the wildlife resource. Mr. Pagenstecher said the City is not alone in protecting the resource. We rely on other agencies permitting processes;i.e. DSL and CWS. The City also has direction from the Comprehensive Plan and the Transportation System Plan to provide for a regional trail. The Development Code ensures that development provides for a pedestrian/bicycle pathway in accordance with adopted plans. There is a lot of support for including pathways in floodplains. As both Mr. Frewing and Ms. Bielke mentioned,we do not want to adversely impact natural resources anymore than we have to, so the issue is one of balancing these two things as our Comprehensive Plan seeks to accomplish. TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 12 of16 • • Staff thinks the Code amendment is more effective in protecting the resource than the previous Code criteria.We do not suffer any loss by taking out the elevation standard. Community Development Director Bunch noted Mr. Frewing's reference to 18.775 about habitable structures and the way they are to be sited to avoid flood damage. A pathway is not necessarily a habitable structure. Community Development Director Bunch concurred with Associate Planner Pagenstecher's statement that Tigard is not alone in the pathway siting "business" or the management of these resources. Clean Water Services is involved. We complied with Title 13, Nature in the Neighborhood, with our Sensitive Lands ordinance. The City undertook efforts to coordinate this post-acknowledgement plan amendment with the Oregon Department Land Conservation and Development,which provides a clearinghouse for comment. 9:19:46 PM Community Development Director Bunch referred to the issue raised regarding Comprehensive Plan policies. This is the opportunity for the City Council, as the legislative body, to weigh the policies that it decides are applicable. The City Council can choose a policy to emphasize over others and decide which ones are more important to the community. In this instance, we have pathways, recreation, and wildlife habitat. Council will go through the process, make its decisions, and the staff will develop appropriate findings. 9:20:39 PM City Attorney Ramis pointed out that at least one of the witnesses indicated that a portion of the testimony offered was new. This is material that staff had not seen before and not discussed previously in public hearings. If this is the case,the City Council might want to consider continuing the proceeding after giving some direction to staff. Then, those arguments and issues can be considered and adequate findings prepared in response. Staff also needs to determine whether it needs to add the additional evidence. 9:21:18 PM Councilor Henderson concurred on the continuation. 9:21:28 PM Council President Wilson referred to the Willamette Greenway as a statewide goal that requires a greenway trail. This has been in existence since 1973. He asked if staff knew the approximate date the City of Tigard's Sensitive Lands code was adopted. Associate Planner Pagenstecher advised the code was adopted in 2006 and was updated in 2007 for the Nature in Neighborhoods. Assistant City Manager Newton advised she was a City Planner when the first Comprehensive Plan was written. It was around 1983 that the first Development Code written and this included a Sensitive Land section. Council President Wilson said 18.775.080 B 5 implies that a pedestrian/bicycle pathway was previously going to be required and this only speaks to where it would be required. 9:23:39 PM Community Development Director Bunch said staff members have reviewed the Development Code and numerous statements in the Code will be cleaned up. 9:24:17 PM Council President Wilson said that it appears that we have had the intent to put a trail on Fanno Creek for a long time. At some point 18.775.070 B.5 was probably inserted along with a number of other code provisions dealing with the floodplain. He said he thinks the argument could be made that this language is a mistake because it obviously prevents completing the plan. Mayor Dirksen TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 www.tigard-or.gov I Page 13 of16 • said "This isn't even a rule. It is a statement with regard to an existing plan. I think it's ironic that No. 4 above it actually requires that any landform alteration within the 100-year floodplain have a pedestrian/bicycle pathway." Council President Wilson agreed that the wording is contradictory. He said, "We want to build another piece of it now, and we're recognizing...there's a problem." He's not seeing that this language, as has been suggested from testimony received, was put in the Code to protect wildlife. He said wildlife is an important concern. At some point,we need to have a conversation about wildlife inside the City and what degrees of protection are appropriate. 9:26:28 PM Mayor Dirksen asked about coordination with other planning partners and whether there was a need or a requirement for this Code language to be considered by Metro or anyone else before the City of Tigard could consider this change. Associate Planner Pagenstecher advised the staff provided notice to DLCD, Metro and others of the original intent to remove this section of Code. No comment was received. He added that when the options analysis was done, staff contacted Metro to discuss the issue of trail design. Metro provided a useful trail handbook for this kind of situation, to design trails,alignments, and indicate techniques for minimum impact. It is implicitly acknowledged there will be conflicts and that trails will be in sensitive areas. Metro did not say to Tigard that we should not put trails in floodplains or there was an elevation that was relevant. Instead,they provided the City with information about design. 9:28:20 PM Council President Wilson asked if there was any precise way to determine the elevation of average annual flood? Associate Planner Pagenstecher said that there is and that Ms. Beilke alluded to a calculation based on observed data in the field. Every reach of stream has variable data. Not all stream sections are measured at the same frequency. For this particular reach of Fanno Creek within the City, he said he did not know if specific measurements were taken. Associate Planner Pagenstecher said he thought there was about a dozen times they could average; however, that was not significant enough to make a determination. The consultants for us were tending to use the two-year flood as a proxy;DSL used this data as well. 9:29:44 PM Mayor Dirksen said he recommended that the City Council follow the City Attorney's suggestion to close the public hearing, continue the matter, and direct staff to produce findings based on what was heard tonight. Council would then consider an ordinance at a later date. 9:30:12 PM City Manager Prosser advised the first opportunity to bring this matter back to the City Council would be July 14,2009. 9:31:20 PM City Attorney Ramis suggested that the proceeding be continued. It might be that that the staff will have additional information they might want to present. Therefore, he recommended against closing the hearing. This would not preclude the City Council from giving comments and direction. 9:31:40 PM • Councilor Buehner requested if the hearing was continued that it be limited to the issues brought forward this evening. TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 14 of16 • 9:32:03 PM After some discussion, City Attorney Ramis suggested the hearing be continued with the understanding that if the staff introduces new facts or language, there will be an opportunity for the public to address only the new material. 9:32:30 PM Councilor Buehner said "we have a long-range plan to provide for access for the public along Fanno Creek." This is supported by Metro and by all the cities in the region. She said she thinks this is a very important concept. She acknowledged there are people who are concerned about protecting the natural habitat and want to keep people out of areas such as floodplains. Councilor Buehner is very concerned that we maintain an opportunity for the public to use the public parks provided for them and that they have paid for with their tax dollars. They should have an opportunity to see this "wonderful creek that we have that comes through this community...and I want to make sure that our citizens are aware that we are trying to protect their rights to have the opportunity to use the park, while at the same time being sensitive to protecting the park. We are spending very large sums of money to restore the park and the creek the way it was before it was fouled up many, many years ago. There is a middle place. We don't have to keep the public totally out of its own public park." 9:34:23 PM Mayor Dirksen, with the City Council's permission, announced he would continue the hearing to the date certain of July 14,2009, for the purpose of reviewing staff findings and potential comment on any new information. 9:34:48 PM (break) 9:48:22 PM Meeting reconvened. Mayor Dirksen noted the late hour. New information, both oral and written, have been received by the City Council tonight regarding the public hearing cited in Agenda Item No. 7. He said he thought it best for the City Council to have review and consider this new information before the public hearing is held. See Agenda Item No. above for the procedures the City Council followed to continue this hearing to July 14, 2009. 9. COUNCIL LIAISON REPORTS: None 10. NON AGENDA ITEMS: None 11. EXECUTIVE SESSION: Not held. TIGARD CITY COUNCIL/LCRB MINUTES- MAY 12, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard,OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1.5 of16 ... n...... :.. ••• c....k.. .......i :••• . -• • . .. • ••• • .... ._ •• .... /... - ..... •• c"-*"..:. 4••••• ...) •r• • ... • ..)..2 ii• 4) • ::::: ...: '''.' - •. I:: .44.44 •:,.4 ••••• .......'.: 2 i ....... , 2 ' • ',....2 . . 2 • • ,.. , •• • : -.. • ,••22'2,2 I •2,.:'...:*.,. 7 • • , •:.,...i.,2 ••*1 ......::,•22,..• •' ^ ,::. • •22 2•2'..:2•!:•.‘•.2„.,...,. •-...•':' .2 •••: 222'22 *.','••.:•2••.•:'••2:• .2• ' • . ,22 ',.2::12:12; 'i.........-:•44......;:••,... .\.\'‘•:iZ. .'':. 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' .... ., . . • 4i • • Ag4W4,Ii.Otti:# - Meeting Date • ay12,2009, COUNCILAGENDA ITEM SUMMARY City 0 f.Tigard,Oregon, • Issue/Agenda Title SeriSitiVe Lands Peritiit'ReqiiirerrientS (DCA2008-60005) to 'remote 'Criterion:.18:775070n3, which prohibits pathways located.within:or adjacent:to,the floodplain tobelieloW:the,-elevatiOn.of the-average:.annual Prep4idel-By; . !Oary Pigeristeaidt .Dept,Herid...Atiprovak COUNCIL. ShoUld the totinell approve beveloprrient Code.Amendment:to Section removing a-criterion .foi, pathways located Within or adjacent to the floodplain to be below the elevation: the average annual::floOdandYinste4d, require that pedestrian/bicycle/bicycle pathways-within:the floodplaiminclude aWildlife.assessment to ensure':,that-the proposed to Signicant,Wildlifehabitat? STAFF RECOMMENDATION: • • It is recommended the •City Council, approve the.-proposed jD-evelopment:Code Amendment:-as'::amended and . • recommendedbythe:PlanningCommission. KEY'FACTS AMY INFORMATION SUMMAR Y On February=23-i 2009;the PlanS*.ig COnirnisSiOn .hel4.a public hearing to'-consider 4' Community Development Department request (DCA2008=00005):to amend the Sensitive Lands Chapter of the•Tigard.Development Code to rethove 4,Cititerion...().8:71,5„.00.13:5) prohibiting pathway located within Olt adja.nent.to the floodplain to be below the elevation of'die...ayerage annual flciod. It became apparent,through the design development process-.for Lower•Fanno Creek Park that removal of this section would allow pathways to be installed in areas which would benefit-,thep4liC",..,(accesS'.tb and ediiCational-app.reCiation:ofecolagical.areas)... The •Commission ...received 'substantial.:public comment on the ,proposat principally 'concerned with •wildlife protection And water quality.. The. Commission decided to cotititue thehearing and directed staff to prepare;an options analysis. The•Community Development Department received further public comment and met with the parties in:oppoaition. to discuss their concerns: An options analysis:,Wakprepared, which the Planning Commission discussed at its April 64[2009-meeting•Arth&hearing;there was continued public testimony Cleaily'favoting*ing:and-.40signing'pEt4tways. that..avoid impacts to wildlife habitat:and water-qualitYand.oppoSingilie:removal oftheelevatiOn Standard. The. Planning Commission approved a motion to. approve the Community Development .Department's :recommendation, Option 3.e (Memo'. dated April .6; -which replaces the elevation ..-standard with the .requireinentfor.:a wildlife-assessment. • • Potential ;Colitileting (Ottipteheie th, n4 eriteriOirt'in the Development Code :for floodplairt .Managetteni;binge*Ottnd the notion of striking.,a balance between natural resource protection and recreadonal use The propOSederodeitnencirnent- kgiiative and•woiild apply-to 411,..Opotilop the OTHER ALTERNATivES:1CONSIpERED. The April 6, :2009 Memo:induded SLX options that range.from retaining criterion 5, to removing it altogether,, including three options with attended iittgog:e.to allow paths within the fl.010415,14*.;where practicable to:04.1iicv.c oitiat-4,ta1 opuyce essTrIent„and changing the elevationlo "ordinaryliigbwitet?. 'ciTy COUNCIL GOALS' The proposed amendment does not directly relate.to City Council's 2009 Or:EiVe.YeAi Goals 80woe.x,:thp:,-,Addiudo of a criterion for the protection of wildlife;for rip;th prOpSetLiti the'fit:0dpi*would update the code to be consistent with new Comprehensive Plan policies that supporthabitat'protection (Comprehensive Plan Goal 8.1-_,.policy 17 and Goal 8.2,policy.2)., • ATTACHMENT LIST Attachment'I: Ordinance 'Exhibit A: Proposed:Code Text el*igo Attachment 2 Planning Commission Meeting Minutes for April.6;2009 and Eebruary23;;2009 Attaehmentl: Staff Report to the.Planning'Commissiondated February 13;2009. .Artaehment.4: Memo to the Planrii4g:Cciixiinision dated„Atii:ii 6,2009 At,tke4r.i*ilt 5: COittti.041e0dt$' 00Wect:f6T:tke';.PWriPiq 2QP9)tittiPg . . FiscANOTEs _ Thereis no fiscalithpact anticipated.for this action. However, at the tithe theCityiriitiate§.padiWaY.deNrelOpitent in the floodplaiivilae gaoioni4 cpt.pf g_NOcilife aS.S.essnient;WOuldbe expected.. • • CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 09- AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION FOR PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT PEDESTRIAN/BICYC1 FR PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE ASSESSMENT TO ENSURE THAT THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT(DCA2008-00005). WHEREAS, the City's Planning Division has requested to amend Chapter 18.775 - Sensitive Lands of the Tigard Development Code to remove a criterion for pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and,instead;require that pedestrian/bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;and WHEREAS, notice was provided to the Department of Land Conservation and Development 45 days prior to the first evidentiary public hearing;and WHEREAS, the Tigard Planning Commission held public hearings on February 23, 2009 and April 6, 2009, and recommended approval of the proposed amendment,as amended to require a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;and WHEREAS, notice of the public hearings was published in the Tigard Times Newspaper at least 10 business days prior to the public hearings;and WHEREAS, the Tigard City Council has considered applicable Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; any federal or state statutes or regulations found applicable; any applicable Metro regulations; any applicable Comprehensive Plan Policies; and any applicable provisions of the City's implementing ordinances;and WHEREAS,the City Council has found the following to be the only applicable review criteria: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goals 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs;] any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management]; any applicable comprehensive plan policies; [Goal: 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. WHEREAS, the Tigard City Council held a public hearing on May 12, 2009, to consider the proposed amendment;and ORDINANCE No.09- Page 1 . • WHEREAS, the Tigard City Council has determined that the proposed development code amendment is consistent with the applicable review criteria, and that approving the request would be in the best interest of the City of Tigard. NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The specific text amendment attached as "EXHIBIT A" to this Ordinance is hereby adopted and approved by the City Council. SEC11ON 2: The findings in the December 23, 2009 Staff Report and April 6, 2009 Staff Memo to the Planning Commission, and Minutes of the February 23, 2009 and April 6, 2009 Planning Commission hearings are hereby adopted in explanation of the Council's decision. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor,and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only,this day of _ ,2009. Catherine Wheatley, City Recorder APPROVED: By Tigard City Council this day of ,2009. Craig Dirksen,Mayor Approved as to form: City Attorney Date ORDINANCE No. 09- Page 2 S I EXHIBIT A DCA2008-00005 SENSITIVE LANDS PERMIT REQUIREMENTS This text amendment employs the following formatting: [Bold italics] —Text to be added [ ] —Text to be removed 18.775.070 Sensitive Land Permits A. Permits required. An applicant, who wishes to develop within a sensitive area, as defined in Chapter 18.775, must obtain a permit in certain situations. Depending on the nature and intensity of the proposed activity within a sensitive area, either a Type II or Type III permit is required, as delineated in Sections 18.775.020.F and 18.775.020.G. The approval criteria for various kinds of sensitive areas, e.g., floodplain, are presented in Sections 18.775.070.B— 18.775.070.E below. B. Within the 100-year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied: 1. Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero-foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; 2. 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 defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; 3. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100-year flood; 4. The land form alteration or development plan includes a pedestrian/bicycle pathway in accordance with the adopted pedestrian/bicycle pathway plan, unless the construction of said pathway is deemed by the Hearings Officer as untimely; •5. .j: - - . - . .. = - - - of an a ge annual flood; Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; 6. 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 7. Where land form alterations and/or development are allowed within and adjacent to the 100-year floodplain, the City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the comprehensive plan. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. • • ATTACHMENT 2 CITY'OPTIGARD PLANNING commIssION :Meeting,Mihutes • 6i,2009 1. CALL TO ORDER -'President Ihrhan:Called the meetirigito order The theetifigwas helddri the:Tigard, .Civic Center;TbWrillait, at 0.125:SW Hal3i-w. '2; 11014...CAP.+ 'Corhinissioners Present President:Inman;CommisSioners Anderson, COW,Doherty; Hastrian,Muldoon, atitt:Vice.Presideht Walsh Commissioners Absent: Cornthissioters.:Fishel, Yermilyea, and alternate Commissioner Oasehl;:e. Staff Present: Bunch, Community Development Director;Dia:',13et(Terp,dotffr,Plannitis Manager;,Gus DiletiaS,:CifrErigine,e4 DarretiAVYSS; Senibr Planner,Todd Prager;City Arborist Gary Pagenstecher,Associate Planner,DdreetiLaughlin, Plaritiihg Commission Secretary 3. COMMUNICATIONS 'Commissioner Doherty reported that shed atiende&the Metro 101 session in.Hillsboro.:She gave a short report And distributed CD's with the information to the Commissioners, along Ayith,an Urban and.1 .nral,Res.erves;,,phasapiihilic:Mee*ig.:Schednle.,. Commissioner Caffall reported that he'd attended the CCI:(COrtirnitted for Citizen Involvement) meeting, and that he fop-rid that most of the neighborhoods are up:•,041i;v*:with their Websites". He said that's going well He reported that GiisntieriaS(City Engineer)is keeping the COrninittee busy With.}1wy 9W atid:StreetithOrc*dtrientS. Vice President WalShrepOrted that he'd attended the Tree Board-ineetingthe.wdk-befort;and they would be getting airupdate4t the erid:Of the Meeting tonight.. 4. CONSIDER MEETING MINUTES There WaS a motion by Commissioner Doherty,,seconded,b1-CcinirtiMoner,MilldOon,to apprcive,the 32-O9Plämuiñg CanirtiiSSibh Meeting Minute§4--S Subinitted. PLANNING COMMISSION NIE.:InsINGMINVIES April 6;;2009 1 iiI9 _ . • The->rtiotion to approve:the utesas t.i.1).±.11itted passed fariariirporiStron:a:recpxtled: the Commissioners voted AYES: Commissioner Doherty, CortiniiSSidnerf.HASniati, Commissioner'inman, and CornmiSSioner MrildbOn (4) :None(0). ABSTAINERS; Commissioner Anderson, Ca frall,:and Wal. h. (3), ABSENT; Commissioner Verrnilyea,(2) :346-01Vieetitig Minutes.: There waa rmotion by COininiSSIOnerfaOhettY; seconded by Commissioner nildoqn to approve the:3464)9 Plannin4COmmission tnectitig minutes aS..subnitted: The motion to approve the minutes as submitted passed unanimously on a recorded Vote,: •thetorninissionersNOted,AS;f011OWS: • AYES Commissioner Anderson, Commissioner Doherty, CommisSionet Hasman, CommisSioner:Inirian, and corturrisSi,orier:1,14.1.doon (5). .NPrxq ABSTAINERS:, Commissioners'cgff:01and Walsh,(2.); ABSENT: Commissioners FiSheLand Vermilyea.(2) g. Kraut HEARINGS 5.1 COMPREHENSIVE:PLAN AMENDMENT j(CPA) 200844011 LEGISLATIVE UPDATE:Tigard Transportation Plan and Comprehensive Plan Amendments.tc IfiCorpolate Tigard 99W IiiiproVeirierit and MA-nagetnerit Plan Recommendations PUBLIC HEARING OPENED Darren VVyss:,.'Senior platipeA:pre:§eAted,the-staff'rep90 qn behalf of the ptaffreports • are available for,pt:iblicIeview at the City one.week-prior:to:pot7lic hearings] Wyss said the Planning GottirriiSSlori.Was being asked.to rriahe.g.recomrrieridadori to City Connell on' PA.2:008-00011, which 8Vill.arnerid the Tigard TSP and comp:Plart,:„He noted the.:CorturiiSSioii:'preVibriSfy held a workshop on the proposed amendment on March 2009'..He said the proposed airieriametifs'Will.incOrpOtate recommendations todrictio,the Tigard.99W Improvement arid ManagerrientYlati,and those made by the project's Advisory Committee:[CAC]. PLANNING comgissioN mwriNG MiN14114:=:Aprik-0,:200p—1!age.:2-pf=9 • Wysorhighlighteci afew components of the process: • Intended to develop concept-level recommendations for transportation improvements and additional.interv.entions to meet fiiture.needs in thecorridor. ' • The primary focus was to:identify potentiarprOjeetairried at alleviating congestion and iiiiprOving,dttillation. • The planningprocess.:endedup evaluating threealterriatiVes. • partiatwidening of 9.9W;thruTigard • B.. ..access..management strategyin Tigard. • Wisdeningof,9:9.W tey 7 lanes thrti Tigard Wyss noted that in the end,Alternative B was chosen as the preferred.alternative as it best ihetthe;pitoject.,64' j'eedve ,and criteria Whil tarrying the fewest negative iinpaCts. He.:Saidit was important to keepin mind tharchooSing-AlternativeB was not done ma vacuum,. Both public involvement and Interagency coordination!faCtoredinto.choosing the preferred .alterna.dve. The proposed amendments.found In CPA290.870001.1:,were developed as a result of Alternative B being chosen.: In addition to the recommendation found in the Plan, the CAC.deyeloped.a list of its own recommendations to Council which are'included as proposed Recommended Action Measures to be added to the Comp Plan transportation ;chapter._ He said.the proposed anieodrnents',are divided into the 'ft:no:wing'fOur conip,onents: '1..Update the TigardiTrakipbttatioli Sjistem Nair;to include retbMniefided.charigeS:.foutid in the Tioyel9PW Improvement'a adManagthien 2.lItiCorporate the Tigard-99 14.7.1i#Weiiielitaild Managehreht Plthiby:referente into the Tigard Triai.portatiaii.Sfileth Plan to serve as findings, 1 Update the recommended action Measures.for Tigard ConOrrh ensive Plan.Goal 12:. Transportation.:to include:language recommended:bribe Tigard.99.1V.Plaff:Cilizen,Advisaor Committee-, and Amend the Tigar -Comprehensive PIan Policy 6.A'(under Goat 12„2) to reflect recommended through lanes for'Highway 99W:. (Staff recommended for consistency with 7SP amendment:4 Wywnoted.,4few Changes:had been Made:0'die,proposed:arnendme-no since the;P.c workshop on March 2,2009:.:-TheSe:changet.Wei&haSed .■ PC foolbga at•the-worlohop., e. Comments sent in.by. ODOT.and Beaverton At this point-W.yss.'went ov.er:a PowerPoint presentation. (Exhibit A) QUESTIONS AY'Ci COMMISSIONERS: Is 'ffuncrion".ilefined?We can do. PUBLIC TESTIMONY IN.FAVOR—Nci dtit:Isigne.d.titi tQ:Sti:dak PLANNING COMMISSION MEETING MINUTES-Aptil,6,.2909-Page-3 019 . • .,ru-13LIc.TESTIMONY-IN OPPOSITION NO one,signed--up to speak in:Oppositibn. P;esicient.Inman,asked if anyone in the,audience wished to speak on this Sue Beilke, 11755 SW 114th Ploco;‘Tigatti, hatt:a;couple of questions regarding Wyss;had made, :to:table 11-4 and t15--Which he atisivetedstO.her satisfaction • PUBLIC TESTIMONY cLosEo • btLIBERATIO,NsimarioN- After.a.shoftdeliberation,:there waS.a.:inotion by Conlin"--iSSiOner DOlietty, ctorided ly Conuriissioner-Caffall:! "I move the Planning Commission forward a recommendation of approval to the City Council of,aprilication CPA20.08,00011 and recommend the City Council adopt the-amendments to the,.Tigard:Transportation)Systern.Plan and Tigard. Comprehensive Plan as found:in'Exhibit A [of staff'report],"' The,tricitititypad OriatiirnOnSlron a recorded vote, the CoMmissioners:yoted,:as'follows:: AYES: Commissioner Anderson, cornitiiSSioner Caffall, Cointhistioner DOherty, Coititnisforier.Hastnan,, Corrirni-aaionettrifician, bittithissibnetAtildoon, and ,CorninisSioner Walsh(7): None.(0) ABSTAINERS: None.(0) :ABSENT: comm4sioners Fishel-and Vermilyea(2). :After the N.1gy,ss:was reminded that they would like:NM:to add.;the definition of ''`furiction.',' He said he would: InMart noted thIS go to:CounCirS 0/23109:Business,Meeting. PUBLIC HEARING(Continued.from 2-23-09) DEVELOPMENT CODE AMENDMENT MC42008-00005 SENSITIVELAND.S:PERMIT REQUIREMENTS- . . On behalf ofthe City,:Gary.Pagensteeher;Associate Plannerhatideciout,arevised4-nerno, (Exhibit B) with the changesinzed. He said they offer.?-a,refinement in,...§taffil recommendation -,-Option:3:c [lc states: 'Pedestrian/bicycle pathways within the floodplain shalr.include a Wildlife:assessment to,ensure that the proposed aligritnent. minimizes impacts to significant wildlife habitat."] He said there were some:comments [from 'Brian:Wegener:44 JOhn:Frewingi at the bAt kof that.:themtYAs well as a memo from Public PLANNINIGCOMMISION.M11;1 U1i L.Aprii62OÔ9 Page 4019 . . _ Works, Steve Martin [Parks &Facilities Manager]. 'Pagenstecher went-,over the memo which,:he said, reflects:the input he'd received Pagenstecher said there were basically two issues: 1):the elevation criteria; and 2),the wildlife habitat issue The recommendation gets rid of the elevatibh,:criteriaaltogether and instead requires a-Wildlife,asSesStrientl;for pathways within the floodPlain. Briefly, the elevation criteria were originally designed,for structure, protection, and maintenance: He said the Works memo spoke to that :advising:;him,:tharit simply wasn'tan issue. Adding:a criterion for:wildlife is recommended for trails in:the.flood7plain. QuEsTioNs 1..y:commissiolsggs' Thefe:*0 a genera question:abut thedifferencehetween hikeand pedestrian impacts:: PUBLIC TESTIMONY',IN FAVOR—NO:One Wa 8:-signed up-to'speak.iri favor: `PUBLIC TESTIMONY,IN'OPPOSITION John;Fiewitig,. 7110 SW'ILola Lane, -Tigard, OR:stoke:4 opposition. Be went:over,his Written submitted comments at the back of the,pgket (back of Exhibit B) With regard to 3:t—he said there were several things'that caused him concern.; He'd like to see 3 c;changed to say"pedestrian or bicycle'pathWayS,-Whith are either replaced, i**; or modified from this date forward, shall include this wildlife assessment" Secondly, he asked "what is a wildlife :assessment?" He said he can do a wildlife aSSeSSment iti,-About I second. :Someone else:itay. take more time because itinvOlves fish, or birds, or frOgs,:,.o.t whatever -e•are there standards that we can-reference in that regard? He said he doesn't know.. "Thirdly, yoU'Ve.used the word"significant'Wildlife habitat" that in our [l'igard]: code — there's :a map of significant Wildlife habitat,adopted for •Goal 5 and I presume Mat's what you mean, but it doesn't say that:here.7 He went on to say that'"C:WS right now has 4:-.yaiyer for existingrroads and;trails in these.low lying;Wag, and so anything'that exists that you're going to modify, repave, or 'replace escapes through that provision of C-WS: And I.don't want it to escape I want it to have-the wildlife assessment." Pagenstecher answered that any trail would go througlita design,development process and where trails,are, for inStariCe„:rn.o.dified-for-Width, you:vonld expect tO haft.an asS'es-sitient; because they would be "new" 'trails and would be subject to the'Criterion for pathways in a floodplain Trewing said that was comforting to hitt. ,He then asked about the standard for wildlife assessment:.Pagenstecher said there is criterion for wildlife assessment at this time not in the code-and not proposed here There are:standards for it There are wildlife assessments—.they are ordered fOrapurpose. Secondly, Frewing asked Whetber. • wildlife assessment,would:be done at one point irriirne, or'done over several important seasons:, Pagenstecher said-wildlife assessments:indicate time of year done and try to accommodate for that Frewingsald:s.easonal diffetencesrAhonkthe picked up ir ,a wildlife :askssment.,Didlon say-tharwould be picked'up?' Pagenstecher said yes,,I think-Mar would .11.:,■NNiNG:tommissioNsniwilisKJ.'miNtrivs--April 5 of 9 • • • be picked up.,, FreWing. Lastly, does."significant wildlife habitat'-'•correspond-to the city's • map?‘Pagenste:elle.P.:;'Vlia.t vt7c'xe-talking about here 4 a criterion that applies specifically to floodplains in the City of Tigard Floodplains correlate with the highest height and limit. value,on the habitat :Vtewing: Okay.—so it refers theTtnap,.. Pagenstecher; Yes.- Erik Lindstrom,6801 Sw Canyon Crest Drive, Portland 97225 spoke in opposition—He thanked..Gary forIneetingvcilth thern.:-on Friday and answering many of his concerns He said he'd studied the watershed very'intently for two years as part of Writing;a book about Fanno Creek He §pokd about management of ecosystem.SetVices.anclwildlite,hbitdt within the City lirriits.:Fie said he was toncerried.abontAhe process itSelE,He doesn't like the.idea di modifying code to meet the plan He's not convinced the detail's are there that the certain damage thatviill occur to The watershed as a,result of thi is mitigated and Offset-by-other 'activities • Therewere no.questions'from staff. Si* 13Pili*I; 0755 SW 11444 Place, Tigard spoke in opposition She handed out her :comments:In wtitten. wento,gt:them(ExhibitC), There were no questiont'fidin Staff. • Brian Wegener,116.0 SW Main Street, Suite 100,Tigard, OR of the Tualatin Riverkeepers,hadn't signed up,but spoke in opposition. ..He said he's concerned about bicycle road kills in these sensitive areas:.-He'd:seen Some,of them..tie's:also;coricerhed about,trail washouts. Impacts•Should:be minimized. :He thinks the xVilcilife.asseSsment should be defined: He's hoping this will be a ` yin,vvin!!'situation:, likes trails and access, to nature but wants to make sure we are.not taldng awarthat.natureby putting those trails: QUESTIONS FROM STAFF: lnettrioyoitbe/feo.ii*sobitio? The solution'004 be perhaps putting trails going through ivefareas up on pilings In a slope situation—there are.a lot of different ChdiceS. Reduce iMperVioils areas'tha:Carteauting StOriti,Vater that'S :ter yirripOrtatit tob at eat-Cltite,to thd.streiht: QUESTIONS OF STAFF' • Dirt Ob 61r. fi.iriber comment? No. Pagenstechersaid hetalled-to-follow up:On di eir first. comment He said the comment-was eglObal.in:tharwhen there's,a-limited resource • generally speaking, the policy is.—protect it whenever you can He said that's consistent with• their mission., PLANNING COMMISSION'MEETING'MINUTES - Page 6 otb - - 11, Is there.thepossibili6I-of the CiO4okilig-dtaidiat :JAW ,O„ Nade_. i*re:.,a trail d,floodplain?Isthem,any fiossibilibi in this code to,gOtbitie and bane thid.Wipart of . , • There are opportwiitids::to introduce and apply'green knVirontnentally'friendly] trail criterion in the designdevelopment:ofany'.trail..segment that theiCity:may undertake: PUBLIC TESTIMONY CLOSED. DELIBERATIONS President Inman said a floodplain is nOtnecessOily a'nattiral reStitirte area SO, po-tendally;:890. could be requiring wildlife assessments for a parking lot She believes this is above and beyond other standards that are,Currently,outtherei..and potentially onerous She said she leans towards faith in CWS and,other.regUlations as far as protecting-resources and bufEetS;- ,there's a dedicated:puhlic_Who will follow the development of the plan and Will give input Wijth regard to paths:: That being said, she's not-opposed to adding awildlife assessment: 'The,:,corriniisSiOnerStlelibeOted atlensth, MOTION :After deliberations;there was amotion.by Commissioner ommissiOnerMu1dop.ii, seconded Commissioner Hasman "I move we adopt DCA100.8=00.095, Sensitive Lands Permit Reqpiremerit,.selediris Option ainerided April 6,2009." The motiOn passed owa recorded vote .:the"CorniniSsioner&Vdted.aS follows: AXES; Commissioner Anderson;'Commissioner Caffill, - -CornthissionerPoherty,CommisSionerEasman, Commissioner Inman,:and Commissioner Muldoon;(5) NAYS: Commissioner Walsh ABSTAINERS: ;None,(0) AJSENT: CcnQners Fi'glietAria'Vermilyea,(2); PUBLIC REARING CLOSED c• President Inman-noted this willso to the'5/12/05 Council.Business Meeting: • .6'. URBAN FORESTRY MASTERP-LAINI citylArboristy Todd Prager,said the slide presentation he was,about to present the packetthat:wasdistributed to die commissioners:earlier. He encouraged them.to...review the PLANNING:COMMISSIC*;MEETING,MiNlitE —April 6;2009 4 Page 7'of 9 1110 _ . packet:over the:coming-months:to.become-,fai-niliarwith`the-..data.•that's'been collected thuslar for the Urban Forestry Master Plan At this point he vent over his slide presentation as an Update of the Master plaqi(Eihibit'D):, • QU,ES.TIONS„FOR STAFF W797 has/he.tyecriiiipplei*vised? aiCk_BeWerSdorlf,iPlatining:MatiageanSwered,,'"Theredbeen more development in those years than we've ever had in Tigard.' Prager added, ,fragmeritation,where the ±ge±giôvés were beingreplated.With singlet iiidividtial Plantings mayindicate..that,themitigation ishdping ro-restore,.Canopyin*these residential iones.?' There:-were gewother questions and.then dic.commisSioners thanked Prager for a presentation.tbey'said,was well :7. OTHER BUSINESS joint Meeting on.April 21i*,Tx.lesday-,,ideasfOr topics: The totriniisSibrietS:talked abolit;SOrne of th e tOpiCs therttiayWiSki,tO diCh8t at ihaftieting.. The consensus was that their main topic Would.be that of communication between the Council and the Commission, specifically,if Council chooses to over-ride one of their recommendations.-They.woridered.what theplan is to communicate Council's reasoningas to. why:therdisagree: Minutes:, Planning Commission Bylaws,,AttiCle.m.Section,12".,E There was 4.-CieCision to change the way the Commission considers/approves minutes It decided:that,:in light.ofthe heretofore overlooked portion Of the bylaws,-(below);-in the future.: 'therskoi.0 approve then n cliff erentlyrhan in:thepast,, Article IV SettiOn"12.E;of the Plohhir.ig:Cormhissjoh-bylaws:states:: • „ "Commissioners are expected tO:Vote;for approval of the minutes based on the acCileaCy..oliepieSentatiOn of eVerits,at the itieetifig. If there, re rib.cirni*etiOii$-,._the President kappthved as Iiiesented,:tviiiiciatthi...ii eedibl' inolibh.m&vote..Avotezin favoi.ofadoptinginiiiuteS doses not signifragteeinetit.Ok disagreementvcith,the:Cotnmissiotes actions,rnemorialiZedin.the minutes." So,if'after asking if there are any corrections and,there being none,the,Presidentmay declare the,minutes 'approved as'presented"'Without the need fot;a.rnotion and, PLANNING COMMISSION NTI::.F..:TING::MINUTEIS.,.-Aiiii1:6;-.1009--Page 8 of.29 • 1 ,ADJOURNIVIENT President Inman adjouined the meeting át9:26 Doreen La.ighliui, Pit P.MITki .siPtISe:cret4±37• •ATTEST: ;Piesidentlodie Inman PLANNING COM Nfl-SS1OK 11.I r4ErING-AtiRUTIIS—461,6,12009—Page 9'of 9 • • CITY OF TIGARD 'PLANNING-COMMISSION' • Meeting Miutes 23,2009 GALL TO ORDER President Inman called the meeting to order at"7:00 l4 .::The meeting waslielOn ole:Tigarcl Cc.,:center,Town Hall,at 13125 SW Hall Blvd. ROLL CALL Commissioners Present: 'President Inman;Corninissioneis Anderson,Caffill;:Dtilierty, Hasman,Muldoon;Walsh,and alternate COMmissiOnerfGaschice: Commissioners Absent CommitsiOner:Fishel, Commissioner Vermilyea Staff Present: Dick Bewersdorff,Planning 14111: 04;John.,141.Oyd,:Dilarie Roberts,Project Planner;Greg Berry,Utility Engineer,Associate Planner,Phil Nachbar,Redevelopment" Project ManagetilD,O-reekIighlin;Planning Commission Secretary 3. COMMUNiCATIONS1,None. 4. Apygovg:mgETINQ MINUTES • 1-26-09 Meeting;Minutes: There■VT,A'S,a,rndrioti by Commissioner NitiliitiOn,:tedorided by Commissioner Doherty to approve the,146-09,Planning The motion CARRIED on a recorded'vote;,,the Commission.-voted as follows: AYES: Commibdioner Anderson, Commissioner Cadalii . . Cbminigsionernoherty,CominiSsionefMuldoori, • ConarriiSSibrierinthip;And Commissioner Walsh (6) NAYS: bone (0) ABSTAINERS: Commissioner Hasman (1) ABSENT: iCcitimlissibto-Iregnily-ea,Fishel (2) 2"-2-;g9-Igeeting Mi nutes Therewas wmotion by Commissioner Doherty, seconded by Commissioner Walsh to approve the.02-O2,09131anning:COnainiision theeting,riiiiiutes As AYES: Commissioner Anderson, Commissioner GOYA Commissioner Doherty,Corntnis.iionet,Hastnan, Commissioner Inman,and Commissioner Walsh.;(6) NAYS: „None:(0) ABSTAINERS: -Cbrnrciiisiotter Muldoon::(1) . ABSENT: Comnissioner Verinilyea,,COMMissioner:FiShel (2) PLANNING COMMISSION.MEETINGIMINUPS—February23,209--Page 1 of 9 • • :5. .PUBLIC HEARING DEVELOPMENT CODE AMENDMENT (DCA)2008-00005 -SENSITIVE LAMS PERMIT REQUIREMENTS TcnstaC.HEARING OPENED STAFF REPORT Phil Nathbar;DriWittoVrii-RedeVelOprrierif:U4.10g0,,±,presented th :',.s.tf.(tPcoTt:on 12.ehalfof the'appliCarit,:the City of Tigard [ tiff;repormaresy4able at the City one week before each Meeting.] •Nachbar diatribUter.tseveral items;one was a portion of the Sensitive Lands code update(Exhibit Am.'He used two large,boards as visuals for his presentation (Exhibits AA2 and A43):.: Nachbar also distributed two emails that lect.reCtiverl on February 18th (E)ibibita AA4 and AA.5);as well As several'thiails:that:be'd received that day' (Exhi bits 44). Nachbar Made the-folibWirigpointst 1. The City proposes to remove section 18.775:070:13.5.-ofthe8enaitive Lands Permit requirernents which:reads;"5:The plans for the pedestrian/bicycle pathway indicate that no pathway will be below:the elevation of an average annual flOotk"'(perhap_ca hen:171;ot a boardwalk). Reason for requirement doc 1983..It likely that the intent of the requirementWas.to keep"people dry" and allow year-round accessibility of trails,-and to keep paths fronibeingininidated„clue to rriaintentd,ce'concerns. 3. Reasona for ierrioval: Requirement poses an obstacle to constructing trails where they may be needed reinovingthis:-requirement:of Section 18075.010a5,it Will'be less difficult to site needed trails that will assist in the City meeting its new Comprehensive Plari.Goal 8:for Parka,Recreation; Trails and Open Space. :Specifically, the proposed amendment will support Goal 82 POlicyl"td,create an interconnected regional and local system of On-and off-toad-trails and patha:thatlitik together ileighborhooda;parka,open spaces;:major urban:actiVitycenter&.-.." • Some of the potential benefits of the removal of Section18775.0703. include 1)improved access to natural areas otherwise inaccessible by the public, 2) enhanced access and connectivity and 3)removal of the potential for the construction Of elevated trails to pose a potential impact the environment • Although trails can be elevated by placement of a berm or boardwalk, it it costly, and the additional:volume makes it difficult to meet the • "no-ri§e"condition critical to meeting FEMA requirements within the Sensitive Chapietand.the balance "Cut and fill"requirements of CS Design and COnstruCtioti Standards. PLANNING comeitssioNlyiEFTtw miNuTers•-,Oebruari.123.,2009',-Page 2-df.9 . „ . . . • S. `Wachbax gave an example(Elihibi.t.,02,....kA4 of how remoyal.of the requirernent*ill allow--the City to implement the Fanno Creek Park:8,c...Plaza Master Plan adopted by Council :in February.20,08.: Otiq§..which:have,--no:xeciuirernents to :Na4bArfftiiiShed,hisPiesentation-with the following: • Staff concludes that the proposed text amendment to,remove$ection18.77.5070:B4 of • the Stria:hi.e.Larids:'Cliapter is,cOnsistentwith.-all applicablereAiiew ciiteria.; • 'The,remoyalof'Section 18.775.0763i5 does not affect FEMA Plead ItiSurance. • TheCity'is in compliance With-the requirements of Metro's.Title 3 hy.actoprion:Ofthe Clean Water Services' (C7.,5)Design anc:Construpi.oStancrds:in the City's: . Sensitive Lands ChapterM7.735. • Thetnalatiii-13ign Plan.satisfies the:Medd:Title:IS:..Natutelli Neighbothooda regiiireinentg,which satisfies Stattwidd.,Planning':Goal 5:#.4.0ifaileiitt • -Tkrernovil,oltiliA.O.quirement.vourct.:49trd#eqly impact ihe sensitive habitats or environments: QUESTIONS &COMMENTS:AVCOMMISSIoER.S italics) • •One:orthe.-conatnisSionets commented;that lOtrofilifOrroatipawas distributed that night and he requested thatin:thefutureAleywould.get.-this.soone lir had gotten this information bffort,today Twouldhaverfarwardeditioyou, • Ivilieze a possibility that tiaiis WOI4ttoot:bt.ptit indue-to either cost or geologic reasons if they had to be raised above the flood plain? The,anssm.-10 that would for two reasons. The cost could be excessive.-.f-the COI had 0 Indld for peanOle.b.oarrboalk.Einstead 'of frails.Andbeeanse itr diftieult=to meet this'`-fno use"condition i.equireclunder omr,sensilivelands code to,rneet.ourfE40.Trequiremenis,- there been any consideration of fi4svonclifying theIAng-oge?.X:110'tAriow Whether it would make sense to evreasa-preference'fOrjt being placed above the average yinuALflood-ele-Fadon except vhen not practical? We-Aivq:"totconsidered.that doesnI.mean we;eanY.consider it You:have ta,ask the r.question==.4vhatirthe,-reason.fir having.it? The only boo reasons we could:identip was to keep people.'sfeet 4b1:and so that pavement doesiilt .getflooded andbreak knit:140dr time-Whickii,sinlikebi :jfear. •• YOA1.41P.4tion..P.4 that there's;10.pgtkplar-A.ittacticrengss.*using'boardwallssiThey actually allow.people to cross an area they they also extend:wheel chair access area„where-those people.wouldn't otherwise have .access. ...T.Was referring te:the.onbi.twb that'bald abone-the:aeirage"anniialflOod deflation -.which us d.koentilialk,or:4,1**izi-nOt-heinggregtidedr:I,hopeithateldifeei.,I think koardwalki are ofe0t.iti:eittirt where they are,.heilbi.,,iieeded.,.:14y.plestion.ilcis'—ii'd boardwalk tealbr needed in -urn:oralhettioodoe0 rur/b: • So what happens trAiiwiieti.it:doet'Elooci?..Do.y.ouLcioSe.it down to the public? . _ .Nermaikpeoplejkst:don use it..W.e:don't:ha:Oath:floods,here,-nO4leeit to.elose:doWn4rdi . this driven by cost?No, ,yrottbeissue:It..would affeit the cyr abikv-to builtker• progres.rivebvil green/and to iniplepnent:fiarkr.;The cost woiddim)aciourdetiriOrgbout.where.tO • PLAMING.comtvItssloN NiEgTING„NliNum.-Tebttfify 2S;2009,-.PAgO3.of.9. . _ • • • put trailvilwe;knew webad to elevate all trails..kutmore 001,04_we:wouldn!t make ibose- improVements:di all probab/y have to leave it the wqy it u and potProvidethatadditiepal 'curers that is*sired, 4" What input you Seek-any eOPSUItaiiti Wake.; - May HDR Eitgikeeifig that dWe.f• dill.10-gi ,CWS-04tr,-alrff 4:potet*: • conversation PUBLIC TESTIMONY.,ES:PAVOR None PUBLIC TESIIMONy:.-,TN-OPPOSITION - Eric Lindstrom, 6801 SW-Canyon•Crest:Drive,'Portland,OR, said:11'e•was r•fe.gentlig a. _ . _ '-"ritiend of the.Fanno Creek WateiShed and the-City-OfTigard." Hegae.hi testifnOny in opposition to the amendment L-he.paSsed,outAis written testimony andArent.O.Ver'it At ietigth(seeX4iibit.,A). 'Questions frorn,Corrniwdonerg (answers in • • Are you suggesting that there not be iiedeSS.--pededtriiin or bicycle? Wet. We need To fradii"eqidtdble Solittionfiir:the Ci*iiits eititen.s,.and thmwateribed. What we-have: here is a move that would make the rampant usage of these patbwoolierwis!ible..I'm got against acress:-,I'd like to -morepathwivs_-Ijusi want to see them used with.4)2,40;iptioasneg.,1."0.10, lbirportion of ode actually diojwith ,h4t10 kg; Titrr:McGilyrey,14608 spoke in opposition: lie-said-heopposes this code based,on-commonsense. He stated that you should build an,highergroUndWhere you can look over a natural area rather than be.2.rightidown onra-rnaturalarea:Whichisn'isood. for the riparian zone.just.Coinerfori',Sense ilittle bit highergiourid. QtteiitiOnS,IrOM ConitniiSiOnerS:::`ThcroVere:no tiOns:Of Mr;MoGilvrey; Sue Beilke,11755:SW 144th Place,Tigard—.represeritirig;.Faris.of Fanno Creek gave opposition testimony She also submitted in written form and:passedit out (see Exhibit B). Questions frorn'COnirniSeiOnerS:' • 'You're:saying no.:nortrails?-Ng--.11000:41 tbat,..just area?NO:I use 'all;the time--some flood'often-so TOO use 444w_ Some,of flioding trail areas.need boardwalks: • 77b91 aregood„ We need to do.a better:joh ofprotectin,g mrourres andOecks., .At this..point President Inmari interjected to the:commissioners that there's a very fine line between when:We're:talking abbitit-,;SenSitiVe lands -iii-tharthe-":SensitiVe land"'That talking about with this particular applicAtiOn is a flood plain YeALtAirbuild a parking lot in a flood plain:This whole conversation is getting focused towards Panno,Creekbutin.a broader code context we're talltipg.ghput.,•sonlethirig bigger than justiliat:When it comes to making decisions,.the applicable-criteria for ine.has to do with the sensitive land that we're PLANNINgcpmryttssioN.14:4gritsq mti91.7.? pottotkp;zoo?-pagg 4 of 9; 411 S , -inapWing. So think abouf at when yol..frestructuring yourtOritinelitS'Sedondly,if We leave this in here,then if we want to rebuild those trails we may have to bUild theM.5::feet in the Sir,,or:put-them on stilts and's boardwalk,if want them to Still be there.rThey:datygoin they lust have to go in higher So this,by means,precludes the development of any of those trails—it just makes them more expensive and could pOtentiallyfinaliej.hem.more of an intrusion So there is a balance there,We're not saying they can't be built.This doesn't say they can't be built theyltiStlaVe to be high, There".s balance with everything: Nathbdtintetjetted comments Shout Farino'Creek 1.atlt.He,sai-4.heluid Sue Bell lie:have: similar interests: He noted thst.rher !'areno net new tiails going into this park There ate existing trails and they're realigning some'trails but there will be no net new lineal footage of toils: He said they!renor.decirnating this'park-With trails • Sue,if We took the code off,can you think Of any alternatives,,,—how you could structure it so that it address issues that you,,te:taiaing,.,:shott:of sayingmo. not sia*. „. There were a few more questions and Ms Belle spokeinOreAbOUt„the importance of senSitivelsnds,and-wildlife.More.queStionaolloWed: • SO you would rather an asphalt trail Okay up into a to or foot high boardwalk along almost the entire extent of the trails that-srethere right ninii'ff in the air? I eip0-"know-..rome'of then!I'd osove into the uplands You haile,to--'renieniberihe Cty plans on buyingallof that land. • What tveletalking about is purely'a floodplain—not 4,gesource area:—we're not impacting that— just the floodiilain::'Would.yowtather,Where it's just a matter of it being too low that it:sgoinglo get inundated,you'd rather:see.itin the alt?But this is in a RnsitinclandS-code I don't see howyou Oz ignore that. Sony If:!':sensitwe lands, kt's sensitive hinds, and itraires:a whole bunch of isisieS It relates k?a-lOt•of thingi I don't see it that :way:.1:',see it as a mob biggerpictunt Sony. Brian Wegener, 12360 SW Main St. #100,Tigard,-OR:;fepxesentirig•Tualatn-itiyerleepe.r.si as the W.Steished Wit&:CoOrdinithr,went,:over his'atibglittea,wititten,testimony(Exhibit'C). Questions.from Commissioners:, There were no questions. John:Firewing,7110 SW Lola Lane,Tigard,spoke about the knowledge of Eric Lnldstrom. He OiciBilic:had written a book about PantiO.Creek.He then gave testimony (Exhibit D) pent a large amount of his time talking about his sketch entitled `k-..VS-/Oregon",--(piage*of Exhibit Questions from Commissieners; • So you're saying no trails?I think we can have and keep the situation;inc have nOW;bilt,Shotildn't be IndMJtg additional access high,water mark. PNNThip comm.fssioN.mtETiNd mIkUtES-:FebruaryA A09 Page-LS-of 9 • Planning Manager,PACk-teWerscicirff, Suit-tried:it Up. "ThebaSid Itleatiotris•:'DO yoU want to be able M.:Change:the location of a frail within the 100 year floodplaini"or..fdo'you. want to leaAre it.where :QUESTIONS-OF,:STAIT • Cati yOu..speak to Wh.y whynot a yattabce proceps:would be 7appropriate? The,rcquihregi Apid40fro,Olin,in Aefirolace in-041,1f it were to stqy, :td have fp go fOrongbra:variance firoceg, and ther#'4 apotentialwe-cold dff!tnieetthat'clitet.ia. PUBLICHEARING CLOSED • DELIBERATIONS • .0ne of the they'd.received 40 pages of:material,at:the lasiminure that night and it seerns to happen a,lOtF.,171e.said he doesn't see how they can be expected to 'make good decisions when they haven't seen all the material,[ahead of time] Regarding the :ODP80,V.[Oregon Department of Fish and Wildlife]ietter dated 2423-09 (Exhibit E)that , • states they'do•not•believe fish and wildlife will be adequately protected if we Make this :decision:'He said he doesn't have time to read the test of it but puts a lot of strength in what •ODF&W haato Sky:TJilessI baize thdre the L caiVt-Aitr.e4Afate, Inman reminded the airbbiiPaiob that this'allows aU kinds of development She said we are . singling out tilte'trail,portibo.but this section has 0'4o-witha_lot more than.that:This is in a floodplaim She asicedlhateveryone:iteep iri,this-context One of the commissioners said he was disappointed in the City's preSeritatiOn.He thought it could have been presented in a way...that proVidedlor.sorrie.altettiatiVeS. He said that he • concurs with President.intnan...He said thit%needS;tO be treated Carefully:— that this was not just going to affect Fatino.Creek,but is citywide He also said he couldn't support it as presented: Another commissioner said he likes the idea of connectivity of path areas.'That= would.be..f.a..top priority One of the commissioners asked staff if it would be benefit to have staff rethink this and come back later Plabriing;Manager, PickBewersdorff,,aUid!that- whenever:possible;when writing a staffreport,altetbative.approachesPhoulci beprovided. He said this hasn't been done in this case,Resaid:there's:ne■-problein if the cothniiSaion is uncomfortable,passing:it,:haVing staff...go:back and develop,ioine kind of criteria under. which that would happen It would take.some time The commissioners took a tteatv-poli and decided tiwyd.like:-tO push forward with There was much deliberation that followed regarding the average annual flood elevation and two yOr:ROCgteleyatiob., At this point President Inman said.lheWbuld not be comfortable rhaking any changes:,below.the two year • at this point without further input because then they would significantly changing things. MUldoon--likes:the;-idea-,of connectivity of path areas That.would be top:priority. Inman gave options'ofthe:cointriission: Deny,.Modify the language, or send back for development f:Ppec.ifit.c:iitekia. PLANNING MEETING MINUTES- February 23;2009—Page..6 Of 9 cdrilthissiotiek-Doherty interjected,sAying that look]' g at the:time and.the fact that they'd. put off the board twice; plie-..would like 1.0-,have liewersdorff.and Nachbar come back with some other language so they could go through Aud'rughe-.feeTalittle more comfortable with the deciSion. President Inman said she felt as though she'd done-:a'180.since now they weretalking.aboutflood elevations and She's lost her ability to see the eria goal. She Said if they could get some direction;froth an engineer as to whether',it's practicable to do,what it should be if they should change it,of If it Shoulittinat come out-Iiiit'What does that:piece..of; it mean?,',BeWersdOrff said Aii.optio.n would be to continue this bearing to a date;Certain.: Naclibir Said it:doesn't tilAke:,:sensetO rush Into anything but he waitypulcia"._t:,ti.ke:4,19t--,to :coil*up withA.bettet basis for some modification to,this,requirement 4.straw poll was taken and it decided to continue to a timelcertgin.,-April 6th.,. The commission then•-toOltA5`4ninutebrealc. 6. WORK SESSION 9:35p.M. TREE CODE-UPDATES DCA2609,00001 STAFF PRESENTATION. "John Floyd,Associate:Planner;stated:that sr.liff is bringing forward-amendinents. to Section 18790 of the Tigard Development Code, otherwise known as the Tree Removal,chapter,' He Stated that this workshop*being held to:provide the PlanningConiraistion;:an opportunity task questions on the.concepts or*content of the code ainenditient,.which Will be.duly considered and deliberated Upon at.a publitileating oia7Maidi 16 of thiS year. The primary goal of this proposal is to clarify how an applicant may-'comply with the stated ..intent and preferences.of the development code,namely the preservation treesinstead,of: their removal wherever possible., In 2008 the prOious'plarloirig-,Directorissuecl:!.Director's • Interpretation which attempted to provide this Clarity: This interpretation was successfully, appealed by the.Komehnilders'on the,groundathatkovetreached the scope of,an adininistrative,interpretation. As.,a.tesUlt Councildirected staff to bring forward.dide amendments;which bringauSAO tonight. • A Secondary goal of these arriendrrientsjs to npdate.contentire; :quitetrieritc to reflect current.' administrativeptantita and ISAgandards: These goals would be made possible'through.the folloWing.Changes: Definitions o The definition-of a tree has been Pq*pcieti io.:reflect..TS.4 standards and to clarify:how an applicant is to measure a split trunk specimen Stated Preference of the City -o The current:code,states that"protection is preferred over removal possible." O Staff:proposes to Change;the phrasing from Nrhereker:posithlevto wherever practicable",with the meaning of practicable defined. 'Thisrterm'introduces-;a. degreeof reasonablenesslo the-code rather,than:jari abscilute,••as was done in '..KANNwo commtsgIoNNE`gyjN004ms-_-.7ebtuory:23,2:0'osi page'?of:9 S e C Otifeh i"t" Plan, andis c-Orisistentvii*the purpose staternentwhich. recognizes that trees may have to'betemoyed,as a result of development. Tree Plan Requirements o Submittal requirements would be expanded, though muCh of this is already standard practice and the code would merely formalize these items o Trees within 25'. feet of the property line,woUld-have.to..beliiventOried and ;-assae.ssediri.the-Tree Plan o The condition of a tree, the reason for its removal, and its diameter to a tenth of an.inch-wouldhavet6be recorded ifithe free plan o .A narrative and site plan WOUld.be,reqUired. These documents would,provide, the applicant, through his or her staff arborist,the:ability.to demonstrate how commonly accepted tree preservation'strategies are being implemented to extent practicable; This demonstration occurs through 8 questions that all plans would have to address.,., o A:mitigation plan„With would'berequired-uPfront,•rather than a:condition of :approval.. Adequacy - p There's beena:lot of'debate and discussion as to how a tree plan would be :reviewed for adequacy approval Criteria): Staff has received a lot of comment from the Tree Board,...the HBA and private citizens In addition,We.; • are still working with the City Attorney's office on,finarianguage. As a result there may be further amendments to Sectiorilt09:0.03Qp'When.it is presented at the public heating on March 10, 0. •The intent of 181790.939.D is tp'ptoyidecleat-and objectii/fe'lapproval criteria for an applicant,while still allowing the flexibility-necessary,tO addieSs,each Site on an Individual_basis. The solution put forth tonight would require certified arborist to prepare and sign a self-certifying plAb.. The:at-TV/OW:4'40 required to accept that,plan,‘,so JOiigSS'it inearitititiiMUM!Content requirements or was found lacking by-iiiiridoetidebt,.tbitalfwy.arborist under Colatract.to the,City: • TWO partie§aubriiitted cot: rents prior'to tonight's workShop: John,Frewing.snd Alan D.eHoppott on behalf Othe HBA Copies have been distributed for your review Because: this is a workshop,and not a public hearing,these comments will'not be entered into the . official record. That said, staff has invited the commenting parties comments and concerns prior to the publicleakitig_on Maich 16, • At this point,Floyd concluded his presentation, and President Inman opened Aleftneeting.up to questions arid/Or COMMetitS. quEsTioNs• CO NT$BY COMMISSIONERS PrqiclerOM.11g asked if this-was itytespons&to..thelOsS on the:appeal. She Said the other"elephant in the room"is mitigation-She-asked if theyr:-were.dOingthiS,:because.they need•to address those criteria and that they WoUld'be coming back.`YO.-.; absolutely. PLANNING CGMMISSION,MEETING February 21,:2Oo9-Page 8.9f 9 One pc commissioners,-asked:Floyd 5W:hat:are you lOokingiorlia:to do?WhatiS the :purpose of this workshop?" The purpose of the njo4shOp knight:is to pit'this latiltigebefdityokt to h6,0fruiliarikejou Fithwhatujellbe.talkikg about at the public bearing At this tiiite.:it'ijust to he0yOU understand what we'll,be talking akolitat-tho:tthet meeting afid4-phethet.-thotl:arr]ay.majorgafis-lhatyor'ste, where.changes:me.itheitX,be*de: Why is measuring to the nearests 10th of an jock'? To be#10tg:Are4F.e---*t4.00.?;4:eggri t.qkeg rOgietki#,g.• President Inman and:someof the other commissioners noted that they were impressed with how:clear-and concise'the draft amendment is There were no other questions or cOrrirrientS. 7. OTHER BUSINESS-None • :8. ADJOURNMENT Presidentlitiman:adjOutned die;:meedng* • _ „ • • : 4.2.6.■11 1:),Oell,LaUgh111:1,Planning COtrirnission:Secretary' et ATTEST: PresidentJodie Inman • pur:1.141140 COMMISSION MEETING MINUTES—February Page..9 of 9 • . . _..._ .... • • • ... ATTACHIViENT.1. • . • Atefidd-Itein:• . .. Hearing Date: Teliroary:t.3..200 'Time; 4:66.0M -.':.-"- '..---.:-:.::', '-:-.„.:-.--"..-.'r::'„7,'''''':, `;■-..:-...: ',.".•:.'',...,";;2;',:',:-.;2i',,F.:;Cii-f.47'..,., ,''' '-.::',';','!.fli:-:.:,:...,,',;-'_;";:i..V.4:'-=';.,4:.",...;',7=';:zt":1';117;-",ci:•;'").-‘,:;-,';::::57:1.;;;.;::::',.. .;;;`"&?., 'Z. STAPPIIEPORT-STOTTIE**.j:;;.Y:-.'-:'-'"A .'-',.:*...'-`-:..i.:-',,,:-': •,-. . „,..„..,.. . ...,,,,,.,4_._..... ...,...,..„-;,,,,I.::;.;,,:,.?•_:..:,, ,,,„_, -,..,,.....\ ; ,,....:!,,,„,..„...:„.... *„.i-..-..,i'l.,,...%...1-4.,...,.:..;:-.,..: :::.'.''..:',"..:•.'.7.-..,:.4;'.."..,E.,‘,. .. . .:.°::V::.1-,..-.",1-i':f-::?:.1..5;'.'f.:7!•-.,"V..-....•.1•."'!".'.-..'..'..'.'4.',:-.7::"":f'::"-'.*t7::!i.3!'V 4:?,"'%."...-.. 4 PLANNING COMMISSION .---;.:;:•.--,..ig:-1.:.'::.•;,..;.-,:-.P'g-f---...),Itli..-iz. .::-:', -.1:.;-4,,.,--it,:i3f...4:-..,-,;,;.*::,P.i.,!;=, ..;,:--ks....,•.?.,-,..,...`.:-.--::::':-.:::x.--:c.,„.:,. ,';',1-iv , _ - '..-',-, . -...--:,, -::-..-':-.i.::.•.I.'": '-i•'''''' E OR'THE,'CITY OR,TIGARI) :10REGON),-.5.,,,,:--;-• -,w''',Ir tGAittj$ gk.CTIOIsi:i. • APtititAtION'StivIMAit:V. , ....„., .. ..... . ... . . ASEAME ,SENSITIVE I..-ANI.)•PER.MIT REQUIREMENTS CASE:NO::, PeVelnpnient-Code Aniendn-ient'(1)CA).DCA2408-.0000-5' PROPOSAL: -To remove section 48175:070.13.5 of the Sensitive;Lands:Chapter•which reads "' The . plans:for, the..pedestrian/bicycle!pathway indicate that:no pathway will be below-the • elevation of an average.annuaLflood;",.lternoval of this•section,would-allow pathways to: be: :installed in -.areas which would benefit the public. (access to and educational appreciation of ecological areas). .Removal of'this,,requirement,would..notiadvers6ly affect • ,thepriatectiotti.of seiisitivehabitatareai:ofirnplementation of,floodplain requirements. ., 1 1 . .._... . . . .. .. .. . .....,. APPLICANT: City of Tit4t0. *Q WN.F.. .s: .NA f3125,-sW..Fialliii.yd.. i . . ... .,. . . ., , Tigard,OR 97223 . ; ; APPLICANT'S, Phil Nachbar,Redevelopment Ivlantiger 1 i AGENT: 45125SWEalt•Blvd: ' Tigard,OR 97223 . ZONE All-HCity-ZOiiiri- gPiStricts, LOCATION: .. 1 : 1 APPLICABLE 1 , REVIEW i CRITERIA: The Statewide Planning:Goals and Guidelines adapted under Oregon:.Revised'Statutes:Chapter, i 1-..97 [Goals 1 Public, Involvement Goal 2, Land Use Planningi Goat 5 Natural.Resources, Scenic.and HiStoilCAreaS,and Open Spices, Gcia1;7,,Areas Subject to Natural Hazards;Goal 8 -RecreatiOnaliNeeds;] 1 Any federal.[FENIA] cit-:.st.:Ob,:§flattit $ 94•44.0.ila'tion,s TOiind!Applicabic; Anyfvoli.cabio.KETrto feguiitioiis;. i # • NOtko..Code 3,:07,390, ty:ib, '.1.1. Growth J.■4401.‘go-tfigni fFtii*tio-y10;14.bii..21:* 3, Water ,C2iitii„.....tY ,400. Flood 7Miimigetildnty .A.tiy'applitAbie cariipteliensiVe plan paticiei ['Goal: :1 Public Involvement, tyill.:2; ■ Land Use Planningf.Goal 7;;Hazards;Goal 8, Pails, 12', ciehtitiri, Trails-,:atid Open.!Sisace]; An) appliCable_ • • -- -------------• - - ---- -- •• •••i ,. .. ..„...... - ..•,._ ... .,..,... t provisions of the City's implementing ordinances [T-D.C1:843Q;183.0,ig590,:and-4$3751. ti : .. . :. . _ . , .sti.KsiTIVE LalNi) ,11:::111V1111111QU IltiLMENT:.;- .DCA2008,00005 1 1 -.2/2 /0911P111-.1c.m./NRINP.,,.$17/PF RFYPR:1'TP.11111k.)1-‘1‘.1MNqcP.MN.Ilt•Si1PN PAP,E 1 pr:to I i • ... . . 1 . SECTION II; STAFF RECOMMENDATION 1 ..Staff reCohingiends...:tha t,the Plontlink..-CoMMiSSiOn find in:7faV•br:,Ofithe:-:pioliiiietU t4t-',Oniericinieni::reineVing':, -i ''..section'f18.775.07.033-.5'.OfF0i;cSeigiOi7..,Land0-':POtiit-40iiiietrieliit..,:*Ii.iCli..toiicts'-':,25:*-The: i.tans- '1Oe-...diez '..nedeStiiiii/bieycleiparl-44y,„*liate..;t1tAt.0„0411yor.•*41.liele10.*:,t.1*-1.6evittio:Q.,:cifi'44-.a.verdgeansi.i'AF,fici0;'.1„.iailit, 1 with .iii '41.thigii44§*'-‘4§idOeiiiiiie0't.hth60:ihd;-i*Iiii:eliOtiiiiiiiii:4ssi44a.',fplikeJVAliii*coili?6idit:qq.iVti,iliV. I 7:4g#4.--citY:coOtiL••':-. .-.'••--.•'...• ... 1. ..-..,.-:...i.'--.- ?.-.;.., .-••,-.-.,7:.- ..-.. 1...2-..,--.--.....-:....:- ..... -.,..-.•,,...-_-....,..--.%.- . , . .,.. ,::-..„,..._.2. ...„..„1„. , . .. . ... _ . , . . ; - •SECTION III.. ....BACKGROUND'INFORMATION 1 : .. .. ...„. The City proposes to remove section of the'Sensitive Lands Pennit„requirementSWhich readS. • 'IL - • •• . . .. • • , ":5; •--TI-te-.•pans frit the pedestnari/bicycle pathway indicate.that no pathway will be below the elevation of an , , ;average annual ilood;":' ' i ,. . . ... ... -■ Section18:775.07.0.55 to-betemoved is part of it:S.-Sensitive Lands Chapter of the Tigard Development Code • t (attached in full.fovreference); The purpose of the Chapter is-tOk Maintain integrity of rivers,streams, and 1 L L :creeks, B) implement.comprehensive:plan and,flb0dplOin Managernent program,.C) implement Clean'Water I 'Services (CWS) Design,and Construction Standards for the:TU:ilatin SO,sin;;I:j),:iinFilernent the Metro :Urban -GrOWth- Marrigethent Functional Plan E) implement' Stitewide. Planning -Goal.5 (Natural'Resources), .F) I • ,Protect-Publie health, safety,and welfare:. t I . 1 The City can Only:speculate-:.on the reason for the.inclusion of Section 18:775.07aR.5..4 tj-i.,e•-....$016-te Land 1 i • tlimitei:f The seCtion,•reqUiresthat:-`-`the plans for the pedestrian/hicycle.,pathWay'indicate that no pailiwaywill. :he below the elevation,-„ofan.average annual flood'' It likely that,ii had-..soinething to 4o'with'niaintaining ye-it-round pedestrian accessibility(out of the annual:flood ciesipon),.11sid,/Or:inaintenatice:concerns. I The,current reMinernent -is written,:retjuir' eS;that"trailS.he located and constructed above the.average,annual' 1 flOod.ele-VatiOn.. This'Can liinit'Where,trailO-00-,be located depending on how-high,the' average'flood' is In i some ',cases, the average OnnUal flood.'elevation is Close: :to the 27yeat flood elevation, ,which ;effectively ..eliminates access to:inany7areas--which are lower and:could be;appreciated by the ptiblic., 'A COSe. in poiot,iis., ! :Vatino•Cretic Park bet-tteen:tiallilviLand.Main.St,.in Downtown:Tigard.. 'While-there is-a; cii.iltieil'ifidotited ..,... „.,... , . ., ... . .,... ..,, ..: . .. master plan:for:Earn:it-Y.Creek Park, the Cityis unable to implement the Lphin and'irriproVe .9r realign itrails-to i I provide better public:access,to new areas:::of the park„due to the requirement in section 18 775 070 B 5 that"no . pathway will be below the:elevation ofan average.annual (109d''. . I The casting.requirement,Of Section.113.11,S.670,15:$*1-iich.recitiires that !no;pedestrian /'bicycle pathway be 1 . .. . .. . • "belbw the aVetage-drintiat flnod, elevation'poses-an obstacle to constructing trails where they:may be needed ! .becanseitvoilld.require-that theybebu4 above 0e. vepige annual flood elevation Trails can.be elevated by :p•A,,,,,,,of 4-li•eick-o):1?04-idk*11,k;however it costly,:'and the'additional-volume makes it difficult to meet I :the•''`no,rise'''condition critical-tdi-friteting FEMA requirements within the Sensitive Lands.'Chapter, -an the ...,. _ ... . , ... :... ... i . balance' "cut and ifill'•erequirements•of`.CWS Design and Construction. Standards also diicotpora,ted,irao the i Chapter. I ' i - In some situations, under.the current reriiiiretnent.:€6 build alibi* the ii.tinnal:'"aVerage flood elevation a raised. :trail„could impact the.environment due to debria:obStructing.the flow during high:flood peribds., ;In-addition,.. elevated trails built to meet this'requirement-could--iinpact-sensitiverwetland:environments by,obstructing the L • 44t4FI1 fl:e.;Y:-,0,(.* . e.: 1 • . Some of thepcitenaill benefits of the removal of Section 1.8.7.75":070:13. include.1),,iiiiprOVed'a-CCesS to.'niitilitil connectivity- A.A-• - •-• -- • -...- - ,• - .... areas otherWiSe.inaccessible by the public,.2) enhanced•acces and, .snd 3)ternoVal;:bf r.h..c.potential. . :for theconstrucdonofelevated trails posing-,a potential ii.iipaCtIO the.eriVironinent'',.. , . .. . . .._..... . . SECTION IV.._ ..... APPLICABLE CRITERIA,FINDINGS:AND CONCLUSIONS i . f ; . .... . • . .. ....._. ... . . ._. .sEtc4SITIV17:LANDS.PFANIfrg.F.QuIliEMEASITS :DCA2008.-00005: 2/23./09 l'UliLle 1,11::AitIN ;,.srAVF ItEPthit"1:01.1i8:.11I.AANN.INP....C.PWl5SIQN, PAOL2 OF10 - 1 . .. .. . ....... . .___... 411 . 410 ,Tikia Development Code Section'18.380,020,.,.'Legiglatiyei,kmendrrientiS tb:thia Title and.iViap,;00es. • that legislative,'toning:,nfap and text iamendinerita. Shall be undertaken by •means of-..a, Type IV• . 15.00400;4.sgo.voi:464.b.y.:$&00.4;M.3.00-*OG ' . The proposed text amendment *001 apply to all 'City toning:diStriCts,throughout the City:'Therefore, the amendirient will be teyiewed.'under. the Type TV legislative-..protedure.:as• set 'forth,'in. the chapter: This, 'procedurerequires'publicbearings.by both the Planning Commission and.City.Council. i . ; . - Section 18.390.060G- establishes :standard,: decision=maldrig piocedures- -for- reviewing Type :IV aPPlications. The recommendation by the ..Commission, and the decision by:the Council shall be based on consideration of the following factors i:'1) The 'Statewide Planning,Goals and Ouideliries: adopted Under",Oregon•ReViSed..Statutea_Chapter:1973:2). Any...federal or State,-statutes or tegUlatiOns. • found applicable, 1) Any applicable METRO regulations, 4) 40. Y.,APP4daf.le:. comprehensive 0:i. i volitieg and 5)Any applicable provisions xif.the City's iMplementingordinantes., . .. .,._. 1 ' -Findings and.conclusions:are.:proshded below 'fOr.the-five:lsted.factors ;on.---whiCh. the recommendation. by the- on_an f . COmmissid diedeciSion by dierounciLshallbe:based. . ! STATEWIDE PLANNING-GOALS AND GUIDELINES , - .. . ., . . ; Stale:Wide PlkniiiiieGnall,—Citizen-InvOlVetnent:. ; t 'This-goal,outlines -the .citizen involVemenf requirement"Tor :adoption of Comprehensive"Plans: and ChangeStex the Corn ens and implementing documerifi.., i 1 1 i FINDING: gt).0has',he„e"p„met by,,c•ortiplyingiVith,the Tip,,rd.Dev:Teloprnerit,'CP-46T n.ohce, tur. ,..ements set"forth'in, Section i 8:390. A notite.:was -mailed to all identified interested parties an& the notice; was additionally' f. published in the Tigard Times newspaper pijor'toihe.heating. After the Planning-CommissionpUbliciitating; .. additionalmonce will be published prior to the CityCouncil.hearing: Two public hearings 'ire held-.(one-'bacire the Planning Commission and'the second before:The'City-CounCil);arwhieh‘an'opportunity for-:public input I ,provided. ,StateWidellatining:GOali—:Larid tiSe Planning: . . This goal outlines the landmse plarMingTrocess and-pOlicy framework. ; • . . I FINDING: 1 The, b.1d Ord.:yip-lit _of L. 010 Cons-dry—atio ii, and PO Otip-frisil.lt .(DUD) h iS- lcii OV.le,ded (be City's i i ,Comprehensive Plan is being consistent: with the .6tiitewitik Ofhiliiint:gi-4s; The Development Code . implements the Comprehensive Plan: The lieVelOpmerit Code establishes;a process and standards"TO rei,fiew changes:to the,Comprehensive Plan, As discussed within this report, the •DeyelOpment Code,process and standards have.lieeri.•6pplied-to the:proposed amendment.. • ; i • Statewide Planning GOal.5,--NaturarReiOurCeS,:SteniCantilliiiforic Areas,and'Operi'Spices .. . . . . This:goal"seeks,to protect natural resourcessandconserve scenic:and:-historic areas,:and opens'spaces - • FINDING: . _ , I . The Pg)iiftfiWt. ‘of' ,T-;.4.Iid cei.i..is.c04.0.9.1 f414_. -P6tetbipOle4f :.0,,CP-): 1#4 ckt:f0N.00.clgOg.3. Ake: CiO''s: - .! Comprehensive Plan.as being:consistent with the statewide ..filahning.;.gOls. Consistency With the Cit-Y's. i . i . . . • sEN•sITIL;;IIANO pptivfn:IWQI-Jiiiii:M00s tieW200gi:0000 - t 2/23/09-PUBLIOHEARING;,S1AFFREPORTTO TpiE PI-ANNIG COMMISSION PAGE-3'01:10 I 1 ! i i • 1 i i . i . ......_ . . .. .- . . _... . .......... .. , ...—.... — • • . . 1 . • 'Comprehensive Plan.Goal 5:-ParkS,..getreanCifi,:Thai, 04...0.0-0 Spate:and policies'is.discussedlater.in this report: Statewide Planning Goal 7:-Areas':Stibject:tONaturalliazards: • . .. ., This goal seeks:to protectpeople,and'property from natural hazards, . . Fl-MING: The, ,D.epairrneni. Of". Land C*PI.7(§4i*Iiit.i.di1, .04 Pi.i:i..10 (I2T-gD) has acknowledged. the :City's Comprehensive Plan,:as;being consistent kViiii. the statewide planning.goals. Consistency with the City s t CciinprehenSive Plan'''Qoal 7-1-1a4ardsand policies is. laterin.thisrepoit tatetvide Planning Goal a:- RecreationarNeeds. 1 . . . .. .. . . To satisfy the-recreational.needs.of;the ,Citii.eri .Of.the:- ,t'Oe.':and:*WOO,' and where appropriate, to : i provideforthe sitingoneeeSsary..teereatiOnal.faCilitieS including 'clestination:resorts, l FINDING: • 1 , The .0efixttodo of Land Conservation. and Development (DLCD) has acknowledged the .City's 1 Comprehensive Plan as being consistent-with the statewide planning,gbals,.. Consistency with the .City's 1 Comptehensive Plan Goal 8 - Parks; Recreation, Trails, and Open Space Statewide and priliCieS:is.discussed 1 later,inthis report. .1 ! . .. , t CONCLUSION: Based.Onthe.044*§ above, staff find$ that the popo$0:text--arnendmentis•'-ccinsistent With applicable$tlitoivkle-Pl_nnriing bnnls,... i 1 FEDERAL p425TAjg:STATUTESANLYREGULATIONS. i Anylederal [FEMAI.or:state statutes ouregulationslound..applicahle;, 1 The,purpose.of FEMA:and related:StatiiteS is to CiiSurc that a iloOdplain management program.is iii . place,so that PlOodfInStirance ReCiiiireinentSAr,e-irriet:, FMDM.0.;. . i , . • One of:die:ptitptists:Olthe Sensitive Lands.;Ordinance(l.8775)is to "B) implement coinprehensiVe.Plan and 'floodplaih.management-program", which effectively implements FEMA,flood Insurance Requirements lite. removal of:Section 18.775:070.B.5 does,not affect .FEM4.Flood Insurance; requirements provided that the 1 zero rise' in the flood plain,condition is met, which continues as a requirement in the City.Ode. the'"zerti 1• ' rise ;requirements:Which remains in the ordinance, CriStitCS.:itit'kv construction or improvement within.the 'floodphiin.wilnotkest.dt,iii any in0ease iti,Wate.t4tIrtace Ole-tirationof the:lb0-year>Bood.-. . 1 ,• I Another cited purpose of Sensitive Lands Oidinance.(1075)is to"A)Maintain integrity of rivers,streams,: and creeks' The Department of State:LandS:''regulates.Wateiv Othe'State',and the Corps of:Engineers. tegulates.wedands: These organizations require separate permits, these permit requireinotits:are not affected by removal of Section r1.8.775.070Ba CONCLUSION:. Based on the analYSiS above, staff finds,that.approval of the text di:lent I t i is consistent with,anrfederal(FENIA)pritate,StatuteS or regOladOns kitycl applicable , . 1 - -- sENiSinvLAi•4•15$1 .li.MIT1gQUIRE1■141■17r$ DC-A2OA-00005 . 2123i09•11:113Lle 1-1L-ARING,sl'AFKREPciitrtotHE.PIXNNiNG 0:■,;u4t:is1QN PAI-ii7.,4 0 r:10 t . i I - - .. . . . .. , * ANY APPLICABLE METRO . . [Metro Code',:SeCtions.307.30.0, Urban'Growth.Management"Functional-Plan,'Title3', Water.'Quality :aiid FlOOdManagenient], __. . . .„.. .. . _ .. , . The purpose of Metro' Title 3 iS.to -protect the beneficial water uses and functions and values of . „.,. . .... ..... ., „._. ...... protect., . ,.,. . ..... . . ..... ...... .... . . ... .„. . ...„.... . .... . -tesoUrces within the Water,Quality and Flood Management,Ateaa by litniting 0:mitigatingthe:impact • on these areas;frOrn,development activities and protecting.1ik old'OrOppti::froAln',00g0S. associated With flooding., . . . . . :FINDING: • 1 The,City is ConitillariCe:with:thereq:Uirements.,,of Metre.,s,Title 3-by adoption of the•Clean.:Water;Services' (CW8).,Design and ConStrtiatiOn"Standards:in the:city's Sensitive Lands Chapter'18.175,, ThkstandardS of .• 7 !Metro"Title. 4g*°iPOIVOCt illt9:the V-**0044 w11-fiell,.in turn, 'ire required under the City's;Sensiti-Vt, Lands-Chapter., .• ._ The purposes of-the CitY's Sensitive Lands'Chapter 1 8:7775.010 as -written late:to'`W 'Maintain integrity of 1 riv.ets„ streams, and: creeks, B)- implement :comprehensive plan and- floodplain management: program, CY ; I implement.-Clean Water Services.::(CWS):'Design,'and Construction ,Standards- -for the Tualatin .Basin,:DY i , implement-the..Metio Urban Growth,Management.FUnctional Plan„E)--imPlement Statewide:Planning Goal"5'. 1 (Natural Resourcesy, F) Priitect:Public.:health, safety, and--welfare. Item D) dead), implements Tide 3 of the i IVIettO--Urhati GrOWth Managernetit:Finitribiiid Plan„ . 1. „.. . . . . . _. . ..... .„. ... . . . , : • In 200-.. the City of Tigard Oic.ip41 Comprehensive:P140.:.:04 ',o0c,Amendments: 0'comply'with Tide 3 of Metro's Urban Growth'.Managenept Functional Plan, which outlines water quality and.flood Management 1. requiretnents for the region-. The adopted standards were-.based on ti unified 'program; developed by'local governments in the Tualatin Basin and iinplemented..throughthe;Cleati Water Set-Nikes District's (C\X/S)Design ; I 1 & :Construction Standards, whiCh:provides, for vegetated. stream, corridor--buffers up to 100 feet wide-and. 1 mandatingtestorabon oficorridors in marginal ordegraded condition., t i . ; In.:addidoii, :Clean Waier;SerViceS, lOCal, cities, •WaShington County, Merin, and TOhlaiifi Hills Pails':.,and. .. . . .. „ ■ Ite4000 District partnered on 0=.0400,1_eff0t.:0 develop the CWS Healthy*0.4tti.0'Plhk(I1SP),iiP14:).01)t0j 1 I 'watershed plan designed.toyenhanCe-the,:fiinctions,tit.'ilie Tualatin.Basin.:Surface water systeM'and-address'the i „. . ... : , ...._ . — „. „....„. ,- CleanWater...Act and 80c4ngeted'Sket.i0Aq-Es,A). The removal.:of section 18.775.070:15.5'of the.Sensitive Lands'Permit-requirements-which:requires that''no. 1 -pedestrian,/bicy*pathway be below-an averageannual;flood'does.,not,iffect-compliance,with Metro-Title:3; i Water Qualify and'-Flood Management,,nor the-intent of Tide.3.. 'Section 18.77.5070.B.5:,, which would'be. I • be- removed by the proposed text_,aniendtrient,.is not part.ofthe,CWS Design and Construction:Standards,which , . .- . lire intended tbinipleineritMetio Title 3. . ? . . .• 01.1CLOSION:, Based Onthe.-.-tinalysis'above; staff fin ci ',t.h4t,approval of tile,pioppse.d,texCalyierlihneht'15 • . Consistent--with .Metro:coo' Sections , i-ol..30Q,..tirb.lik-r1::00*h Management Functional . Plan,'Title 3,Water Quality and-PlooriManagement. ' TIGARD COMPREHENSIVET ,LAN" . f ANV.A.PlititfigtE.05MOWIESStvt.i,i.A.N..PoutiEs: I. Comprehensive P*1-0601.:;citizooIaygnItot: 1 • Goal Lt Provide-citizens,:-affected agencies,and:.otherintisdictions:the opportunity.to participate:-in all .phases.uf the•plarming process. 1 t SE.NS111V-i.....:LAND.S.i,EitmrnitEquildiMENTS DCA2008-00005 i 2/23/0 P.11131.1c:HE/111tNG,sTATT rt.EPoitT To Tt-m:-Pt...,■m•tING-COMMISSION- PAGF.5,Pyl 0 I . . . .. .... ... ......,___ ____ 411 • I FINDING: ! . ,_ The'City-has-mailed notice of the!Planning Commission hearing:to:interested,citizens:and agencies.. The City I i . published notice,of the Planning.Commission :hearing February 23,. 2009; After the Planning Commission pdblic'2hearing,tadditional notice will be published prior to the City Council hearing.: Two public hearings 'ire lield:(one,;befOrethe:Platining C:OrrifriiSSion.:Land the second before the City Council) at*rii.0:i.4in,:Opticittiftiity • - fi#.;plitgic,inpi4 is pi:twirled: • ; t I With these.public: involvement provisions, the proposed: zone:change is consistent with applicable Citizen Involvement policies. • . Comprehensive'Plan Goal 2:.Land Use:Planning, I I .. , . Goal 2.h Maintain:a*litt7tOci,at,e'„ComprehenSive.'•Plan, implementing regulations and action plans as ..,.. . ... . . , . ... . . ,. . . _. .. . . ... .. ., ., . . I.11.0 14.4.1.4,1i.',0..fc:).0444tiiltiinfTilgatiPS fand.n§"6.,Plailhi.4tP:tIfigt4k;.- 1 FINDING: t • Applitable;policesrunderthis goal relate to' Comprehensive:Plan/Zone Map and riot ia . :amendments:to the Development Code text. 'The..applicant does:not propose an amendment,M,ComprehenSive I , t Plan/Zone Map:Therefore,this Goal dbes norspecifically apply.to theproposedtext change. il Comprehensive Plan'Goat 7:Natural Hazards, i .. . .‘ .... protect.PPPP4,00 Proper ty from:R4t110,1 0,*4#18. I r i .FIKAI■10:: 1 Applicable:policies.:under this:goal include' landslides,: and 'flooding.' 'The: City uses steep slopes. to define. sensitive lands in the Community Development Code and has'special requirements.for:development-in these i t areas. The City coordinates With-.several'agencies,to tmitigate:the risk of flooding. T.1*..-;miym designated i floodplain is used to administer the national flood:insurance program (NPIp). The Sensitive.LAffcli,chaplet i 1 Of the Tigard...COrrirriunity:- Development:'Cork ensures compliance with FEMA and the national -good: iri,SUflinde.1**0),ti. The proposed text amendment tioes„not.iiiip;i4t-Flood*ftets..ijo.voiitfd:.stotage.-:i:reosi and ' .. . i ... . .. therefore does not conflict with F ...IvIA.-tir COMprehenShie Plan policies regarding flooding. ... .... . The-removal of section :1•8375;070.13.5 of the''Sensitive: Lands:Pennit,requirements:which trequires that:Inc), pedestrian / bicycle pathway' be below the raverage annual 'flood elevation e: is ii-1 compliance. 'With. Comprehensive Plan Goal 7 :Hazards.-:because.'it does not 'impact any of the policies;.areas. including: earthquakes,Wildfire,landilides,,and'flooding . . , I , f . I Comprehensive VPOTtio,ROP*AtiPOi-Tia..i14-A:014;Op0.0,440.: . , . 1.. . .. - - . , : acial-81. Pit:Nide-a-wide variety Ofhigh quality park and opens'spaces for all residents,including both: _., ,._ ..,......,.‘ , ,... .• . • -,. - . ,. • — . . . -- .... - . A.. developed areas with facilities for active recreation,-and B. undeveloped;area-for nature-oriented :recreation and the:protection and.enhancement of valuable natural resources within,the parks: and_ i ; • ■ .open space system . i FINDING:. i i . . ,„ . . _ _ ., . . _. . .... ... ... ..... Applicable policies ondie.t-00)0:1 include policies 4,:6::0-0 1_7.. 1 ■ Policy 4 states "The City shall endeavor to'develop•neighborhoodparks (or neighborhood park'facilities-Within • :other parks; such as,:a linear park) located within a::half.:mile:of every, resident to.provide access,to„aetiveand -passive:-recreation opportunities for residents of-all.ages:". The.removal of section: 118.775;:07013.5. of the i . t ; • Si2:NSITIVELANDS PERMITREQUiii.EN.IN.TS, DCA2OI}R 00005 .2/23t99..Pps4,ic;mi3.AmNG,:s.,:rAFF REpoig-rp-riff:PC.ANNING.WMMISSIPN PAGE 6 017-10' i. . . . _ ......... . _ • • ' ; • . g . I . .. . . . ., Sensitive.Lauds Pernait.teqUiternentS i.;I'li'0t4i.kop:trkiWnc?pedestrian I bicycle pathway be below aniaverage .iinrinal,flood 'elevation,"gsupports f Policy 4 By all-owing trails-to:be built at or below the average arinual flood 1 eleViititin, •iiiiii not requiring that trails be;elevated above the average...annual, .flood„,there Will-.be More - ..appOrtUnities, to construct more trails in areas ,needed to .provide access:,to;active and pas-SiVe....recreatian.al 1 • , -0P.PqrPxli-i400 . . , 2oliey.6 states'"The.-City.shall acquire..and manage some open spaces to solely provide -pxciectioxi 61.patupl i :resources,and other open spaces.to•additionally provide tiatitre:Oriented'outdoor recreation:rind.trail-related I ;activities!'. The:reinovalof;Seetiati 1 8,.115."-.97.();135 of the 7 SOS i iiig Lands.Permit requirements.which requires that 'no ',pedestrian,/ tricycle -or.hsiot be below gn,.1i.Vertiat 'annual...docid'',:supports:Policy :6 by providing 1 :additional,oppOttimitieS'far..a.CCe'sS to 44:-Aqi-re-oriented.outiioor recreation and'trail-related.r.actities. 1 i The removal,tifsettion. f8.715.070.B.5•:ordie Sensitive .Lands• Permit requirements, which requires that'no t .. ....„ ..., .. .: ... ...„.... . , . g pedeStrinn'/ bicycle be below an.average annual flood elevation', in effect,,wiWpro7i.ule:fef„.t.1:16.4eSian and.tonstructioti!Of:trails in areas:that othenVise;woiild:not be.acCesSible. While,pi-140t-:itie:current section 1 ,... .. ... • 18.775:•070.B.5,,...trails.can beconstructed as along'is are aboYe•thetiVerage-aniiiihf:Eloadi:.elevatiOni doing so is costlier,;,and'difficult due to having to meet the City"no-rise' 'COuditibriS. Raisitig'a trail by building-•A berm, ''. ofboardwalk.to•elevate:it above the Iiiiiiiititayerage flOod reSuitS.:iiii-a.tise.in'rilieltiOL-ye,ar'flood'elevation,which. 1 Is not permitted unless,„ mitigated r to .'06840 a "no rise" fresult,- As a :resiilri,th.c.;existing section. 1.8:73533.5- I proVidos-A barrief Co the'construction of new trails in areas where access arty be needed to meet policies 4-,and i- '6. POlicy 17,statea-"The City-shall:maintain and manage its-•parks anaapen.spaceresaiirceS in ways diat,,preserve, :protect;and..restore.Tiaard's.natural.resources„.includinarare,-.cir ataio and feae-001.y:li.lreo species,.0.0--p-rovfid "Nature in the City opportunities." The..rcitiov,al_of section 1B.:775.00,.',B,5-:••,does,,nOt-, byitself,result:in:.tiaits, being.built in'areas to the detriment of natural resources including tare;or state And 'federally:listed'species, Clean Water Services -(CWS) Design:and C000b*rion;„Sor-044-0."itieorgorated into the Tigard-Development I, . • Code.provides,additional,protection, to sensitive habitats by maintaining .a,..requirect buffer from the top of I • ,bulk., Trails..cannot„liC built within this buffer,.which-often includes riparian:areas: The Width of the*buffer I varies depending on 4w-....slope:of the treelt or waterway;and,is designed.to maintain•.the functioning of,riPatiAn. I hqiii41tS,-'-*,kiich..ire 1(110,-Nsiri to -.contain'',..:4'variety of bird speCies, Trails do not-getietitt'e- pollution,;arid..by themselves;are not a:source of-impact to.sensitive habitats,or species The:siting of trailS in natiiral,resource I t areas'containing listed species is subject to the review and,recommendatiottS..a(OregOn Division of i,*4 00: Wildlife the construction of trails;at;or.below the average gannual flood Watild not,in,iittid,of itself , . : rare, or state and..federallyliSted speCies:. 'Tiails.:.can, if designed ..dix..J.cctly; serve to protect sensitive flora'and 1 . . .. _. • :fauna'by-serVing as.a way to channel peclestrianS a.,:vrty•frOfxr theta,: 1 All propose&iinproVernetifs,within the 100-yeti floodplfUri— :ind'hUbitat sensitive including.wetlands :ire , subject to U.S. Army Corps of Engineers, State.,of Oregon Land.Board, Division of State Lands, and Clear' Witter Services.(M.S),p-eiii,lit. and approvras•-,:whiCh are incorporated'by-reference...in this Chapter..of,the Code 1 I (see Section 4 griTt..oloAt'.0:). 1 . 'Goal Ef.Z..Create a Cityviide.neiwork.orinterConheCtO On—and-Off7toad,fiectetttiap„-a:rid,'bjcycle trailS, 1 : FINDING: I - . .. .. ... Applicahle;polieiei-drider Ooa1,8;;22iiielude-tioli4c .1 tind.2 belowf 1..., The City shall create tin in terconnected regional and local system of onr..atid.affraiid trails rintl:pat40, tharlink together neighborhoodsc•parks,,,open spaces.,major Urban activity centers, and regional I recreational opportunities utilizing both public property aiiii,paserrients on private prOperty:, 2. The City shall design andbuild-greenWaytraila,andp4tbs-utitriinitnizedieirimpact on the environment, including-on•NVildlife CcirridOrs.and on rare,and state,'Of:federally listed species g t The.removal of section 1.8,77-5-07.0.1):5 of the.Sensitive Tiaoci4. Permit requirements whieh,requires that no 4 • . SENSITIVE 1:.ANDS pligm IT RF.Quirt.ENEN:rs Ei.cA2o68O6665 2/33109:1'uBliEntARIN"G,Frm:PREPoirrro Thit PLANNINp.CQICIMISSION PAGE 7•OF•10 i i . i , .... • • • . . . , . . . . pedestrian / !'biycle pathway:be below'an,:average annual:floor.V will,in,effect; facilitate the 'construction of trails.,in-areas that'otherwise wotilil.not be accessible by removing the neectio.elevate;,pathWnys4ri:the§e;areas,, : ! Depending on Where-.trails•are,needed! to comply with Goal.82 to create 'it:city:iylile'network.of.'.trails,. the removal of :section 18:775.070:13!.5;of the Sensitive .Lands Permit reqUireMents, 1:1‘r-tiVideS.:•,fOr flexibility in . meeting thissoal. . ' ' ... . . .. , .. _. _ , ..., ..,, - •: - ; - CONCLUSIONi? Based on the<analySis above; staff Einds:'thar.:approval of the proposed te' t amendment.is t consistent with Comprehensive Plan,Goals 1,., Citizen 'Involvement!.(,oal 2, Land. Use Planning; 6oal li.Ilizards;Ooal.8,Park:Recreaiion,Trails,and Open;Space. ! i ■ I ANY APPLICABLE PROVISION OF IMPLEMENTNO,OTOXNANCS, . ! ; 1 ! TDC18.380 Zonin gMap.and TextAindnentS ! . • The purpose.0.44 chapter is'to set forth the standards ancf.proCeW'governing:legislative and•-quasi- judicial aitiendnientSJO,this tide Andzoning district,map.„ , FINDING : ■ .. Section El:S:580..030 :requires bar.zoning:map and text amendments be :undertaken,.by ;non: of R typ& IV' procedure,as governed by:Section I8390.060G: 1 . . ..,, ... . The proposed.test.amendment is a,tYp!e'iy procedure 'is defined in this Section•and'has-.been-processed in accordance*ith Type IV pr.040001*.siier 1 8390:9.00G•: _ ... . . . . ..., . • T,DC-.18:390 Decisinn.MakingTrocedures . . The purpose of this chapter is to:establish,a.,series of standard decision-Making procedures that will enable the City, applicant and:alLinterested parties to reasonably review applications and participate .in the Ideal decision,making:Process inn lithely-manner; i :FINDING::: i t . The propped text,arnenciMent., was .coMpleted.-in torriplianco. with all procedural requirements of Section, ... .... , 18:390. -1VO.puhlie.hearirigs-.*qe.noticed and scheduled one before the Planning Commission,and one:before. Council::,Notice has been;propeletl,40.days prior to hearing dates to the required parties. The proposed tel.r,t: • amendment addresses the required,decision making considerations of SeCtion.1.8.309;.060 which includes 1) I The Statewide Planning;Goals•and Guidelines adopted .under Oregon.Revised Statutes Chapter.1.97;" 2),Any' federal or since statutes.or :reguhitions found: applicable; 3).Any •applicable METRO regulations,: 4) Any I .applicable -comprehensn7e phin policies.,. arid 5) Any Applicable. provisions: of the City's irripleMenting: : . di ornances. 1 . ! .. .. . ... ..,. . . .... . . . 'TDC 18.77$,SensVeLatidS' theipurpoSCs-nf the City's Sensitive Lands Chapter 18:775.010-ras written arc to:"A)Maintain.int!Cgri* .,, ,purposes ,. . of rivers, ,streams, and creeks, B) iinplement. comprehensive. plan and •flOn4lain.:thanagenietit. program,.C) Implement-:Clean 'Water.rServices::(CWS) Design and CdfiktinCtiOn.'Standards' for the 1 I Tualatin Basin,D),implement the Metro Urban Growth ManagCnient.F.tiaCtional.Plati, t).;finplement: 1 Statewide Planning Goal 5 (Natural Resources), FY; Protect Public :health; sAfety, and welfare ".Itetri: 1. 1 ]:..1).clearly.iiiipIcinetitt Title 3 ofthelMetrO t../r1:14#Gro*th..14arkagerpent"Functional Plan.. 1 FINDING:', . .• 0-04 F: Pitittct'PtibliC Ilealth,,safety and welfare is!not.affected by the proposed amenantent:, The ity:la unsure of the original. reason(s): for inclusion of the requirement of SeCtion. 183,75.070.B;5. in the Sensitive- 'Lands Chapter.. The section -requites-.that "the plans.Mk the peclestriari/bieycle`i:-piathiyayindiCate•that no SENSITIVE LANDS PERMIT REQUIREMENTS, 'DCAN0810,000S. 2/23/00.pl.IBI:IC IJEARINC3,5TAPp REPORT TO pip,II,ANNING COMMISSION :PAGE•13.61F 1,0, . . . . . . . • 0 : . . . . . . .. . •t* ay-i0.11H li-elielO*the el-000'0f am:we-tag&arinual flood".. Ibis likely,that the;reason(s)for.itS,ineitision . ..„ .. . in the code had something to do with,maintairiing'year,round„pedestrian.accessibility.(rint.61the annual flood , 'el0..atiOrt),-,and Lor:inaintenance toncerns., If•a:':trail:.wer&built,within.'the-average,annual flood elevntion;:,and - were inundated iewould not:pose-a danger to the safety.ofthepuhlic„:PeOple WOU14;•nor'Iniveaccess..during',the timtcif inunditdon. There no'flash flooding in theiarea:so that rierSOris=iising.a trail would not be stranded or . , . .. •• • . .overcome by a'flood event.- Based on.this,the,OtopOied,ainenclinetif:alIOWirig the siting of trails in areas within • '‘the'ay.erage-annuarflood:doesnot,pd5e li.Clanger-to puhlic'Shealth,.safety.or Welfare:. - I . . . , ... . Oriefthe key purposes of the Sensitive Lands Otdinante (1 B375)is to qiy,implement::comprehensive,;plan 1 nd EloOtlfilain:iiioogotemlkogoe; which ggeoiyely::irriOetrientg_FEM.A-..Flood Insurance Requirements. i 1 T.. ...e.,'r.e...n...t. v..i.l,O...f.Se t...:inn.1..,,.3.,.7:5..•07..0AS d oe s.not,affect.FEMA:Flood:Insurance•teqUirements proVid..e.,d.that..the Xero. 'iii the flood'plain tOtiditiOn.is met,which continues as a:-requirementinthe City;Ode, The''XetO, ;rise'requirement; which remains in the'ordinance, ensutes etl-irit any construction or improvement within the • fldociplain will.noerestilt:in,anrincrease inwater surface,elevatiori of-the 1004ear 090,4.-. The proposed:amendment is to remove 5cction.18.17/5610:B. a did Sensitive Lands'Permit xequirements .• . . .... .. which "The:planS"f6t,the:perleStriari/biey_Cle.;ptittiWayindieare that no will the-elevation i of'an averageininial;flood;.". The proposed arneridmentJs:consistent with and has no'adverse impact on the goals and reqUirerrientS:,OfSenSitive LalicIS,-Chap_terifi:775: -.. ... .• i, CONCLUSION ._ . . Baserl:on the analySis,above-,stiff finds that approvar:of the propOSed:teXt amendment i ; . _. ... ...„. .. ,. .. ; : is consistent with any appkcable„provisibn.,cifthe'Ciry!S:.irnplernennngZrdinan.Ces:. . • , . i SECTION V. . 'STAFRANALYSIS ; . . I . .. In:reviewing;the mribir ed applicable:r,e0e,W, Criteria,. Staff:;COnclb;Cles that 'the proposed text amendment remove Section 18.735,,,00-.A5 of the Sensitiye,.,Lands .C:frapterla consistent:with:all applicable,review•criteria . Which.include 1) The Statewide Planning Goals. and :Guidelines: adopted under 'Oregon Revised iStatutes Chapter 197, 2) ;federal or state,_statutes' or,regnlations.rfound .applicable;.3) Any.applicable METRO 'regulations. 4): Any 'applicable' comprehensive plan;polities; -and. 5) Any .applicable '00isio.0 of the City's ( inviementingordinances:, ; The ckisting,requirement of',Section, 18.75,030A5:which:rap*. es.that 'no pedestrian /'bicycle pathway be . below the average„annual flood elevation'keises.an obstacle to constructing traits.'wilere they may be needed I 'because,*would require tliar they 40$41it-above the average annual ;flood''elevation. Although trails can be 1 • elevated by placement of:riheriii or boardwalk;'iris CoS:tly,;an4 the additionarvolUmemakes:iidifficult,toineet ! the `'no-rise" condition,critical to meeting:POCA: requirements'within the .Sensitive'Lands'Chapter;:04 the 1 • balance'Cut'and-.811"'tequirenients, of CANTS' Design and.Construction Standards also.incorporate&into the ciiip.to... In additiOn;tbe:;pladernent of iniils on'a berin-poses maintenance concerns,.•and would..disrupt.'the . natural flow.-of'water y in natural:areas. The use ofboardwalksis...expensiveifused.:.fOr long sections of trails that i i • :may.be:needed,but does'provide:a feasibleoption.:for,shonetiengths thrOtigkhigh-Watet( •reas: I . ... .._. . . . .. . . ,By-temoving:this'requirement'of Seetion'.18.775,070.B:5, it will be less difficult to site needed trails that will .1 . assist in die City meeting its new Comprehensive Pun God 8 for Parks,Atcre-ation, Trails':•and--OPen Space: i Specifically; the-prOoSedanierithrient will siipport 0,01.;82i'Policy 1-"to create'an interconnected regionar and I ; local..systern Of...On- 'mud off road trails,atid paths that link together-neighborhoodS,:parks;..open..spaCeS,'major I urban activity centers ... . . As an example,,it will allow the City to implement the Pariho.'Creek Park&Plaza.Rafter'Plan adopted by .CounCilin February 2008 The master plan fdt,'the.:testOiation a:a 2.0:.-aeretiatnral area on the edge i. of:Downtown and improved :Irail,.access' by 0:piA4., *4.404.t;',i,.0-410.0 of Section 18'375-.070:B:5 as ; . proposedthe-city'Will not be able to irntarov-O;rdalign;'andtonstruct nevrtrailsin the park for the public:This I is due to:iiiipratlicality aritt,expenie of...114yiit,19.eleyate trails.above the elevation of the average annual flood, aricl the •net'."rise" in 1b.ii-yeilit ti.d.o.cipitini that would have to be Mitigated- The net.rise an the -100-year I • (106dplitinwOnld!:,-- .due the tli.eatItlitional-volurne caused by'a berm ot.boardwalk to meettherequiretrients.:.... i . i .5F4,4STI1V.13.1AN1),Spi7.0-trritt!pplitRISAI■7.1..p-s, .DtMoba-tiatitil i i - 112V06136131.14C HEAillICid;STA'17EkEPORT TO THE;PLANNING:COINMISSION :PAGE 9-OE 10, i i I .._ 0 • . • • . . . . : - . , • . .. . . Constructing,trails at or below the aVetage Aiinnal,flObtl,,,eleyatiOn p.O.S.-.4-no dit'ear. to ,tt-v.&public safety or • welfare,.and would not tesultindegradatiOn•b(the-trail surface-oi long,tectnniaintenance,concems. It is likely.- that.the,:intent Of ale.te4hiTelii.efir WO CO keep."pepiile-.0ir and allow yeth,rdund:accessibility4f&ails, and to keep paths from being inundated due to Maintenance-concerns. If a.,trail were built within,the,average annual ..flOtid'eleVktionand Were inundated, it would not postYa:ilanger to the safety of-thepublic.People would not -. have access during the time of inundation; There is no flash flooding in the area.so that persons uSinga 04 would not be:stranded-or-overcome"by.-a'flood event Wised on this the proposed*amendment allowing the siting of trails in areas•.within: the average annual 'flood,does not pose*.ilifilgi. to public's-:health,-rsafety ..,Oi, welfare; In:addition, the proposed amendment-allowing:trails-within,the avenge:annual flood.Oevsfon.does, notaffcci,the ability of-the:City io meet,FEMA tegiiiietrients:and.theN,atiOnat I-7100 TilP-..1.4Pgrati-I . . i . .1nsorne:situadbns, under the chiteht requirement to build above the annul avenge iflood.,elevation, a raised' -trail could iinpact the environment due to debris obstructing the..flow during high.flood perrodS. Inaddition,- elevated trailS'.1).Uilt-to itice(-this-*requirement could Impact Sensitive.wetland.-environments.*:by obstructing the natnOi flow;of water. Some of the:,p-otentinl benefits of the removal of Section'18..775.070.13. include-I)•:linpro-yed access.to,,i'ltiinil :areas otherwise-inaccessible:by the public,2).enhancectaeceSs ancl-cOnnectivity and 3),#rOoyal..Of:the-potential, . for theconstruction of elevated trails*-tdpbse.'a pbtential iinpier xo'the enVirOn.Ment,-..- • . -It the:.concluSion of:Striff",,that the tetnoifal.of-Section' 18775.070.13:5,"The plans for the pedestrian/bicycle 1 i pathway indicate that no pathway will be below the elevatian:of in average:ant-null flood":is of benefit to the 1 ,C,biribUinity-and the gbals..-0-1-itS Ci50150,11:driSiyeT Plan. 1 . I SECTIONNI: ALTERNATIVES'TO.APPROV:AL- i : I I STo-Action-,--ilic code-would remain unchanged. SECTION VII. ADDITIONALCITY.STAFF.8c OUTSIDE AGENCY COMMENTS: 1 The,cily.of Tigard tong 1:t.Ange"Division was-notified:of the proposed:code text amendment.bUt.;didncit ., I n-inient: .. ... . .. .. . ... .. . .. ... .. The City of Tigard;Engineering Department reviewedthe applicant's p,r00.961:;and ltad:rib.d§'iootiotl to the . proposal'. . . ; . . .. ,.. . . . . . The City of Tigard Public Works Department reviewed the pi:ilicqtit's proposal and provided the ... cointrients:. "This'should.enable ItegibrialTtali AcCes4!"-:' I 1 The City'of Tigard Arboris t:reviewed the proposal:and hadnotdbjectionst:toit. • ....... .. ......... . .,... . . .... . . I i The Division of State Oregon Department ofFish.-and Wildlife, US Army Corps of Engineers,; .. , and METRO,and DLCD.Nvere-notified of the:.proposedicode text;,ainenchnent:hnrIgOOded.rio.coMinent. 1 ! ; -./W4.: 4/9.V. -.:A-e ■.-- -_t :Pebuary1-3 :2009: i . .. . pi.t.F.p.AR._.D.1.3y:. 3>bil.N4dtitiiii.: DATE: I "Ii.edevelopirientManager- I : ;. : . . :Febbiary 13..2009, APPROVED:BY:. Rldn-BunCh... DATE 'Community Develcipnient-l.) 46:i:: . . i sti.NsiTiyLLANbS PERMIT REQUIREMENTS , DCA2008:40005 . . . 2./23/09TUIN4q,,IIE?tRINSTAI,EREPORT T0,141t- Pi..XNNFsid CONiMI'S,§1-014, FX01-7.-tp•()F.1 cr: . . 1 • • ° City of Tigard TIGARD Memorandum To: Planning Commission From: Gary Pagenstecher, Associate Planner Re: Continued Hearing for DCA 2008-00005 Sensitive Lands Permit Requirements Date: April 6, 2009 Background On February 23, 2009, the Planning Commission held a public hearing to consider Staff's request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove a criterion (18.775.070.B.5) prohibiting pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. The Commission received substantial public comment on the issue and decided to continue the hearing to allow time for careful consideration of the information provided and allow staff time to prepare an options analysis. In addition to a summary of public comments and the options analysis,below, staff has included a section to help clarify terms. Terms Average Annual Flood Elevation: The flood elevation used in 18.775.070.B.5; the average of annual peak daily flows over the length of available data; an elevation between "bank full" and the "2-year flood";typically used for structural protection and maintenance purposes. 2year Flood Elevation: A conservative proxy for the annual flood elevation. Base Flood Elevation: The computed elevation to which floodwater is anticipated to rise during the base flood (100-year flood, 1% flood, one-percent annual chance flood,FEMA floodplain extent). Ordinary High Water(CWA 33CFR 328.3(e)): The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear,natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." Adopted Pedestrian/Bicycle Pathway Plan: The City of Tigard Parks System Master Plan (March 1999),includes general alignments for Tigard's trail system; as funding becomes available, specific trail segment plans are developed to provide siting and design details. 1 • • Practicable: Capable of being effected, done, or put into practice; feasible. Summary of Public Comments Jennifer Thompson. US Fish and Wildlife (USFW): cites Metro's environmentally—friendly trails guidebook to address potential adverse impacts of trails in sensitive areas and lists potential impacts from hydrology to habitat. Nancy Munn.National Marine Fisheries Service (NMFS): states that NMFS generally does not support trails in floodplains (with the exception,of dirt trails) because often trail design and vegetation management proximate to water conflicts with conditions that support cold-water fisheries. Eric Lindstrom. EdD: takes issue with conclusions in the staff report by elaborating on findings, potential impacts to resources; concludes that pathways are desirable components of park plans but should not compromise the functional integrity of the floodplain (Owyhee River road example). Sue Beilke, Fans of Fanno Creek: argues against removal of the elevation criterion in order to protect significant habitat and that other potentially conflicting City goals are met with the existing trail network in Fanno Creek and by other upland trails planned by the City. Brian Wegener.Tualatin River Keepers: cites comments from USFWS/Metro/NMFS (above) regarding potential impacts to natural resources;identifies potential conflict of the proposed trails with sensitive habitat areas map designation of"strictly limit"in the majority of Fanno Creek Park; addresses shortcomings with the findings in the staff report and suggests an alternatives analysis include siting trails above the average annual flood. John Frewing: identifies process issues with the City as applicant; suggests processing a variance rather than a code amendment; calls out ODOT,DSL, CWS, and Metro provisions for safety and resource protection. Mischa Connine, Oregon Department of Fish and Wildlife (ODFW): concerned with overall decline of riparian habitat and connectivity and therefore the potential adverse impacts of paths located in riparian and associated floodplain habitats. Bob Salinger/Jim Labbe,Audubon: concerned with the incremental loss and degradation of floodplain habitats and water quality in the Tualatin Basin; supports low-impact path design including alternative alignments outside of floodplains;worried natural areas along Fanno Creek will be loved to death. Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100-year Floodplain) includes seven approval criteria for development within the 100-year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3),restrict uses in certain zones (2), ensure agency permitting (6), and provide for a pedestrian/bicycle pathway (4, 5, and 7). Of the three pathway criteria, criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian/bicycle pathway plan; criterion 5 restricts the elevation of a pathway to be higher than the average annual flood; and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. 2 • • The potential conflict with Criterion 5 arises for several reasons: a) the adopted pedestrian/bicycle plan is often too generalized to provide guidance in siting pathways, and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling,boardwalks, or re-siting outside the floodplain or in portions of the floodplain that exceed the average annual flood. Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it "where practicable." This involves striking a balance between recreation use and program purpose, on the one hand, and resource protection, on the other. The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Options Analysis Option 1—retain criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7) which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian/bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature-oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence, absence, or quality of habitat at any location. 4• Option 2—revise criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature-oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. 3 • • Option 3—revise criterion: a. Pedestrian/bicycle pathways within the floodplain shall be sited above the elevation of the average annual flood, where practicable, and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or b. Pedestrian/bicycle pathways within the floodplain shall be sited above Ordinary High Water, where practicable, and shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or c. Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; Pros: a. The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2,policy 2). The habitat assessment would also complement CWS standards for trail location within vegetated corridors. b. The elevation standard,if kept,would be more easily implemented if changed to "OHW" from"average annual flood" (In March 2009, DSL changed their elevation reference for determining applicability of the removal/fill law from the 2-year flood elevation to OHW) c. Removing the elevation standard would not in practice, diminish trail protection or increase maintenance (PW memo) and because existing TDC wetland and CWS vegetated corridor protections are in place to guide trail alignments. Cons: Additional cost to the applicant for a natural resource assessment. Option 4—remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adppted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. Discussion Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. The public comment received clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. Two of the proposed options presented above include language that would accommodate balancing competing public goods (recreation/natural resources) on a site-specific basis,while still retaining the basic orientation of the criterion to avoid siting below the annual average flood. Option 2 suggests a threshold of practicability which would address path location in relation to cost and design feasibility and program goals. Option 3 requires,in addition, a resource assessment to ensure path location minimizes potential adverse impacts to wildlife habitat. 4 • • The proposed code amendment is legislative and would apply to all floodplains within the City. Some public comments suggested that a variance process could be used as an alternative to a code amendment, particularly since the proposed amendment arose with respect to the site-specific improvements proposed with the Fanno Creek Park Master Plan. In reviewing this approach, staff finds that two of the variance standards (18.370.010.C.2.d/e) would not likely be met: (d) siting paths below the average annual flood would most likely adversely affect wildlife habitat to some extent and, (e) the hardship would be self- imposed because not building below the average annual flood would remain an option. Recommendation Staff recommends the Commission support Option 3.c to minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future,pursuant to the Park System Master Plan. 5 • • • ATTACHMENT:5 Gary Pagenstecher Steve:Mattin Sent: . 'Thursday;April OZ.2009 3:16 PM. To: Gary Pagenstecher Subject: FannoCreek trail Gary, The question of the maintenance on the Fanno Creek trail and flooding came to my attention. It should lbehotectthat, with the exception of a:bridge that needs to be lengthened to get the footings further outside of the Stream.banks;,ftooding has Only asenalriMpaCt-on maintenance of the trails along Fanno Creek, The flood waters inundate the trail a few times each year usually for less than a day.,though occasionally fora couple days My estimate is that flooding occurs roughly' 6 theSor less each year.. The maintenance after the flooding is usUallY confined to the occasional sweeping or shoveling of trail*here it is loWer:tharithe surrounding'landscape: In those pleceSthe sediment will settle; while in most areas; the sediments flow over the asphalt and leave a light dusting that qUickly dissipates. After most of the flood events; no special action is taken bec.aUse thereiSnot Much sediment left,bn the tail. The edge of the trail IS mowed for pedestrian safety-and this results - in a mowed buffer of 2 to a feet of low vegetation, usually field grass: The short'flood times do not seem to cause much. erosion in these areas, especially when the vegetation is thick As a side note; in some parks we have noticed erosion in plantingareas Wherethe grass and VegetatiOn arencit aimed to beim; such-as around trees.or light.posts. The'maintenance of the asphalt trail in the flood ateas does not seem to be much different'fromthe trails that are not in the floOd,zOtieS. The Sanie probletng ate seen on thettails regardless of the trail locatian: SPaldingisinkholesi and. cracking of the trail are the most common problems, and occur as commonly on trails out&the:flood zone as on trails in the flood zone The most in thetongevity of the trail seem to be if the trail was properly installed and the grade ofesphalt. We spend rrianytimes MOrehoUrs on bothlittet and Vegetation maintenance elong trails than cleaning up after high Watet. Hope this helps, Steve Steve:Martin Park and'FaCilitiet Manager City of Tigard 13125 SW Hall-Blvd. Tigatd,OR 97223 503-716,2566, •steVegtieard-ormov, • GAN Pagenstecher :From; Brian Wegener[bWegener8gabinbaStriet] -Sent: ThUraday;April 02,2Q09'&37 AM. To Gary Pagenstecher CO: !Suo.BeilkW; John Frewing; Dave Drescher, Brian Wegener,ellindstrorri@COrnceStnet Paul H.Whitney: ;Subject: Re; material for forMbndayl PG:hearing/SensitiVa LandS;CodeRetrickatpropcital Let'S'ineet Fsti.day,at Some of the things I'arn looking for:iwthe code,changeinspired by Metes Green Talls'betbk: 1. Avoidance Standards. 2. ReqUireinerits:forperVions,tnaterials on All trails. 3. Mitigation requirements: 4. No parallel paths in natural areas to,:,minirrrize4Mpacts. 5:. Minimizing widths 6. Breen maintenance practices 7. Standards to keep pedestriaris,84,bikes on trails:, 8. Redirection of bicycle away from natural areas,to protect amphibians and reptiles-,minimize road kill' 9. Bicycle commuter corridors'away from natural areas(ie tbetailttaif) 10.,Standards-for Creek crossings to span flood plain Viewing stations for wildlife observation from a distance. 12.Trail standards o minirnize destructive beha-vior;(duCk feeding.,.poop011irtion). This code change should improve Tigard's environmental standards for environmental protection,not give blanket approval forpaSt destructiVe-pratticeSlike putting paved,paths below.annual flood elevation. Phil's last staff report failed to investigate thelegislative',intent of the-codeprohibition,OftrailS below annual flood elevation Staff needs to correct this omission before this goes back to the plannirig:cOMmisSion. the last staff report denied the maintenance issues of trails below annual flood eleVation. This also needs to be correCtecibefOre this'gOeS back to the PC. 'Brian Wegener 503-620-7507 c;503-7936-7612- Gary Pagenstecher wrote: Sue, At your request;please find the attached Memorandum to the Planning COMMIStion regarding 1:)CA 2008400005,I am available to meet with you and others to discuss any Ittues:yoq may have tomorrow morning or afternoon and Friday hefOrelprn. Gary Gary Pagenstecher,AICP Associate Planner . City of Tigard Community Development 13125'SW 1 • Gary Pagenstecher front Doreen L'alighlih: Sent:: Monday; pH Os, 2009:11:19 AM To: Gary Pagenetecher Subject: FIN: Planning odmmiseion...,,Trails'below Annual Rood Level ,Froft,jfievving trnaitto:jfre. Wing@teleddrt.cdmi Sent: Monday,April 06,.2009":10:25AM To: Doreen Laughlin' Subject: Planning"cOrrirnission±Ti7ailsajow Annual.Flpod'Level ,Lioreen,, .Please,fOrward,to the PC myCtirrefittlfoitghts ithtiffproposaIto allOw trails:below annual flood levels. 1 I can't find any other jurisdiction in the,Metro;:areawhich does this It doesn't make;safetY,:or environmental sense. 2 If there must be peclibike facilities which traverse these low lands,require that they always ben bOardWallt.iibridges"which are ariiri elevation above the Ot)year hood plain and have rails/fencing on,;both:sides;pf the boardwalk sufficient avoid dogs and kids jumping down!frOm the,boardWalk to:thersenSitiveland*easi, 'Thanks,: John Frevving • • 411 Exhibit„ C April 6,2009 • " . Tigard Platuung,CornitiiSkori • Tigard,Oregon • RE: Development Code (DCA).2608-(X)005/ Sensitive LettuiSPeritiititeqUiternerits Dear Plaimin4 omiriiSsion Members: • Weiart WiitingitO•Tzmtneot fOr:the'•seeond time on the City of Tigard's proposal to remove and/or change the of Section 18.775...070.11,50fthe•SerisitiVelandsjierinit-recOlrement which reads.in pattthat(!no pathway will be below the elevation of an average flood" • Fans of Fiiiiii0LCreek is a localradvocacy.gronpferFartiO Creek and:it:a:tributaries with many • , • members Whci.dOnate.:Sigiiificarittiind and effort during-the year to plant native vegetation and remove non-native species 'While many of our members use traits for yttriouatOakiiik:AVe.do • • . not support any of new trails thaf would in any Way cause negative impacts to our natural resources, We believe l that 12.775.070.B:5:is a necessary part of the code and shritdd- Not.be,redioved not weakened(0 the city's proposed options would)forn.yttriety'of reasons Its we indludediti eitteciiiiiiteritS-iñFebruary. Weadd here to those i 1 tortinientOhelblloWing: *17, The city has tome up with several.options in.togardihgfite.thii section of the code; !#S,-for example,would change the wording"where practicable" .ThiS'totally'riegateSt1WfirSt part of ilwteaterite;:loaking-'dte:code so weak.the:eityWiit use this Wording whenever it desiresityarid: *nee boild„trails ioVetta that floOd-iinnuallY::Weonpos e.thisTropb§ed change to the wording Also,adding the caveat that there will be a requirement fora,reSources assessment ka-a moot point,as this is;;Idreadylogtiired when anyone including the city Avow to Wild a trail in sensitiVe attainClUdingallAreas that'"flood:aniniallY". • Please reinember that we have rewritten Comprehensive Plan,and under the Trailssebtien.. we added wording that states that some of our natural':areas shall not have trails and shall be • protected for the sensitive,rare species that need these quiet undisturbed to survive and rake their young,etc.,If we put trails in every open space,we will drive wild1ife.out of our city :many Otthe:trails.we now have are failing because they were built right next to the Aream.and in the areas that fliied annually., It will costs the city a great-deal of money to restore the banks,etc along Fanno Creek,and before we build any new trails we need to.firat.take care Of the old rails and make they are not causing adverse to wildlife,water,etc.I.Wetherefereosk the Planning Commission to DENY the City"arequest-tosernove or change the wording of this :section Ciftlie:SensitiVe Lands code. Thank you for the,.opportunityto COninient:. • Sincerely,. . . . erlke • • , . Board theinber;Pans.of Fanno Creek • • • CITY OF TIGARD PLANNING COMMISSION Meeting Minutes April 6,2009 1. CALL TO ORDER President Inman called'the meeting to order at 7:05 p.m. The meeting was held in the Tigard Civic Center,Town Hall, at 13125 SW Hall Blvd. 2. ROLL CALL Commissioners Present: President Inman; Commissioners Anderson, Caffall, Doherty, Hasman, Muldoon, and Vice President Walsh commissioners Absent: Commissioners Fishel,Vermilyea, and alternate Commissioner Gaschke Staff Present: Ron Bunch, Community Development Director; Dick Bewersdorff, Planning Manager; Gus Duenas, City Engineer;Darren Wyss, Senior Planner;Todd Prager, City Arborist; Gary Pagenstecher,Associate Planner; Doreen Laughlin,Planning Commission Secretary 3. COMMUNICATIONS Commissioner Doherty reported that she'd attended the Metro 101 session in Hillsboro. She gave a short report and distributed CD's with the information to the Commissioners, along with an Urban and Rural Reserves Phase 3 Public Meeting Schedule. Commissioner Caffall reported that he'd attended the CCI (Committee for Citizen Involvement) meeting, and that he found that most of the neighborhoods are up and live with their websites. He said that's going well. He reported that Gus Duenas (City Engineer)is keeping the committee busy with Hwy 99W and street improvements. Vice President Walsh reported that he'd attended the Tree Board meeting the week before and they would be getting an update at the end of the meeting tonight. 4. CONSIDER MEETING MINUTES 3-2-09 Meeting Minutes: There was a motion by Commissioner Doherty, seconded by Commissioner Muldoon to approve the 3-2-09 Planning Commission meeting minutes as submitted. PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 1 of 9 S • The motion to approve the minutes as submitted passed unanimously on a recorded vote, the Commissioners voted as follows: AYES: Commissioner Doherty, Commissioner Hasman, Commissioner Inman, and Commissioner Muldoon (4) NAYS: None (0) ABSTAINERS: Commissioner Anderson, Caffall, and Walsh (3) ABSENT: Commissioner Fishel,Vermilyea (2) 3-16-09 Meeting Minutes: There was a motion by Commissioner Doherty, seconded by Commissioner Muldoon to approve the 3-16-09 Planning Commission meeting minutes as submitted: The motion to approve the minutes as submitted passed unanimously on a recorded vote, the Commissioners voted as follows: AYES: Commissioner Anderson, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, and Commissioner Muldoon (5) NAYS: None (0) ABSTAINERS: Commissioners Caffall and Walsh (2) ABSENT: Commissioners Fishel and Vermilyea (2) 5. PUBLIC HEARINGS 5.1 COMPREHENSIVE PLAN AMENDMENT (CPA) 2008-00011 LEGISLATIVE UPDATE: Tigard Transportation Plan and.Comprehensive Plan Amendments to Incorporate Tigard 99W Improvement and Management Plan Recommendations PUBLIC HEARING OPENED Darren Wyss, Senior Planner, presented the staff report on behalf of the City. [Staff reports are available for public review at the City one week prior to public hearings.] Wyss said the Planning Commission was being asked to make a recommendation to City Council on CPA2008-00011, which will amend the Tigard TSP and Comp Plan. He noted the Commission previously held a workshop on the proposed amendment on March 2, 2009. He said the proposed amendments will incorporate recommendations found in the Tigard 99W Improvement and Management Plan and those made by the project's Citizen Advisory Committee [CAC]. PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 2 of 9 • Wyss highlighted a few components of the process: • Intended to develop concept-level recommendations for transportation improvements and additional interventions to meet future needs in the corridor. • The primary focus was to identify potential projects aimed at alleviating congestion and improving circulation. • The planning process ended up evaluating three alternatives • A—partial widening of 99W thru Tigard • B --access management strategy in Tigard • C—Widening of 99W to 7 lanes thru Tigard Wyss noted that in the end,Alternative B was chosen as the preferred alternative as it best met the project objectives and criteria while carrying the fewest negative impacts. He said it was important to keep in mind that choosing Alternative B was not done in a vacuum. Both public involvement and interagency coordination factored into choosing the preferred alternative. The proposed amendments found in CPA2008-00011 were developed as a result of Alternative B being chosen. In addition to the recommendation found in the Plan, the CAC developed a.list of its own recommendations to Council which are included as proposed Recommended Action Measures to be added to the Comp Plan transportation chapter. He said the proposed amendments are divided into the following four components: 1. Update the Tigard Transportation System Plan to include recommended changes found in the Tigard 99W Improvement and Management Plan; 2. Incorporate the Tigard 99W Improvement and Management Plan by reference into the Tigard Transportation System Plan to serve as findings; 3. Update the recommended action measures for Tigard Comprehensive Plan Goal 12: Transportation to include language recommended by the Tigard 99WW Plan Citir<en Advisory Committee; and 4. Amend the Tigard Comprehensive Plan Policy 6.A (under Goal 12.2) to reflect recommended through lanes for Highway 99W. (Staff recommended for consistency with TSP amendments.) Wyss noted a few minor changes had been made to the proposed amendments since the PC workshop on March 2, 2009. These changes were based on two things: • PC feedback at the workshop • Comments sent in by ODOT and Beaverton • At this point Wyss went over a PowerPoint presentation. (Exhibit A) QUESTIONS BY COMMISSIONERS Is `Function"defined? We can do that. PUBLIC TESTIMONY IN FAVOR—No one signed up to speak in favor. PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 3 of 9 • • PUBLIC TESTIMONY IN OPPOSITION—No one signed up to speak in opposition. President Inman asked if anyone in the audience wished to speak on this. Sue Beilke; 11755 SW 114th Place,Tigard, had a couple of questions regarding changes Wyss had made to table 11-4 and 11-5—which he answered to her satisfaction. PUBLIC TESTIMONY CLOSED DELIBERATIONS/MOTION After a short deliberation,there was a motion by Commissioner Doherty, seconded by Commissioner Caffall: "I move the Planning Commission forward a recommendation of approval to the City Council of application CPA2008-00011 and recommend the City Council adopt the amendments to the Tigard Transportation System Plan and Tigard Comprehensive Plan as found in Exhibit A [of staff report]." The motion passed unanimously on a recorded vote, the Commissioners voted as follows: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, Commissioner Muldoon, and Commissioner Walsh (7) NAYS: None (0) ABSTAINERS: None (0) ABSENT: Commissioners Fishel and Vermilyea (2) After the vote, Wyss was reminded that they would like him to add the definition of "function." He said he would. President Inman noted this will go to Council's 6/23/09 Business Meeting. 5.2 PUBLIC HEARING (Continued from 2-23-09) DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - On behalf of the City, Gary Pagenstecher,Associate Planner, handed out a revised memo (Exhibit B)with the changes in red. He said they offer a refinement in staff recommendation Option 3.c [3.c states: "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat."] He said there were some comments [from Brian Wegener&John Frewing] at the back of that memo as well as a memo from Public PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 4 of 9 . • Works, Steve Martin [Parks &Facilities Manager]. Pagenstecher went over the memo which,he said, reflects the input he'd received. Pagenstecher said there were basically two issues: 1) the elevation criteria; and 2) the wildlife habitat issue. The revised recommendation gets rid of the elevation criteria altogether and instead requires a wildlife assessment for pathways within the floodplain. Briefly, the elevation criteria were originally designed for structure, protection, and maintenance. He said the Public Works memo spoke to that advising him that it simply wasn't an issue. Adding a criterion for wildlife is recommended for trails in the flood plain. QUESTIONS BY COMMISSIONERS There was a general question about the difference between bike and pedestrian impacts. PUBLIC TESTIMONY—IN FAVOR—No one was signed up to speak in favor. PUBLIC TESTIMONY—IN OPPOSITION— John Frewing, 7110 SW.Lola Lane, Tigard, OR spoke in opposition. He went over his written submitted comments at the back of the packet (back of Exhibit B). With regard to 3.c— he said there were several things that caused him concern. He'd like to see 3.c changed to say "pedestrian or bicycle pathways which are either replaced, new, or modified from this date forward, shall include this wildlife assessment." Secondly, he asked `what is a wildlife assessment?" He said he can do a wildlife assessment in about 1 second. Someone else may take more time because it involves fish, or birds, or frogs, or whatever — are there standards that we can reference in that regard? He said he doesn't know. "Thirdly, you've used the word "significant wildlife habitat" that in our [Tigard] code — there's a map of significant wildlife habitat adopted for Goal 5 and I presume that's what you mean, but it doesn't say that here." He went on to say that"CWS right now has a waiver for existing roads and trails in these low lying areas and so anything that exists that you're going to modify, repave, or replace escapes through that provision of CWS. And I don't want it to escape. I want it to have the wildlife assessment." Pagenstecher answered that any trail would go through a design development process and where trails are, for instance, modified for width,you would expect to have an assessment because they would be "new" trails and would be subject to the,criterion for pathways in a floodplain. Frewing said that was comforting to him. He then asked about the standard for wildlife assessment. Pagenstecher said there is no criterion for wildlife assessment at this time. It's not in the code and not proposed here. There axe standards for it. There are wildlife assessments—they are ordered for a purpose. Secondly, Frewing asked whether wildlife assessment would be done at one point in time, or done over several important seasons. Pagenstecher said wildlife assessments indicate time of year done and try to accommodate for that. Frewing said seasonal differences should be picked up in a wildlife assessment. Did you say that would be picked up? Pagenstecher said yes, I think that would PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 5 of 9 • r be picked up. Frewing: Lastly, does "significant wildlife habitat" correspond to the city's map?Pagenstecher: What we're talking about here is a criterion that applies specifically to floodplains.in the City of Tigard. Floodplains correlate with the highest height and limit value on the habitat map. Frewing: Okay— so it refers to the map. Pagenstecher: Yes. Erik Lindstrom,6801 SW Canyon Crest Drive, Portland 97225 spoke in opposition— He thanked Gary for meeting with them on Friday and answering many of his concerns. He said he'd studied the watershed very intently for two years as part of writing a book about Fanno Creek. He spoke about management of ecosystem services and wildlife habitat within the City limits. He said he was concerned about the process itself. He doesn't like the idea of modifying code to meet the plan. He's not convinced the details are there that the certain damage that will occur to the watershed as a result of this is mitigated and offset by other activities. There were no questions from staff. Sue Beilke, 11755 SW 114th Place, Tigard spoke in opposition. She handed out her comments in written form and went over them (Exhibit C). There were no questions from staff. Brian Wegener,12360 SW Main Street, Suite 100,Tigard, OR of the Tualatin Riverkeepers hadn't signed up,but spoke in opposition. He said he's concerned about bicycle road kills in these sensitive areas. He'd seen some of them. He's also concerned about trail washouts. Impacts should be minimized. He thinks the wildlife assessment should be defined. He's hoping this will be a "win-win" situation. He likes trails and access to nature but wants to make sure we are not taking away that nature by putting those trails in. QUESTIONS FROM STAFF: What do you believe is the solution? The solution could be perhaps putting trails going through wet areas up on pilings. In a slope situation— there are a lot of different choices. Reduce impervious areas that are causing stormwater run-off- that's very important to areas close to the streams. QUESTIONS OF STAFF Did ODF&W further comment? No. Pagenstecher said he called to follow up on their first comment. He said the comment was global in that when there's a limited resource— generally speaking, the policy is—protect it whenever you can. He said that's consistent with their mission. • PLANNING COMMISSION MEETING MINUIV.S—April 6,2009—Page 6 of 9 • • Is there the possibility of the looking at what sort of surface— what the trail's going to be made out of— before a trail is put in a floodplain?Is there any possibility in this code to go through and have that as part of the criteria? There are opportunities to introduce and apply green [environmentally friendly] trail criterion in the design development of any trail segment that the City may undertake. PUBLIC TESTIMONY CLOSED DELIBERATIONS President Inman said a floodplain is not necessarily a natural resource area so, potentially,we could be requiring wildlife assessments for a parking lot. She believes this is above and beyond other standards that are currently out there, and potentially onerous. She said she leans towards faith in CWS and other regulations as far as protecting resources and buffers — there's a dedicated public who will follow the development of the plan and will give input with regard to paths. That being said, she's not opposed to adding a wildlife assessment. The commissioners deliberated at length. MOTION After deliberations, there was a motion by Commissioner Muldoon, seconded by Commissioner Hasman: "I move we adopt DCA2008-00005 Sensitive Lands Permit Requirement, selecting Option 3.c as amended April 6,2009." The motion passed on a recorded vote - the Commissioners voted as follows: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, and Commissioner Muldoon (5) NAYS: Commissioner Walsh (1) ABSTAINERS: None (0) ABSENT: Commissioners Fishel and Vermilyea (2) PUBLIC HEARING CLOSED President Inman noted this will go to the 5/12/09 Council Business Meeting. 6. URBAN FORESTRY MASTERPLAN City Arborist,Todd Prager, said the slide presentation he was about to present highlights the packet that was distributed to the commissioners earlier. He encouraged them to review the PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 7 of 9 • • packet over the coming months to become familiar with the data that's been collected thus far for the Urban Forestry Master Plan. At this point he went over his slide presentation as an update of the Master Plan (Exhibit D). QUESTIONS FOR STAFF Wlhy has the tree canopy decreased? Dick Bewersdorff,Planning Manager,answered, "There'd been more development in those years than we've ever had in Tigard." Prager added, 'The fragmentation where the larger groves were being replaced with smaller individual plantings may indicate that the mitigation is helping to restore canopy in these residential zones." There were a few other questions and then the commissioners thanked Prager for a presentation they said was well done. 7. OTHER BUSINESS— Joint Meeting on April 21st—Tuesday—ideas for topics: The commissioners talked about some of the topics they may wish to discuss at that meeting. The consensus was that their main topic would be that of communication between the Council and the Commission; specifically,if Council chooses to over-ride one of their recommendations.They wondered what the plan is to communicate Council's reasoning as to why they disagree. Minutes: Planning Commission Bylaws -Article IV Section 12.E There was a decision to change the way the Commission considers/approves minutes. It was decided that,in light of the heretofore overlooked portion of the bylaws(below),in the future they would approve them differently than in the past. Article IV Section 12.E of the Planning Commission bylaws states: "Commissioners are expected to vote for approval of the minutes based on the accuracy of representation of events at the meeting. If there are no corrections, the President may declare the minutes approved as presented, without the need for a motion and vote.A vote in favor of adopting minutes does not signify agreement or disagreement with the Commission's actions memorialized in the minutes." So,if after asking if there are any corrections and,there being none, the President may declare the minutes "approved as presented"without the need for a motion and vote. PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 8 of 9 • . 8. ADJOURNMENT President Inman adjourned the meeting at 9:26 p.m. Doreen Laughlin, Planning C 'ssion Secretary 1 �1 `. 47V-CrJ-T1)/1/4, ATTEST: President Jodie Inman PLANNING COMMISSION MEETING MINUTES—April 6,2009—Page 9 of 9 • EXHIBIT B City of Tigard T1GAR,D' Memorandum To: Planning Commission From: Gary Pagenstecher, Associate Planner Re: Continued Hearing for DCA 2008-00005 Sensitive Lands Permit Requirements (REVISED MENIOR NDUM) Date: April 6, 2009 Background On February 23, 2009, the Planning Commission held a public hearing to consider Staff's request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove a criterion (18.775.070.B.5) prohibiting pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. The Commission received substantial public comment on the issue and decided to continue the hearing to allow time for careful consideration of the information provided and allow staff time to prepare an options analysis. In addition to a summary of public comments and the options analysis, below, staff has included a section to help clarify terms. Terms Average Annual Flood Elevation: The flood elevation used in 18.775.070.B.5; the average of annual peak daily flows over the length of available data; an elevation between "bank full" and the "2-year flood"; typically used for structural protection and maintenance purposes. 2:year Flood Elevation: A conservative proxy for the annual flood elevation. Base Flood Elevation: The computed elevation to which floodwater is anticipated to rise during the base flood (100-year flood, 1% flood, one-percent annual chance flood, FEMA floodplain extent). Ordinary`High Water(C,l ' 9 33(.1-R 328.3(e)): The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural tine impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other :appropriate means that consider the characteristics of the surrounding areas." Adopted Pedestrian/Bicycle Pathway Plan: The City of Tigard Parks System Master Plan (March 1999),includes general alignments for Tigard's trail system;as funding becomes available,specific trail segment plans axe developed to provide siting and design details. 1 • • Practicable. Capable of being effected,done, or put into practice; feasible. Summary of Public Comments Jennifer Thompson, US Fish and Wildlife (USF\V): cites Metro's environmentally—friendly trails guidebook to address potential adverse impacts of trails in sensitive areas and lists potential impacts from hydrology to habitat. Nancy Munn,National Marine Fisheries Service (NMFS): states that NMFS generally does not support trails in floodplains (with the exception of dirt trails) because often trail design and vegetation management proximate to water conflicts with conditions that support cold-water fisheries. Eric Lindstrom, EdD: takes issue with conclusions in the staff report by elaborating on findings, potential impacts to resources; concludes that pathways are desirable components of park plans but should not compromise the functional integrity of the floodplain (Owyhee River road example). Sue Beilke,Fans of Fanno Creek: argues against removal of the elevation criterion in order to protect significant habitat and that other potentially conflicting City goals are met with the existing trail network in Fanno Creek and by other upland trails planned by the City. Brian Wegener,Tualatin River Keepers: cites comments from USFWS/Metro/NMFS (above) regarding potential impacts to natural resources;identifies potential conflict of the proposed trails with sensitive habitat areas map designation of"strictly limit"in the majority of Fanno Creek Park;addresses shortcomings with the findings in the staff report and suggests an alternatives analysis include siting trails above the average annual flood. John Frewing: identifies process issues with the City as applicant;suggests processing a variance rather than a code amendment;calls out ODOT,DSL, CWS, and Metro provisions for safety and resource protection. Mischa Connine,Oregon Department of Fish and Wildlife (ODFW): concerned with overall decline of riparian habitat and connectivity and therefore the potential adverse impacts of paths located in riparian and associated floodplain habitats. Bob Salinger/Jim Labbe.Audubon: concerned with the incremental loss and degradation of floodplain habitats and water quality in the Tualatin Basin;supports low-impact path design including alternative alignments outside of floodplains;worried natural areas along Fanno Creek will be loved to death. Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100-year Floodplain) includes seven approval criteria for development within the 100-year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3), restrict uses in certain zones (2), ensure agency permitting(6), and provide for a pedestrian/bicycle pathway (4, 5,and 7). Of the three pathway criteria,criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian/bicycle pathway plan;criterion 5 restricts the elevation of a pathway to be higher than the average annual flood;and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. • The potential conflict with Criterion 5 arises for several reasons: a) the adopted pedestrian/bicycle plan is often too generalized to provide guidance in siting pathways,and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling, boardwalks, or re-siting outside the floodplain or in portions of the floodplain that exceed the average annual flood. Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it"where practicable." This involves striking a balance between recreation use and program purpose, on the one hand, and resource protection, on the other. The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Options Analysis Option 1—retain criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7)which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian/bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature-oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence,absence, or quality of habitat at any location. Option 2—revise criterion: The plans for the pedestrian/bigcle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature-oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. 3 • • • • Option 3—revise criterion: a. Pedestrian/bicycle pathways within the_floodplain shall be sited above the elevation of the average annual flood. where practicable. and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or h. Pedestian/Isis ale tathwen.s within tie tloodplain shall,:e sited aoor:Crd i!?ar Hi ll tt-.atcr. where practicable.and,chall inc/tide.a wildlife assessment to ensnrr that the broposed a/iknment initm is to significant wildlife habitat;or - '1/4r-r IP C• c. Pedestrian/bi ie pathways n-thin lice iloodplain shall tliet!Ge e assessment n e tir.'that the_Pervposed alignment minimizes impacts to significant wildlife habitat; -- - Pros: a. The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2,policy 2). The habitat assessment would also complement CWS standards for trail location within vegetated corridors. b. The elevation standard,if kept, would be more easily implemented if changed :o "OHW" from"average annual flood" (In March 2009, DSL changed their elevation reference for determining applicability of the removal/fill law from the 2-year flood elevation to OHW) c. Removing the elevation standard would not in practice,diminish trail protection or increase maintenance (PW memo)and because existing TDC wetland and CWS vegetated corridor protections.are in place to guide trail alignments. Cons: Additional cost to the applicant for a natural resource assessment. Option 4—remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adopted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. Discussion Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and . recreational use.The public comment received clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. Two of the proposed options presented above include language that would accommodate balancing competing public goods (recreation/natural resources) on a • site-specific basis,while still retaining the basic orientation of the criterion to avoid siting below the annual average flood. Option 2 suggests a threshold of practicability which would address path location in relation to cost and design feasibility and program goals. Option 3 requires, in addition, a resource assessment to ensure path location minimizes potential adverse impacts to wildlife habitat. 4 • • • The proposed code amendment is legislative and would apply to all floodplains within the City. Some public comments suggested that a variance process could be used as an alternative to a code amendment, particularly since the proposed amendment arose with respect to the site-specific improvements proposed with the Fanno Creek Park Master Plan. In reviewing this approach, staff finds that two of the variance standards (18.370.010.C.2.d/e) would not likely be met: (d) siting paths below the average annual flood would most likely adversely affect wildlife habitat to some extent and, (e) the hardship would be self- imposed because not building below the average annual flood would remain an option. Recommendation Staff recommends the Commission support Option 3.c to minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future,pursuant to the Park System Master Plan. • • Exhibit C April 6, 2009 • Tigard Planning Commission • Tigard,Oregon RE: Development Code Amendment(DCA)2008-00005/ • Sensitive Lands Permit Requirements Dear Planning Commission Members: We are writing to comment for the second time on the City of Tigard's proposal to remove and/or change the wording of Section 18.775.070.B.5 of the Sensitive Lands Permit requirement which reads in part that"no pathway will be below the elevation of an average annual flood." Fans of Fanno Creek is a local advocacy group for Fanno Creek and its tributaries with many members who donate significant time and effort during the year to plant native vegetation and remove non-native species. While many of our members use trails for various reasons,we do not support any building of new trails that would in any way cause negative impacts to our natural resources. We believe that 18.775.070.B.5 is a necessary part of the code and should NOT be removed not weakened(as the city's proposed options would)for a variety of reasons as we included in our comments in February. We add here to those 11 comments the following: #12. The city has come up with several options in regarding the this section of the code. #3, for example,would change the wording"where practicable". This totally negates the first part of the sentence, making the code so weak the city will use this wording whenever it desires to and hence build trails in areas that flood annually. We oppose this proposed change to the wording. Also,adding the caveat that there will be a requirement for a resources assessment is a moot point,as this is already required when anyone.including the city wants to build a trail in a sensitive area including all areas that"flood annually". Please remember that we have rewritten our Comprehensive Plan,and under the Trails section we added wording that states that some of our natural areas shall not have trails and shall be protected for the sensitive,rare species that need these quiet undisturbed areas to survive and raise their young,etc. If we put trails in every open space, we will drive wildlife out of our city. Many of the trails we now have are failing because they were built right next to the stream and in the areas that flood annually. It will cost the city a great deal of money to restore the banks, etc. along Fanno Creek,and before we build any new trails we need to first take care of the old trails and make sure they are not causing adverse impacts to wildlife,water,etc. We therefore ask the Planning Commission to DENY the city's request to remove or change the wording of this section of the Sensitive Lands code. Thank you for the opportunity to comment. . Sincerely, _ss;;;- • Sue Beilke, Board member,Fans of Fanno Creek . PLEASE SIGN IN HERE 4'‹ • Tigard Planning Commission Agenda Item # 2_ Page of I Date of Heating i(e.109 Case Number(s) og_,P\ -00005- Case Name i'2...r\S\)--k-cil VC. Lcx, Qç rv•T*-- R9T...tk\e-cr\izvAkS. Location C—c(A--,-Ak,)■:)1 If you would like to speak on this item, please CLEARLY PRINT your name, address, and zip code below: Proponent (FOR the proposal): Opponent (AGAINST the proposal): Name: Name: 'IR17)\Aix) Address: Address: f ay" • City, State, Zip: City, State, Zip21(4--cf--)r-?/ CFL Cr2-7L; Name: Name: Eiz%c. ).4 v I Address: Address: t„, 0 5") c: City, State, Zip: City, State, Zip: -1)0>z j--j6.0,at_ cl -7 Z2..c. Name: Name: Address: Address: 111 City, State, Zip: City, State, Zip: , Name: Name: • • Address: Address: City, State, Zip: City, State, Zip: Name: Name: Address: Address: City, State, Zip: City, State, Zip: IP • .. ; . q 74 City of Tigard TIGARD[ Memorandum To: Planning Commission From: Gary Pagenstecher, Associate Planner Re: Continued Hearing for DCA 2008-00005 Sensitive Lands Permit Requirements (REVISED MEMORANDUM) Date: April 6, 2009 Background On February 23, 2009, the Planning Commission held a public hearing to consider Staff's request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove a criterion (18.775.070.B.5) prohibiting pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. The Commission received substantial public comment on the issue and decided to continue the hearing to allow time for careful consideration of the information provided and allow staff time to prepare an options analysis. In addition to a summary of public comments and the options analysis, below, staff has included a section to help clarify terms. Terms Average Annual Flood Elevation: The flood elevation used in 18.775.070.B.5; the average of annual peak daily flows over the length of available data; an elevation between"bank full" and the "2-year flood"; typically used for structural protection and maintenance purposes. 2 year Flood Elevation: A conservative proxy for the annual flood elevation. Base Flood Elevation: The computed elevation to which floodwater is anticipated to rise during the base flood (100-year flood, 1% flood, one-percent annual chance flood, FEMA floodplain extent). Ordinary High Water(CWA 33Ck'R 328.3(e)): The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear,natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas." Adopted Pedestrian/Bicycle Pathway Plan: The City of Tigard Parks System Master Plan (March 1999),includes general alignments for Tigard's trail system; as funding becomes available, specific trail segment plans are developed to provide siting and design details. . 1 41111 • Practicable: Capable of being effected, done, or put into practice; feasible. Summary of Public Comments Jennifer Thompson, US Fish and Wildlife (USFW): cites Metro's environmentally—friendly trails guidebook to address potential adverse impacts of trails in sensitive areas and lists potential impacts from hydrology to habitat. Nancy Munn,National Marine Fisheries Service (NMFS): states that NMFS generally does not support trails in floodplains (with the exception of dirt trails) because often trail design and vegetation management proximate to water conflicts with conditions that support cold-water fisheries. Eric Lindstrom, EdD: takes issue with conclusions in the staff report by elaborating on findings,potential impacts to resources; concludes that pathways are desirable components of park plans but should not compromise the functional integrity of the floodplain (Owyhee River road example). Sue Beilke, Fans of Fanno Creek: argues against removal of the elevation criterion in order to protect significant habitat and that other potentially conflicting City goals are met with the existing trail network in Fanno Creek and by other upland trails planned by the City. Brian Wegener,Tualatin River Keepers: cites comments from USFWS/Metro/NMFS (above) regarding potential impacts to natural resources;identifies potential conflict of the proposed trails with sensitive habitat areas map designation of"strictly limit" in the majority of Fanno Creek Park; addresses shortcomings with the findings in the staff report and suggests an alternatives analysis include siting trails above the average annual flood. John Frewing: identifies process issues with the City as applicant; suggests processing a variance rather than a code amendment; calls out ODOT, DSL, CWS, and Metro provisions for safety and resource protection. Mischa Connine, Oregon Depaitment of Fish and Wildlife (ODFW): concerned with overall decline of riparian habitat and connectivity and therefore the potential adverse impacts of paths located in riparian and associated floodplain habitats. Bob Salinger/Jim Labbe,Audubon: concerned with the incremental loss and degradation of floodplain habitats and water quality in the Tualatin Basin; supports low-impact path design including alternative alignments outside of floodplains;worried natural areas along Fanno Creek will be loved to death. Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100-year Floodplain)includes seven approval criteria for development within the 100-year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3), restrict uses in certain zones (2), ensure agency permitting (6), and provide for a pedestrian/bicycle pathway (4, 5, and 7). Of the three pathway criteria, criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian/bicycle pathway plan; criterion 5 restricts the elevation of a pathway to be higher than the average annual flood; and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. 2 • • The potential conflict with Criterion 5 arises for several reasons: a) the adopted pedestrian/bicycle plan is often too generalized to provide guidance in siting pathways, and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling, boardwalks, or re-siting outside the floodplain or in portions of the floodplain that exceed the average annual flood.Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it"where practicable."This involves striking a balance between recreation use and program purpose, on the one hand, and resource protection, on the other. The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Options Analysis Option 1—retain criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7)which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian/bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature-oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence, absence, or quality of habitat at any location. Option 2—revise criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature-oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. 3 • 1111 Option 3—revise criterion: a. Pedestrian/bicycle pathways within the floodplain shall be sited above the elevation of the average annual flood, where practicable, and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or b. Pedestrian/bicycle pathways within the floodplain shall be sited above Ordinary High Water, where practicable, and shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat;or c. Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; Pros: a. The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2, policy 2). The habitat assessment would also complement CWS standards for trail location within vegetated corridors. b. The elevation standard,if kept,would be more easily implemented if changed to "OHW" from "average annual flood" (In March 2009, DSL changed their elevation reference for determining applicability of the removal/fill law from the 2-year flood elevation to OHW) c. Removing the elevation standard would not in practice, diminish trail protection or increase maintenance (PW memo) and because existing TDC wetland and CWS vegetated corridor protections are in place to guide trail alignments. Cons: Additional cost to the applicant for a natural resource assessment. Option 4—remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adopted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. Discussion Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. The public comment received clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. Two of the proposed options presented above include language that would accommodate balancing competing public goods (recreation/natural resources) on a site-specific basis,while still retaining the basic orientation of the criterion to avoid siting below the annual average flood. Option 2 suggests a threshold of practicability which would address path location in relation to cost and design feasibility and program goals. Option 3 requires,in addition,a resource assessment to ensure path location minimizes potential adverse impacts to wildlife habitat. 4 • . • The proposed code amendment is legislative and would apply to all floodplains within the City. Some public comments suggested that a variance process could be used as an alternative to a code amendment, particularly since the proposed amendment arose with respect to the site-specific improvements proposed with the Fanno Creek Park Master Plan. In reviewing this approach, staff finds that two of the variance standards (18.370.010.C.2.d/e) would not likely be met: (d) siting paths below the average annual flood would most likely adversely affect wildlife habitat to some extent and, (e) the hardship would be self- imposed because not building below the average annual flood would remain an option. Recommendation Staff recommends the Commission support Option 3.c to minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future,pursuant to the Park System Master Plan. 5 • Gary Pagenstecher From: Doreen Laughlin Sent: Monday, April 06, 2009 11:19 AM To: Gary Pagenstecher Subject: FW: Planning Commission -Trails below Annual Flood Level From:jfrewing [mailto:jfrewing@teleport.com] Sent: Monday, April 06, 2009 10:25 AM To: Doreen Laughlin Subject: Planning Commission -Trails below Annual Flood Level Doreen, Please forward to the PC my current thoughts on the staff proposal to allow trails below annual flood levels. 1 I can't find any other jurisdiction in the Metro area which does this. It doesn't make safety or environmental sense. 2 If there must be ped/bike facilities which traverse these low lands,require that they always be on boardwalks/bridges which are at an elevation above the 100 year flood plain and have rails/fencing on both sides of the boardwalk sufficient to avoid dogs and kids jumping down from the boardwalk to the sensitive land areas. Thanks, John Frewing • 1 • • Gary Pagenstecher From: Brian Wegener[bwegener8 @comcast.net] Sent: Thursday, April 02, 2009 8:37 AM To: Gary Pagenstecher Cc: 'Sue Beilke'; John Frewing; Dave Drescher; Brian Wegener; el.lindstrom @comcast.net; Paul H. Whitney Subject: Re: material for Monday PC hearing/Sensitive Lands Code Removal proposal Let's meet Friday at 10am. Some of the things I am looking for in the code change inspired by Metro's Green Tails book: 1. Avoidance standards. 2. Requirements for pervious materials on all trails. 3. Mitigation requirements. 4. No parallel paths in natural areas to minimize impacts. 5. Minimizing widths 6. Green maintenance practices. 7. Standards to keep pedestrians & bikes on trails. 8. Redirection of bicycle traffic away from natural areas to protect amphibians and reptiles - minimize road kill 9. Bicycle commuter corridors away from natural areas (ie the rail trail) 10. Standards for creek crossings to span flood plain. 11. Viewing stations for wildlife observation from a distance. 12. Trail standards to minimize destructive behavior (duck feeding -poopollution). This code change should improve Tigard's environmental standards for environmental protection, not give blanket approval for past destructive practices like putting paved paths below annual flood elevation. Phil's last staff report failed to investigate the legislative intent of the code prohibition of trails below annual flood elevation. Staff needs to correct this omission before this goes back to the planning commission. The last staff report denied the maintenance issues of trails below annual flood elevation. This also needs to be corrected before this goes back to the PC. Brian Wegener 503-620-7507 c: 503-936-7612 Gary Pagenstecher wrote: Sue, At your request, please find the attached Memorandum to the Planning Commission regarding DCA2008-00005. I am available to meet with you and others to discuss any issues you may have tomorrow morning or afternoon and Friday before 1pm. Gary Gary Pagenstecher,AICP Associate Planner City of Tigard Community Development 13125 SW Hall Blvd. 1 !. • • Gary Pagenstecher From: Damien Hall [Damien.Hall @jordanschrader.com] Sent: Friday, April 03, 2009 3:31 PM To: Gary Pagenstecher Cc: Tim Ramis; Jenny De Gregorio Subject: RE: Does the attached DCA Memo Option 3 constitute a Goal 5 program change and additional notice and reveiw process? Gary, The floodplain criterion is an acknowledged land use regulation. Therefore, if the Council chooses either of options 2, 3 or 4, which amend the criterion, the amendment will be a post acknowledgement plan amendment("PAPA"). OAR 660-023- 0010(5). Once the Counsel chooses an option, notice of the proposed amendment must be provided to DLCD at least 45 days before the first evidentiary hearing on adoption. ORS 197.610(1). Because the proposed amendment is a PAPA, Goal 5 applies if the amendment, (1) "creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5," or (2) "allows new uses that could be conflicting uses with a particular significant Goal 5 resource site on an acknowledged resource list." OAR 660-023-0250(3)(a),(b). Each of these criteria is likely triggered by the choice of options 2, 3, or 4. Therefore, Goal 5 would apply and the City must adopt findings that the proposed amendment is consistent with Goal 5. See, Wood v. Crook County, 65 Or LUBA 165(2007). Please feel free to contact me with any questions or concerns. Regards, Damien CONFIDENTIALITY NOTICE: Please do not read, copy, or disseminate this communication unless you are the intended addressee. This e-mail may contain confidential and/or privileged information intended only for the addressee. If you have received this in error, please notify me via return e-mail. TAX ADVICE NOTICE: IRS Circular 230 requires us to advise you that if this communication or any attachment contains any tax advice,the advice is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties or(ii)promoting, marketing, or recommending any transaction, plan, or arrangement. A taxpayer may rely on professional advice to avoid tax-related penalties only if the advice is reflected in a comprehensive tax opinion that conforms to stringent requirements. Please contact us if you have any questions about this requirement, or would like to discuss preparation of an opinion that conforms to these IRS rules. Original Message From: Jenny De Gregorio Sent: Thursday, April 02, 2009 8:59 AM To: Damien Hall Subject: FW: Does the attached DCA Memo Option 3 constitute a Goal 5 program change and additional notice and reveiw process? Importance: High Here's the email Damien. Thank you. 1 • • Original Message From: Gary Pagenstecher [mailto:Garyp @tigard-or.gov] Sent: Monday, March 30, 2009 4:08 PM To: Jenny De Gregorio Subject: Does the attached DCA Memo Option 3 constitute a Goal 5 program change and additional notice and reveiw process? Jenny, Staff originally set out in DCA2008-00005 to eliminate criterion 5 of the floodplain criterion.Addressing public input,the Staff Memo suggests alternative language which would require siting of paths in the floodplain to undergo a natural resource assessment. No other action in the City is otherwise required to prepare a resource assessment for wildlife habitat. Several years ago the City adopted Metro's Goal 5 Significant habitat areas map with recommended habitat-friendly actions, but no regulatory standards. It is likely that the City will be the only applicant for development of paths in the floodplain.Just want to be sure that Option 3 (Page 4 of attachment) could be approved if selected by the Commission and the Council. Thank you, Gary Gary Pagenstecher,AICP Associate Planner City of Tigard Community Development 13125 SW Hall Blvd. Tigard OR 97223 503-718-2434 garyp @tigard-or.gov 2 g G • ary Pagenstecher From: Steve Martin Sent: Thursday, April 02, 2009 3:18 PM To: Gary Pagenstecher Subject: Fanno Creek Trail Gary, The question of the maintenance on the Fanno Creek trail and flooding came to my attention. It should be noted that, with the exception of a bridge that needs to be lengthened to get the footings further outside of the stream banks, flooding has only a small impact on the maintenance of the trails along Fanno Creek. The flood waters inundate the trail a few times each year, usually for less than a day, though occasionally for a couple days. My estimate is that flooding occurs roughly 6 times or less each year. The maintenance after the flooding is usually confined to the occasional sweeping, or shoveling of the trail where it is lower than the surrounding landscape. In those places the sediment will settle, while in most areas, the sediments flow over the asphalt and leave a light dusting that quickly dissipates. After most of the flood events, no special action is taken because there is not much sediment left on the trail. The edge of the trail is mowed for pedestrian safety and this results in a mowed buffer of 2 to 3 feet of low vegetation, usually field grass. The short flood times do not seem to cause much erosion in these areas, especially when the vegetation is thick. As a side note, in some parks we have noticed erosion in planting areas where the grass and vegetation are not allowed to grow, such as around trees or light posts. The maintenance of the asphalt trail in the flood areas does not seem to be much different from the trails that are not in the flood zones. The same problems are seen on the trails regardless of the trail location. Spalding, sinkholes, and cracking of the trail are the most common problems, and occur as commonly on trails out of the flood zone as on trails in the flood zone. The most important factors in the longevity of the trail seem to be if the trail was properly installed and the grade of asphalt. We spend many times more hours on both litter and vegetation maintenance along trails than cleaning up after high water. Hope this helps, Steve Steve Martin Park and Facilities Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 503-718-2583 steve @ tgard-or.gov 1 411 • ;111 . q City of Tigard T I GARD Memorandum To: Gary From: Duane Re: DCA 2008-00005 Date: 3/31/09 Gary, Thanks for picking this up and taking a shot at amendment options. My comments: The memo itself and public and agency commentators all assume that the intent of the average annual standard is wildlife habitat protection. Although this can't be documented either way, it seems more likely that the intent was minimizing potential flood damage to trails and insuring greater year-round public access. Nevertheless, PC members and commentators alike all focus on the habitat protection value of the standard. Since average annual is used by everyone as a proxy for habitat protection,why can't we add a wildlife assessment requirement and drop the average annual flood elevation requirement? Put another way, since average annual flood elevation avoidance is construed as having as its purpose habitat protection, why not do away with the present standard altogether and substitute a habitat study requirement. Moreover, both the "annual average,where practicable" and"minimizing impacts" based on an assessment are subjective standards. Including both in a revised criterion would leave too much to argue about. Since, as reflected in the present effort, clear and objective standards are not possible to achieve with regard to trail alignments, I for one would much prefer to deal with one rather than two subjective standards. Two is unnecessarily onerous in terms of cost and leaves too much room for interpretation regarding the meaning of"practicable" and "minimizing" when applied to a specific site. Since the intent of both provisions is wildlife protection,why not limit this criterion to this one purpose. The cost burden imposed by this option relates to the need to hire one consultant to compute the average annual flood evaluation and another to evaluate wildlife habitat impacts. The need to contract this work out is because neither of these studies is done in-house by existing staff. Important to emphasize is that cost is secondary. According to the memo, "average annual"in almost all cases cannot be met and will require justification as to why it cannot be met. Why include a requirement that is almost impossible to meet in the first place? Including both "average annual" and "wildlife assessment" is redundant and unduly and unnecessarily increases the range of review standards that are subject to interpretation. i • Gary Pagenstecher From: Greg Berry Sent: Friday, March 20, 2009 12:10 PM To: Gary Pagenstecher; Dick Bewersdorff; Kim McMillan Subject: Comments to PC memo Attachments: western_pond_turtle[1].jpg; Pier.pdf Option 2 In general, locating pathways above the annual average flood is practicable. The problem is that this may result in excessive costs, delay and not meeting project objectives. Consider adding"where practicable to achieve project objectives". Option 3 The H.O. has imposed this standard on the pathway on the east side of Hall Blvd. A Wildlife Assessment was ordered for 135 feet of pathway connecting a proposed bridge over the creek to a sidewalk on Hall Blvd. The assessment concluded, and the H.O. required,that the entire pathway be on a boardwalk elevated to provide at least 30 inches of clearance from the bottom of the boardwalk to the ground to accommodate wildlife passage. A description of the proposed pier for the boardwalk is attached. Given the similarity of the creek and the floodplain on either side of Hall Blvd., the proposed Resource Assessment is likely to conclude and commenters are likely to insist,that the pathway for the Lower Park be built on a similar elevated boardwalk. If a different result is to be expected,the sensitive lands permit should distinguish the two projects. While implementation of Goal 5 is a purpose of the Sensitive Lands chapter,the chapter doesn't currently include habitat protection. Adding the Resource Assessment requirement to the chapter may be seen as a change to the City's plan for Goal 5 compliance without being subject to required procedure. This option could also lead to the anomalous result of requiring a Resource Assessment for a pathway but not for a parking lot. 1 • 0 IIICity of Tigard - Planning Commission — Agenda ;-f7IGARD; MEETING DATE: April 6, 2009, 7:00 p.m. MEETING LOCATION: City of Tigard —Town Hall 13125 SW Hall Blvd., Tigard, OR 97223 1. CALL TO ORDER 7:00 p.m. 2. ROLL CALL 7:00 p.m. ! 3. COMMUNICATIONS 7:02 p.m. 4. CONSIDER MINUTES 7:05 p.m. 5. PUBLIC HEARINGS 7:10 p.m. 5.1 COMPREHENSIVE PLAN AMENDMENT (CPA) 2008-00011 LEGISLATIVE UPDATE: Tigard Transportation Plan and Comprehensive Plan Amendments to Incorporate Tigard 99W Improvement and Management Plan Recommendations REQUEST: The City is requesting a Comprehensive Plan Amendment to: 1. Update the Tigard Transportation System Plan to include recommended changes found in the Tigard 99W Improvement and Management Plan; 2. Incorporate the Tigard 99W Improvement and Management Plan by reference into the Tigard Transportation System Plan to serve as findings; 3.Update the recommended action measures for Tigard Comprehensive Plan Goal 12: Transportation to include language recommended by the 99W Plan Citizen Advisory Committee; • and 4. Amend the Tigard Comprehensive Plan Policy 6.A of Goal 12.2 to reflect recommended 5 lanes for Highway 99W. LOCATION: Citywide. ZONE: The proposal is a Comprehensive Plan text amendment it is not applicable to a specific property or group of properties. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380 and 18.390; Comprehensive Plan Chapters Goal 1: Citizen Involvement; Goal 2: Land Use Planning; Goal 6: Environmental Quality; Goal 12: Transportation; Oregon Transportation Plan; Oregon Highway Plan; Regional Transportation Plan; Statewide Planning Goals 1, 2, 11, and 12; and Oregon Administrative Rule 660-12 (Transportation Planning Rule). 5.2 PUBLIC HEARING (Continued from 2-23-09) 8:10 p.m. DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 . - SENSITIVE LANDS PERMIT REQUIREMENTS - • PLANNING COMMISSION AGENDA—APRIL 6, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard, OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 1 of 2 • REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [1DC 18.130, 18.380, 18.390 and 18.775]. 6. Urban Forestry Master Plan Update 9:10 p.m. 7. OTHER BUSINESS 9:45 p.m. 8. ADJOURNMENT 9.50p.m. PLANNING COMMISSION AGENDA —APRIL 6, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard, OR 97223 I 503-639-4171 I www.tigard-or.gov I Page 2 of 2 • • : : p City of Tigard T,16ARo Memorandum To: Planning Commission From: Gary Pagenstecher,Associate Planner Re: Continued Hearing for DCA 2008-00005 Sensitive Lands Permit Requirements Date: March 30, 2009 Background On February 23, 2009, the Planning Commission held a public hearing to consider Staff's request (DCA2008-00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove a criterion (18.775.070.B.5) prohibiting pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. The Commission received substantial public comment on the issue and decided to continue the hearing to allow time for careful consideration of the information provided and allow staff time to prepare an options analysis. In addition to a summary of public comments and the options analysis, below, staff has included a section to help clarify terms. Terms Average Annual Flood Elevation: The flood elevation used in 18.775.070.B.5; the average of annual peak daily flows over the length of available data; an elevation between "bank full" and the "2-year flood"; typically used for structural protection and maintenance purposes. 2 year Flood Elevation: A conservative proxy for the annual flood elevation. Base Flood Elevation: The computed elevation to which floodwater is anticipated to rise during the base flood (100-year flood, 1% flood, one-percent annual chance flood, FEMA floodplain extent). Adopted Pedestrian/Bicycle Pathway Plan: The City of Tigard Parks System Master Plan (March 1999), includes general alignments for Tigard's trail system; as funding becomes available, specific trail segment plans are developed to provide siting and design details. Practicable: Capable of being effected, done, or put into practice; feasible. 1 • Summary of Public Comments Jennifer Thompson, US Fish and Wildlife (USFW): cites Metro's environmentally —friendly trails guidebook to address potential adverse impacts of trails in sensitive areas and lists potential impacts from hydrology to habitat. Nancy Munn, National Marine Fisheries Service (NMFS): states that NMFS generally does not support trails in floodplains (with the exception of dirt trails) because often trail design and vegetation management proximate to water conflicts with conditions that support cold-water fisheries. Eric Lindstrom, EdD: takes issue with conclusions in the staff report by elaborating on findings, potential impacts to resources; concludes that pathways are desirable components of park plans but should not compromise the functional integrity of the floodplain (Owyhee River road example). Sue Beilke, Fans of Fanno Creek: argues against removal of the elevation criterion in order to protect significant habitat and that other potentially conflicting City goals are met with the existing trail network in Fanno Creek and by other upland trails planned by the City. Brian Wegener, Tualatin River Keepers: cites comments from USFWS/Metro/NMFS (above) regarding potential impacts to-natural resources; identifies potential conflict of the proposed trails with sensitive habitat areas map designation of"strictly limit"in the majority of Fanno Creek Park; addresses shortcomings with the findings in the staff report and suggests an alternatives analysis include siting trails above the average annual flood. John Frewing: identifies process issues with the City as applicant; suggests processing a variance rather than a code amendment; calls out ODOT, DSL, CWS, and Metro provisions for safety and resource protection. Mischa Connine, Oregon Department of Fish and Wildlife (ODFW): concerned with overall decline of riparian habitat and connectivity and therefore the potential adverse impacts of paths located in riparian and associated floodplain habitats. Bob Salinger/Jim Labbe, Audubon: concerned with the incremental loss and degradation of floodplain habitats and water quality in the Tualatin Basin; supports low-impact path design including alternative alignments outside of floodplains;worried natural areas along Fanno Creek will be loved to death. Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100-year Floodplain) includes seven approval criteria for development within the 100-year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3), restrict uses in certain zones (2), ensure agency permitting (6), and provide for a pedestrian/bicycle pathway (4, 5, and 7). 2 • • Of the three pathway criteria, criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian/bicycle pathway plan; criterion 5 restricts the elevation of a pathway to be higher than the average annual flood; and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. The potential conflict with Criterion 5 arises for several reasons: a) the adopted pedestrian/bicycle plan is often too generalized to provide guidance in siting pathways, and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling, boardwalks, or re- siting outside the floodplain or in portions of the floodplain that exceed the average annual flood. Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it "where practicable." This involves striking a balance between recreation use and program purpose, on the one hand, and resource protection, on the other. The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Options Analysis Option 1— retain criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7) which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian/bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature- oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence, absence, or quality of habitat at any location. 3 • i Option 2 — revise criterion: The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature-oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. Option 3 — revise criterion: Pedestrian/bicycle pathways within the floodplain shall be sited above the elevation of the annual average flood, where practicable, and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; Pros: The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian/bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2, policy 2). Cons: Additional cost to the applicant for a natural resource assessment. Option 4— remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adopted pedestrian/bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. Discussion Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. The public comment received clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. Two of the proposed options presented above include language that would accommodate balancing competing public goods (recreation/natural resources) on a site-specific basis, while still retaining the basic orientation of the 4 • criterion to avoid siting below the annual average flood. Option 2 suggests a threshold of practicability which would address path location in relation to cost and design feasibility and program goals. Option 3 requires, in addition, a resource assessment to ensure path location minimizes potential adverse impacts to wildlife habitat. The proposed code amendment is legislative and would apply to all floodplains within the City. Some public comments suggested that a variance process could be used as an alternative to a code amendment, particularly since the proposed amendment arose with respect to the site-specific improvements proposed with the Fanno Creek Park Master Plan. In reviewing this approach, staff finds that two of the variance standards (18.370.010.C.2.d/e) would not likely be met: (d) siting paths below the average annual flood would most likely adversely affect wildlife habitat to some extent and, (e) the hardship would be self-imposed because not building below the average annual flood would remain an option. Recommendation Staff recommends the Commission support Option 3 to'minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future, pursuant to the Park System Master Plan. 5 • • CITY F TIGARD GARD PLANNING COMMISSION Meeting Minutes February 23,2009 1. CALL TO ORDER President Inman called the meeting to order at 7:00 p.m. The meeting was held in the Tigard Civic Center,Town Hall, at 13125 SW Hall Blvd. 2. ROLL CALL Commissioners Present: President Inman; Commissioners Anderson, Caffall,Doherty, Hasman, Muldoon,Walsh, and alternate Commissioner Gaschke Commissioners Absent: Commissioner Fishel, Commissioner Vermilyea Staff Present: Dick Bewersdorff,Planning Manager;John Floyd, Duane Roberts, Project Planner; Greg Berry, Utility Engineer;Associate Planner;Phil Nachbar, Redevelopment Project Manager; Doreen Laughlin, Planning Commission Secretary 3. COMMUNICATIONS None. 4. APPROVE MEETING MINUTES 1-26-09 Meeting Minutes: There was a motion by Commissioner Muldoon, seconded by Commissioner Doherty to approve the 1-26-09 Planning Commission meeting minutes as submitted: The motion CARRIED on a recorded vote;the Commission voted as follows: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Muldoon, Commissioner Inman, and Commissioner Walsh (6) NAYS: None (0) ABSTAINERS: Commissioner Hasman (1) ABSENT: Commissioner Vermilyea, Fishel (2) 2-2-09 Meeting Minutes There was a motion by Commissioner Doherty, seconded by Commissioner Walsh to approve the 02-02-09 Planning Commission meeting minutes as submitted: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, and Commissioner Walsh (6) NAYS: None (0) ABSTAINERS: Commissioner Muldoon (1) ABSENT: Commissioner Vermilyea, Commissioner Fishel (2) PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 1 of 9 • 5. PUBLIC HEARING DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 -SENSITIVE LANDS PERMIT REQUIREMENTS - PUBLIC HEARING OPENED • STAFF REPORT Phil Nachbar, Downtown Redevelopment Manager, presented the staff report on behalf of the applicant, the City of Tigard. [Staff reports are available at the City one week before each meeting.] Nachbar distributed several items; one was a portion of the Sensitive Lands code update (Exhibit AA). He used two large boards as visuals for his presentation (Exhibits AA2 and AA3). Nachbar also distributed two emails that he'd received on February 18th (Exhibits AA4 and AA5), as well as several emails that he'd received that day (Exhibits A-F). Nachbar made the following points: 1. The City proposes to remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;" (perhaps a berm or a boardwalk). 2. Reason for requirement: doc 1983. It is likely that the intent of the requirement was to keep "people dry" and allow year-round accessibility of trails, and to keep paths from being inundated due to maintenance concerns. 3. Reasons for removal: • Requirement poses an obstacle to constructing trails where they may be needed - By removing this requirement of Section 18.775.070.B.5., it will be less difficult to site needed trails that will assist in the City . meeting its new Comprehensive Plan Goal 8 for Parks, Recreation, Trails and Open Space. Specifically, the proposed amendment will support Goal 8.2: Policy 1 "to create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods,parks, open spaces, major urban activity centers..." • Some of the potential benefits of the removal of Section 18.775.070.B. include 1) improved access to natural areas otherwise inaccessible by the public, 2) enhanced access and connectivity and 3) removal of the potential for the construction of elevated trails to pose a potential impact to the environment. • Although trails can be elevated by placement of a berm or boardwalk, it is costly, and the additional volume makes it difficult to meet the "no-rise" condition critical to meeting FEMA requirements within the Sensitive Lands Chapter, and the balance "cut and fill" requirements of CWS Design and Construction Standards. PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 2 of 9 • • Nachbar gave an example (Exhibit AA2,AA3) of how removal of the requirement will allow the City to implement the Fanno Creek Park&Plaza Master Plan adopted by Council in February 2008. He gave several examples of nearby cities which have no requirements to not build in a floodway. Nachbar finished his presentation with the following: • Staff concludes that the proposed text amendment to remove Section 18.775.070.B.5 of the Sensitive Lands Chapter is consistent with all applicable review criteria. • The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance. • The City is in compliance with the requirements of Metro's Title 3 by adoption of the Clean Water Services' (CWS) Design and Construction Standards in the City's Sensitive Lands Chapter 18.775. • The Tualatin Basin Plan satisfies the Metro Title 13: Nature in Neighborhoods requirements,which in turn satisfies Statewide Planning Goal 5 requirements. • The removal of this requirement would not directly impact the sensitive habitats or environments. QUESTIONS & COMMENTS BY COMMISSIONERS (Replies in italics) • One of the commissioners commented that a lot of information was distributed that night and he requested that in the future they would get this sooner. If/had gotten this information before today I would have forwarded it to you. • Is there a possibility that trails would not be put in due to either cost or geologic reasons if they had to be raised above the flood plain? The answer to that would be yes— for two reasons. The cost could be excessive if the City had to build for example boardwalks instead of trails. And because it's difficult to meet this "no rise"condition required under our sensitive lands code to meet our FEMA requirements. • Has there been any consideration of just modifying the language? I don't know whether it would make sense to express a preference for it being placed above the average annual flood elevation except when not practical? We have not considered that— doesn't mean we can't consider it. You have to ask the question—what is the reason for having it? The only two reasons we could identify was to keep people's feet dry and so that the pavement doesn't get flooded and break down over time— which is unlikely actually, when you only flood a few times a year. • You'd mentioned that there's no particular attractiveness in using boardwalks. They actually allow people to cross an area they wouldn't otherwise have access to—they also extend wheel chair access area where those people wouldn't otherwise have access. I was referring to the only two ways you could build above the average annual flood elevation —which is a boardwalk or a berm as not being great ideas. I hope that clarifies. I think boardwalks are great in areas where they are really needed. My question was—is a boardwalk really needed in an area that floods very rattly. • So what happens to a trail when it does flood? Do you close it down to the public? Normally people just don't use it. We don't have flash floods here— no need to close down trails. • Is this driven by cost?No, that's not the issue. It would affect the city's ability to build a progressive trail system and to implement parks. The cost would impact our decision about where to PLANNING COMMISSION MEETING MINUTES-February 23,2009-Page 3 of 9 • • put trails if we knew we had to elevate all trails but more than likely we wouldn't make those improvements at all. We'd probably have to leave it the way it is and not provide that additional access that is desired. • What input did you seek— any expert advice? Yes— consultants and architects— Walker May HDR Engineering that does hydrologic analysis CWS was also a part of the conversation. PUBLIC TESTIMONY—IN FAVOR None PUBLIC TESTIMONY—IN OPPOSITION Eric Lindstrom, 6801 SW Canyon Crest Drive,Portland, OR, said he was present as a "Friend of the Fanno Creek Watershed and the City of Tigard." He gave his testimony in opposition to the amendment--he passed out his written testimony and went over it at length (see Exhibit A). Questions from Commissioners (answers in italics): • Are you suggesting that there not be access —pedestrian or bicycle? Absolutely not. We need to find an equitable solution for the City, its citizens, and the watershed. What we have here is a move that would make the rampant usage of these pathways permissible. I'm not against access -I'd like to see more pathways—I just want to see them used with conscientiousness. I think this portion of the code actually provides you with that little bit. Tim McGilvrey, 11608 SW Spring,Tigard, OR, spoke in opposition. He said he opposes this code based on common sense. He stated that you should build on higher ground where you can look over a natural area rather than be right down on a natural area which isn't good for the riparian zone.Just common sense—build on a little bit higher ground. Questions from Commissioners: There were no questions of Mr. McGilvrey. Sue Beilke, 11755 SW 114th Place,Tigard—representing Fans of Fanno Creek gave opposition testimony. She also submitted it in written form and passed it out (see Exhibit B). Questions from Commissioners: • You're saying no new trails?No— never said that.Just this one area? No. I use trails all the time—some flood often—so I don't use those. Some of these flooding trail areas need boardwalks. They are good. We need to do a betterjob ofpmtecting resources and species. At this point President Inman interjected to the commissioners that there's a very fine line between when we're talking about sensitive lands - in that the "sensitive land" that we're talking about with this particular application is a flood plain. You can build a parking lot in a flood plain. This whole conversation is getting focused towards Fanno Creek but in a broader code context we're talking about something bigger than just that. When it comes to making decisions, the applicable criteria for me has to do with the sensitive land that we're PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 4 of 9 • • impacting. So think about that when you're structuring your comments. Secondly, if we leave this in here, then if we want to rebuild those trails we may have to build them 5 feet in the air, or put them on stilts and a boardwalk, if we want them to still be there. They can go in— they just have to go in higher. So this, by no means, precludes the development of any of those trails—it just makes them more expensive and could potentially make them more of an intrusion. So there is a balance there. We're not saying they can't be built. This doesn't say they can't be built— they just have to be high. There's balance with everything. Nachbar interjected comments about Fanno Creek Park. He said he and Sue Beilke have similar interests. He noted that there are no net new trails going into this park.There are existing trails and they're realigning some trails but there will be no net new lineal footage of trails. He said they're not decimating this park with trails. • Sue, if we took the code off, can you think of any alternatives, —how you could structure it so that it could address issues that you're raising, short of saying no. I'm not sure. There were a few more questions and Ms. Beilke spoke more about the importance of sensitive lands and wildlife. More questions followed: • So you would rather see an asphalt trail taken up into a two or three foot high boardwalk along almost the entire extent of the trails that are there right now—in the air? I don't know—some of them I'd move into the uplands. You have to remember the City plans on buying all of that land. • What we're talking about is purely a floodplain— not a resource area—we're not impacting that—it's just the floodplain. Would you rather, where it's just a matter of it being too low that it's going to get inundated,you'd rather see it in the air? But this is in a sensitive lands code. I don't see how you can ignore that. Sony. If it's sensitive lands, it's sensitive lands, and it raises a whole bunch of issues. It relates to a lot of things. I don't see it that way. I see it as a much bigger picture. Sorry. Brian Wegener, 12360 SW Main St. #100,Tigard, OR representing Tualatin Riverkeepers, as the Watershed Watch Coordinator, went over his submitted,written,testimony (Exhibit C). Questions from Commissioners: There were no questions. John Frewing,7110 SW Lola Lane, Tigard spoke about the knowledge of Eric Lindstrom. He said Eric had written a book about Fanno Creek. He then gave testimony (Exhibit D) He spent a large amount of his time talking about his sketch entitled "CWS/Oregon" — (page 4 of Exhibit D). Questions from Commissioners: So you're saying no trails?I think we can have and keep the situation we have now but shouldn't be building additional access below the ordinary high water mark. PLANNING COMMISSION MEETING MINUTES-February 23,2009-Page 5 of 9 • Planning Manager, Di ck Bewersdorff, su mmed it up s ay in "The basic question is: Do you want to be able to change the location of a trail within the 100 year floodplain or do you want to leave it where it is?" QUESTIONS OF STAFF Can you speak to why or why not a variance process would be appropriate? The requirement shouldn't be there in the frstplace in that if it were to stay, it'd have to go thtvugh a variance process, and there's a potential we couldn't meet that criteria. PUBLIC HEARING CLOSED DELIBERATIONS One of the commissioners noted that they'd received 40 pages of material at the last minute that night and it seems to happen a lot. He said he doesn't see how they can be expected to make good decisions when they haven't seen all the material [ahead of time]. Regarding the ODF&W [Oregon Department of Fish and Wildlife] letter dated 2-23-09 (Exhibit E) that states they do not believe fish and wildlife will be adequately protected if we make this decision. He said he doesn't have time to read the rest of it but puts a lot of strength in what ODF&W has to say. Unless I have more time I can't give a vote. Inman reminded the commission that this allows all kinds of development. She said we are singling out the trail portion but this section has to do with a lot more than that. This is in a floodplain. She asked that everyone keep it in this context. One of the commissioners said he was disappointed in the City's presentation. He thought it could have been presented in a way that provided for some alternatives. He said that still, he concurs with President Inman. He said this needs to be treated carefully— that this was not just going to affect Fanno Creek, but is citywide. He also said he couldn't support it as presented. Another commissioner said he likes the idea of connectivity of path areas. That would be a top priority. One of the commissioners asked staff if it would be of benefit to have staff rethink this and come back later. Planning Manager, Dick Bewersdorff, said that whenever possible, when writing a staff report, alternative approaches should be provided. He said this hasn't been done in this case. He said there's no problem if the commission is uncomfortable passing it, having staff go back and develop some kind of criteria under which that would happen. It would take some time. The commissioners took a straw poll and decided they'd like to push forward with it. There was much deliberation that followed regarding the average annual flood elevation and two year flood elevation. At this point President Inman said she would not be comfortable making any changes below the two year at this point without further input because then they would be significantly changing things. Muldoon—likes the idea of connectivity of path areas. That would be top priority. Inman gave options of the commission: Deny, Modify the language,or send back for development of specific criteria. PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 6 of 9 • • Commissioner Doherty interjected saying that looking at the time and the fact that they'd put off the tree board twice, she would like to have Bewersdorff and Nachbar come back with some other language so they could go through and maybe feel a little more comfortable with the decision. President Inman said she felt as though she'd done a 180 since now they were talking about flood elevations and she's lost her ability to see the end goal. She said if they could get some direction from an engineer as to whether it's practicable to do, what it should be if they should change it, or if it should just come out—but what does that piece of it mean? Bewersdorff said an option would be to continue this hearing to a date certain. Nachbar said it doesn't make sense to rush into anything but he said it wouldn't take a lot to come up with a better basis for some modification to this requirement. A straw poll was taken and it was decided to continue to a time certain—April 6th. The commission then took a 5 minute break. 6. WORK SESSION 9:35 p.m. TREE CODE UPDATES DCA2009-00001 STAFF PRESENTATION John Floyd,Associate Planner, stated that staff is bringing forward amendments to Section 18.790 of the Tigard Development Code, otherwise known as the Tree Removal chapter. He stated that this workshop is being held to provide the Planning Commission an opportunity to.ask questions on the concepts or content of the code amendment,which will be duly considered and deliberated upon at a public hearing on March 16 of this year. The primary goal of this proposal is to clarify how an applicant may comply with the stated intent and preferences of the development code, namely the preservation of trees instead of their removal wherever possible. In 2008 the previous Planning Director issued a Director's Interpretation which attempted to provide this clarity. This interpretation was successfully appealed by the Homebuilders on the grounds that it overreached the scope of an administrative interpretation. As a result Council directed staff to bring forward code amendments,which brings us to tonight. A secondary goal of these amendments is to update content requirements to reflect current administrative practices and ISA standards. These goals would be made possible through the following changes: > Definitions o The definition of a tree has been expanded to reflect ISA standards and to clarify how an applicant is to measure a split trunk specimen > Stated Preference of the City o The current code states that "protection is preferred over removal wherever possible." o Staff proposes to change the phrasing from "wherever possible" to wherever practicable",with the meaning of practicable defined. This term introduces a degree of reasonableness to the code rather than an absolute, as was done in PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 7 of 9 • • the Comprehensive Plan, and is consistent with the p u rP ose statement which recognizes that trees may have to be removed as a result of development. > Tree Plan Requirements o Submittal requirements would be expanded, though much of this is already standard practice and the code would merely formalize these items. o Trees within 25 feet of the property line would have to be inventoried and assessed in the Tree Plan o The condition of a tree, the reason for its removal, and its diameter to a tenth of an inch would have to be recorded in the tree plan o A narrative and site plan would be required. These documents would provide the applicant, through his or her staff arborist; the ability to demonstrate how commonly accepted tree preservation strategies are being implemented to the extent practicable. This demonstration occurs through 8 questions that all plans would have to address. o A mitigation plan with would be required upfront,rather than a condition of approval. > Adequacy o There's been a lot of debate and discussion as to how a tree plan would be reviewed for adequacy (i.e. approval criteria). Staff has received a lot of comment from the Tree Board, the HBA and private citizens. In addition,we are still working with the City Attorney's office on final language. As a result there may be further amendments to Section 18.790.030.D when it is presented at the public hearing on March 16. o The intent of 18.790.030.D is to provide clear and objective approval criteria for an applicant,while still allowing the flexibility necessary to address each site on an individual basis. The solution put forth tonight would require a certified arborist to prepare and sign a self-certifying plan. The City would be required to accept that plan, so long as it meant minimum content requirements or was found lacking by an independent, third-party arborist under contract to the City. Two parties submitted comments prior to tonight's workshop: John Frewing and Alan DeHarpport on behalf of the HBA. Copies have been distributed for your review. Because this is a workshop, and not a public hearing, these comments will not be entered into the official record. That said, staff has invited the commenting parties to discuss their comments and concerns prior to the public hearing on March 16. At this point, Floyd concluded his presentation, and President Inman opened the meeting up to questions and/or comments. QUESTIONS & COMMENTS BY COMMISSIONERS President Inman asked if this was in response to the loss on the appeal. Yes. She said the other"elephant in the room" is mitigation —she asked if they were doing this because they need to address those criteria and that they would be coming back. Yes, absolutely. PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 8 of 9 I One of the commissioners asked Floyd "What are you looking for us to do? What is the purpose of this workshop?" The purpose of the workshop tonight is to put this language before you to he p familiarise you with what we'll be talking about at the public hearing.At this time it's just to help you understand what we'll be talking about at the next meeting and whether there are any major gaps thatyou see where changes may need to be made. Why is the measuring to the nearest 10th of an inch? To be more precise -in some cases it may mean something. President Inman and some of the other commissioners noted that they were impressed with how clear and concise the draft amendment is - number,5 particularly. There were no other questions or comments. 7. OTHER BUSINESS -None 8. ADJOURNMENT President Inman adjourned the meeting at 10:15 p.m. Doreen Laughlin,Planning Commission Secretary ATTEST: President Jodie Inman • PLANNING COMMISSION MEETING MINUTES—February 23,2009—Page 9 of 9 Pt A B. Delineation of wetland boundaries. Precise boundaries may vary from those shown on wetland maps; specific delineation of wetland boundaries may be necessary. Wetland delineation will be done by qualified professionals at the applicant's expense. 18.775.060 Expiration of Approval: Standards for Extension of Time A. Voiding of permit. Approval of a sensitive lands permit shall be void if: 1. Substantial construction of the approved plan has not begun within a one-and-one-half year period;or 2. Construction on the site is a departure from the approved plan. B. Granting of extension. The Director shall, upon written request by the applicant and payment of the required fee, grant an extension of the approval period not to exceed one year, provided that: 1. No changes are made on the original plan as approved by the approval authority; 2. The applicant can show intent of initiating construction of the site within the one year extension period; and 3. There have been no changes to the applicable Comprehensive Plan policies and ordinance provisions on which the approval was based. C. Notice of the decision. Notice of the decision shall be provided to the applicant. The Director's decision may be appealed by the applicant as provided by Section 18.390.040.G and 18.390.040.H. 18.775.070 Sensitive Land Permits A. Permits required. An applicant, who wishes to develop within a sensitive area, as defined in Chapter 18.775, must obtain a permit in certain situations. Depending on the nature and intensity of the proposed activity within a sensitive area, either a Type II or Type III permit is required, as delineated in Sections 18.775.020.F and 18.775.020.G. The approval criteria for various kinds of sensitive areas, e.g., floodplain, are presented in Sections 18.775.070.B— 18.775.070.E below. B. Within the 100-year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100-year floodplain based upon findings that all of the following criteria have been satisfied: 1. Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero-foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; 2. 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 defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; Sensitive Lands 18.775-10 Code Update: 5/07 S 3. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100-year flood; 4. The land form alteration or development plan includes a pedestrian/bicycle pathway in accordance with the adopted pedestrian/bicycle pathway plan, unless the construction of said pathway is deemed by the Hearings Officer as untimely; • 5. - .-.- - _ . .. • . • .- • - - - - - 6. 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 7. Where land form alterations and/or development are allowed within and adjacent to the 100-year floodplain, the City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the comprehensive plan. This area shall include portions of a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle pathway plan. C. With steep slopes. The appropriate approval authority shall approve,approve with conditions or deny an application request for a sensitive lands permit on slopes of 25% or greater or unstable ground based upon findings that all of the following criteria have been satisfied: 1. The extent and nature of the proposed land form alteration or development will not create site disturbances to an extent greater than that required for the use; 2. The proposed land form alteration or development will not result in erosion, stream sedimentation, ground instability, or other adverse on-site and off-site effects or hazards to life or property; 3. The structures are appropriately sited and designed to ensure structural stability and proper drainage of foundation and crawl space areas for development with any of the following soil conditions: wet/high water table; high shrink-swell capability; compressible/organic; and shallow depth-to-bedrock; and 4. Where natural vegetation has been removed due to land form alteration or development, the areas not covered by structures or impervious surfaces will be replanted to prevent erosion in accordance with Chapter 18.745, Landscaping and Screening. 11 Within drainageways. 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N , : ,.... :-. ... ilk ....... ,....'171. ....... ..:• - Phil Nachbar From: Brian Wegener[brian @tualatinriverkeepers.org] - Sent: Wednesday, February 18, 2009 3:46 PM To: Phil Nachbar Subject: US Fish &Wildlife Service Response to Trails in Floodplains Attachments: Re: [Fwd: FW: Copy of staff report to Planning Commission- Feb 23 - re SensitiveLands Permit Requirements(removal of section 18.775.070.B5)I.eml Jennifer 'Thompson@a,fws.gov wrote: Hi Brian - I don't have anything right at my fingertips on that, but Metro's environmentally-friendly trails guidebook comes to mind as a resource that should have some good info. on floodplain and other natural resource considerations (http://www.oregonmetro.gov/index.cfm/go/by.web/id=11897) . Marty Mitchell helped work on that, and hydrology was something she focused on. . Potential impacts: loss of fully functional flood area, altered hydrologic patterns (e.g. , trails could redirect water and create runoff channels; potential for erosion right next to/directed into the stream) , wildlife disturbance/reduced loss of value of riparian area as a wildife corridor/loss of interior habitat, loss of riparian area, increased invasion by non-native vegetation, public use-related impacts in a sensitive resource area, etc. That's probably nothing you haven't already thought of; sorry I don't have literature handy but I think it would be worth seeing what's in the guidebook and looking for further references there as one place to check. . . good luck, Jennifer Brian Wegener <brian @tualatinri verkeepers.org> To Jennifer Thompson 02/18/2009 10:44 <Jennifer Thompson @rl.fws.gov>, AM Jennifer Thompson <Jennifer Thompson @fws.gov> cc Please respond to brian @tualatinriv Subject erkeepers.org [Fwd: FW: Copy of staff report to Planning Commission - Feb 23 - re Sensitive Lands Permit Requirements (removal of section 18.775.070.B5)] 1 • E4-113,`‘4 Phil Nachbar From: Brian Wegener[brian©tualatinriverkeepers.org] - Sent: Wednesday, February 18, 2009 2:55 PM To: Phil Nachbar Subject: NMFS Review of trails in floodplains Attachments: Re: Trails in Annual Flood Plain.eml • nancy munn wrote: Generally, NMFS does not support trails in floodplains. That is because trails are usually paved,impermeable surfaces,that cause or promote erosion, and frequently replace valuable riparian trees and shrubs. As well, trail developer often want a view from the trail to the water, and so create overlooks and get rid of trees. This often leads to riprap and other forms of bank hardening that do not support ecological functions needed to support a cold.water fisheries. A final issue is that many trail developers want to use pesticides to prevent plants from encroaching on the trail; pesticides can kill juvenile salmon or lead to reduced survival. That said,NMFS does not have a problem with dirt trails within an intact and functional riparian community. Nancy Munn,PhD NMFS Brian Wegener wrote: - Nancy, The City of Tigard is proposing to allow trails below the annual flood elevation. This proposal is being heard at the Planning Commission meeting on Feb 23. Does NOAA/NMFS have an opinion on such a practice? Brian Wegener Tualatin Riverkeepers *From:* Phil Nachbar [mailto:p ti arg d-or.gov] *Sent:* Tuesday, February 17, 2009 2:45 PM *To:* 'Brian Wegener' *Cc:* Ron Bunch *Subject:* Copy of staff report to Planning Commission - Feb 23 -re Sensitive Lands Permit Requirements (removal of section 18.775.070.B5) Brian, 1 • MEMORANDUM Page 1 oft To: Planning Division, City of Tigard From: Eric L. Lindstrom EdD Re: Development Code Amendment(DCA)2008-00005—Proposal to Amend section 18.775.70.6.5 of the Sensitive Lands Permit Requirement Date: February 23, 2009 Attachments: Photo, Goal 5 The request for this amendment states that"removal of this requirement[18.775.70.6.5]does not affect the protection of sensitive habitats or floodplain requirements." Arguments supporting this request may include some of the rationale indicated in bold type below. The merits of these arguments are discussed in the paragraphs that follow. Supporting the Amendment—The original intent of Section B.5 is unclear. While the Code might benefit from elaboration, particularly with regard to explaining what an "average annual flood" might be, there are a number of legitimate reasons for expressly prohibiting developed pathways through areas that are regularly inundated. 1. A developed pathway, particularly one constructed out of impermeable materials, absolutely and negatively impacts the functionality of the portion of the watershed it covers. 2. Depending upon its location and general design a developed pathway can easily have unforeseen and negative impacts on the storage and flow patterns of a given area. (Exhibit A— Yellow Jacket Canyon) 3. Placing developed pathways through areas that are prone to annual inundation will lead to higher than average maintenance requirements and related expenses. 4. When placed in annually flooded areas, pathways designed to encourage pedestrian traffic between different parts of the city complex unnecessarily limit access during peak rain events and in the bargain pose a slight but still unacceptable risk to public safety. Supporting the Amendment—Locating trails and bicycle paths in areas inundated on a regular basis does not pose a threat to sensitive habitat areas. The direct impact of such development is discussed in points 1 through 4 above.There are additional non-surface impacts that need to be taken into account. Most species of plants and animals native to Oregon are highly sensitive to regular proximity with human populations. The so called "canaries in the mine shaft" in this instance are native species of turtles, followed closely by native species of amphibians. Unless the City exercises greater caution with its development projects the day is close at hand when these species will cease to think of Tigard as"A Place to Call Home." Supporting the Amendment—Removal of this section supports Statewide Planning Goal 5. The express purpose of Goal 5 is"To protect natural resources and conserve scenic and historic areas and open spaces." The entire document resonates with a sense of respect and stewardship for the land. Eric Lindstrom—Watershed Research and Photography—6801 SW Canyon Crest Drive/Portland/OR 97225 503-358-7144(cell)/503-296-8440(home)/el.lindstrom(acomcast.net I* .. MEMORANDUM Page 2of2 _ Under the Planning and Implementation sections of Goal 5 (Exhibit B) three paragraphs are particularly relevant with respect to 18.775.70.B.05: 2.(P) Criteria should be developed and utilized to determine what uses are consistent with open space values and to evaluate the effect of converting open space lands to inconsistent uses. Lands that are annually inundated are flood areas. Uses that are most consistent with such lands are as holding and processing areas for stormwater runoff and habitat for native flora and fauna. Any other utilization of these lands is inconsistent with their natural functionality. 4.(P) ....The land conservation and development actions provided for by such plans should not exceed the carrying capacity of such resources. These lands, including the 100 year floodplain itself, are heavily degraded and their carrying capacities have already been greatly exceeded. By further diminishing the total effective area and altering the physical landscape, developed pathways automatically further degrade the carrying capacities of the land. 6.(I) ...Plans should provide for the preservation of natural areas consistent with an inventory of scientific, educational, ecological and recreational needs for significant natural areas. Plans exist for the development of pedestrian and bicycle pathways through Fanno Creek Park, and presumably these developed from an inventory of community interests and existing resources. These plans are formal and current, and as such they may demonstrate a level of conformity to the spirit of the article. But no other such formal and current plans (supported by similar inventories) exist that are related to the other uses of these lands as specified in this section of Goal 5. Without such specific and detailed attention to all the items specified in the section 6, Goal 5 itself is not supported. Supporting the Amendment—Removal of this section is necessary in order to support an already approved development plan for Fanno Creek Park and adjoining areas. ' That an already approved Master Plan for Fanno Creek Park may not be consistent with Tigard's own Development Code is a worrisome thought. It calls into serious question issues of process and oversight. As worrisome as that may be however, it is far less worrisome than using this kind of amendment process to the Code as the preferred method for correction. Such an action might even establish a precedent for calling into question other instances of Code enforcement related to sensitive lands, past as well as future. Precedents of this nature tend to degrade the integrity of the Code. . In conclusion, while the development of pedestrian and bicycle pathways are desirable components of responsible parks plans, they should not be planned in a manner that unnecessarily compromises the functional integrity of lands in the 100 year floodplain. Nor should the design and ultimate implementation of such plans come at the cost of the integrity of the City's own Development Code. Thank you. I sincerely hope you will not approve DCA 2008-00005. 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In other words it was built entirely for recreational purposes. Note that the road has created a dam that now limits the flow of water from the south (picture right)to the north. Note also the meandering creek at the foot of the bluff to the south. An on-foot examination of this creek would show that the bed is heavily incised due to flash flooding. While the creek has always been flashy, the action has increased significantly since the creation of the road resulted in limiting the spread of stormwater run off from the uplands into those areas north of the roadway. To one extent or another, this phenomenon occurs wherever an obstruction in the form of a road or pathway is placed upon a watershed area. And while it may appear extreme graphically, it is merely indicative of similar but less readily depicted situations that exist at many places throughout the Fanno Creek Watershed. Eric Lindstrom 2/23/2009 • Oregon's Statewide Planning Goals & Guidelines GOAL 5: NATURAL RESOURCES, SCENIC AND HISTORIC AREAS, AND OPEN SPACES OAR 660-015-0000(5) (Please Note: Amendments agencies are encouraged to maintain Effective 08/30/96) current inventories of the following resources: To protect natural resources and a. Historic Resources; conserve scenic and historic areas b. Open Space; and open spaces. c. Scenic Views and Sites. Following procedures, standards, Local governments shall adopt and definitions contained in commission rules, local governments shall programs that will protect natural determine significant sites for resources and conserve scenic, historic, inventoried resources and develop and open space resources for present programs to achieve the goal. and future generations. These resources promote a healthy GUIDELINES FOR GOAL 5 environment and natural landscape that contributes to Oregon's livability. A. PLANNING The following resources shall be 1. The need for open space in the planning area should be inventoried: determined, and standards developed a. Riparian corridors, including for the amount, distribution, and type of water and riparian areas and fish open space. habitat; 2. Criteria should be developed b. Wetlands; and utilized to determine what uses are c. Wildlife Habitat; consistent with open space values and d. Federal Wild and Scenic to evaluate the effect of converting open Rivers; space lands to inconsistent uses. The e. State Scenic Waterways; maintenance and development of open f. Groundwater Resources; space in urban areas should be g. Approved Oregon Recreation encouraged. Trails; 3. Natural resources and h. Natural Areas; required sites for the generation of i. Wilderness Areas; energy (i.e. natural gas, oil, coal, hydro, j. Mineral and Aggregate geothermal, uranium, solar and others) Resources; should be conserved and protected; k. Energy sources; reservoir sites should be identified and I. Cultural areas. protected against irreversible loss. Local governments and state 4. Plans providing for open • S . space, scenic and historic areas and habitats should be protected and natural resources should consider as a managed in accordance with the major determinant the carrying capacity Oregon Wildlife Commission's fish and of the air, land and water resources of wildlife management plans. the planning area. The land 5. Stream flow and water levels conservation and development actions should be protected and managed at a provided for by such plans should not level adequate for fish, wildlife, pollution exceed the carrying capacity of such abatement, recreation, aesthetics and resources. agriculture. 5. The National Register of 6. Significant natural areas that • Historic Places and the are/historically, ecologically or recommendations of the State Advisory scientifically unique, outstanding or Committee on Historic Preservation important, including those identified by should be utilized in designating historic the State Natural Area Preserves sites. Advisory Committee, should be 6. In conjunction with the inventoried and evaluated. Plans should inventory of mineral and aggregate provide for the preservation of natural resources, sites for removal and areas consistent with an inventory of processing of such resources should be scientific, educational, ecological, and identified and protected. recreational needs for significant natural 7. As a general rule, plans should areas. prohibit outdoor advertising signs 7. Local, regional and state except in commercial or industrial governments should be encouraged to zones. Plans should not provide for the investigate and utilize fee acquisition, reclassification of land for the purpose easements, cluster developments, of accommodating an outdoor preferential assessment, development advertising sign. The term "outdoor rights acquisition and similar techniques advertising sign" has the meaning set to implement this goal. forth in ORS 377.710(23). 8. State and federal agencies should develop statewide natural B. IMPLEMENTATION resource, open space, scenic and historic area plans and provide 1. Development should be technical assistance to local and planned and directed so as to conserve regional agencies. State and federal the needed amount of open space. plans should be reviewed and 2. The conservation of both coordinated with local and regional renewable and non-renewable natural plans. resources and physical limitations of the 9. Areas identified as having land should be used as the basis for non-renewable mineral and aggregate determining the quantity, quality, resources should be planned for interim, location, rate and type of growth in the transitional and "second use" utilization planning area. as well as for the primary use. 3. The efficient consumption of energy should be considered when http://www.oregon.gov/LCD/docs/qoals/qoal utilizing natural resources. 5.pdf 4. Fish and wildlife areas and February 22, 2009 Tigard Planning Commission Tigard, Oregon RE: Development Code Amendment(DCA) 2008-00005/ Sensitive Lands Permit Requirements Dear Planning Commission Members: We are writing to comment on the City of Tigard's proposal to remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirement which reads in part that"no pathway will be below the elevation of an average annual flood." Fans of Fanno Creek is a local advocacy group for Fanno Creek and its tributaries with many members who donate significant time and effort during the year to plant native vegetation and remove non-native species. While many of our members use trails for various reasons, we do not support any building of new trails that would in any way cause negative impacts to our natural resources. We believe that 18.775.070.B.5 is a necessary part of the code and should NOT be removed for a number of reasons. 1. Staff argues in their memorandum for this proposal that removing this part of the code would allow Tigard to build trails in areas of Fanno Creeek Park"currently inaccessible." Almost all of the Park is currently accessible to the public right now and those areas that don't have trails are this way for a good reason,they are wetlands that flood annually or are wet year-round. Fanno Creek Park,as well as all of our other creeks and adjacent wetlands in Tigard,are classified as"Significant Habitat Areas", and the Park is rated as an area with the "Highest Habitat Value". This means that these areas receive the highest level of protection under Goal 5 in order to protect habitat, water quality,and the fish and wildlife that live in these areas. Placing trails to these currently inaccessible wetland areas would have dire negative impacts to these important habitat areas by adding impervious surface(trails), increasing disturbance to fish and wildlife, increasing dogs and other pets to the area and increasing the amount of garbage to these significant habitat areas. 2. Staff argues that removal of this section of the code will improve the ability of Tigard to meet the newly revised comprehensive plan goals, including"providing passive recreational opportunities such as trails in parks and open spaces." Keeping this part of the code intact will NOT in any way prevent Tigard from meeting the goals, as there already exist numerous trails throughout our city including both the Fanno Creek regional trail which goes through Fanno Park,and numerous other trails throughout our parks and open spaces. In addition,the on-going Trail Study has identified numerous short trail segments in uplands that will help to meet the comprehensive plan goals for trails and nature-oriented recreation. According to the . updated Comprehensive Plan, Tigard already has over 9 miles of completed trails, which include over 1.5 miles of trails within Fanno Creek Park already. • 3. Whoever wrote this section of the code did a very wise thing,by Not allowing trails in the Park and elsewhere in Tigard that have"average annual flooding", as it helps to protect these significant habitats. Building trails in these wet areas would only serve to: • add impervious surface areas to the wetlands, • would fragment habitats, • would create barriers to wildlife moving through these significant habitats and • would degrade water quality • would create safety issues for the public using these trails in flooded areas. 4. Staff argues that the"original intent of the part of the code remains unclear." However, staff then proceeds to list"perceived"reasons as to why the code is included. Their"perceived"reasons are exactly correct, in that yes,this part of the code does indeed help to: • Lessen impacts on floodplains, • Helps to alleviate public safety concerns, • Reduces potential maintenance associated with inundated trails, • Reduces negative impacts to habitat and the"flora and fauna"associated with those important habitats. 5. Staff argues that removal of this part of the Sensitive Lands code will not negatively impact Statewide Planning Goal 5 (Natural Resources). Staff is also wrong on this argument,for in fact removal of this section of the code will have severe negative impacts on our natural resources especially in these areas that"flood annually." With increased development in Tigard and surrounding cities, our creeks and wetlands now flood more frequently and at greater volume and velocities every year. This has negative impacts on both habitat and fish and wildlife. Adding trails to these areas that flood annually will only serve to increase these negative impacts, by adding increased impervious surface,degrading habitats, some already in poor condition, degrading water quality, and putting people at greater risk. 6. Staff argues that removal of this section of the code will improve the ability of Tigard to meet the newly revised comprehensive plan goals, including"providing passive recreational opportunities such as trails in parks and open spaces." Keeping this part of the code intact will NOT in any way prevent Tigard from meeting the goals, as there already exist numerous trails throughout our city including both the Fanno Creek regional trail which goes through Fanno Park,and numerous other trails throughout our parks and open spaces. In addition,the on-going Trail Study has identified numerous short trail segments in uplands that will help to meet the comprehensive plan goals for trails and nature-oriented recreation. According to the updated Comprehensive Plan, Tigard already has over 9 miles of completed trails, which include over 1.5 miles of trails within Fanno Creek Park already. 7. Rather,the removal of this section of the code will actually Violate two policies of the revised Comprehensive Plan which state"The City shall acquire and manage some open spaces to solely provide protection of natural resources...."And"The City shall maintain and manage its parks and open space resources in ways that preserve, protect,and restore Tigard's natural resources, including rare or State and Federally listed species(Pond Turtles), ...." Building in these sensitive wetlands that flood annually will violate both of these policies of the comprehensive plan as well as the Sensitive Lands code. Putting pathways in areas that flood annually including near stream banks creates 1) impervious surface areas or if it is a boardwalk,creates an obstruction in wildlife habitat and fragments existing "significant habitat"; 2)puts people in areas that provide "significant, critical habitat" for imperiled species including Western Pond Turtles, which by state and federal law must be protected and in which are highly sensitive to human disturbance including noise from people walking,talking, biking, etc; 3) introduces dogs and other pets that should not be allowed in Significant Habitat areas; and 4) increases debris, garbage, etc. that will enter the area. Finally, removing this section of the code in no way protects,preserves or restores habitat or species since it will only serve to have multiple negative impacts on our precious natural resources. 8. Staff fails to mention that in the Fanno Creek Master Plan is also included a project to improve Fanno Creek through remeandering one section of Fanno Creek, improving bank stability, and also by increasing the available habitat for the Western Pond Turtle,an imperiled and State and Federal listed species that is found in the park. Fans of Fanno Creek met on-site with Clean Water Services and the Oregon Department of Fish and Wildlife in 2007 and 2008;these meetings included discussions of the Fanno Creek improvements and possible trail construction and alignments. Both agencies recommended that the current trail on the southwest side of the park be removed in order to reduce the negative impacts it has to the creek,the creek bank and the wetlands, and that NO NEW TRAILS be built in the newly created remeander/wetlands area of the park. This was agreed upon in order to protect the habitat and to give fish and wildlife, including turtles which need quiet, backwater areas away from human disturbance in which to grow and thrive, a place of refuge in the park. The public can still see and appreciate this area from a distance when it is completed as well as enjoy almost the entire rest of the park from the current existing trails. 9. Fanno Creek is listed as"Essential Salmonid Habitat"which means that any addition or removal of material associated with path construction creates a need for a DSL permit. Staff in their report fail to address this and how this DSL regulation affects their proposal to delete this section of the code. 10. Staff failed to consider Metro's"Green Trails Guidelines for Environmentally Friendly Trails"; One section discusses how to site a potential trail route and evaluate impacts to natural resources. It states that routes should"avoid negative impacts to wildlife habitats and water resources and that this is achieved by routing the trail around these resources." It is crucial that staff and the city as a whole get on board with the rest of the region by adopting these Green trail guidelines and standards in order to truly protect and conserve our important natural resources. Dropping the. • proposed section of the Sensitive Lands Permit Requirements is the wrong"route"to take! 11. Any future effort to revise or change our Sensitive Lands Code must include a thorough hydrologic study that analyzes the hydrology of our city and includes how global climate change and development will affect the hydrology in the future. It must also include analyzing the hydrologic impacts that result as a consequence of placing trails near streams and wetlands and how it affects/impedes flow,velocity, water volume,etc. This should certainly be done before the city can accurately state that they will not have any adverse/negative impacts to natural resources. Anything less is unacceptable. In conclusion,we request that the Planning Commission DENY the City of Tigard's request to remove this important section of the Sensitive Lands Permit section of the Development Code, in order to protect our natural resources and meet Tigard's obligations under Goal 5, Title 3 and the Tigard Comprehensive Plan. Thank you for the opportunity to comment. Sincerely, Sue Beilke, Board member,Fans of Fanno Creek TUALATIN RIVERKEEPERS• �, yf� 11360 SW Plain Street • Tigard,Oregon 97223 111 . 503-620-7507 • fax:503-620-7645 • email:info @tualatinriverkeepers.org www.tualatinriverkeepers.org February 23, 2009 Tigard Planning Commission 13125 SW Hall Blvd Tigard, OR 977223 • RE: DCA2008-00005 Dear President Inman and Planning Commissioners, The following testimony submitted by Tualatin Riverkeepers is in support of our request that you deny Development Code Amendment DCA2008-00005. Section III, Paragraph 3 of the staff report states The City can only speculate on the reason for the inclusion of Section 18.775.070.B.5. in the Sensitive Land Chapter. The section requires that "the plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood". It is likely that it had something to do with maintaining year- round pedestrian accessibility (out of the annual flood elevation), and/or maintenance concerns. Actually, the city staff could have and should have done much more than"speculate as the reason of inclusion"of 18.775.070.B.5. in the Sensitive Land Chapter. At minimal, the city staff should have consulted an ecologist, a wetlands biologist, a habitat specialist, or a hydrologist as to why this section of the code is included. Since the city staff neglected to perform this minimal task in preparing its report, I contacted several local government scientists and asked them why the city should not allow trails below the annual flood elevation. Jennifer Thompson of the U.S. Fish and Wildlife Service listed the following potential impacts to allowing trails in floodplains: Potential impacts: loss of fully functional flood area, altered hydrologic patterns (e.g., trails could redirect water and create runoff channels;potential for erosion right next to/directed into the stream), wildlife disturbance/reduced loss of value of riparian area • • as a wildife corridor/loss of interior habitat, loss of riparian area, increased invasion by non-native vegetation,public use-related impacts in a sensitive resource area, etc. Jennifer Thompson Project Coordinator U.S. Fish& Wildlife Service Oregon Office Ms. Thompson also suggested that I consult Metro's Green Trail Guidelines. I contacted Lori Hennings, Senior Natural Resource Scientist with Metro and got this information about the trail guidelines and why trails should not me in floodplains: Metro's Green Trails: Guidelines for environmentally friendly trails"publication speaks to this issue on Page 33, section 4.4— Water Resources: "Avoid crossing streams, wetlands and floodplains. Trails can interfere with floodplain dynamics, groundwater movement, and stream transport of large wood and bedload. Care should be taken to avoid the impacts of trails on these resources by avoiding wet areas, springs,floodplains, stream corridors, wetlands and the lower portions of slopes, especially those that face north... " There are other reasons not to disturb such areas if at all possible. Streams provide the region's best remaining wildlife corridors, and also some of the most important remaining wildlife habitat,particularly for songbirds and most particularly for Neotropical migratory songbirds, the latter which are declining rapidly and consistently in our region and are also sensitive to human disturbance. The closer a trail is to a stream, the more it will impact these resources. Floodplains are also, obviously,frequently flooded; trails built there will consistently need repair, causing both significant expense and repeated wildlife habitat disturbance, as well as loss of access to foot and bicycle traffic during wet seasons. If a stream bears salmonids, NOAA Fisheries should be consulted before disturbing the riparian area. Lori Hennings Senior Natural Resource Scientist Metro Sustainability Center Following Ms. Hennings advice regarding salmonid bearing streams, I also contacted National Marine Fisheries Services and got this response: Generally, NMFS does not support trails in floodplains. That is because trails are usually paved, impermeable surfaces, that cause or promote erosion, and frequently replace valuable riparian trees and shrubs. As well, trail developer often want a view from the trail to the water, and so create overlooks and get rid of trees. This often leads to riprap and other forms of bank hardening that do not support ecological functions needed to support a cold-water fisheries. A final issue is that many trail developers • • Maris Hainot Poriservalion Division asia:PA -- National alarltrie Fisheries Serl lee Vire-goo Office Statoivifie Planning Cairo! 5; asnitinial Room-Dig Ficenie mini I lislorie Areas, nod (linen Spat:t'S • .iLy •i... 1,1hitivi :11W..1.; Phonon ID: Tualano plan bar-avail lay Marro and :Hi thitt Harailairabb arab: bath tab: Plariabritt that: is ha part Habib pithabsa C,11 orceigion aria Council's recommendation on habitat protection : . . • • • . Allow development po: • • Low habitat conservation area • Moderate habitat conse Pion area • ha High habitat curiae ;titan area • SU Parks and open spaces Streams artd Ovate • :......, Not affected by recommendation • • As eon sec: Awn the sisen e temp peewee. %Menne the home nresie stess earme Creek P.M:: lmts•e* tedm riefinoraingivi Co. tee hippo Ica ca ofiesige OD goo- ossignaled 5-5 hathattahibri cianaida alibi Ha hithitibi ithithabia :hi He that, ob gonna ealeori finis hinacete Liplantl for danshopirinot fitotion hoo Took Peps areas: 1100, 1. . • . A, • „ • • - . • z • idc Clval 7: Nliniral Haffirds I .11.1211TIIC.11)1 01..ii. .11 111,1 !I:1,1,k\:11, 1.11. t:ED17.,RAL oR STA,T1,.7Titst Fzi.....c(1,.\•1•1()Ns HAI:\ :IL- 111: 11 • 14.111:1;.11:, 1.11L' 1,11. 111,-;\ ...1.111 ;11111.1117.1.: 114..;ARI) (...(JNIVREILL.N. 1‘ • • that habitat degradation along Tigard's creeks, streams and the Tualatin River has impacted several sensitive species including the federally listed steelhead trout. Thus, additional protection provided by 18.775 is warranted. SECTION VI. ALTERNATIVES TO APPROVAL The staff report was missing any analysis of alternatives to approval. Since the primary motivation of this proposed action is to accommodate trails in Fanno Creek Park, it would be appropriate to discuss alternatives to placing trails below the Annual Flood Elevation in Fanno Creek Park. Tigard's Sensitive Lands Ordinance 18.775 provides procedures for a variance to its requirements. Eliminating a Section 18.775.070.B.5 just to accommodate one particular project is inappropriate when variance procedures exist. Doing so makes the rest of Tigard's flood prone natural areas at further risk to degradation. Thank you for your attention to our testimony. Tualatin Riverkeepers urges you to reject DCA20008-00005. Sincerely, 61,;410. Brian Wegener Watershed Watch Coordinator Tualatin Riverkeepers 4 • • TESTIMONY OF JOHN FREWING FEBRUARY 23, 2009 DEVELOPMENT CODE AMENDMENT 2008-00005 SENSITIVE LANDS PERMIT REQUIREMENTS I an an advocate of additional pedestrian facilities in Tigard, however this proposed code change is not compatible with the needs of our natural surroundings and I oppose it. 1 The Public Hearing Notice did not identify as applicable review criteria,those regulations of the CWS Design and Construction Standards which Tigard is required to meet per its IGA with CWS. I ask that you receive and accept by reference these CWS standards and the IGA into the record of this proceeding. The staff report section on "Any Applicable METRO Regulations"and specifically its reference to METRO Title 3 compliance errs in stating that the CWS Design and Construction Standards do not affect the proposed change. See the attached sketch of streamside lands: the proposed permission of development on lands below OHWL(Ordinary High Water Level,annual high water level)are well within the 'sensitive area'of CWS regulations and are prohibited. 2 The proposal to allow pathways within the area of annual flood levels increases maintenance costs to the city. TDC provisions for flexibility in application of the current code (ie adjustments,variances)prohibit such flexibility where public safety is reduced or where maintenance costs are increased. 3 From the staff report, it appears that what Tigard has in Fanno Creek Park is a 'nonconforming situation',TDC 18.760. Tigard should determine the extent of the existing nonconforming situation and regulate the current use of Fanno Creek Park before proposing changes to the code. As a result,this proceeding should be a Type III decision-making action rather than the proposed Type IV decision-making action. See TDC 18.775.130, 'Plan Amendment Option'which calls for a quasi-judicial proceeding when Goal 5 protection is to be vacated. This process calls for an ESEE analysis(OAR 660-23-04.0) not provided here. 4 This proposal would result in 'development'within the banks (2-yr recurrence level) of the stream. Oregon DSL rules call for'mitigation'of work in this area: DSL provides a hierarchy of mitigation priorities,the first being 'avoid by not taking a certain action.' Tigard should retain the prohibition of development with the banks of Fanno Creek. 5 The proposed change would affect many areas of Tigard for an identified problem in only one spot—Fanno Creek Park. Rather than a code change,an 'adjustment',TDC 18.370 or variance would better resolve the problem—within the procedures for adjustment and variance, there is 'a balancing of public benefit against the strictures of the code. Alternatively, if only a local site is of concern, CWS rules provide for limited 'encroachment' into the vegetated corridor. 6 The proposed areas for trail development are within METRO's highest level of sensitive habitat areas. If trail development is needed, it should be limited to those 'development allowed'areas found on METRO habitat maps. • • 7 The proposed code change will result in trails with safety issues. ODOT already has spoken about the problem of Fanno Creek Trail crossing Hall near the creek. Tigard should resolve this issue of safety by designing a Fanno Creek trail location which leads the trail from Main St to the Tigard Senior Center,then OMara St,and to the regulated Hall Blvd crossing at Wall St, where there is a light. 8 The processing of this change appears to avoid the normal independent staff review of a proposal: the Owner is Tigard,the Applicant is Tigard (Nachbar),the staff report is by Tigard (Nachbar),and the Applicant's agent is Tigard(Nachbar). Please consider assigning an independent reviewer to address both the need/benefit of this code change with the cost/harm to Tigard natural resources. 9 This proposed change has not been forwarded for review and comment to two important agencies which have responsibilities in this area: ODOT and Oregon Dept of Parks and Recreation. ODOT has specific skills and responsibilities for transportation, including pedestrian and bike ways. Oregon Dept of Parks and Recreation has funded projects in Tigard and has standards for development which are relevant here. The proposed change should be held in abeyance until such additional coordination(see mandatory provisions of Goal 2) can be executed. 10 Because Fanno Creek is an area of"Essential Salmonid Habitat",the DSL exemption of 50 yards of material removal does not apply; any addition or removal of material associated with path construction creates a need for DSL permit. The DSL permit,while not exempted by this change in local code, has review, alternative and mitigation standards which make the usefulness of the proposed code change nil. 11 Those applicable review criteria which are mentioned in the Public Hearing Notice are listed in only the most general sense;specific provisions of the referenced large documents and avoidance of the term "any(federal,state, METRO, local) statutes or regulations"should be observed. The public is not able to meaningfully participate (timely and effective) in this decision with only such vague references. 12 Under discussion of Tigard Comp Plan Goal 8.1 and its associated Policies 4 and 6, staff maintains that the proposed removal of prohibition on paths below OHWL'supports'these policies. I do not believe this is true because for the recognized Fanno Creek Park area, other city parks and linear parks exist within one half mile of the area affected here. As a minimum, a revised staff report should demonstrate how failure to construct bike or pedestrian paths below OHWL in Fanno Creek Park creates areas without a public park within one half mile. Access to passive recreational areas near water does not require trails; in fact,trails produce local areas of excessive impact—more distributed impact favors existing habitat. 13 Tigard staff should consider the guidance of METRO's "Green Trails:Guidelines for Environmentally Friendly Trails." At page 67 in this document, the message is clear: "How do • you site a potential trail route? Evaluate trail routes in natural areas and restricted urban corridors. In natural area settings, it is of primary interest for trail routes to avoid negative impacts to wildlife habitats and water resources. This is achieved by routing the trail around these resources." The buffer widths necessary to protect the functions of streams and wetlands(Appendix C,attached)and the associated 12 pages of technical references support the need to not build trails below the OHWL. 13 Discussion of Tigard Comp Plan Goal 8.1 and associated Policy 17 asserts that the proposed change does not automatically mean trails will be constructed below OHWL; other parts of the staff report claim the opposite—that trail development is needed at this elevation. The conflict should be resolved by staff before Planning Commission and City Council decisions. This same discussion asserts that trail construction by itself does not impact sensitive habitat or species— as if a trail would be constructed without the expectation that it would be used by people, dogs,bikes,etc—all of which create impact on sensitive habitat or species. The Planning Commission should find this reasoning false and recommend to City Council denial of the proposed code change. 14 Policy 2 of Goal 8.2 in the Tigard Comp Plan is clearly violated by the proposed code change. Staff discussion of this policy doesn't address how trail construction below OHWL will 'minimize'the impact on the natural environment; in fact the opposite is true—it would increase the impact on the natural environment, eg stream bank and buffer areas. 15 Discussion of consistency with TDC 18.775 begins with an analysis of safety,concluding that trails constructed below OHWL'would not pose a danger to safety of the public.' I respectfully disagree. Trails which are flooded are then covered with sediment from the flood waters and become slippery for both pedestrians and bicyclists—this is a safety hazard. At some cost, Tigard could presumably post danger signs and using brushes or high pressure water, wash off the flooded trails, but with limited maintenance dollars, a public hazard would be created for some time on such trails. 16 Discussion of consistency with TDC 18.775 ignores completely consistency with purpose A: "Maintain integrity of rivers, streams and creeks." Same for purpose C: "Implement CWS D&C Standards for the Tualatin Basin". Comment 1 above speaks to the lack of consistency with CWS D&C Standards. The 'integrity'of streams can only refer to their functional roles and associated needs in our natural environment. The METRO trail guidance noted in Comment 13 above and the attached tabulation of necessary buffer distances to meet these functions effectively preclude the construction of trails below the OHWL. Attachments Sketch Appendix C of METRO's 'Green Trails'text and handbook. 1 I , , • • „, , ; . . -1(A iccFc■k2,44 t-rWT-7.- to i ; ; • ; : • , 1 , f I 1 i 1 1 , i 1 41).Le)t,R. bIt_zipt 1.23,*.b.Si3- )MQLS i I , , I 1 ) , I , H . I •I 1 i ! : ' i ! t „ • ii s. I 1 1 . i I 1 i 1 i! ; i : , : • ; i : I 1 1 1 , . . I \,--)•r` c 1-- -`e,t 1 ) i ' I 1 i , , . . , , , ; , , 1 . t , ,•: L3 , I, -IN: , .c;',f)I -5-`• ir•' i - ..43 i 1 . , I : • ; • (11 Kt) I 1 /E4-- ill-trizi-ri.'0 1 1 1 1 1 J i , 1 • : . . ; . , , ; 1 • : c.. ‘, 1 loz.-1 s . . i . : .• ; , ; ,' , , • . .• I 1 ' 1 ; : ! I I ■ 1 I : i 1 ! . i 1 , ■ 1 . j ) 1 1 i i ! - es-r--.--..-Ir---------7: i i t i l i , ; ; I . . '-....,,,01114 ■ i , xy ix-/ 7 . • ;, ., : . . , . , . • . , : , t NistoLi I 1 141 t_ , ...... • i . . . , li 1 i , : • : , 7, - lem , . I , . , : --i3P5-1.- -i' c7)-:. b : , f._;0)-ei 41,,6cs ---._ . ' • 1 I I i r 1 Alibie..,..„*.411:1141111r.,,,,,,, --,,,,....-,1, 7.„-•1.- i I POCM-71:31 \)‘1017 IT 1 1 . 1 i • ; I -W111411111F1 1 1 , 1 i i la! VOTPR Ii3S) ) 1 . i r 1 • 1 I 1 i i 1 r . r , . i ; i • j . ! 1 ; 1 i Ci■-iWi' 1.....„. 'F!C'14'- '1- 12PI'M 1 ;"")(IA"? r . i . . I ■ . r 1 I N . --*/ 1-•i ',0 V*k ! • <2#•' *) ;4 IN • . 1 ; ! ‘C1f4 17-, i DC:0 _is —..'S(tt,..)jr--- -Y.:R ' . i . ■ 1 I , . . ); 9:5-m, _. it9g0-JeNzse--130,,W1 1 ; . • , • , , . 1 1 , t • i : ; 1 1 • , , , , . . . , ! , . . , ; , I ; 1 1 1 1 ; 1 : ; ; I ; ; ,•• , , ; 1 ! ! • 1 , ; ; : 1 ! ■ 1 i , ; 1 • 1 i 1 1 1 1 I ! , , • • . i r . Sgi Range of functional riparian area widths for wildlife habitat ea Terrestrial habitat ea ea Function Reference Recommended width (each side of stream) ibi Willow flycatcher nesting Knutson and Naef 1997 123 feet ON Full complement of herpetofauna Rudolph and Dickson 1990 >100 feet ea Belted kingfisher roosts USFWS HEP Model 100-200 feet INSmaller mammals Allen 1983 214-297 feet Birds Jones et al. 1988 246-656 feet tal Minimum distance needed to Hodges and Krementz 1996 328 feet tiUsupport area-sensitive neotropical migratory birds eigi Vi Western pond turtle nests Knutson and Naef 1997 330 feet i+. a Pileated woodecker Castelle et al. 1992 450 feet c Bald eagle nest, roost, perch Castelle et al. 1992 600 feet Nesting ducks, heron rookery and sandhill cranes Pileated woodpecker nesting Small 1982 328 feet Acronyms Mule deer fawning Knutson and Naef 1997 600 feet USFWS: U.S. Fish and Wildlife Rufous-sided towhee breeding Knutson and Naef 1997 656 feet Service populations FEMAT: Forest Ecosystem , - . General wildlife habitat FEMAT 1993 100-300 feet Management Assessment General wildlife habitat Todd 2000 100-325 feet Team = General wildlife habitat May 2000 328 feet A ./(1,. rp,J�� �,.� 154 �- '-1j yzno \.1 Z`�3 v 9 r Range of functional riparian area widths for fish habitat and water quality Aquatic habitat Function Reference Functional width (each side of stream) -=- 4 Shade FEMAT 1993 100 feet _ y N Shade Castelle et al. 1994 50-100 feet r y m c Shade Spence et al. 1996 98 feet a c Shade May 2000 98 feet -_ E ., Shade Osborne and Kovacic 1993 33-98 feet • __._ /.- = Shade/reduce solar radiation Brosofske et al. 1997 250 feet E Control temperature by shading Johnson Ryba 1992 39-141 feet .o Bank stabilization Spence et al. 1996 170 feet R c Sediment removal and erosion control May 2000 98 feet C c Ephemeral streams Clinnick et al. 1985 66 feet -- -:- R 8 Bank stabilization FEMAT 1993 1 SPTH Sediment control Erman et al. 1977 100 feet N Sediment control Moring 1982 98 feet c . Sediment removal Johnson and Ryba 1992 10 feet sand-400 feet clay 00 High mass wasting area Cederholm 1994 125 feet Acronyms Nitrogen Wnger 1999. 50-100 feet USFWS: U.S. Fish and Wildlife Service R General pollutant removal May 2000 98 feet — FEMAT: Forest Ecosystem s o Filter metals and nutrients Castelle et al. 1994 100 feet Management Assessment ao ;'. Pesticides Wenger 1999 >49 feet Team _ Nutrient removal Johnson and Ryba 1992 33-141 feet HEP: Habitat Evaluation • c Large woody debris Spence et al. 1996 1 SPTH Procedures > ea Large woody debris Wegner 1999 1 SPTH -, ,a a -- Large woody debris May 2000 262 feet _�;r Large woody debris McDade et al. 1990 150 feet c'A Small woody debris Pollock and Kennard 1998 100 feet y 3 c Organic litterfall FEMAT 1993 1 SPTH — En Organic litterfall Erman et al. 1977 100 feet L •' J Organic litterfall Spence et al. 1996 170 feet 155 T �; ; ,. r�t�* r- � yy ,r"'-: .-. wp °n: �•r... „'tiro' -r rr.�. s;}t 'r a , , _t Q�.;: ,t /�i a r; < *—. _ -' '-=' . .. :'''.. •2`''Y`5;. .';,-“•`?u; �"It�.hc- gS?15 -..,:Ct7;�, .,+ :1 f,y..; �" j1 \,�=ti.+lcwp. �.. .t�.C+,--,.w.• _. � .. .. "� ..,e.... ,. . .aG. _. .. .. �'G 9t'% /,. fiafi Y�-. ..,5 ., mot.-: • • • F ;s,, : , lIIIregon Department of Fish and Wildlife Northwest Region •:7 l •° : °.r 18330 NW Sauvie Island Road ' ' Theodore R.Kulongoski,Governor " � Portland, OR 97213 (503) 621-3488 (503) 657-2050 OREGON rib% Fish&Wildlife February 23, 2009 Tigard Planning Commission City of Tigard 13125 SW Hall Blvd Tigard, OR 97233 Dear Tigard Planning Commission, The Oregon Department of Fish and Wildlife (ODFW)would like to provide the following comments regarding the City of Tigard's proposal to remove section 18.775.070.B.5 of the Sensitive Lands Code. The Oregon Conservation Strategy (ODFW 2006) identifies riparian habitats, including associated floodplains and terraces, as a priority habitat. Riparian habitats have declined from historic levels and are now greatly reduced in area and connectivity. Riparian habitats are critical for fish and wildlife and contain a high level of species diversity. Healthy riparian habitats also provide important ecological functions such as protection from bank erosion, decreased water temperature, and filtering of runoff. ODFW is concerned with allowing trails and bicycle paths to be placed in riparian and associated floodplain habitats. ODFW does not believe that fish and wildlife will be adequately protected if the City of Tigard removes section 18.775.070.B.5 of the Sensitive Lands Code. The Oregon Department of Fish and Wildlife would like to thank the City of Tigard for the opportunity to provide comments. Please feel free to contact me with any questions. Sincerely, Mischa Connine Habitat Biologist 11 ti • society 23, 2009 10 . —'� Tigard Planning Commission Q p, City of Tigard 13125 SW Hall Blvd 4, " 1:\ ,y Tigard,OR 97223 o„ 0 nded io.° President Inman and Planning Commission, President We are writing regarding the staff proposal to remove section 18.775.070.B.5 prohibiting Peter Paquet development of pedestrian/bicycle pathways below the elevation of an average annual flood. We strongly urge the Planning Commission to reject the staff proposal. Keeping these Vice President regulations in place will require new trail development to be built with low-impact designs Pat Campbell that avoid impact to flood areas that provide multiple environmental benefits. Secretary Adrienne Wolf-Lockett Audubon Society of Portland has serious concerns about the incremental loss and degradation of floodplain habitats in the Tualatin Basin and the resulting negative impacts Treasurer on water quality,wildlife habitat-including the habitat of sensitive species- and public health Ken Ivey and safety. The failure to adequately protect floodplains in the Tualatin Basin was a major Past President issue during the development and adoption of Metro's Title 13 Regional Fish and Wildlife Linda Craig Protection Plan and the Tualatin Basin Goal 5 approach finalized in 2005.1 Since then Tualatin Basin has lost some 70 acres of floodplain to development including 9.4 acres in the Nancy Jane Cushing Fanno Creek watershed. John Fitchen Martha Gannett We support the development of bike and pedestrian trails but not at the expense of the Kristina Gifford region's water quality and wildlife habitat. Local governments and developers have failed to Wink Gross provide adequate land for trails outside environmentally sensitive areas in most urban areas John Hammerstad in the Tualatin Basin. Consequently, the practice of aligning and developing trails in vegetated corridors • Barb Hill and sensitive areas has gotten out of control. Local planners have come to view our floodplains and Terry Kern riparian corridors as defacto trail rights-of-way. Since 2000, Clean Water Services has agreed Karen O'Connor Kruse twice to weaken the district's Design and Construction Standards to allow further Claire Puchy encroachment of trails into vegetated corridors. We urge the Planning Commission to Ron Spencer oppose the staff proposal and reverse the trend that increasingly allows trail development to trump environmental protection in the Tualatin Basin. Board Member Emeritus There is already an extensive network of trails in the Fanno Creek floodplain and riparian Dave Marshall corridors. These areas provide critical habitat for numerous species of fish and wildlife, including state listed sensitive species such as the Western Pond Turtles. It is time that public officials recognize that by continuing to allow trails to encroach into environmentally sensitive areas or to be built in a fashion that does not avoid environmental impacts,we run the serious risk of allowing natural areas along Fanno Creek to be loved to death. Thank you for considering these comments. Sincerely, Bob Salltnger Jirn Labbe. Conservation Director Urban Conservationist March 28,2005, Oregonian "Tualatin Basin Wildlife Plan falls short,"Jim Labbe and Sue Marshall,. Online at: http://www.urbanfauna.org/tiles/Tualatin_Plan.htm J� IN • • <''' City of Tigard ,,1,- �- ,, Planning Commission — Agenda +-•A,t „- �'T'n.e....3u�r..i.'.L" L-.ia... t Y ♦_. . .. n t, 11'ta-,r.eF ...t r..,... _a.. .- ..,a cam.- !-.n.. >-_vfy .n.. -:Y-'t,.-a.`F.Y:. .., 'i MEETING DATE: February 23, 2009, 7:00 p.m. MEETING LOCATION: City of Tigard—Town Hall 13125 SW Hall Blvd., Tigard, OR 97223 1. CALL TO ORDER 7:00 p.m. 2. ROLL CALL 7:00 p.m. 3. COMMUNICATIONS 7:02 p.m. 4. APPROVE MINUTES 7:0s p.m. 5. PUBLIC HEARING 7:15 p.m. DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7,Areas Subject to Natural Hazards;and Goal 8 Recreational Needs];any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1,Public Involvement; Goal 2,Land Use Planning; Goal 7,Hazards; Goal 8,Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances 111)C 18.130, 18.380, 18.390 and 18.775]. 6. WORK SESSION 8:15 p.m. TREE CODE UPDATES DCA2009-00001 7. OTHER BUSINESS 9:15 p.m. 8: ADJOURNMENT 9:20p.m. PLANNING COMMISSION AGENDA- FEBRUARY 23, 2009 City of Tigard I 13125 SW Hall Blvd.,Tigard, OR 97223 I 503-639-4171 I www.tigard-or.gov I Page lof 1 • • • Agenda Item: Hearing Date: February 23,2009 Time: 7:00 PM • - 1 i ='�i � _ �PI:ANN-I<N�G��C`OM�ISSI"O.N"�� :��� - r"1• . FOR THE CITY OF TIGARD OREGON ;fTIGARD SECTION I. APPLICATION SUMMARY CASE NAME: SENSITIVE LAND PERMIT REQUIREMENTS CASE NO.: Development Code Amendment (DCA) DCA2008-00005 PROPOSAL: To remove section 18.775.070.B.5 of the Sensitive Lands Chapter which reads " The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement would not adversely affect the protection of sensitive habitat areas or implementation of floodplain requirements. APPLICANT: City of Tigard OWNER: NA 13125 SW Hall Blvd. Tigard, OR 97223 APPLICANT'S Phil Nachbar,Redevelopment Manager AGENT: 13125 SW Hall Blvd. Tigard, OR 97223 ZONE: All City Zoning Districts LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goals 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8 Recreational Needs; ] Any federal [FEMA] or state statutes or regulations found applicable; Any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan, Title 3,.Water Quality and Flood Management]; Any applicable comprehensive plan policies; [Goal: 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390, and 18.775]. SENSITIVE LANDS PERMTT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC I TEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 1 OF 10 • • SECTION II. STAFF RECOMMENDATION Staff recommends,that the Plan ning. Commission:.find in ,favor: of. the proposed text::,amendment'Tremoving: section .18:775.070.B:5, of the Sensitive Lands Permit. requirements-which reads:-:"5:>.'`°The`:plans_.;:for; the pedeatriann/bicycle pathway indicate:that no pathway will be below the elevation of'ari::average annual flood,": and• With any alterations.as determined through,the public;hearing process, and make a,final:recommendation to:the •Tigard City Council: SECTION III. BACKGROUND INFORMATION The City proposes to remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Section 18.775.070.B.5 to be removed is part of its Sensitive Lands Chapter of the Tigard Development Code (attached in full for reference). The purpose of the Chapter is to A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban . Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare. The City can only speculate on the reason for the inclusion of Section 18.775.070.B.5. in the Sensitive Land Chapter. The section requires that "the plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood". It is likely that it had something to do with maintaining year-round pedestrian accessibility (out of the annual flood elevation), and / or maintenance concerns. The current requirement as written requires that trails be located and constructed above the average annual flood elevation. This can limit where trails can be located depending on how high the `average flood' is. In some cases, the average annual flood elevation is close to the 2-year flood elevation, which effectively eliminates access to many areas which are lower and could be appreciated by the public. A case in point is Fanno Creek Park between Hall Blvd. and Main St. in Downtown Tigard. While there is a Council adopted master plan for Fanno Creek Park, the City is unable to implement the plan and improve or realign trails to provide better public access to new areas of the park due to the requirement in section 18.775.070.B.5 that "no pathway will be below the elevation of an average annual flood". The existing requirement of Section 18.775.070.B.5 which requires that `no pedestrian / bicycle pathway be below the average annual flood elevation' poses an obstacle to constructing trails where they may be needed because it would require that they be built above the average annual flood elevation. Trails can be elevated by placement of a berm or boardwalk, however, it is costly, and the additional volume makes it difficult to meet the "no-rise" condition critical to meeting FEMA requirements within the Sensitive Lands Chapter, and the balance "cut and fill" requirements of CWS Design and Construction Standards also incorporated into the Chapter. In some situations, under the current requirement to build above the annual average flood elevation, a raised trail could impact the environment due to debris obstructing the flow during high flood periods. In addition, elevated trails built to meet this requirement could impact sensitive wetland environments by obstructing the natural flow of water. Some of the potential benefits of the removal of Section 18.775.070.B. include 1) improved access to natural areas otherwise inaccessible by the public, 2) enhanced access and connectivity and 3) removal of the potential for the construction of elevated trails posing a potential impact to the environment. SECTION IV. APPLICABLE CRITERIA, FINDINGS AND CONCLUSIONS SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO TI-IE PLANNING COMMISSION PAGE 2 OF 10 • • Tigard Development Code Section 18.380.020, Legislative Amendments to this Title and Map, states that legislative zoning map and text amendments shall be undertaken by means of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment would apply to all City zoning districts throughout the City. Therefore, the amendment will be reviewed under the Type IV legislative procedure as set forth in the chapter. This procedure requires public hearings by both the Planning Commission and City Council. Section 18.390.060.G establishes standard decision-making procedures for reviewing Type IV applications. The recommendation by the Commission and the decision by the Council shall be based on consideration of the following factors: 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. Findings and conclusions are provided below for the five listed factors on which the recommendation by the Commission and the decision by the Council shall be based. STATEWIDE PLANNING GOALS AND GUIDELINES Statewide Planning Goal 1— Citizen Involvement: This goal outlines the citizen involvement requirement for adoption of Comprehensive Plans and changes to the Comprehensive Plan and implementing documents. FINDING: This goal has been met by complying with the Tigard Development Code notice requirements set forth in Section 18.390. A notice was mailed to all identified interested parties and the notice was additionally published in the Tigard Times newspaper prior to the hearing. After the Planning Commission public hearing, additional notice will be published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. Statewide Planning Goal 2—Land Use Planning: This goal outlines the land use planning process and policy framework. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. The Development Code implements the Comprehensive Plan. The Development Code establishes a process and standards to review changes to the Comprehensive Plan. As discussed within this report, the Development Code process and standards have been applied to the proposed amendment. Statewide Planning Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces • This goal seeks to protect natural resources and conserve scenic and historic areas, and opens spaces. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 3 OF 10 • • Comprehensive Plan Goal 5 - Parks, Recreation, Trails, and Open Space and policies is discussed later in this • report. Statewide Planning Goal 7 -Areas Subject to Natural Hazards • This goal seeks to protect people and property from natural hazards. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 7 - Hazards and policies is discussed later in this report. Statewide Planning Goal 8 - Recreational Needs To satisfy the recreational needs of the citizens of the State and visitors, and where appropriate, to provide for the siting of necessary recreational facilities including destination resorts. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 8 - Parks, Recreation, Trails, and Open Space Statewide and policies is discussed later in this report. CONCLUSION: Based on the analysis above, staff finds that the proposed text amendment is consistent with applicable Statewide Planning Goals. FEDERAL OR STATE STATUTES AND REGULATIONS Any federal [FEMA] or state statutes or regulations found applicable; The purpose of FEMA and related statutes is to ensure that a floodplain management program is in place so that Flood Insurance Requirements are met. FINDING: One of the purposes of the Sensitive Lands Ordinance (18.775) is to `B) implement comprehensive plan and floodplain management program", which effectively implements FEMA Flood Insurance Requirements. The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance requirements provided that the "zero rise" in the flood plain condition is met, which continues as a requirement in the City code. The "zero rise" requirement, which remains in the ordinance, ensures that any construction or improvement within the floodplain will not result in any increase in water surface elevation of the 100-year flood. Another cited purpose of Sensitive Lands Ordinance (18.775) is to "A) Maintain integrity of rivers, streams, and creeks". The Department of State Lands regulates Waters of the State, and the Corps of Engineers regulates wetlands. These organizations require separate permits, and these permit requirements are not . affected by removal of Section 18.775.070.B.5. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with any federal (FEMA) or state statutes or regulations found applicable. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 4 OF 10 • ANY APPLICABLE METRO REGULATIONS; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management] The purpose of Metro Title 3 is to protect the beneficial water uses and functions and values of resources within the Water Quality and Flood Management Areas by limiting or mitigating the impact on these areas from development activities and protecting life and property from dangers associated with flooding. FINDING: The City is in compliance with the requirements of Metro's Title 3 by adoption of the Clean Water Services' (CWS) Design and Construction Standards in the City's Sensitive Lands Chapter 18.775. The standards of. Metro Title 3 are incorporated into the CWS standards which, in turn, are required under the City's Sensitive Lands Chapter. The purposes of the City's Sensitive Lands Chapter 18.775.010 as written are to "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." Item D) clearly implements Title 3 of the Metro Urban Growth Management Functional Plan. In 2002, the City of Tigard adopted Comprehensive Plan and Code Amendments to comply with Title 3 of Metro's Urban Growth Management Functional Plan, which outlines water quality and flood management requirements for the region. The adopted standards were based on a unified program developed by local governments in the Tualatin Basin and implemented through the Clean Water Services District's (CWS) Design & Construction Standards, which provides for vegetated stream corridor buffers up to 200 feet wide and mandating restoration of corridors in marginal or degraded condition. In addition, Clean Water Services, local cities, Washington County, Metro, and Tualatin Hills Park and Recreation District, partnered on a parallel effort to develop the CWS Healthy Streams Plan (HSP), an updated watershed plan designed to enhance the functions of the Tualatin Basin surface water system and address the Clean Water Act and Endangered Species Act (ESA). The removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements which requires that `no pedestrian / bicycle pathway be below an average annual flood' does not affect compliance with Metro Title 3, Water Quality and Flood Management, nor the intent of Title 3. Section 18.775.070.B.5, which would be removed by the proposed text amendment, is not part of the CWS Design and Construction Standards, which are intended to implement Metro Title 3. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with Metro Code Sections 3.07.300, Urban Growth Management Functional Plan,Title 3, Water Quality and Flood Management. TIGARD COMPREHENSIVE PLAN ANY APPLICABLE COMPREHENSIVE PLAN POLICIES: Comprehensive Plan Goal 1: Citizen Involvement Goal 1.1 Provide citizens, affected agencies and other jurisdictions the opportunity to participate in all phases of the planning process. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 5 OF 10 • • FINDING: The City has mailed notice of the Planning Commission hearing to interested citizens and agencies. The City published notice of the Planning Commission hearing February 23, 2009. After the Planning Commission public hearing, additional notice will be published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. With these public involvement provisions, the proposed zone change is consistent with applicable Citizen Involvement policies. Comprehensive Plan Goal 2: Land Use Planning Goal 2.1: Maintain an up-to-date Comprehensive Plan, implementing regulations and action plans as the legislative foundation of Tigard's land use planning program. FINDING: Applicable polices under this goal relate to amendments to Tigard's Comprehensive Plan/Zone Map and not to amendments to the Development Code text. The applicant does not propose an amendment to Comprehensive Plan/Zone Map. Therefore, this Goal does not specifically apply to the proposed text change. Comprehensive Plan Goal 7: Natural Hazards To protect people and property from natural hazards FINDING: Applicable policies under this goal include landslides, and flooding. The City uses steep slopes to define sensitive lands in the Community Development Code and has special requirements for development in these areas. The City coordinates with several agencies to mitigate the risk of flooding. The FEMA designated floodplain is used to administer the national flood insurance program (NFIP). The Sensitive Lands Chapter of the Tigard Community Development Code ensures compliance with FEMA and the national flood insurance program. The proposed text amendment does not impact floodwaters flows and storage areas, and therefore does not conflict with FEMA or Comprehensive Plan policies regarding flooding. The removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements which requires that `no pedestrian / bicycle pathway be below the average annual flood elevation' is in compliance with Comprehensive Plan Goal 7 Hazards because it does not impact any of the policies areas including earthquakes,wildfire, landslides, and flooding. Comprehensive Plan Goal 8: Parks, Recreation, Trails, and Open Space Goal 8.1 Provide a wide variety of high quality park and opens spaces for all residents, including both: A. developed areas with facilities for active recreation; and B. undeveloped area for nature-oriented recreation and the protection and enhancement of valuable natural resources within the parks and open space system FINDING: Applicable policies under Goal 8.1 include policies 4, 6 and 17. Policy 4 states "The City shall endeavor to develop neighborhood parks (or neighborhood park facilities within other parks, such as a linear park) located within a half mile of every resident to provide access to active and passive recreation opportunities for residents of all ages." The removal of section 18.775.070.B.5 of the SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 6 OF 10 • • Sensitive Lands Permit requirements which requires that `no pedestrian / bicycle pathway be below an average annual flood elevation' supports Policy 4. By allowing trails to be built at or below the average annual flood elevation, and not requiring that trails be elevated above the average annual flood, there will be more opportunities to construct more trails in areas needed to provide access to active and passive recreational • opportunities. Policy 6 states "The City shall acquire and manage some open spaces to solely provide protection of natural resources and other open spaces to additionally provide nature-oriented outdoor recreation and trail-related activities". The removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements which requires that `no pedestrian / bicycle pathway be below an average annual flood' supports Policy 6 by providing additional opportunities for access to nature-oriented outdoor recreation and trail-related activities. The removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements which requires that `no pedestrian / bicycle pathway be below an average annual flood elevation', in effect, will provide for the design and construction of trails in areas that otherwise would not be accessible. While under the current section 18.775.070.B.5, trails can be constructed as along as they are above the average annual flood elevation, doing so is costlier, and difficult due to having to meet the City "no-rise" conditions. Raising a trail by building a berm or boardwalk to elevate it above the annual average flood results in a rise in the 100-year flood elevation, which is not permitted unless mitigated to provide a "no-rise" result. As a result, the existing section 18.775.B.5 provides a barrier to the construction of new trails in areas where access may be needed to meet policies 4 and 6. • Policy 17 states "The City shall maintain and manage its parks and open space resources in ways that preserve, protect, and restore Tigard's natural resources, including rare, or state and federally listed species, and provide "Nature in the City" opportunities." The removal of section 18.775.070.B.5 does not, by itself, result in trails being built in areas to the detriment of natural resources including rare, or state and federally listed species. Clean Water Services (CWS) Design and Construction Standards incorporated into the Tigard Development • Code provides additional protection to sensitive habitats by maintaining a required buffer from the top of bank. Trails cannot be built within this buffer, which often includes riparian areas. The width of the buffer varies depending on the slope of the creek or waterway, and is designed to maintain the functioning of riparian habitats, which are known to contain a variety of bird species. Trails do not generate pollution and by themselves, are not a source of impact to sensitive habitats or species. The siting of trails in natural resource areas containing listed species is subject to the review and recommendations of Oregon Division of Fish and Wildlife. The construction of trails at or below the average annual flood would not, in and of itself, impact rare, or state and federally listed species. Trails can, if designed correctly, serve to protect sensitive flora and fauna by serving as a way to channel pedestrians away from them. • All proposed improvements within the 100-year floodplain and habitat sensitive areas including wetlands are subject to U.S. Army Corps of Engineers, State of Oregon Land Board, Division of State Lands, and Clean Water Services (CWS) permits and approvals, which are incorporated by reference in this Chapter of the Code (see Section 18.775.070.B.6.). • Goal 8.2 Create a Citywide network of interconnected on- and-off-road pedestrian and bicycle trails FINDING: Applicable policies under Goal 8.2 include policies 1 and 2 below: 1. The City shall create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods, parks, open spaces, major urban activity centers, and regional recreational opportunities utilizing both public property and easements on private property. 2. The City shall design and build greenway trails and paths to minimize their impact on the environment, including on wildlife corridors and on rare, and state or federally listed species. The removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements which requires that `no SENSI'T'IVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 7 OF 10 • • pedestrian / bicycle pathway be below an average annual flood' will, in effect, facilitate the construction of trails in areas that otherwise would not be accessible by removing the need to elevate pathways in these areas. Depending on where trails are needed to comply with Goal 8.2 to create a citywide network of trails, the removal of section 18.775.070.B.5 of the Sensitive Lands Permit requirements provides for flexibility in meeting this goal. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with Comprehensive Plan Goals 1, Citizen Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Park, Recreation,Trails, and Open Space. ANY APPLICABLE PROVISION OF THE CITY'S IMPLEMENTING ORDINANCES TDC 18.380 Zoning Map and Text Amendments. The purpose of this chapter is to set forth the standards and process governing legislative and quasi- judicial amendments to this title and zoning district map. • FINDING: Section 18.380.030 requires that zoning map and text amendments be undertaken by mean of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment is a Type IV procedure as defined in this Section and has been processed in accordance with Type IV procedures per 18.390.060G. TDC 18.390 Decision Making Procedures The purpose of this chapter is to establish a series of standard decision-making procedures that will enable the City, applicant and all interested parties to reasonably review applications and participate in the local decision-making process in a timely manner. FINDING: The proposed text amendment was completed in compliance with all procedural requirements of Section 18.390. Two public hearings were noticed and scheduled, one before the Planning Commission and one before Council. Notice has been provided 10 days prior to hearing dates to the required parties. The proposed text amendment addresses the required decision-making considerations of Section 18.3909.060 which includes 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. TDC 18.775 Sensitive Lands The purposes of the City's Sensitive Lands Chapter 18.775.010 as written are to "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." Item D) clearly implements Title 3 of the Metro Urban Growth Management Functional Plan. FINDING: Goal F: Protect Public Health, safety and welfare is not affected by the proposed amendment. The City is unsure of the original reason(s) for inclusion of the requirement of Section 18.775.070.B.5. in the Sensitive Lands Chapter. The section requires that "the plans for the pedestrian/bicycle pathway indicate that no SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC I-IEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 8 OF 10 • • pathway will be below the elevation of an average annual flood". It is likely that the reason(s) for its inclusion in the code had something to do with maintaining year-round pedestrian accessibility (out of the annual flood elevation), and / or maintenance concerns. If a trail were built within the average annual flood elevation, and were inundated, it would not pose a danger to the safety of the public. People would not have access during the time of inundation. There is no flash flooding in the area so that persons using a trail would not be stranded or overcome by a flood event. Based on this, the proposed amendment allowing the siting of trails in areas within the average annual flood does not pose a danger to public's health, safety or welfare. One of the key purposes of the Sensitive Lands Ordinance (18.775) is to `B) implement comprehensive plan and floodplain management program", which effectively implements FEMA Flood Insurance Requirements. The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance requirements provided that the " zero rise" in the flood plain condition is met, which continues as a requirement in the City code. The "zero rise" requirement, which remains in the ordinance, ensures that any construction or improvement within the floodplain will not result in any increase in water surface elevation of the 100-year flood. The proposed amendment is to remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". The proposed amendment is consistent with and has no adverse impact on the goals and requirements of Sensitive Lands Chapter 18.775. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with any applicable provision of the City's implementing ordinances. SECTION V.. STAFF ANALYSIS In reviewing the required applicable review criteria, staff concludes that the proposed text amendment to remove Section 18.775.070.B.5 of the Sensitive Lands Chapter is consistent with all applicable review criteria which include 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. The existing requirement of Section 18.775.070.B.5 which requires that `no pedestrian / bicycle pathway be below the average annual flood elevation' poses an obstacle to constructing trails where they may be needed because it would require that they be built above the average annual flood elevation. Although trails can be elevated by placement of a berm or boardwalk, it is costly, and the additional volume makes it difficult to meet the "no-rise" condition critical to meeting FEMA requirements within the Sensitive Lands Chapter, and the balance "cut and fill" requirements of CWS Design and Construction Standards also incorporated into the Chapter. In addition the placement of trails on a berm poses maintenance concerns, and would disrupt the natural flow of water in natural areas. The use of boardwalks is expensive if used for long sections of trails that may be needed, but does provide a feasible option for shorter lengths through high-water areas. By removing this requirement of Section 18.775.070.B.5., it will be less difficult to site needed trails that will assist in the City meeting its new Comprehensive Plan Goal 8 for Parks, Recreation, Trails and Open Space. Specifically, the proposed amendment will support Goal 8.2: Policy 1 "to create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods, parks, open spaces, major urban activity centers..." As an example, it will allow the City to implement the Fanno Creek Park & Plaza Master Plan adopted by Council in February 2008. The master plan provides for the restoration of a 24.5 acre natural area on the edge of Downtown and improved trail access by the public. Without removal of Section 18.775.070.B.5 as proposed, the City will not be able to improve, realign, and construct new trails in the park for the public. This is due to impracticality and expense of having to elevate trails above the elevation of the average annual flood, and the net "rise" in 100-year floodplain that would have to be mitigated. The net rise in the 100-year floodplain would be due the the additional volume caused by a berm or boardwalk to meet the requirements. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 9 OF 10 • • Constructing trails at or below the average annual flood elevation poses no threat to the public safety or welfare, and would not result in degradation of the trail surface or long-term maintenance concerns. It is likely that the intent of the requirement was to keep "people dry" and allow year-round accessibility of trails, and to keep paths from being inundated due to maintenance concerns. If a trail were built within the average annual flood elevation, and were inundated, it would not pose a danger to the safety of the public. People would not have access during the time of inundation. There is no flash flooding in the area so that persons using a trail would not be stranded or overcome by a flood event. Based on this, the proposed amendment allowing the siting of trails in areas within the average annual flood does not pose a danger to public's health, safety or welfare. In addition, the proposed amendment allowing trails within the average annual flood elevation does not affect the ability of the City to meet FEMA requirements and the National Flood Insurance Program In some situations, under the current requirement to build above the annual average flood elevation, a raised trail could impact the environment due to debris obstructing the flow during high flood periods. In addition, elevated trails built to meet this requirement could impact sensitive wetland environments by obstructing the natural flow of water. Some of the potential benefits of the removal of Section 18.775.070.B. include 1) improved access to natural areas otherwise inaccessible by the public, 2) enhanced access and connectivity and 3) removal of the potential for the construction of elevated trails to pose a potential impact to the environment. It the conclusion of staff that the removal of Section 18.775.070.B.5 "The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood" is of benefit to the community and the goals of its Comprehensive Plan. SECTION VI. ALTERNATIVES TO APPROVAL No Action — the code would remain unchanged. SECTION VII. ADDITIONAL CITY STAFF & OUTSIDE AGENCY COMMENTS The City of Tigard Long Range Division was notified of the proposed code text amendment but did not comment. The City of Tigard Engineering Department reviewed the applicant's proposal and had no objection to the proposal. The City of Tigard Public Works Department reviewed the applicant's proposal and provided the following comments: "This should enable Regional Trail Access". The City of Tigard Arborist reviewed the proposal and had not objections to it. The Division of State Lands, Oregon Department of Fish and Wildlife, US Army Corps of Engineers, and METRO, and DECD were notified of the proposed code text amendment but provided no comment. Februa ry 13, 2009 PREPA D BY: Phil Nachbar DATE Redevelopment Manager revrati, February 13, 2009 APPROVED BY: Ron Bunch DATE Community Development Director SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008-00005 2/23/09 PUBLIC HEARING,STAFF REPORT TO THE PLANNING COMMISSION PAGE 10 OF 10 III 4) • , COMMUNITY - .NEWSPAPERS 6605 SE tale Road,Portland,OR 97222•PO Box 22109,Portland OR 91269.2109 IIII . Phone:503.804-0380 Fax:503.820-3433 Ill 1. E-mail: Iagals©ehttlttmewspapers.eom j PUBLIC HEARING ITEM: TIGARD AFFIDAVIT OF PUBLICATION ' State of Oregon, County of Washington, SS ' The following will be considered by the Tigard City Council on I, Charlotte Allsop, being the first duly sworn, Tuesday March 10,2009 at 7:30 PM at the Tigard Civic Center Town Hall, 13125 SW Hall Blvd.,Tigard,Oregon. depose and say that I am the Accounting Public oral or written testimony is invited. The public hearing Manager of The Times(serving Tigard, on this matter will be held under Title 18 and rules of procedure Tualatin & Sherwood), a newspaper of adopted by the Council and available at City Hall or the rules of I procedure set forth in Section 18.390.060E. . general circulation, published at Beaverton, Further information may be obtained from the City of Tigard. in the aforesaid county and state, as defined j Planning Division (Staff contact: Phil Nachbar) at 13125 SW by ORS 193.010 and 193.020, that Hall Blvd.,Tigard, Oregon 97223,by calling 503-639-4171,or by email to phil @tigard-or.gov. - City of Tigard I- . DEVELOPMENT CODE AMENDMENT Notice of Public Hearing (DCA)2008-00005 TT11258 -SENSITIVE LANDS PERMIT REQUIREMENTS,- A copy of which is hereto annexed, was REQUEST: To remove.section 18.775:070.B.5 of the Sensi- A tive Lands Permit requirements which reads "5. The plans for published in the entire issue of said the pedestrian/bicycle pathway indicate that no pathway will be 1 newspaper for below the elevation of an average annual flood;'. Removal of 1 this section would allow pathways to be installed in areas which would benefit the publics access to and educational apprecia- week in the following issue tion of ecological areas. Removal of this requirement does not February 19, 2009 affect the protection of sensitive habitats or floodplain require- ments. LOCATION: Citywide. COMPREHENSIVE PLAN i C/kaA'Lk / `% ZON : All City All City Comprehensive Plan Designations.' ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines Charlotte Allsop (Accounting Managr) adopted under Oregon Revised Statutes,Chapter 197; [Goal 1, Public Involvement;Goal.2,Land Use Planning;Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal ' 7,Areas Subject to Natural Hazards; and Goal.8 Recreation- Subscribed and sworn to before me this ; al Needs]; any federal [FEMA] or state statutes or regulations February 19, 2009. found applicable;any applicable METRO regulations; [Metro rY , Code Sections 3.07.300,Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Compprehensive Plan Policies; [Goal 1, Pu�i lic In- volvement; -Goal 2,.Land Use Planning;Goal 7,.Hazards;Goal <.t� ` 8, Parks, Recreation; Trails, and Open Space]; and any appli' NOTARY PUBLIC FOR OR� •cable provisions of the City's implementing ordinances [TDC My commission expires -- 18.130, 18.380; 18.390 and 18.775]. Publish 02/19/2009. TT11258 ' Acct#10093001 Attn: Patty Lunsford City of Tigard 13125 SW Hall Blvd Tigard, OR 97223 Size: 2 x6.5 Amount Due$108.55* 'Please remit to address above. 600Z'91 AVW S381dX3 NOISSIWW00 AW LOL06£'ON NOISSIWWOO NOm0'Jn8fld AUVION ss3JHn9'y NOSOa 1V3S 1VIOi330 CANBY (49) - Hickey 26, Howard 7, Kuznetsov 5,Martishev 4,Sprague 3,Yoder. 2, Langford 1, Hamill 1, Rouza, Zamora, Anderson,Tatone,Whiding. TUALATIN(70)-Symonds 18,Troxel 16, Hart 11, Freeman 10, Solati 6, Murray 3, .Moreland 2,Kjemperud 2,Knudsen 2,Ness, Richter,MacPherson,Ellisen. Canby .Tualatin 14 10 11 14-49 21 10 18 21-70 Tuesday,Feb.17 results: Tualatin 57,Tigard 33 Canby 59,McMinnville 46 + Newberg 69,Forest Grove 68 TIGARD(33)-Alexander 13,Mackenzie 7, Casey 6, Gustafson 5, Morris 2, Najdek, Burghardt, Meyer,Ward,Duong, Middleton, Yett TUALATIN (57) - Troxel 16, Hart 15, Freeman 7, Symonds 5, Kjemperud 4, Richter 4, MacPherson 4, Moreland 2, Ellisen,Sole%,Murray,Knudsen,Ness. Tigard Tualatin 10 6 9 8-33 11 11 16 19-57 Thursday,Feb.19 games: Forest Grove at Tigard,7:15 p.m. Friday,Feb.20 games: Tualatin at McMinnville,7:15 p.m., Tuesday,Feb.24 games: McMinnville at Tigard,7:15 p.m. Tualatin at Newberg,7:15 p.m. Pacific Conference scoring leaders (through games of Feb.17) (league games only) G pta avg. Cody Hickey,Canby 11 231 210 Taylor Braun,Newberg 12 205 17.1 Luke Peters,For.Grove 12 173 14.4 A.J.Grant,Newberg 11 145 13.2 Jordan Howell,Newberg 12 153 12.8 Matt Alexander,Tigard 11 130 11.8 Brandon Troxel,Tualatin 12 139 11.6 Anthony Freeman,Tual. 9 103 11.4 Brian Symonds,Tualatin 12 123 10.3 .,Tommy Mackenzie,Tigard 12 103 8.6 Northwest Oregon Conference Standings through Feb.17 ._ ._ TUALATIN(44) - Senger 17, Brown 6, Ben-Jumbo 4,Wilcox 4,Aldred 3,Cichoke 2, Morrison 2,Johnson 2,•Millager 2,Barnes 2. CANBY(48) - McGraw 18, Fowler 10, Putzeff 6,Evans 6,Hansen 6,Vanacker 2. Tualatin 13 11 12 8-44 Canby 13 12 10 13-48 Tuesday,Feb.17 results: Tualatin 44,Tigard 31 Canby 66,McMinnville 28 Forest Grove 43,Newberg 34 TIGARD (31) - Waltrip 11, Biglow 10, Eckhardt 5, Black 3, Woofer?! 2, Kaolin, Critchfield. TUALATIN(44)-Millager 16,Brown 12, Senger 9,Allred 3,Johnson 2,Ben-Jumbo 2, Dion,Cichoke,Wilcox,Amdorfer,Morrison. Tigard Tualatin 2 12 9 8-31 9 7 13 15-44 Thursday,Feb.19 games: Forest Grove at Tigard,7:15 p.m. McMinnville at Tualatin,7:15 p.m. •Tuesday,Feb.24 games: Class 6A state playoff 1st round Southwest No.4 at Mt Hood No.2,TBA Three Rivers No.3 at PIL No.2,TBA Metro No.4 at Pacific No.2,TBA Pacific No.3 at Mt.Hood No.3,TBA Central Valley No.4 at Metro,No.1,TBA PIL No.3 at Three Rivers No.2,TBA Metro No.3 at Southwest No.2,TBA Three Rivers No.4 at Mt.Hood No.1,TBA Mt.Hood No.5 at Central Valley No.2,TBA Southwest No.3 at Central Valley No.3,TBA Pacific No.4 at PIL No.1,TBA Mt.Hood No.4 at Metro No.2,TBA Pacific Conference scoring leaders (through games of Feb.17) (league games only) G pts avg. Corinn Waltrip,Tigard 14 293 20.9 Melissa Fowler,Canby 14 216 15.4 Hannah Munger,Newberg 14 159 11.4 Bailee Niehus,McMinn. 14 136 9.7 ;Jamie Jo McGraw,Canby 12 116 9:7 Kelly Millager,Tualatin 14 130 9.3 Aly Brown,Tualatin 14 124 8.9 Maddie Black,Tigard 14 116 8.3 Valerie Bongiorno,F.G. 14 115 8.2 Cassie Swazve.Newbera 14 114 8.1 •enoge sseippe of Ilwei eseeld. ,99801$ ana;unowy 9.9x Z :az!S EZZL6 bO 'pae6il PAI8 IIeH MS SZI.E1 pae6!1;0 A;!0 pJo4sunq A;led :uy 100£6006#100y saJ!dxe uolss!wwoo An O HOd 0I18fld A2N1ON '600Z 61 AJenJgad s!4;aw aio;aq o; WOMS pue pag!JosgnS 6euen 6u4un000y) dosl!y 81101J843 )0311f) 6002 '61. AJenJgad anss! 6u!MOpo;ay; u! )IaaM Jo;JadedsMau p!es;O anss! a.!;ue ay1 u! pays!!gnd seM 'pexeuue o;away s! 4o!4M;o Adoo v 89Z1.1.11 6u!JeaH o!Ignd 40 0O!;oN pJe6!1;o A1!0 1844 'OZO'E61 PUS 010'£61 S2iO Aq pau!;ap se 'a;e;s pue A;unoo p!esaJo;e ay; u! `uopaneae;e pays!Ignd `uo!;e!nOJ!O!eiaua6 40 JadedsMau e `(pooivuay5 '8 w;elenl `pJe6116u!AJas)Saw!l all 40 Ja6eue!A! 6u4un000y 0141 we 1 1841 ABS pue asodap `woMS Alnp;sJ!;ay16u!aq 'dosllld a44Ol1840 'I q 'uo16u!yseM;o A;unoO 'uo6aiO;o a;e4S NOIl.OflBfld AO 1.IAdaIddv woraaadadsmuunaoaos!a8a! :Ilgw-3 3E6S'OZ0'EOS as3 0830-688-COS:auogd BOIZ•BDZLO 0O fU(IWOd'BOIZZ KO0 Od•ZZZLO HO'PoeRdod'PB00(1I1 33 SO80 Sli3cPv'cISN13N �C.IINIIW WOE • 024-,tivwo' I • r Tigard Planning Commission Agenda Item # ç Page _L of Date of Hearing 2- 23- O 't Case Number(s) 0 C `,.1--00,S- 0000 C Case Name Location If you would like to speak on this item, please PRINT your name, address, and zip code below: Proponent (for the proposal): Opponent (against the proposal): Name: Name: E 7-)t_CO/1 Address: Address: 6,00 s )(--■ N Of\--) City, State, Zip: City, State, Zip: o 9 z a s-7.- Name: Name: Ad0/1 • Address: Address: (4t8 sr City, State, Zip: City, State, Zip: Name: Name: GLZ.- ti)-}z7nndGiR Address: Address: 1 I 1- 55" Si, 1 (4 City, State, Zip: City, State, Zip: ---C7.5,Ar (2_,..c:V Name: Name: A T5ir v\ gLcjleec,',SA p ec S Address: Address: City, State, Zip: City, State, Zilym 2,72y t , Name: Name: N‘). -.))41.,7 NAlt stkpAsTp Address: Address: 7\ 15D 60/ City, State, Zip: City, State, Zip: • NO TICS TO MORTGAGEE,L �OLDE ,VENDO R ORSEL SELLER: THE TIGARD.DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOT ICE, q IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER p TIGARD, PUBLIC HEARING NOTICE NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE TIGARD PLANNING COMMISSION ON MONDAY, FEBRUARY 23, 2009 AT 7:00 PM, AND BEFORE THE TIGARD CITY COUNCIL ON TUESDAY, MARCH 10, 2009 AT 7:30 PM. THE PUBLIC HEARINGS WILL BE CONDUCIED IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223. THESE HEARINGS ARE FOR THE PURPOSE OF RECEIVING TESTIMONY FROM THE PUBLIC. FILE NO.: DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 FILE TITLE: SENSITIVE LANDS PERMIT REQUIREMENTS APPLICANT: City of Tigard Ann: PhilNachbar,Redevelopment Manager 13125 SW Hall Boulevard Tigard, OR 97223 REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable ME 1R0 regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances ['11)C 18.130, 18.380, 18.390 and 18.775]. THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCIED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390.060.E OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD PLANNING COMMISSION AND CITY COUNCIL AND AVAILABLE AT CITY HALL. ASSISTIVE LISTENING DEVI! ARE AVAILABLE FOR PERSONS•WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL 503-639-4171, EXT. 2438 (VOICE) OR 503-684-2772 (TDD - 'TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. PUBLIC ORAL OR WRI'I'hEN TESTIMONY IS INVITED. ANYONE WISHING TO PRESENT WRI'1'IEN TESTIMONY ON THIS PROPOSED ACT'TON MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE PLANNING COMMISSION WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRI'T'TEN 'TESTIMONY. THE PLANNING COMMISSION MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION OR CLOSE THE PUBLIC HEARING AND TAKE ACIION ON THE APPLICATION. THE PURPOSE OF THE PLANNING COMMISSION'S REVIEW IS TO MAKE A RECOMMENDATION TO THE CITY COUNCIL. THE COUNCIL WILL THEN HOLD A PUBLIC HEARING ON THE ITEM AT A LATER DALE. ALL DOCUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECIION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN (7) DAYS PRIOR TO THE HEARING,A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECIION AT NO COST, OR A COPY CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER PHIL NACHBAR AT 503-639-4171 (TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223) OR BY EMAIL TO philka,tigard-or.gov. • • . • , COMMUNITY - - - _ --•a _SP.APE 1S , PUBLIC HEARING ITEM 6005 SE lake Road,PorOaad,OR 01222•PO Boil 22109 Marl OR 97289-2109 r The following will be considered by the Pkaae:503484.0360 Fat 503.8203433 Tigard City ouncil on Tuesday May E-mail: le6als @cammneW8paperS.B01a Center 12,2009 a 7:30 PM at the Tigard Civic N. = 7 Town Hall, 13125 SW Hall• Blvd.,Tigard,Oregon. AFFIDAVIT OF PUBLICATION Public oral or written testimony is invit- I�i A R D ed. The public hearing on this matter State of Oregon, County of Washington, SS will be held under Title 18 and rules of I, Charlotte Allsop, being the first duly sworn, • procedure adopted by the Council and depose and say that I am the Accounting available at City Hall or the rules of Manager of The Times(serving Tigard, procedure set forth in Section 18.390.060E. e Tualatin & Sherwood), a newspaper of Further information may be obtained from the City of Tigard general circulation, published at Beaverton, Planning Division(Staff contact: Gary Pagenstecher)at 13125 in the aforesaid county and state, as defined SW Hall Blvd.,Tigard,Oregon 97223,by calling 503-639-4171, by ORS 193.010 and 193.020, that or by e-mail to g_arvnCa.tigard-or gov. City of Tigard DEVELOPMENT CODE AMENDMENT Notice of Public Hearing/DCA2008-0005 (DCA)2008-00005 TT11287 -SENSITIVE LANDS PERMIT REQUIREMENTS- REQUEST: To remove Section 18.775.070.B.5 of the Sensi- A copy of which is hereto annexed, was •rive Lands Permit requirements which reads "5. The plans for published in the entire issue of said • the pedestrian/bicycle pathway indicate that no pathway will be newspaper for below the elevation of an average annual flood;". Removal of 1 this section would allow pathways to be installed in areas which week in the following issue would benefit the public's access to and educational appreciation April 23, 2009 •of ecological areas. On April 6,2009,the Planning Commission recommended the CityCouncil replace the subject section with I "Pedestrian/bicycle pathways within the floodplain shall include ! a wildlife assessment to ensure that the proposed alignment mini- mizes impacts to significant wildlife habitat." LOCATION: Ckorcoik Ci tywide. COMPREHENSIVE PLAN DESIGNATION: CAu - pAll City Comprehensive Plan Designations. ZONE: All City Charlotte Allsop (Accounting Mena er) "Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Subscribed and sworn to before me this Goal 2, Land Use Planning; Goal 5'Natural Resources, Scenic April 23, 2009. and Historic Areas,and Open Spaces; Goal 7,Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal le76f-A-) [FEMA]or state statutes or regulations found applicable;any ap- .r. plicable METRO regulations; [Metro-Code Sections 3.07.300, } fit:-• Urban Growth Management Functional Plan; and Title 3,Water f NOTARY PUBLIC FOR ORE N ``''"'' Quality and Flood Management];any applicable Comprehensive My commission expires • Plan Policies;[Goal 1, Public Involvement; Goal 2, Land Use.t Planning;Goal 7,Hazards;Goal 8,Parks,Recreation,Trails,and Acct#10093001 Open Space];and any applicable provisions of the City's imple- Attn: Patty Lunsford mentin ordinances[TDC 18.130, 18.380, 18.390 and 18.7751. City of Tigard Publish 04/23/2009. TT11287 13125 SW Hall Blvd Tigard, OR 97223 ,---- — _ . --. .... _ . . ... Size: 2x7 Amount Due $116.90* `Please remit to address above. 600Z9l A11W S3iIdX3 NOISSIWW00 AW OL06£'ON NOISSMI1OO NO9380-Of19f1d AlitllON SS39an9•y NIE108 1V3S WWIOl330 Life is good, with just a little help. At TenderEase Care we recognize your need for independence. We offer assistance with cleaning, laundry, meals, errands and many other services that will make life in your home feel comfortable and secure. Let's meet to discuss your needs. `lenderease are •enoge ssaippe 111'pat eseeld. 406'916$ ena;unowy LX :ez!S £ZZL6 1O 'POLL PAIR IIeH MS SZ 1£1 pJe6!l;0 40 pao4sun1 cued :u1Ty 1.00£6001.#133V saJ!dxa uoissiwwoo MW ��230 230d mend J IV.1.0N '6002 'EZ I!ady s!q1 aw alo;aq o; UJOMS pue pequosgng (Oa euej 6u!;un000y) doslly 91.101.1e110 d rrin0 NI-01 An/J/3 600Z 'EZ Iudy arms! 6u!molloj ay; laam 1 Jo;Jadedsmau p!es 40 anss! 0J!1Ua ay1 u! pays!!gnd sem 'paxauue o;oieq s! go!ynn;o Adoo y L8Z11.11 9000-800Zd3a/6u!ieaH o!Ignd jo ao!;oN pae6!1;o 10111 `OZO'£61 PUe 010'£61 Si`IO Aq pau!;ap se 'awls pue Aiunoo p!eseJo;e ay1 u! 'uopenea8;e pegs!lgnd 'uo!;elnOJ!o leieue6 ;o Jadedsmau e '(pooMJag5 '8 u!;elenl `pie6!16u!mas)sawn ayl Jo Ja6euew 6u!;un000y ay;we I ley;Aes pue asodap `UJOMS Alnp;sJ!;ay16u!aq `doslly 01401-10113 'I SS 'uo;6u!yseM;o Aiunoa 'uo6ai0 3o ele;S NOIIV011Sfld AO IIAVGIAAV wos-sdadedsmouwwos @slsoal :110111-3 336E-0Z8•COS.114 0030.688•EOS.000gd 0011-08ZL8 8O Po1OdOd 80IZZ 1108 Od•ZZZL0 HO'POO!Idod'P1o0 111111 33 5088 S)iEdVdS A1INf 1WWOD • 'A' TT •TheTimes Ramona Quimby By BARBARA SHERMAN Pamplin Media Group Tigard High School's Drama Department is presenting a play that is not only entertaining but also uncannily time- ly. "Ramona Quimby,"based on a book by Beverly Cleary and adapted for the • stage by Len Jenkins,is about a girl grow- ing up,'but it also is about how her family deals with the dad losing his job and the resulting ramifications. Although this is a fun story that kids deeper message on 0 • • , COMMUNITY - - SPAPER�S u i • 6605 SE Lake Road,Portland,OR 07222•PO Box 370•Beauertoo,OR 67075 IIII . P1011e:503-684-0300 Fat 503-620.3433 . . Nau: legals @commoewspapers.com AFFIDAVIT OF PUBLICATION T I GARD PUBLIC HEARING ITEM: State of Oregon, County of Washington, SS I, Charlotte Allsop, being the first duly sworn, The following will be considered by the Tigard Planning depose and say that I am the Accounting Commission on Monday February 23,2009 at 7:00 PM at the Manager of The Times(serving Tigard, Tigard Civic Center-Town Hall, 13125 SW Hall Blvd.,Tigard, Tualatin & Sherwood), a newspaper of Oregon. , general circulation, published at Beaverton, Public oral or written testimony is invited. The public hearing on this matter will be held under Title 18 and rules of ! in the aforesaid county and state, as defined procedure adopted by the Council and available at City Hall or by ORS 193.010 and 193.020, that the rules of procedure set forth in Section 18.390.060E. The Planning Commission's review is for the purpose of making City of Tigard a recommendation to the City Council on the request. The Notice of Public Hearing Council will then hold a public hearing on the request prior to TT11250 making a decision. Further information may be obtained from the City of Tigard Planning Division(Staff contact: Phil Nachbar)at 13125 SW A copy of which is hereto annexed, was Hall Blvd.,Tigard, Oregon 97223,by calling 503-639-4171, or published in the entire issue of said by email to phi1( tieard-or.gov. newspaper for 1 DEVELOPMENT CODE AMENDMENT week in the following issue: (DCA)2008=00005 February 5, 2009 -SENSITIVE LANDS PERMIT REQUIREMENTS- / �� �OJ /]TL REQUEST: To remove section 18.775.070.B.5 of the Sensitive � L .Lands Permit requirements which reads "5. The plans for the Charlotte Allsop (Accounting Mana r) pedestrian/bicycle pathway indicate that no pathway will be ' below the elevation of an average annual flood;". Removal of Subscribed and sworn to before me this this section would allow pathways to be installed in areas which February 5, 2009. , would benefit the public's access to and educational appreciation of ecological areas. Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements.,.., & 4..i LOCATION: Citywide. COMPREHENSIVE PLAN , DESIGNATION: All City Comprehensive Plan Designations. NOTARY PUBL FOR ORS -' 9 ZONE: All City Zoning Districts. APPLICABLE REVIEW My commission expires CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes.Chapter 197; [Goal 1, Public Involvement;Goal 2,Land Use Planning;Goal 5 Natural Acct#10093001 Resources, Scenic and Historic Areas, and Open Spaces; Goal Attn: Patty Lunsford 7,Areas Subject to Natural Hazards; and Goal 8 Recreational City of Tigard Needs]; any federal [FEMA] or state statutes or regulations �k 13125 SW Hall Blvd found applicable; any applicable METRO regulations; [Metro �C Tigard, OR 97223 Code Sections 3.07.300,Urban Growth Management Functional ' Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Size: 2 x 8 Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; ( Amount Due $133.60* Goal 8, Parks, Recreation, Trails, and Open Space]; and any *Please remit to address above. applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. 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' \ ; x x Al: ,: ��~ r L {8.a a lxn xa a. , fiiig i ',...r,ve.e,,,„,f.x.„Tr.,;::•NO CO1�ilMUNITY t f, r� � si � � )4 ._ ; ,-A,”..‘...:\ SPAPEI�S x^ : ; � xy 0005 SE Lake Road,PorUaad,OR 01222•PU Boa 310•Beaverton,OR 01015 M - 1 °°` , `,W �. q ar; r'x 's'a,.n '38Q8 F 'V S 8 d s< gy:, x 8x Phone:5036040300 fax 503 820 3433 <`' .''n:_ , .,.y Email: legaloC�BOUIBIBBWapapaPa.B001 , e � a& � �e $zo' **' 8 :��� a s.: ,'*°',4-ci "`.ate "S `x ,��, ', &Sys AFFIDAVIT OF PUBLICATION -1- ,TL-IL''' t 3'_ �_ - - ° � f,. State of Oregon, County of Washington, SS I, Charlotte Allsop, being the first duly sworn, depose and say that I am the Accounting Manager of The Times(serving Tigard, Tualatin & Sherwood), a newspaper of general circulation, published at Beaverton, in the aforesaid county and state, as defined by ORS 193.010 and 193.020, that City of Tigard Notice of Public Hearing TT11250 A copy of which is hereto annexed, was published in the entire issue of said newspaper for 1 week in the following issue: February 5, 2009 C)ia ' Loth ()U1 Charlotte Allsop (Accounting Mana r) Subscribed and sworn to before me this February 5, 2009. OFFICIAL SEAL • ROBIN A.BURGESS �~ NOTARYPUBUC-OREGON 'kJ COMMISSION NO.390701 NOTARY PUBL FOR OR�9 MY COMMISSION EXPIRES MAY 16,2009 My commission expires Acct#10093001 Attn: Patty Lunsford City of Tigard 13125 SW Hall Blvd Tigard, OR 97223 Size: 2 x 8 Amount Due$133.60* *Please remit to address above. 1EQOESr FR coeivrs • • • REQUEST FOR COMMENTS q • DATE: January 13,2009 T I GARD TO: Community Development Planning/Engineering Techs FROM: City of Tigard Planning Division STAFF CONTACT: Phil Nachbar,Redevelopment Manager (x2557) Phone: (503) 639-4171 Fax: (503) 684-7297 Email: phil@tigard-or.gov DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or ffoodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1,Public Involvement; Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TUC 18.130, 18.380, 18.390 and 18.775]. The complete text of the proposed Code Amendments is attached for your review. From information supplied by various departments and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, WE NEED YOUR COMMENTS BACK BY: JANUARY 27, 2009. You may use the space provided below or attach a separate letter to return your comments. If you are unable to respond by the above date, please phone the staff contact noted above with your comments and confirm your comments in writing as soon as possible. If you have any questions,contact the Tigard Planning Division, 13125 SW Hall Boulevard,Tigard, OR 97223. PLE CHECK THE FOLLOWING ITEMS THAT APPLY: We have reviewed the proposal and have no objections to it. _ Please contact of our office. _ Please refer to the enclosed letter or email. Written comments provided below: Name&Number of Person Commenting. S•��c,, �i-4. K 2. Si 2-/ ' • • REQUEST FOR COMMENTS 1111 • 1111. DATE: January 13,2009 T I G A R D TO: Steve Martin,Parks S—minor P')q iv,4aE,� FROM: City of Tigard Planning Division STAFF CONTACT: Phil Nachbar,Redevelopment Manager (x2557) Phone: (503) 639-4171 Fax: (503) 684-7297 Email: phia,tigard-or.gov DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1,Public Involvement; Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7,Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation,Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [l'DC 18.130, 18.380, 18.390 and 18.775]. The complete text of the proposed Code Amendments is attached for your review. From information supplied by various departments and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, WE NEED YOUR COMMENTS BACK BY: JANUARY 27, 2009. You may use the space provided below or attach a separate letter to return your comments. If you are unable to`respond by the above date, please phone the staff contact noted above with your comments and confirm your comments in writing as soon as possible. If you have any questions,contact the Tigard Planning Division, 13125 SW Hall Boulevard,Tigard, OR 97223. PLEASE CHECK THE FOLLOWING ITEMS THAT APPLY: r� We have reviewed the proposal and have no objections to it. _ Please contact of our office. _ Please refer to the enclosed letter or email. Written comments provided below: 772r Agh)C,& visa. 6�� / i�7.a �,Q� A�cr�s - Name&Number of Person Commenting. C����J4ii/z.t7rj P44,e-j- • • REQUEST FOR COMMENTS Rf • DATE: January 13.2009 T I G A R D TO: Todd Prager,City Arborist FROM: City of Tigard Planning Division STAFF CONTACT: Phil Nachbar,Redevelopment Manager (x2557) Phone: (503) 639-4171 Fax: (503) 684-7297 Email: phil@tigard-or.gov DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7,Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Tide 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation,Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [1DC 18.130, 18.380, 18.390 and 18.775]. The complete text of the proposed Code Amendments is attached for your review. From information supplied by various departments and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, WE NEED YOUR COMMENTS BACK BY: JANUARY 27, 2009. You may use the space provided below or attach a separate letter to return your comments. If you are unable to respond by the above date, please phone the staff contact noted above with your comments and confirm your comments in writing as soon as possible. If you have any questions,contact the Tigard Planning Division, 13125 SW Hall Boulevard,Tigard, OR 97223. PLEASE CHECK THE FOLLOWING ITEMS THAT APPLY: We have reviewed the proposal and have no objections to it. Please contact of our office. — Please refer to the enclosed letter or email. '1' Written comments provided below: 1-P _ . -_ _��•- ��_�_-- - _ - __- . 7.- W1� �' TirPi„�,• Name&Number of Person Commenting • • REQUEST FOR COMMENTS .� DA'Z'E: January 13,2009 T I G A R D TO: Melinda Wood, Oregon Department of State Lands FROM: City of Tigard Planning Division . ;.., .. STAFF CONTACT: Phil Nachbar,Redevelopment Manager (x2557) Phone: (503) 639-4171 Fax: (503) 684-7297 Email: phil @tigard-or.gov DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or ffoodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3,Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation,Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [MC 18.130, 18.380, 18.390 and 18.775]. The complete text of the proposed Code Amendments is attached for your review. From information supplied by various departments and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, WE NEED YOUR COMMENTS BACK BY: JANUARY 27, 2009. You may use the space provided below or attach a separate letter to return your comments. If you are unable to respond by the above date, please phone the staff contact noted above with your comments and confirm your comments in writing as soon as possible. If you have any questions,contact the Tigard Planning Division, 13125 SW Hall Boulevard,Tigard, OR 97223. PLEASE CHECK THE FOLLOWING ITEMS THAT APPLY: We have reviewed the proposal and have no objections to it. Please contact _ of our office. _ Please refer to the enclosed letter or email. Written comments provided below: Name&Number of Person Commenting: REQUEST FOR COMMENTS DATE: January 13,2009 T I G A R D TO: PER ATTACHED FROM: City of Tigard Planning Division STAFF CONTACT: Phil Nachbar.Redevelopment Manager (x2557) Phone: (503) 639-4171 Fax: (503) 684-7297 Email: phil(aitigard-or.gov DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1,Public Involvement; Goal 2,Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7,Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2,Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [UDC 18.130, 18.380, 18.390 and 18.775]. The complete text of the proposed Code Amendments is attached for your review. From information supplied by various depaitthents and agencies and from other information available to our staff, a report and recommendation will be prepared and a decision will be rendered on the proposal in the near future. If you wish to comment on this application, WE NEED YOUR COMMENTS BACK BY: JANUARY 27, 2009. You may use the space provided below or attach a separate letter to return your comments. If you are unable to respond by the above d ate, please phone the staff contact noted above with your comments and confirm your comments in writing as soon as possible. If you have any questions,contact the Tigard Planning Division, 13125 SW Hall Boulevard,Tigard, OR 97223. PLEASE CHECK THE FOLLOWING ITEMS THAT APPLY: We have reviewed the proposal and have no objections to it. Please contact of our office. _ Please refer to the enclosed letter or email. Written comments provided below: Name&Number of Person Commenting. r Pt3 p/ r -- � 1 fla ` ,-t: ' E' id � e CITY OF TIGARD REQUEST FOR OMMENTS ./ NOTIFICA�J LIST FOR LAND USE & COMMUNITY DW.OPMENT APPLICATIONS ( �' 'C ` CdL/ E FILE OS.: FILE NAME: CITY OFFICES • LONG RANGE PLANNING/Ron Bunch,Planning Mgr. CURRENT PLANNING/Todd Prager/Arborist-Planner PUBLIC WORKS/Brian Rager,Asst.Public Works Dir. _BUILDING DIVISION/Mark Vandomelen,Plans Ex.Supervisor X ENGINEERING DEPT./Kim McMillan,Dvlpmnt.Review Engineer lUBLIC WORKS/Steve Martin,Parks Supervisor CITY ADMINISTRATION/Cathy Wheatley,City Recorder X ENGINEERING-DEPT./Greg Berry,Project Engineer HEARINGS OFFICER(+2 sets) 7COMMUNITY DVLPMNT.DEPT./Planning-Engineering Techs._POLICE DEPT./Jim Wolf,Crime Prevention Officer (PLANNING COMMISSION/GRETCHEN(+12 sets) CODE ENFORCEMENT/Christine Darnell,Code Compliance Specialist(DCA) X FILE/REFERENCE(+2 sets) SPECIAL DISTRICTS _ TUAL.HILLS PARK&REC.DIST.♦_ TUALATIN VALLEY FIRE&RESCUE* _ TUALATIN VALLEY WATER DISTRICT* X CLEAN WATER SERVICES* Planning Manager North Division Administrative Office Development Services Department 15707 SW Walker Road John K.Dalby,Deputy Fire Marshall 1850 SW 170th Avenue David Schweitzer/SWM Program Beaverton,OR 97006 14480 SW Jenkins Road Beaverton,OR 97006 2550 SW Hillsboro Highway Beaverton,OR 97005-1152 • Hillsboro,OR 97123 . LOCAL AND STATE JURISDICTIONS • CITY OF BEAVERTON * _ CITY OF TUALATIN* OR.DEPT.OF FISH&WILDLIFE X OR.DIV.OF STATE LANDS _ Planning Manager Planning Manager Devin Simmons,Habitat Biologist Melinda Wood(WLUN Form Required) _ Steven Sparks,Dev.Svcs.Manager 18880 SW Martinazzi Avenue North Willamette Watershed District 775 Summer Street NE,Suite 100 PO Box 4755 Tualatin,OR 97062 18330 NW Sauvie Island Road Salem,OR 97301-1279 Beaverton,OR 97076 Portland,OR 97231 _ OR.PUB.UTILITIES COMM. .METRO-LAND USE&PLANNING* _OR.DEPT.OF GEO.&MINERAL IND. 550 Capitol Street NE _ CITY OF DURHAM * 600 NE Grand Avenue 800 NE Oregon Street,Suite 5 . Salem,OR 97310-1380 City Manager Portland,OR 97232-2736 Portland,OR 97232 17160 SW Upper Boones Fry.Rd. _ Joanna Mensher,Data Resource Center(ZCA) 1.US ARMY CORPS.OF ENG. Durham,OR 97224 Paulette Allen,Growth Management Coordinator _OR.DEPT.OF LAND CONSERV.&DVLP. Kathryn Harris(maps a cws Lotter only) yMel Hule,Greenspaces Coordinator(CPA/MA) Mara Ulloa(Comp.Plan Amendments&Measure 37) Routing CENWP-OP-G _CITY OF KING CITY* _ Jennifer Budhabhatti,Regional Planner(Wetlands) 635 Capitol Street NE,Suite 150 PO Box 2946 City Manager _ C.D.Manager,Growth Management Services Salem,OR 97301-2540 Portland,OR 97208-2946 15300 SW 116th Avenue King City,OR 97224 WASHINGTON COUNTY _ OR.DEPT.OF ENERGY(Powerlines in Area) _OR.DEPT OF AVIATION(Monopole Towers) Dept.of Land Use&Transp. Bonneville Power Administration Tom Highland,Planning 155 N.First Avenue _CITY OF LAKE OSWEGO• Routing TTRC–Attn: Renae Ferrera 3040 25th Street,SE Suite 350,MS 13 Planning Director PO Box 3621 Salem,OR 97310 - - Hillsboro,OR 97124 PO Box 369 Portland,OR 97208-3621 _Naomi Vogel-Beattie(General Apps Lake Oswego,OR 97034 _Planning Division(ZCA)Ms 14 _ OR.DEPT.OF ENVIRON.QUALITY(DEQ) ODOT,REGION 1 * _Brent Curtis(CPA) —CITY OF PORTLAND (Notify for Wetlands and Potential Environmental Impacts) _Development Review Coordinator Doria Mateja(ZCA)Ms 14 Planning Bureau Director Regional Administrator _Carl Torland, Right-of-Way Section(vacations) _Sr.Cartographer(cpwzcA)MS 14 1900 SW 4E'Avenue,Suite 4100 2020 SW Fourth Avenue,Suite 400 123 NW Flanders _Jim Nims,SurveyorizcA)MS 15 Portland,OR 97201 Portland,OR 97201-4987 Portland,OR 97209-4037 _OR.PARKS&REC.DEPT. _WA.CO.CONSOL.COMM.AGNCY _ODOT,REGION 1 -DISTRICT 2A* _ODOT,RAIL DIVISION STATE HISTORIC Dave Austin(wcccA)"911"IMOnoyolo Towers) Sam Hunaidi,Assistant District Manager (Notify if ODOT R/R-Hwy.Crossing is Only Access to Land) PRESERVATION OFFICE PO Box 6375 6000 SW Raab Road Dave Lanning,Sr.Crossing Safety Specialist (Notify if Property Has HD Overlay) Beaverton,OR 97007-0375 Portland,OR 97221 555-13th Street,NE,Suite 3 725 Sumner Street NE,Suite C Salem,OR 97301-4179 Salem,OR 97301 . UTILITY PROVIDERS AND SPECIAL AGENCIES —PORTLAND WESTERN R/R,BURLINGTON NORTHERN/SANTA FE R/R,OREGON ELECTRIC R/R(Burlington Northern/Santa Fe R/R Predecessor) Bruce Carswell,President&General Manager 1200 Howard Drive SE Albany,OR 97322-3336 _SOUTHERN PACIFIC TRANS.CO.R/R _METRO AREA COMMUNICATIONS _COMCAST CABLE CORP. —TRI-MET TRANSIT DVLPMT. Clifford C.Cabe,Construction Engineer Debra Palmer(Annexations Only) Gerald Backhaus(See Map to Area contact) (It Project is Within''/.Mme of a Transit Route) 5424 SE McLoughlin Boulevard Twin Oaks Technology Center • 14200 SW Brigadoon Court Ben Baldwin,Project Planner Portland,OR 97232 1815 NW 169th Place,S-6020 Beaverton,OR 97005 710 NE Holladay Street Beaverton,OR 97006-4886 Portland,OR 97232 —PORTLAND GENERAL ELECTRIC —NW NATURAL GAS COMPANY _VERIZON QWEST COMMUNICATIONS Mike Hieb Svc.Design Consultant Scott Palmer,Engineering Coord. John Cousineau,OSP Network Lynn Smith,Eng.ROW Mgr. 9480 SW Boeckman Road 220 NW Second Avenue 4155 SW Cedar Hills Blvd. 8021 SW Capitol Hill Rd,Rm 110 Wilsonville,OR 97070 Portland,OR 97209-3991 Beaverton,OR 97005 Portland,OR 97219 _TIGARD/TUALATIN SCHOOL DIST.#23J _BEAVERTON SCHOOL DIST.#48 — COMCAST CABLE CORP. _COMCAST CABLE COMMUNIC. Teri Brady,Administrative Offices Jennifer Garland,Demographics Alex Silantiev (see Map tor A ea Coated) Brian Every(Apps E at Haw N.ote9W) 6960 SW Sandburg Street 16550 SW Merlo Road 9605 SW Nimbus Avenue,Bldg.12 10831 SW Cascade Avenue Tigard,OR 97223-8039 Beaverton,OR 97006-5152 Beaverton,OR 97008 Tigard,OR 97223-4203 * INDICATES AUTOMATIC NOTIFICATION IN COMPLIANCE WITH INTERGOVERNMENTAL AGREEMENT IF WITHIN 500'OF THE SUBJECT PROPERTY FOR ANY/ALL CITY PROJECTS(Project Planner Is Responsible For Indicating Parties To Notify). h:\patty\masters\Request For Comments Notification List.doc (UPDATED: 28-Aug-08) (Also update:is\curpin)setup\labels\annexations\annexation_utilities and franchises.doc,mailing labels&auto text when updating this documet o '71 , 'i v http://www,fema,govjabout jcontactjregionx,shtm#1 v ; WTI; �S ', Gooub= I p 4 I °1 File Edit View Favorites Tools Help ro Go gle S v se Search c�* • 1/40 a Bookmarks- _,t Si n In - ; Links _4, 5:::::„ 4, la FEMA: Region X JJ ° - i I "7" . I' . 0. Lh�C, k_. ai AI ®t Mailing Address v F. Serving: 4 • • Alaska 1,,;r; • Idaho i • Oregon _ ; ild • Washington Federal Emergency Management Agency r Federal Regional Center PO 4 r y `i ZenaL) �}/ y � 130 228th Street, Southwest Bothell, WA 98021-8627 �.� (425)487-4600 ---L l' C.A Back To Top - Disaster Operations & Regional Response Coordination Center, Emergency fra- • Communications & Logistics Bothell, WA �. 425-487-4600 . A Back To Top Freedom-of-Information-Act (FOIA) Contact ICI Dohe I I I 1 I 1 0 Internet I '"' 100% 3, — 1 ' 4 Kansas North Carolina Wvomina I 1`!I i I I I 10 Internet I A 100% - _ ILI r3fr »t( {y Microsoft @fflip O b.. i VilES Regional o 0 ooa ,4FEMA�Re ion X Win ; 1 (1),!...;,..1 a0:2ffl RN WETLAND LAND USE NOTIFICATION FORM '' • —(this form is to be complete only by planning department staff for ma— d wetlands/waterways) DEPART NT OF STATE LANDS WETLANDS PR G RAM West side of Cascades,send to: 775 Summer Street NE, Suite 100; Salem, OR 97301-1279; (503)378-3805 East side of Cascades, send to: 1645 NE Forbes Rd., Suite 112 Bend,OR 97701; (541) 388-6112 1. County: 1/0 S . l h Local Case File#: C. z 00 b- 00'6 �.S- Cit : �'1'&I"k, A'-� DSL File#: WN (completed b DSL Staff) Y ( P by Responsible Jurisdiction: [I City ❑ County DSL Project#: (completed by DSL Staff) 2. APPLICANT: Cc-N`t Pk b A-?27 LANDOWNER: it.N- . name name mailing address ri?a i i( cues ci ,'state zip city, state zip r phone phone 3. LOCATION l P T R S 1/4 Tax Lot(s) Address (street/city) NWI quad map name 4. ATTACHMENTS Attach all the following (with site marked): •LWI/NWI Map (if no LWI map) •Parcel Map • Site Plan (if any) If applicable attach:4 Other See_ PI+r P ( his .. 5. SITE INFORMATION LWI/NWI Wetland Classification Codes(s) N P • Adjacent Waterway (if any) Zoning 6. PROPOSED ACTIVITY ` ` —"\T� ❑site plan approval ❑subdivision Other (Iv YNAc_Ob.k,��G't.- - ❑grading permit ❑planned unit development W-',% �r. f—•Psty-6S c■I"A t* ❑conditional use permit ❑building permit(new structures) `Zc'CK--t i tZe.tx-t..c= -- , Project Description Completed by/Contact --{m 1\iA-Gk-\'�h Z Date 1 t 3 ©G'j . E-Mail Of\i'\ aDT1'L!'rtece,G0∎1 Address \\\Z5-,,Svu Wes■\ \..1b: --h1'‘3.,/\--- -:. n� 91) L3. Phone: ( ) 7 ■ f) -c 5_`>—7 . DSL RESPONSE ❑A removal-fill permit is required from the Department of State Lands ❑A removal-fill permit will be required when the development project proceeds • ❑A removal-fill permit may be required ❑A permit may be required by the Corps of Engineers (503-808-4373) ❑Information needed includes: ❑A wetland determination/delineation report ❑ ❑ State Permit# ❑ was issued ❑has been applied for ❑No removal-fill permit is required for the described project if/because: Comments: ❑ On-Site Visit By: Date: Response completed by: Date: *If the project is changed to involve fill or removal from the wetlands area,a state removal-fill permit will be required. http://www.oregonstatelands.us/wetlanduse.htm January 2007 RAMAJ J6 &LREt4çY ft$4, kI Acs y • • AFFIDAVIT OF MAILING ll. 13D I,Patricia L.Lunsford,being first duly sworn/affirm,on oath depose and say that I am a Planning Assistant for the City of Tigard,Washington County, Oregon and that I served the following: {acckAppmp",•P Box(.)Mow} © NOTICE OF FINAL ORDER FOR DCA2008-00005/SENSITIVE LANDS PERMIT REQUIREMENTS (File No/Name Reference) ❑ AMENDED NOTICE HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer El Tigard Planning Commission • Tigard City Council (8/11/2009) A copy of the said notice being hereto attached,marked Exhibit"A",and by reference made a part hereof,was mailed to each named person(s) at the address(s) shown on the attached list(s),marked Exhibit"B", and by reference made a part hereof, on August 18,2009,and deposited in the United St. es Mail on August 18,2009,postage prepaid. (Person that P aced Notice) STATE OF OREGON County of Washington ss. City of Tigard Subscribed and sworn/affirmed before me on the ..2--S41- day of 162— ,2009. OFFICIAL SEAL SHIRLEY L TREAT NOTARY PUBUC-OREGON y ) (I l ( `; COMMISSION NO.416777 / / W COMMISSION EXPIRES APRIL 25,2011 OTARY P : C OF OREGON My Commission Expires: 41)--51(i 120 DAYS =N/A • • EXHIBIT. .. DATE OF FILING: .8/17/2009 a9 DATE MAILED: 8/18/2009 CITY OF TIGARD . Washington County, Oregon NOTICE OF FINAL ORDER BY THE CITY COUNCIL Case Number: DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 Case Name: SENSITIVE LANDS PERMIT REQUIREMENTS Applicant's Name/Address: City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223-8189 Owner's Names/Addresses: N/A Address/Location of Property: Citywide Tax Map/Lot Nos.: N/A A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS APPROVING A REQUEST FOR A DEVELOPMENT CODE AMENDMENT(ORDINANCE NO. 09-11). THE CITY OF TIGARD PLANNING COMMISSION AND CITY COUNCIL HAVE REVIEWED THE APPLICANT'S 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 PLANNING COMMISSION HELD A PUBLIC HEARING TO RECEIVE TESTIMONY ON FEBRUARY 23, 2009 AND APRIL 6, 2009 FOR THE PURPOSE.OF MAKING A RECOMMENDATION TO THE CITY COUNCIL ON THE REQUEST. THE CITY COUNCIL ALSO HELD A PUBLIC HEARING TO RECEIVE "TESTIMONY ON MAY 12, 2 09, JULY 14, 2009 AND AUGUST 11, 2009 PRIOR TO MAKING A DECISION ON THE REQUEST. THIS DECISION HAS BEEN BASED ON THE FACTS,FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER Subject: > A Community Development Code Amendment amending Section 18.775.070.B.5, removing a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead; require that pedestrian/bicycle pathway projects within the floodplain include a wildlife habitat assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and environmental educational goals. At the August 11, 2009 public hearing, the Council approved the subject application as amended. ZONE: Citywide. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal[FEMA] or state statutes or regulations;Applicable ME'll{O regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard Comprehensive Plan Goals [Goal 1, Public Involvement; Goal 2 Land Use Planning Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open and Applicable provisions of the City's implementing ordinances [TDC Chapters 18.380, 18.390 and 18.775]. Action: > ® Approval as Amended ❑ Approval with Conditions ❑ Denial Notice: Notice was published in the newspaper, posted at City Hall and mailed to: ® Affected Government Agencies ® Interested Parties Final Decision: THIS IS THE FINAL DECISION BY THE CITY AND IS EFFECTIVE ON SEPTEMBER 10, 2009. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Division, Tigard City Hall, 13125 SW Hall Boulevard,Tigard, Oregon. Appeal: A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA) within 21 days according to their procedures. Questions: If you have any questions, please call the City of Tigard Planning Division or the City Recorder at (503) 639-4171. • • CITY—OF TIGARD, OREGON TIGARD.CITY COUNCIL ORDINANCE: i AN"ORDINANCE AMENDING THE 'TTGARD-CC ','NITY'IDEVELQPME"NT CODE;SEC:'I'ON 18:775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PA'T'HWAYS:LOCATED WITHIN . OR ADJACENT TO THE.FLOODPL:AIN TO BE..BELOW"THE`ELEVATION OF THE AVERAGE ANNUAL FLOOD. AND;. INSTEAD; REQUIRE THAT PEDESTRIANXBIGYC LF' PATHWAY - PRQJEcas,WITHIN;THE FLOODPLAIN IUDE A;WWLDI WE HA$ITAT ASSESSMENT THAT SHOWS THE PROPOSED ALIGNMENT .MINIMIZES IMPACTS 'TO:SIGNIFICANT WILDLIFE HABITAT'WHILE..BALANCING THE COMMUNITY'S.RECREATION'.AND 'ENVIRONMENTAL EDUCATIONAL GOALS .(DCA2;00&00005);:AS_AMENDED* WHEREAS, :the`Cit s;..Planning 'Division'has.requested.'to:arriend,Chapter" 1805'- .Sensitive'Lands: of the Tigard Development Code:°to remove,a;criterion.which'prohibits pathways located within or adjacent to the .floodplain,to .be""below-the.elevation of the average annual flood and, instead;.require:that pedestrian/bicycle pathway4projects within the floodplairi:inchide a:wildlife habitat assessrnerit that shows'the proposed alignment rninirnizes;impacts to significant'wilcl,life habitat while balancing the community's recreation and",environmental. educational goals;and WHEREAS;.noticewas:provided."to the Departmentof.Land"Conservation and Development 45:days:prior-to the'fiistevidentiary:public hearing;arid. WHEREAS,,the Tigard Planning.Commission held public;hearings:on,February.23,.2009 and April 6, 2009, and recommended approval of-the,proposed.amendment,as amended.to;require;a wildlife assessment to ensure that the proposed alignirierit min n izes impacts_to significarit'c ildlife habitat;:and WHEREAS, notice'of the'public head'gs'Was published'in'the'Tigard Time"s.Newspaper at least'10 business days prior to the public,hearings;,and: WHEREAS, the `Tigard ,City"Council has considered 'applicable Statewide Planning Goals and Guidelines adopted. under Oregon Revised; Statutes 'Chapter 197;. any;federal or state statutes or regulations found applicable; any applicable'Metro`regulations,any applicable Comprehensive Plan,Policies; and any applicable. provisionseof'the:.Gty's implementing ordinances;:and WHEREAS,.the-:.City Council has found the following-to:be the only applicable:"review criteria: The:Statewide Planning"Goals and.Guidelines adopted;under Oregon Revised-:Statutes"Chapter.197[Goat1,, Public"Involvement; Goal 2,Land Use Planning;:Goal:5;;Natural"Resources, Scenic and Historic Areas, and' Open:Spaces, Goal 7, Areas Subject-to Natural",Hazards; .Goal:8, Recreational Needs];- Applicable federal [FEMA] or state _statutes: or regulations, Applicable .METRO. .regulations [Metro Urban: Growth, Management IFUnctional Plan, Title:3, Water-Onality°and`Flood.Management, and Tide. 13, Nature: in 'Neighborhoods], Applicable Tigard Comprehensive Plan"Goals[Goal::1',Public Involvement Goal 2,Land- - Use.Planning; Goal 5, Natural Resources and:Historic Areas; Goal 7;.Hazards Goal.8; Parks; Recreation, Trails, and Open Space]; Applicable: provisions"of;.the: aty's implementing;ordinances= ['IDC Chapters 18.380, 18390:and.18.775]. "Ciiy."Recoiilcr's Nae The moiioii,ailoptutg"pnlinince No.09-:11.was: "MOO by Couna7or Buchner,secorxled bg Counciloq Webb,for adopiion of Ordinance;IVo.. '0411,including di minimis"changes subsiatttmg"svt7cikfe habitat assessment for`w�ildlife•assessment and;inrlutleig °Pedestrian%bic}de pathv ray projects..,'',and.also: including Mr Harpers memo dated August 11,"2009 as pan-.of-the findings. Mr:Huper's:mento.is:on file in the Cty'Rcconic's.office as put.of.the August.1 1,,2009•• Council meeting packet.materiab'for Agenda'Itern No.B. ORDINANCE No.:09 Page 1 • WHEREAS, the'Tigard City Council held=Public hearings on May 12 11%, July :14th,;a.nd_August 1.1,-52009 to: consider the:proposed ameridinerit;and WHEREAS, the Tigard.City Council has determined that the proposed development code ,amendment is consistent with the applicable reView criteria,and thataPproVing the request would be in the bestinterestofthe City of Tigard: NOW,THEREFOREJHE CITY OF TIGARD.ORDAINS AS FOLLOWS:,, SECTION I: The:specific. text ,artiendinent attached a,S "EXHIBIT A"- to: dii-S Ordinance; hereby !adopted and approved by the City Council: SECTION:2:: The ;findings in the June 29, '2099 Supplemental :Staff Report to the City Council, City Attorney's Supplemental Findings (Amended July 22,2009),Minutes of the February t23,; 2009 and April.6, 2009 Planning Commission:hearings; and the Minutes of the May 12tI1-, July 10!, anclAugnst 11th 2009 Council hearings are hereby,adopted in e"-planation of the Council's decisions SECTION:.3:„ This ordinance Sh .11 be effective 30 days:after its passage by the'Council, sigriattite by the :Mayor„anci posting by.:flit City Recorder. PASSED LO an-ifs-1101LS' vote of al Council members being read by tiiiniber and title only,:thiS U day of ,2009: Catherine:Wheadey,City Recorder - • APPROVED:: By:Tigard City,Council this ):/ day Of I444& 00 Craig. • -sen,Mayor A.,.roved as to form: 4111/11w City Attorney Ajt:cr,t,ts 4- 11 a oPl. Date ORDINANCE No109- 11 • • Page 2 • • EXHIBITA • - - .DCA200.8-00.005 SENSITIVE LANDS.PERMIT.RE,QUIREMEISITS: This text ameridineittettiploYs thesfollowing-forniatting:- [$041oth4t44.04- Tekttorbolertibved. -Tekrt0 be added 18 775 670 Sensitive Land lierriiits A. Perrruts reciiiired. An applicant, who wishes to develop, within a sensitive area, as.defined in Chapter 18775,must obtain apernitin-certain Situations:Depending.on the nature and intensity of the proposed activity within a sensitive:area; either,a.:;Type: or Type,III permit is requiredas delineated In rSections 18:775':620:F:and 1$:775.020.:.G.:The AppirtiValCtiteria for various kinds of sensitive areas,e g, floodplain, are presentedin Sections 181775.070.11,-,.18.775.070.E below.. 11. Within the 100-yeat'floodplaitCrhe Officer shall,approve,.appeove-*ith:thnditiont or deny an application request within the. 100-year,floodplain based:upon findings thatall of the.following criteria have been sati..Sfied: • Landfortualteratioris ShalliireServeor.enhanCe the.flOo.dPlaia-Storage,funCtionand.inaintinance of the zero-foot rise floodway shall not result in any encroachments, -including fill, new construction, substantial improvements and other development liplpss, certified by a,regiSt:0e4 professional engineer that die.-encroaChment Will not result in,any iiiettaSe in flood levels during theibase.flOod diScharge; 2. 1.:,and form alterations or developments within the 100-year floodplain.shall be 411670: only in areas. designated is or industrial on the plan l .atici:usemap,except ihat'Alterations, . 0. or developments associated,with community recreation',uses, utilities, or public..support. facilities -as- defined in•Chapter.18..120 of the Community Development Code shall be allowed in areas designated resicleinialfsubj ect.10 applicable zoning standards; .3: Where,aland form alteration-or development,is pertained..to, occur within-The.,floodiilain it will not . result in anyincreasein the water surface.elevation of the 100 year , - 4,The land form:.alteration„ordevelopment plan includes,a pedestrian/bicyclepathwarin.accordance with the adopted pedestikn/bicycle pathway plan,unless the construction of said pathway is deemed by the Hearings Officer as'untimely,: The -t41' e7peElestitimAieyele-patIvmtyLin Elieat-e4trit-ne-fratliwa-)4i11713e-belelle-elevatien-ef-an . . Oetiige-anniiibl-fleedi-RedeStiiiiii/bicyC/epOthipiiyprojects within the floodplain shall include a wildlife habitat assessment that shows-the proposed Alignment niininikes..impacts to:significant wildlife habitat while•balancing the community?s,:recreation and environmental.educational" 6;The necess ary. Arnay-Corps of Engineers -4:0'.54of:,(:)regigo,L,apd.Board,-DivisiOri of§tate ;l_ands,and CWS petinits:.and appeoalSs:snail becbtailied;an d 7. Where land form.alterations and/or development are allowed.within and adjacent to the 100-yeat floodplain,the City shall require:the consideration of of sufficient.-open land,afea,within-and adjacent to thelloOdiilain in accordance with the comprehensive plan: This area shalt:include-portions of-a suitable,elevation.for the constructiOn of'a:pedestrian/154de pathway within the floodplain in accordance With the adopted:pedestrian/hicyclept.hway'Olan,' • • Gary Pagenstecher From: Brian Harper[Brian.Harper @oregonmetro.gov] J2J 1d4 i i4.e a g Sent: Tuesday, August 11, 2009 4:10 PM To: jfrewing Cc?u,n6( m Cc: Tim O'Brien; Gary Pagenstecher Subject: FW: Tigard Removal of Goal 5 Protection • l L,09_ Cou.n mokkon 'induct es Mr. Frewing, 4ki5 di7( e.ur-wir14- Q.S -F of -(-- d i r1Gs. O r ttnaridi o. Ort-- 1 My apologies for not responding sooner. I wanted to make sure that I assembled all the necessary information to answer your inquiry prior to contacting you. First,thank you for bringing this item to our attention here at Metro. It is sometimes difficult to track all of the changes that can and do occur at the local level on a day-to-day basis. Second, I was able to talk to Gary Pagenstecher with the City of Tigard this afternoon. He provided me with a copy of the information packet that will be in front of the Tigard Council tonight, as well as an explanation of the course of action that the City is taking in regards to trail construction. Based on this information, internal discussion here at Metro, and discussion with City staff, Metro has no clear objection to this change. There are several reasons why Metro has reached this determination: • Exempted uses and development that are allowed under the Metro Title 13 Model Ordinance are allowed in local jurisdictions development standards. Currently,the Metro Title 13 Model Ordinance, Section 2.E allows limited types of development, redevelopment, operations, and improvements, including the following: 1. Low-impact outdoor recreation facilities for public use, outside of Water Quality Resource Areas, including, but not limited to, multi-use paths, access ways, trails,picnic areas, or interpretive and educational displays and overlooks that include benches and outdoor furniture,provided that the facility meets the following requirements: `a. It contains less than 500 sq.ft. of new impervious surface; and, b. Its trails shall be constructed using non-hazardous,pervious materials, with a maximum width of four feet. • In terms of clear and objective standards related to Title 13,the issue is slightly more complicated. Tigard clearly exerted a clear and objective standard previously by forcing this type of pathway development out of designated sensitive lands. However,Title 13 also requires a discretionary standard in addition to a clear and objective one,for all types of potential development as it relates to protected Title 13 areas. In this respect, Tigard did not previously provide a discretionary process for trail development (that I am currently aware of). Under their new proposal,the submittal of a wildlife assessment clearly classifies as a Discretionary Process for construction of a trail. The clear and objective standard would be to not develop in the protected area, but if it was still deemed necessary to do so,an additional wildlife assessment would be required before construction could be approved. (I realize that there is still the question of what a "wildlife assessment" entails, but the intent is above and beyond a clear and objective standard). • You state in your e-mail that the recreation and environmental education goals of Tigard's Comprehensive Plan will override any impact on Goal 5 resources. Metro would contend that is not the intent of Tigard's proposed changes, nor the outcome. In this instance,Tigard is requiring a Wildlife Assessment for the direct purpose of weighing the potential benefits of a proposed trail against the potential costs it might have towards a Goal 5 resource area. Realistically,State and Regional Planning goals are not mutually exclusive. There are many instances where local, regional or state planning goals are at direct odds with one another. It was the goal of Title 13 to encourage the protection of valuable natural resources,while also taking into consideration that there will be instances where local jurisdictions must make decisions about prioritization of planning goals. In some instances, it is reasonable to expect that the construction of a trail, which will help meet a '` recreation/education/activity goal will take precedent over a habitat protection goal, provided all steps possible 1 • Y are taken to minimize impala the resource. In this case, Metro is corat nt that the City of Tigard understands this concept and will be adopting regulations to this effect. Again, I wish to express our thanks for your effort to bring this matter to our attention. It is important that we work together with members of the public to scrutinize local land use decisions as they apply to our valuable natural resources. I do hope that the above explanation is clear and helps to clarify Metro's position on this matter. If you have any further questions of myself or questions in general regarding Title 13, please do not hesitate to contact me: Brian Harper Assistant Regional Planner Metro 503-797-1833 office 503-797-1930 fax brian.harperPoregonmetro.gov www.oregonmetro.gov Metro I People Places. Open Space From: jfrewing [mailto:jfrewing @teleport.com] Sent: Monday, August 10, 2009 3:11 PM To: Tim O'Brien; Brian Harper Subject: Tigard Removal of Goal 5 Protection Tim O'Brien Brian Harper Gentlemen, This memo reports what I believe is an action which takes City of Tigard out of compliance with its earlier commitment to Nature in the Neighborhoods provisions (Goal 5) of the METRO code. Tigard has been a member of the Tualatin Basin Natural Resources Coordinating Committee for some time, and a year or so ago reviewed its development code for adequacy with the recommendations of the TBNRCC and made several changes for compliance. METRO and DLCD then approved the code provisions of the member Washington County cities and county as compliant with the METRO Nature in the Neighborhoods regulations and Goal 5. Recently, Tigard has acted toward a change in its regulations which seriously impact (ie, detract from protection of)the fish and wildlife resources of the city. The city development code, upon enactment of the TBNRCC provisions, included (and had included for some time) a provision that for sensitive lands, plans for any pathway on sensitive lands would be required to show such pathways to be located above the elevation of the annual average flood. A recent proposal (a 'post acknowledgement plan amendment, PAPA), would have simply eliminated such requirement, allowing pathways even closer to streams and their important wildlife habitat, including Goal 5 resources. In the course of public review, the city proposal has been modified, still allowing pathways lower than the elevation of the annual average flood, but requiring "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment that shows the proposed alignment minimizes impacts to significant wildlife habitat while balancing the community's recreation and 2 environmental educational goals his change allows a new conflicting •in the areas below the level of the annual average flood, which is the very area where many riparian plants and animals depend on close access to streams, lakes and wetlands. Goal 5 resources are in this area below the level of the annual average flood. Pathways in this area below the level of the annual average flood will conflict with Goal 5 resources; the findings by Tigard for their proposed change even state that the conflict will be that "necessary to achieve the City's recreation and environmental education goals." —indicating that there will be no balancing (nor s consideration), but that the recreation and environmental education goals override any impact on Goal 5 resources. The Goal 5 resources are thereby not protected as required by state law. Additionally, while this revised language widens the area of concern, from the elevation of the annual average flood to the floodplain (100-year flood level), it replaces a clear and objective criterion with one which is essentially a submittal requirement—submittal of a piece of paper(actually, it doesn't even require submittal of a study as part of an application!). The METRO code, at 3.07.1330 B.5 requires that even for TBNRCC cities, local codes must comply with "All other provisions of this Metro Code Section 3.07.1330 ....". The very next code section, METRO code 3.07.1330 C requires that implementing ordinances "shall contain clear and objective standards" and goes on to define 'clear and objective'. Tigard staff and legal counsel agree that their proposed code change is subject to state Goal 5 and METRO regulations as approval criteria. The proposed Tigard rule is not clear and objective. It does not contain a fixed numerical standard, it is not a nondiscretionary requirement (such as 'above the annual average flood elevation') and it is not.a performance standard that 'describes the outcome to be achieved, specifies the objective criteria to be used in evaluating outcome or performance, and provides a process for application of the performance standard, such as a conditional use or design review process.' The Tigard City Council is scheduled to adopt its revised rule, described above, on August 11, 2009,to be effective 30 days later. Please review this matter and take action to enforce the protective measures for fish and wildlife in the Tigard code as of the date of its METRO approval in accordance with Title 13. Please let me know of your review and enforcement actions. Thanks, John Frewing 7110 SW Lola Lane, Tigard, OR 97223 ifrewing( teleport.com 503-245-5760 3 r • S EXHIBITCS Eric Lindstrom DCA2008-00005 Watershed Research and Photography SENSITIVE LANDS PERMIT REQUIREMENTS 6801 SW Canyon Crest Drive Portland, OR 97225 "Notice of Final Order by the City Council" Tim McGilvrey 11608 SW Springwood Tigard, OR 97223 SueBeilke,Wildlife Biologist Fans of Fanno Creek 11755 SW 114th Place Tigard, OR 97223 Brian Wegener, Watershed Watch Coordinator Tualatin Riverkeepers 12360 SW Main Street, # 100 Tigard, OR 97223 John Frewing 7110 SW Lola Lane Tigard, OR 97223 Mischa Connine, Habitat Biologist Oregon Department of Fish and Wildlife Northwest Region 18330 NW Sauvie Island Road Portland, OR 97213 • Bob Sallinger, Conservation Director Jim Labbe,Urban Conservationist Audubon Society of Portland 5151 NW Cornell Rd Portland, OR 97210 Brian Harper Assistant Regional Planner Metro Regional Center 600 NE Grand Avenue Portland, OR 97232-2736 • • AFFIDAVIT OF MAILING • - - A leAmo I,Patricia L. Lunsford,being first dulysworn/affirm, on oath depose and say that I am a Planning Assistant for the City of Tigard,Washington County, Oregon and that I served the following: {CheckAppmpnaee Box(s)Below} © NOTICE OF PUBLIC HEARING FOR DCA2008-00005/SENSITIVE LANDS PERMIT REQUIREMENTS CODE AMENDMENT (File NoJNarne Reference) ❑ AMENDED NOTICE HEARING BODY: HEARING DATE: ❑ City of Tigard Planning Director ❑ Tigard Hearings Officer • Tigard Planning Commission 2/23/2009 ® Tigard City Council (3/10/2009) A copy of the said notice being hereto attached,marked Exhibit"A",and by reference made a part hereof,was mailed to each named person(s) at the address(s) shown on the attached list(s),marked Exhibit"B", and by reference made a part hereof,on February 2,2009,and deposited in the United States Mail on February 2,2009,postage prepaid. (Person that P - ed Notice) STATE OF OREGON County of Washington ss. City of Tigard Subscribed and sworn/affirmed before me on the o2-S- day of Fegga -t ,2009. y -~ OFFICIAL SEAL 1 A `�/. a �c� - 8HIRLEY L TREAT J �4� COMMISSION PUBLIC N0.4 6777 � ES NO ARY PUB C OF OREGON MY COMMISSION EXPIR APRIL 25,2011 My Commission Expires: ` 1 /l EXHIBIT k, NOTICE TO MORTGAGEE,LIENHOLDER,VENDOR OR SELLER THE TIGARD DEVELOPMENT CODE REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT SHALL BE PROMPTLY FORWARDED TO THE PURCHASER TIGARD PUBLIC HEARING NOTICE NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE TIGARD PLANNING COMMISSION ON MONDAY, FEBRUARY 23, 2009 AT 7:00 PM, AND BEFORE THE TIGARD CITY COUNCIL ON TUESDAY, MARCH 10, 2009 AT 7:30 PM. THE PUBLIC HEARINGS WILL BE CONDUCIED IN THE TOWN HALL OF THE TIGARD CIVIC CENTER AT 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223. THESE HEARINGS ARE FOR THE PURPOSE OF RECEIVING "TESTIMONY FROM THE PUBLIC. FILE NO.: DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 FILE TITLE: SENSITIVE LANDS PERMIT REQUIREMENTS APPLICANT: City of Tigard Attn: Phil Nachbar,Redevelopment Manager 13125 SW Hall Boulevard Tigard, OR 97223 REQUEST: To remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775 THE PUBLIC HEARING ON THIS MATTER WILL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF CHAPTER 18.390.060.E OF THE COMMUNITY DEVELOPMENT CODE AND RULES OF PROCEDURE ADOPTED BY THE TIGARD PLANNING COMMISSION AND CITY COUNCIL AND AVAILABLE AT CITY HALL. • • ASSISTIVE LISTENING DEVICES ARE AVAILABLE FOR PERSONS WITH IMPAIRED HEARING. THE CITY WILL ALSO ENDEAVOR TO ARRANGE FOR QUALIFIED SIGN LANGUAGE INTERPRETERS AND QUALIFIED BILINGUAL INTERPRETERS UPON REQUEST. PLEASE CALL 503-639-4171, EXT. 2438 (VOICE) OR 503-684-2772 (TDD - TELECOMMUNICATIONS DEVICES FOR THE DEAF) NO LESS THAN ONE WEEK PRIOR TO THE HEARING TO MAKE ARRANGEMENTS. PUBLIC ORAL OR WRITTEN TESTIMONY IS INVITED. ANYONE WISHING TO PRESENT WRI'I'IEN "TESTIMONY ON THIS PROPOSED ACI1ON MAY DO SO IN WRITING PRIOR TO OR AT THE PUBLIC HEARING. ORAL TESTIMONY MAY BE PRESENTED AT THE PUBLIC HEARING. AT THE PUBLIC HEARING, THE PLANNING COMMISSION WILL RECEIVE A STAFF REPORT PRESENTATION FROM THE CITY PLANNER, OPEN THE PUBLIC HEARING, AND INVITE BOTH ORAL AND WRI"1'IEN TESTIMONY. THE PLANNING COMMISSION MAY CONTINUE THE PUBLIC HEARING TO ANOTHER MEETING TO OBTAIN ADDITIONAL INFORMATION OR CLOSE THE PUBLIC HEARING AND TAKE ACTION ON THE APPLICATION. THE PURPOSE OF THE PLANNING COMMISSION'S REVIEW IS TO MAKE A RECOMMENDATION TO THE CITY COUNCIL. THE COUNCIL WILL THEN HOLD A PUBLIC HEARING ON THE ITEM AT A LATER DATE. ALL DOCUMENTS AND APPLICABLE CRITERIA IN THE ABOVE-NOTED FILE ARE AVAILABLE FOR INSPECTION AT NO COST OR COPIES CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25 ) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. AT LEAST SEVEN(7) DAYS PRIOR TO THE HEARING,A COPY OF THE STAFF REPORT WILL BE AVAILABLE FOR INSPECTION AT NO COST, OR A COPY CAN BE OBTAINED FOR TWENTY-FIVE CENTS (25<) PER PAGE, OR THE CURRENT RATE CHARGED FOR COPIES AT THE TIME OF THE REQUEST. FOR FURTHER INFORMATION PLEASE CONTACT THE STAFF PLANNER PHIL NACHBAR AT 503-639-4171 (TIGARD CITY HALL, 13125 SW HALL BOULEVARD, TIGARD, OREGON 97223) OR BY EMAIL TO phil @tigard-or.gov. • • Barry lbertson Josh Thomas EXHIBIT _ rry J 15445 SW 150th Avenue 10395 SW Bonanza Tigard, OR 97224 Tigard, OR 97224 David Walsh Tim Esau 10236 SW Stuart Court PO Box 230695 Tigard, OR 97223 Tigard, OR 97281 Don &Dorothy E rdt Ross Sundberg 13760 SW 121st Avenue 16382 SW 104th Avenue Tigard, OR 97223 Tigard, OR 97224 Ellen Beilstein Sue Rorman 14630 SW 139th Avenue 11250 SW 82nd Avenue Tigard, OR 97224 Tigard, OR 97223 Martha Bishop Naomi Gallucci 10590 SW Cook Lane 11285 SW 78th Avenue Tigard, OR 97223 Tigard, OR 97223 Vanessa Foster Brian Wegener 13085 SW Howard Drive 9830 SW Kimberly Drive Tigard,OR 97223 Tigard, OR 97224 Susan Beilke Patricia Keerins 11755 SW 114th Place 12195 SW 121st Avenue Tigard, OR 97223 Tigard, OR 97223 John Frewing Alexander Craghead 7110 SW Lola Lane 12205 SW Hall Boulevard Tigard, OR 97223 Tigard, OR 97223-6210 Paul Owen CPO 4B 10335 SW Highland Drive 16200 SW Pacific Highway, Suite H242 Tigard,OR 97224 Tigard, OR 97224 Rex C'affall Craig Smelter 13205 SW Village Glenn PO Box 1467 Tigard, OR 97223 Tualatin, OR 97062 Harold and Ruth Howland 13145 SW Benish Tigard, OR 97223 Kevin Hogan 14357 SW 133rd Avenue Tigard, OR 97224 Gretchen Buehner 13249 SW 136th Place Tigard, OR 97224 Joseph Dyar 10285 SW Highland Drive Tigard,OR 97224-4668 Beverly Froude 12200 SW Bull Mountain Road Tigard, OR 97224 Brad Spring 7555 SW Spruce Street Tigard, OR 97223 Todd Harding and Blake Hering Jr. Norris Beggs &Simpson 121 SW Morrison, Suite 200 Portland, OR 97204 CITY OF TIGARD- CITYWIDE INTERESTED PARTIES (i:\curpin\setup\labels\QT CtyWide.doc) UPDATED: 16-Dec-08 in person ❑ electronic ❑ mailed ❑ N 1 DLCD oNotice of 1 Proposed Amendment /L� copyTHIS FORM MUST BE RECEIVED BY DLCD AT LEAST } u 45 DAYS PRIOR TO THE FIRST EVIDENTIARY HEARING I hifi PER ORS 197.610,OAR CHAPTER 660,DIVISION 18 For DI_C D Use Only Jurisdiction: City of Tigard Date of First Evidentiary Hearing : 02/09/2009 Local File Number: DCA2008-00005 Date of Final Hearing: • Is this a REVISION to a previously submitted proposal? ❑Yes No Date submitted: 12/23/2008 ❑ Comprehensive Plan Text Amendment ❑ Comprehensive Plan Map Amendment ® Land Use Regulation Amendment ❑ Zoning Map Amendment ❑ New Land Use Regulation ❑ Urban Growth Boundary Amendment ❑ Transportation System Plan Amendment ❑ Other: Briefly Summarize Proposal. Do not use technical terms. Do not write "See Attached"(limit 500 characters): The City proposes to remove section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood;". Removal of this section would allow pathways to be installed in areas which would benefit the public (access to and educational appreciation of ecological areas). Removal of this requirement does not affect the protection of sensitive habitats or floodplain requirements. Has sufficient information been included to advise DLCD of the effect of proposal? ❑Yes, text is included For Map Changes: Include 8'h"xl 1" maps of Current and Proposed designation. ❑ Yes, Maps included Plan map changed from: n/a To: Zone map changed from:n/a To: Location of property (do not use Tax Lot): citywide Previous density:n/a New density: n/a Acres involved: 24.50 Applicable statewide planning goals: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ® ® ❑ ❑ ® ❑ ® ® ❑ ❑ 0000 ❑ ❑ ❑ ❑ ❑ Is an exception to a statewide planning goal proposed? ❑ YES ® NO Goals: Affected state or federal agencies, local governments or special districts (It is jurisdiction's responsibility to notify these agencies. DLCD only records this information): None anticipated. Local Contact: Phil Nachbar,Redevelopment Manager Phone: 5037182557 Extension: Address: 13125 S.W.Hall Blvd. City: Tigard Zip: 97223- Fax Number: 503-684-7297 E-mail Address: phil @tigard-or.gov DLCD file No. • • ) U.S. Postal ServiceTM CE R Attn: Patty/Planning (Domes •ed) RE: DCA2008-00005 . N For deliv= City of Tigard Pedestrian/Bicycle Paths "Notice of Proposed Amendment" m Postage $ , 35- m Certified Fee 0 __.�\ '� (Postmeric p Return Receipt Fee /„, y c Herd � (Endorsement Required) � 0 /,i 'y� O Restricted Delivery.Fee t cr, O (Endorsement Required) ti m \ O� )z c0 Total Postage&Fees $ - ri -,Sent To \�C121`40\. ./ ca Street,Apt.No.; ' ATTN: PLAN AMENDMENT SPECIALIST I 0 or PO Box No. Oregon Dept.of Land Conservation&Development P- 1 635 Capital Street NE,State 150 City,State,ZIP+4' Salem,OR 9730I,-2540 . PS Form 3800,Augus s See Reverse for Instructions J - I SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTIOII ON DELIVER • Complete items 1,2,and 3.Also complete A. item 4 if Restricted Delivery is desired. x ifilliMAYNT-nt ■ Print your name and address on the reverse _ _ .ressee so that we can return the card to you. B. Received by(printed N. -) . -gtir • Attach this card to the back of the mailpiece, /�` +� f, or on the front if space permits. �j 1. Article Addressed to:- D. Is delivery address different from item 1? El Yes If YES,enter delivery address below: r No 1 , i _ ATTN:.PLAN AMENDMENT SPECIALIST Oregon Dept.of Land Conservation&Development 635 Capital Street NE,Suite 1130 3. Service Type Salem,OR 97301-2540 yp cit Certified Mail ❑Express Mail - - - ❑Registered ❑Return Receipt for Merchandise ❑Insured Mail ❑C.O.D. • 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number 7008 1830 0004 3346 ~8706 (Transfer from service labe() PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-1540(