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City Council Packet - 11/01/1982 I J1 TIGARD CITY COUNCIL PUBLIC NOTICE: Anyone wishing to speak on an SPECIAL MEETING AGENDA agenda item needs to sign their name on the NOVEMBER 1, 1982, 7.30 P.M. appropriate sign-up sheet(s). If no sheet is FOWLER JUNIOR HIGH SCHOOL provided, ask to be recognized by the Chair. LECTURE ROOM 1. SPECIAL MEETING: 1.1 Call To Order and Roll Call 1.2 Pledge of Allegiance 1.3 Call To Staff, Council & Audience For Non-Agenda Items Under Open Agenda 2. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed for discussion and separate action. Motion to: 2.1 Approve Following Acceptances of Public Improvement Projects: • Resolution No. 82-119 SW 130th Avenue Sewer Extension • Resolution No. 82-120 Tippitt Place Subdivision Sewer • Resolution No. 82-121 Copper Creek (Phase II) Subdivision o Resolution No. 82-122 Watkins Place Subdivision • Resolution No. 82-123 Jo Square Subdivision 2.2 Receive and File: • Memo from Director of Planning and Development re: Comp Plan Hearings 2.3 Resolution No. 82-124 Request Time Extension-Water Contract-City of Portland 3. ORDINANCE NO. 82-72 AN ORDINANCE GRANTING THE TIGARD CITY COUNCIL THE AUTHORITY TO SET RATES FOR FEES AND CHARGES; ESTABLISHING A METHOD FOR SETTING A14D ADJUSTING RATES, ESTABLISHING GENERAL POLICY REGARDING ALL CITY FEES AND CHARGES; RATIFYING PREVIOUS ACTIONS; AND DECLARING AN EMERGENCY. o Administrative Assistant Martin 4. RESOLUTION NO. 82- RESOLUTION ADOPTING PLANNING FEES AND CHARGES • Administrative Assistant Martin 5. ORDINANCE NO. 82- ORDINANCE REGARDING BUSINESS TAX • Administrative Assistant Martin 6. PRESENTATION OF KEY TO CITY TO PHIL EDIN • Presentation by Mayor and Council 7. PLANNING & DEVELOPMENT 7.1 Departmental Report 7.2 Comp Plan Progress Report :AND Director of Planning & Development 8. USE LEGAL ISSUES DISCUSSION ' • Legal Counsel 9. MASTER PLAN UPDATES 9.1 Sewer Plan Update 9.2 Storm Drainage Plan Update 0 Director of Public Works im 10. FLOODWAY b OPEN SPACE DISCUSSION 10.1 Floodway/Greenway Policy Discussion 10.2 Park/Open Space Discussion Director of Public Works and Director of Planning 6 Development 11. JOINT MEETING WITH PLANNING COMMISSION & C.C.I. • Director of Planning & Development 12. OPEN AGENDA: Consideration of Non-Agenda Items identified to the Chair under item 1.3 will be discussed at this time. All persons are encouraged to contact the City Administrator prior to the meeting. i C 13. ADJOURNMENT j i s t t k t t t e PAGE 2 - COUNCIL MEETING AGENDA - NOVEMBER 1 , 1982 Em0Mffl� T I G A R D C I T Y C O U N C I L SPECIAL MEETING MINUTES - NOVEMBER 1, 1982 - 7:30 P.M. 1. ROLL CALL: Present: Mayor Wilbur Bishop; President of Council, John Cook; Councilors Tom Brian, Nancie Stimler, and Kenneth Scheckla (arriving at 9:26 P.M.); Director of Public Works, Frank Currie; Finance Director/City Recorder, Doris Hartig; City Administrator, Bob Jean; Director of Planning & Development, William Monahan; Legal Counsel, Ed Sullivan; Office Manager, Loreen Wilson (leaving at 9:00 P.M.). 2. CALL TO STAFF, COUNCIL & AUDIENCE FOR NON-AGENDA ITEMS UNDER OPEN AGENDA (a) Mayor Bishop explained that he was absent from the City of Tigard over the last few days because he had some surgery. He is finding it diffirult to talk loud enough for the audience to hear and turned the chairing of the meeting over to President of Council, John Cook. (b) City Administrator requested the following items be added to the open agenda. .1 Bond Sale X616 Results .2 Notice Request for Tigard East Shopping Center .3 Approval of Crow Lease Agreement .4 Executive Session: Pending Litigation - 192.660(1)(f) Acq. of Real Property - 192.660(1)(e) (c) Bob Bledsoe, NPO #3 Vice Chairman, requested Council discuss the function of the C.C.I. whether it is an arbitration or policy board. Council requested this issue be discussed under agenda item # 11. 3. RESOLUTION NO. 82-119 RESOLUTION OF THE TIGARD CITY COUNCIL ACCEPTING THE PUBLIC SANITARY SEWER IMPROVEMENTS KNOWN AS THE SW 130TH AVENUE SANITARY SEWER EXTENSION, CONSTRUCTED WITHIN THE CITY. (a) Motion by Councilor Brian, seconded by Councilor Stimler to approve. Approved by unanimous vote of Council present. 4. RESOLUTION NO. 82-120 RESOLUTION OF THE TIGARD CITY COUNCIL ACCEPTING THE PUBLIC SANITARY SEWER CONSTRUCTED TO SERVE TIPPITT PLACE SUBDIVISION. (a) Motion by Councilor Brian, seconded by Councilor Stimler to approve. Approved by unanimous vote of Council present. I COUNCIL MINUTES - NOVEMBER 1, 1982 C 5. RESOLUTION NO. 82-121 RESOLUTION OF THE TIGARD CITY COUNCIL ACCEPTING THE PUBLIC IMPROVEMENTS CONSTRUCTED WITHIN COPPER CREEK (PHASE II) SUBDIVISION, SUBJECT TO HEREIN SPECIFIED CONDITIONS. (a) Motion by Councilor Brian, seconded by Councilor Stimler to approve. Approved by unanimous vote of Council present. 6. RESOLUTION NO. 82-122 RESOLUTION OF THE TIGARD CITY COUNCIL ACCEPTING THE PUBLIC IMPROVEMENTS CONSTRUCTED WITHIN WATKINS PLACE SUBDIVISION. (a) Motion by Councilor Brian, seconded by Councilor Stimler to approve. Approved by unanimous vote of Council present. 7. RESOLUTION NO. 82-123 RESOLUTION OF THE TIGARD CITY COUNCIL ACCEPTING THE PUBLIC IMPROVEMENTS CONSTRUCTED WITHIN JO SQUARE SUBDIVISION, SUBJECT TO HEREIN SPECIFIED CONDITIONS. s a (a) Motion by Councilor Brian, seconded by Councilor Stimler to approve. Approved by unanimous vote of Council present. 8. RECEIVE AND FILE: Memo from Director of Planning and Development re: Comp Plan Hearings. 9 (a) Motion by Councilor Brian, seconded by Councilor Stimler to receive ' and file memo approving public hearings for December 13, 14, & 15. s Approved by unanimous vote of Council present. f s 9. RESOLUTION NO. 82-124 A RESOLUTION REQUESTING A TIME EXTENSION OF THE E CITY OF PORTLAND FROM THE DECEMBER 25, 1982 WATER CONTRACT DEADLINE. (a) Motion by Councilor Brian, seconded by Councilor Stimler to set item over for consideration on November 15, 1982 to allow Water Study Committee to advise the Water District Board of Directors. s Approved by unanimous vote of Council present. 10. ORDINANCE NO. 82-72 AN ORDINANCE GRANTING THE TIGARD CITY COUNCIL THE AUTHORITY TO SET RATES FOR FEES AND CHARGES; ESTABLISHING A METHOD FOR SETTING AND ADJUSTING RATES, ESTABLISHING GENERAL POLICY REGARDING ALL CITY FEES AND CHARGES; RATIFYING PREVIOUS ACTIONS; AND DECLARING AN EMERGENCY. (a) Motion by Councilor Stimler, seconded by Mayor Bishop to adopt. c f.. (b) City Recorder requested a typographical error be amended in first Cparagraph (changing the word 'to' to the word 'or' ). it PAGE 2 - COUNCIL MINUTES - NOVEMBER 1, 1982 x t I l E (c) Motion by Councilor Stimler, seconded by Councilor Brian to amend ordinance as requested. Motion to amend, approved by unanimous vote of Council present. Motion to adopt, as amended, approved by unanimous vote of Council present. 11. RESOLUTION NO. 82-125 A RESOLUTION OF THE TIGARD CITY COUNCIL PRESCRIBING NEW PLANNING FEES AND CHARGES AND REPEALING RESOLUTION NO. 79-7. (a) Administrative Assistant Martin recommended adding the repeal of Resolution No. 79-9 also since this resolution will be adopting appeal fees and charges. (b) Motion by Councilor Stimler, seconded by Councilor Brian to approve with the addition of the repealing of Resolution No. 79-9. Approved by unanimous vote of Council present. 12. ORDINANCE NO. 82-73 AN ORDINANCE IMPOSING A BUSINESS TAX ON THOSE PERSONS DOING BUSINESS IN THE CITY OF TIGARD; REPEALING PREVIOUS BUSINESS LICENSE ORDINANCES; AND DECLARING AN EMERGENCY. (a) Motion by Councilor Brian, seconded by Councilor Stimler to adopt. Approved by unanimous vote of Council present. 13. PRESENTATION OF KEY TO CITY TO PHIL EDIN (a) Mayor Bishop and Council presented the key to the City to Phil Edin and thanked him for his service on the Budget Committee. 14. PLANNING & DEVELOPMENT - Departmental & Comp Plan Progress Reports (a) Director of Planning & Development gave overview of department and goals stressing his desire to promote the Council's action in forming an Economic Development Task Force. He noted that there is a need to create an inventory of available land and that staff would be doing this over the next few months. Building Official, Ed Walden, spoke briefly as to the enforcement procedure which will be implemented with the newly adopted Sign Code. 1 Associate Planner, Jeremy Coursolle, presented an update on the status of the Comp Plan efforts. ' 15. LAND USE LEGAL ISSUES DISCUSSION ! (a) Legal Counsel presented examples of land use case law and explained the City's possible position in various issues which may come up Cduring land use hearings and the Comp Plan adoption process. (See attached listing of discussion.) PAGE 3 - COUNCIL MINUTES - NOVEMBER 1, 1982 r f 16. MASTER PLAN UPDATES - Sewer Plan /Storm Drainage Plan !f_ (a) Director of Public Works gave history of need for plans and stated that the Council would see more detail of these plans in the future especially dealing with the areas lacking improvements and plans suggested for financing said improvements. OFFICE MANAGER LEFT MEETING - 9:00 P.M. 17. FLOODWAY AND OPEN SPACE DISCUSSION (a) Director of Public Works opened this discussion by stating there was controversy over the sensative lands ordinance and the definitions of floodplain and greenway. He showed charts relating to encroachment in the floodway, the greenway and flood plain boundaries and the expansion of those areas. He suggested the City clarify the definitions as they relate to these issues. He further commented the City may have to change the definition of floodway when you consider the impact of this area on the economic development of the City. Staff currently is having a problem interpreting the policy and needs direction to redefine the meaning of the above terms. Director of Public Works also discussed the issue of open space and natural resources plan. He requested input from Council that the policies identified in the report are indeed the policies of the Council. Council and staff discussed policy as it relates to the f greenway preservation and floodplain policy. Council to consider the s issues after January 1, 1983. i 9:26 P.M. Councilor Scheckla arrived s 18. PARK AND RECREATION OPEN SPACE (a) Planning Director read the 3 policies regarding park and recreation open space and requested Council consider it be incorporated in the i comprehensive plan. Staff will come back with some alternatives and have Council review the policies sometime after the first of the year. Councilor Scheckla questioned how staff updated the 1978 CH2M Hill storm water report with the Corps of Engineers report when considering a new project. Discussion followed as to how staff dealt with the issues and evaluated every individual project. Staff again requested clarification of the use of the floodplain with regard to economic development issues. Staff emphasized an i understanding of what the floodplain means would lead to understanding and the development of the comprehensive plan and economic development plan. This would help to resolve the issue. i, 19. OPEN AGENDA: Consideration of Non-Agenda Items identified to the Chair under item 1.3 will be discussed at this time. All persons are encouraged to contact the City Administrator prior to the meeting. 19.1 CROW LEASE F t (a) The City Administrator recommended approval of $700 per month for rent of the old City Hall property. The City will pay the property ttaxes with the understanding the $700 rent includes the rentors participation in the property tax. Council was informed this was a month to month occupancy. PAGE 4 - COUNCIL MINUTES - NOVEMBER 1, 1982 r (b) Motion by Councilor Stimler, seconded by Councilor Brian to approve. (' Approved by unanimous vote of Council. RECESS: 9:45 P.M. RECONVENE: 10:09 P.M. 19.2 TIGARD EAST SHOPPING CENTER (a) City Administrator noted letter from Attorney Janik and suggested that if no appeal was filed, the Council consider the SRD at November 15, 1982 meeting. If an appeal is filed it will have to be reset beyond the November 15th date. Consensus of Council was to hear item on November 15th if there were no legal problems. 20. JOINT MEETING WITH PLANNING COMMISSION AND CCI (a) Planning Commissioners Present: Donald Moen, Cliff Speaker, Phil Edin & Dean Leverett CCI Members Present : Chris Vanderwood, Nancy Robbins, John Butler and LuAnn Mortenson (b) Planning Director introduced members of Planning Commission and CCI and stated the purpose of the meeting was to discuss current issues regarding the comprehensive plan, LCDC goals and guidelines, housing issues and other matters of concern. (c) Group discussed Bob Bledsoe's question regarding the roll of CCI and their recommendation. City Administrator responded their role was defined by code. If there is a density issue, he suggested they submit their recommendation and alternative and let Planning Commission and City Council decide the issue. Staff further explained the criteria for considering higher densities and their inter relationship in the City. Lavalle Allen stated he understood their role was as an advisory committee and questioned relationship between staff, CCI and NPO. He felt they did not get enough staff reponse to issues. CCI members discussed the reactions of the various NPO's in trying to develop a comprehensive plan. The density issue regarding the housing element was an area of concern for areas represented at the meeting. Other items discussed was planning buffering to protect home owners, economic issue of requiring development on long under-developed street versus taking one on one basis, staff reponse to NPO suggestions, taking problems to CCI for consideration. Planning Director stated there were many issues that could not be discussed tonight and suggested a November 13, 1982 workshop to meet with staff and consider issues. Consensus was not to meet at this time. j . RECESS: 11:33 P.M. RECONVENE: 11:35 P.M. PAGE 5 - COUNCIL MINUTES - NOVEMBER 1, 1982 RAN EM 21. EXECUTIVE SESSION: The Tigard City Council went into Executive Session to discuss issues pursuant to ORS 192.660(1)(f) and (1)(e); pending litigation and land acquisition. 22. ADJOURNMENT: 11:55 P.M. it - City Recorder - City of Ti d ATTEST: Mayor - City of Tigard t k �r PAGE 6 — COUNCIL MINUTES — NOVEMBER 1, 1982 ..., __. -°�Ftdn•K'.-*oi::,e�w�'�.c-•c:lnswraxe�[i.r:.c-r4•Kaa.'of+�.'0�}naiiFaa�t-.Yw:—.�..,_. . _ ;:-.n_.:;.. . . _....,.-,-.. . ..:,.,,..{;.,-r_iv-ee.s.,r..ocx»w+ea►lF.aM4R`�• .••:� Date November 1, 1982 I wish to testify before the Tigard City Council on the following item: (Please print your name) 1;.3 . ,Call to Staff, Council & Audience for Non-Aggnda Items Under open Agenda "Jame, Address & Affiliation Item Description C f 1 I MEMORANDUM TO: Members of the City Council FROM: William, A. Monahan, Director of Planning & Development :i/� DATE: October 28 , 1982 RE: Comprehensive Pian Hearings The various elements of the Comprehensive Plan will be considered by the City Council during forthcoming Council sessions . It is my intent to present the first element, Citizen Involvement, to the Council for consideration at a public hearing on November 22 , 1982 . This tentative date will only be met, however , if the Planning Commission approves the element at a meeting on November 9 . On December 13 , 14 and 15 the Council, in a public hearing setting, will consider all elements of the Comprehensive Plan, including Citizen Involvement if it is not presented and approved on November 22 , 1982. Should the Council not adopt the complete Comprehensive Plan by December 15th, a second reading of the ordinance adopting the plan will occur at a special meeting on December 20 , 1982. MEMORANDUM NOVEMBER 1, 1982 TO: City Council FROM: Director of Planning and Development RE : Current Planning Activity The following is a summation of current planning activity over the last 2� years : # of Applicants $ in fees collected 1980-81 94 $28 ,523 . 00 1981--82 208 $17 ,609 . 00 July 1 - Sept 30 , 1982 41 $ 1 ,680. 00 The applications acted upon include: Zone Changes Subdivisions Minor Land Partitions Comprehensive Plan Revisions Site Design Review Sensitive Lands Permits Conditional Uses Variances Temporary Uses Recent Trends : Staff notes that minor land partitions and site design reviews make up the majority of recent application requests . Most of the minor land partitions are filed by individuals interested in selling off extra portions 1 of property. Majority of site design review applications are fo.r remodels or expansion of existing businesses . Inquiries on subdivision application process are on the increase. Staff Comments : Although the volume of applications has declined, staff is revising the application process and improving the quality of staff reports by addressing standards for development more clearly and uniformily and reducing the time involved for application approval. .z BUILDING DEPARTMENT STATISTICS ten months of 1979 1980 19' 1982 SINGLE FAMILY - NEW 241 228 198 106 SINGLE FAMILY 76 60 56 42 ADDITION/REMODEL COMMERCIAL - NEW 54 36 14 7 COMMERCIAL 54 92 119 59 t ADDITION/REMODEL 4 DUPLEXES/MULTI-FAMILY 31 17 18 0 13 9 13 6 DEMOLITIONS MISCELLANEOUS 40 34 31 25 (Religious/Educational site gradings/foundations/ swimming pools/etc . PLUMBING PERMITS 390 408 428 213 MECHANICi-%L PERMITS 370 399 365 167 SEWER INSPECTIONS 285 257 228 116 SEWER CONNECTIONS 283 267 237 113 r z SIGN 108 94 62 IGN PERMITS 1223 1227 BUSINESS LICENSES 1147 1218 I w r 1 ANR@WM C BUILDING DEPARTMENT STATISTICS ten months of 1979 1980 1981 1982 SINGLE FAMILY - NEW SINGLE FAMILY ADDITION/REMODEL 132 , 020. 75 123 ,701 . 40 99 ,248.27 84 ,268.42 COMMERCIAL - NEW COMMERCIAL ADDITION/REMODEL DUPLEXES/MULTI-FAMILY DEMOLITIONS MISCELLANEOUS (Religious/Educational site gradings/foundations/ swimming pools/etc . PLUMBING PERMITS 19 ,090 . 30 21,684 .00 15 ,359 .01 16 ,603 .82 MECHANICAL PERMITS 4 ,136 .67 6 ,101.39 7 ,457 . 57 3 ,351.90 SEWER INSPECTIONS 10 ,235 .00 15 ,622.50 8 ,060 .00 4 ,665 . 00 SEWER CONNECTIONS 475 ,660 . 00 391. 375 .00 284 ,475 . 00 134 ,675 . 00 SIGN PERMITS 1,948 . 00 2,345.00 1 ,915 .00 1,135 . 70 BUSINESS LICENSES 47 ,329 . 00 48,087 .40 46 ,855 .00 45 ,242.00 TO : Members of the City Council FROM: Planning and Development Department DATE : November 1 , 1982 RE: Sign Code Enforcement The Building Division of the Planning and Development Department has developed a procedure which it will follow to implement the Sign Code Ordinance revised by City Council actions on October 25 , 1982 . The procedure is intended to provide a systematic sign code enforcement process which promotes compliance with the code coupled with cooperation of the public . PROCESS The Building Division will immediately begin a comprehensive code compliance process. A starting point has been determined - the north end of- Pacific Highway on both the east and west sides of the road. Representatives of the Building Department will survey and evaluate the signs at each commercial and industrial property. All apparent sign code violations will be identified and listed in clear and concise individual letters to be sent to the property owners and/or business operators. The letter will clearly state what action is expected of the owner or operator to bring the signs situated on the property into compliance with the code. Staff intends to provide violators with a period of sixty days from notice of violations to bring all signs into compliance_ This will allow sufficient time for violators to take steps to order and erect new signs which meet the code or remove the non-conforming signs . The "grace period" allowed will give the business adequate time to comply without affecting the operation of the business. In the case of temporary signs which previously were not allowed, for instance, such signs now exhibited would be allowed for sixty days while a business either takes steps to replace the signs with a permanent sign or file an application to approve the temporary sign . SCHEDULE Ultimately the Building Division will create a file containing information on each property having signs. Our prime concern is to bring all non-conforming signs into compliance while also eliminating those signs which have been erected or placed without permits . The compliance will be systematic, complete, and executed in a manner to promote cooperation. Citations will be issued only after affording businesses an adequate opportunity to come into compliance. COMPREHENSIVE PLAN PROGRESS CHART RFC'D REV'D REVISIONS FORW'D P.C. C.C. ADOPT DOCUMENTS BY BY . TO RECMD REVIEW 5 DATE NPO NPO P.C. ADOPT TIGARD COMMUNITY DEVEL. CODE COMPREHENSIVE PLAN FINDINGS, POLICIES IMPLEMENTATION 1 FUTURE LAND USE rU 11/� f2/ MAP OFFICIAL X11 DEVELOPMENT L Igti DISTRICT MAP COMPREHENSIVE PLAN loll$(BL REPORTS: / ` t� / f CITIZEN {L /: '!!//7 (, INVOLVEMENT 2 NATURAL FEATURES C� 4ND OPEN SPACE 3 AIR, WATER AND LAND RESOURCES 4 ECONOMY 5 HOUSING 5 PUBLIC FACILITIES ARID SERVICES TRANSPORTATION ; ENERGY URBANIZATION 10 C i lion BALL, .JAN I K 6. h10VACK �} ATTORNEYS AT LAW SUITE 1470, ONE MAIN PLACE 101 S-W. MAIN STREET PORTLAND, OREGON Q7204 ROBERT S. BALL TELEPHONE (503)228-2525 STEPHEN T. JANIK OF COUNSEL KENNETH M. NOVACK JAMES M. KENNEDY JACK L.ORCHARD October 27 , 1982 JOHN W. LILJEGREN SUSAN M. OUICK Mr . William A. Monahan Director of Planning and Development Tigard City Hall Tigard, OR 97223 Mr _ Bob Jean City Administrator Tigard City Hall Tigard, OR 97223 Re: Tigard East Shopping Center Dear Bill and Bob: Mr . JB Bishop. is the developer . of the proposed Tigard East Shopping Center which is the subject of a planning commission action designated CPR4-82 and zC18-82. In these actions, the planning commission, on October 19, 1982, based upon a favorable staff report, granted a comprehensive plan change and zone change for the property which will become the Tigard East Shopping Center . Notice of this decision was given October 22, 1982, and the final date for appeal to the City Council is designated as November 5, 1982. For various reasons which I would be happy to go into if you deem it pertinent, it is very important that this matter be heard by the City Council at its November 15, 1982 meeting. Given the nature of the decision, it will need to be heard by the City Council regardless of whether there is an appeal . However , our concern is that, in the event an appeal is filed on or near the final day for an appeal , then it may be difficult to meet the requirements of Section 18.92, 020 of the Tigard Code and still have the matter heard on the November 15, 1982 agenda. BALL, JAN IK NOVACK Mr . William A. Monahan Mi . Bob Jean October 37, 1982 Page 2 Specifically, in the event a notice of appeal was filed on November 5, 1982, it would not be practical to assume that the City could send out the required 10 day notices on November 5, 1982 so as to give the 10-day advance notice required under Section 18. 92. 020 (a) . While Mr . Bishop has met with the adjacent homeowners and has satisfied most of their concerns, there is the possibility that one individual may still be dissatisfied with the buffering between this project and the residences and may seek an appeal to the City Council . Our suggestion is that the City send out notices to all those who would receive notice in the event an appeal were filed and to send these notices prior to the November 5 date, perhaps on November 4, so that the matter could be heard at the November 15, 1982 City Council hearing. Mr . Bishop would advance the costs and expenses incurred by the City in sending such notices, on the theory that in the event no appeal is ultimately filed, the City would have gone through the effort of sending out the notices when, in fact, they may not have been required to do so. Mr . Bishop is meeting with the property owner who is still expressing concerns and will be advising me shortly as to whether he has reached an accommodatic :, with this property owner . In the event no such accommodation is reached, I would appreciate it very much if you would consider our proposal . It would appear to me that it would expose the City to no risk and, with Mr . Bishop' s advancing the funds to compensate the City for its expenses, the City would not be exposed to any financial expense. R If you have any questions, please do not hesitate to call me. i i Very trW. 1i y 3 eph STJ:gb cc: Mr. Ed Sullivan Mr. JB Bishop October 28, 1982 } MEMORANDUM S TO: Mayor and Council FROM: City Recorder, Doris Hartig^ �tAC) t f SUBJECT: Meeting Material for 11-1-82 Council Meeting t Information was distributed in last week's Council packet for the Floodway and Open Space Discussion scheduled for the 11-1-82 meeting. Please bring that information with you to the meeting. lw i k I MEMORANDUM TO- Members of the Tigard City Council FROM: William A. Monahan , Director of Planning & Development DATE : October 28 , 1982 RE: Hearings Officer Order Number M 2-82 , Appeal of Findings by John A. Duncan. Attached please find a set of documents which are pertinent to an appeal filed by John A. Duncan on the findings of Hearings Officer Beth Blount. $ •The appeal- will be heard by the City Council: x: on .November 15,: 19 8 2. ` This package is being provided to Xou x;41.1- duanc. ;...of-_ the, i� hearing in order that you may become familiar with the issues.' You may also wish to consider the issues raised by this appeal in light of the existing Floodway/Greenway issues which will be discussed at your November 1 study session with the Planning E and Development Office. a Please note that another appeal, ti:et of the Robert Randall Company concerning Sunnyside Estates , will be heard at your November 15 session. A package of materials will be transmitted to you as soon as the transcript of the Planning Commission ' s hearing on the issue is completed. � 0 gnL v C✓N�� Q� October 19, 1982 To: Planning Director City of Tigard From: John A. Duncan Subject: Appeal findings. of hearing officer case No. M-2-82. Decision rendered October 7, 1982. Please process my appeal to be heard after inconsistencies within The Comprehensive Plan have been effectively refined and clarified. Reasons: a. We are not affecting flood plain. b. Findings of hearing officer based on a document that at best is inconsistent and not in accord with pending comprehensive plan. C. Confiscation of property without due process. d. Land 400 feet west of subject property owned by applicant is more than adequate for future greenway. e. Staff, after thorough review of facts, recommends approval. Additional information to be furnished prior to appeal rearing. Enclosed please find the applicable Appeals Fee. Sincerely, Scan A. Duncan JADCO CHEMICAL LTD. "Specializing in Formulated Chemicals 1503)684-0044 16055 S W.741h AVENUE PORTLAND.OR 97223 r,. LAw 01 FILLS WHEELOCK,NIEHAUS,HANNA, MURPHY,GREEN 8 OSAKA C.E.va4IEELOC Y, SUITE 1111 BEND. FRANKLIN PL-ILA AREA CODE 303 RUSSELL R.NIEHAUS ONE SOUTHWEST COLUXU31A TELEPHONE 2-24-5930 HARRY M.HANNA PORTLAND,OREGON 972-58 EDWARD MURPIN.JR. DONALD W.GREEN,III GORDON L.OSAKA October 29, 1982 ROBERT T.SCHERZER JAMES T.DUNN HAND DELIVERED PERSONAL & CONFIDENTIAL Mr. Edward J. Sullivan Attorney at Law 1727 N.W. Hoyt St. Portland, OR 97209 Re: Tigard Water District ' Dear Mr. Sullivan: As you know, this office represents the interests of Tigard Water District. I understand that the Tigard City Council will, at their next meeting, consider the passage of a resolution requesting of the Portland City Council an additional three month ' s extension to execute a water purchase agreement with Portland. I would appreciate it if you would advise the Tigard Council to seriously consider the ramifications of such a request because it seriously jeopardizes and interferes with Tigard Water District ' s attempt to negotiate a new water purchase agreement with the City of Portland. As long as Portland is aware that the City of Tigard contemplates executing a water purchase agreement with them, Portland will not negotiate in good faith with the District, if Portland feels that it has City of Tigard waiting in the wings to purchase 100% of its water needs from Portland when the District purchases only about 5% of its needs from Portland. VrulyOYAKAS' o t GORDON L. S GLO:bjd s� �o MR0® m7i BALL, .JAN 1 K Ss N(:>VACK ATTORNEYS AT LAW SUITE 1470,ONE MAIN PLACE - 101 S.W. MAIN STREET ROBERT S. BALL PORTLAND, OREGON 07204 STEPHEN T. JANIK TELEPHONE 1503)228-2525 KENNETH M. NOVACK OF COUNSEL JACK L.ORCHARD ? p2'/ JAMES M. KENNEDY JOHN W. L.LJEG REN October 27 19, 0 SUSAN M. QUICK Mr . William A. Monahan Director of Planning and Development Tigard City Hall Tigard, OR 97223 Mr. Bob Jean City Administrator Tigard City Hall Tigard, OR 97223 Re: Tigard East Shopping Center Dear Bill and Bob: Mr. JB Bishop. is the developer of the proposed Tigard East Shopping Center which is the subject of a planning commission action designated CPR4-82 and ZC18-82. In these actions, the planning commission, on October 19, 1982, based upon a favorable staff report, granted a comprehensive plan change and zone change for the property which will become the Tigard East Shopping Center . Notice of this decision was given October 22, 1982, and the final date for appeal to the City Council is designated as November 5, 1982. For various reasons which I would be happy to go into if you deem it pertinent, it is very important that this matter be heard by the City Council at its November 15, 1982 meeting. Given the nature of the decision, it will need to be heard by the City Council regardless of whether there is an appeal . However, our concern is that, in the event an appeal is filed on or near the final day for an appeal , then it may be difficult to meet the requirements of Section 18.92. 020 of the Tigard Code and still have the matter heard on the November 15, 1982 agenda. BALL, .JANIK Fx NC>VAGK Mr . William A. Monahan Mr. Bob Jean October 37, 1982 Page 2 Specifically, in the event a notice of appeal was filed on November 5, 1982, it would not be practical to assume that the City could send out the required 10 day notices on November 5, 1982 so as to give the 10-day advance notice required under Section 18.92.020 (a) . While Mr. Bishop has met with the adjacent homeowners and has satisfied most of their concerns, there is the possibility that one individual may still be dissatisfied with the buffering between this project and the residences and may seek an appeal to the City Council . Our suggestion is that the City send out notices to all those who would receive notice in the event an appeal were filed and to sand these notices prior to the November 5 date, perhaps on November 4, so that the matter could be heard at the November 15, 1982 City Council hearing. Mr . Bishop would advance the costs and expenses incurred by the City in sending such notices, on the theory that in the event no appeal is ultimately filed, the City would have gone through the effort of sending out the notices when, in fact, they may not have been required to do so. Mr . Bishop is meeting with the property owner who is still expressing concerns and will be advising me shortly as to whether he has reached an accommodation with this property owner . In the event no such accommodation is reached, I would appreciate it very much if you would consider our proposal. It would appear to me that it would expose the City to no risk and, with Mr . Bishop' s advancing the funds to compensate the City for its expenses, the City would not be exposed to any financial expense. If you have any questions, please do not hesitate to call me. i 4 Very trW. ik i eph STJ:gb cc: Mr . Ed Sullivan Mr. JB Bishop BETH BLOUNT ATTORNEYAT LAW 2437 Pacific Avenue, Forest Grove, Oregon 97116 Telephone (503) 648-4887 i October 7, 1982 Liz Newton Tigard Planning Department 12755 SW Ash Tigard, OR 97223 ` Re: Hearings Officer Order M2-82 I Dear Liz: Attached please find my final Order, including Findings I and Conclusions, in the above-referenced matter. Also attached are all of the exhibits I received during the hearing. Please submit this to the City Recorder for filing. Very truly yrs, i f Z�H BLOUNT ' earings Officer i BB/cem C i BEFORE THE HEARINGS OFFICER FOR THE CITY OF TIGARD IN THE MATTER OF THE APPLICATION FOR No. A SENSITIVE LANDS PERMIT TO FILL AND LANDSCAPE PROPERTY WITHIN THE FLOOD- M 2-82 PLAIN OF FANNO CREEK; John and Janice pP Duncan, a licants. r came before the Hearings Officer The above-entitled matte s at the regularly scheduled meeting of September 23, 1982, at which time testimony, evidence and the planning department staff report were recieved; and The Hearings Officer adopts the findings and conclusions as set forth on the attached, which is incorporated by reference herein and marked Exhibit "A" ; therefore IT IS HEREBY ORDERED: M 2-82 is denied. The applicants shall remove all fill material previously placed within the flood plain of Fanno Creek no later than November 15, 1982. Dated this 7th day of October, 1982. HEARINGS OFFICER APP ROVED: B 0 . T sr�r •. T. _ ra.py✓-r.. Yy!" SK�yp/Y!.I. - ..��,}..; ..... ..r •fI'-.. - ..-n •�.•y.rVia. CITY OF TIGARD FINDINGS AND CONCLUSIONS OF THE HEARINGS OFFICER File No. M 2-82 Applicant: John and Janice Duncan Proposal: To fill and landscape a portion of the Fanno Creek floodplain, for future development of a building. Date Application Filed: Decision Rendered: October 6, 1982 Last Date to Appeal: October , 1982. Staff Recommendation: Approval, with conditions Staff Representative: Elizabeth Newton Public Hearin : A public hearing was held in the conference room of the Durham Waste Treatment Plant, Tigard, Oregon, on 'T'hursday, September 23, 1982, at which time the matter was taken under ad- visement for a written decision. Speaking in Support of the Request: (1) John Duncan (2) Dave Larson (3) Bob Bledsoe Speaking in Opposition to the Request: (1) John S�-�iwartz (2) Clifford Speaker (3) John Havery (4) Bob Bledsoe Exhibits: (1) Staff report (2) topographic map with cross sections of site (3) Tigard Planning Commission memo ( FINDINGS: A. Subject Property: 1. Description: Tax Lot 1500, WCTM 2S1 13A, City of Tigard, Washington County, Oregon, containing approximately 6. 9 Am acres. in 2. Location: The property is located on the northwest side of S.W. 74th Avenue, northeast of Durham Road. 3. Zone: M-3 Light Industrial; Greenway Page Two John and Janice Duncan M 2-82 4. Comprehensive Plan Designation: Industrial and Greenway/ Open Space 5. Site Description: There is an existing warehouse on the site which occupies approximately 1/4 of the total land area. A little more than 40% of the property lies within the 100 year floodplain of Fanno Creek; the property slopes toward Fanno Creek. B. vicinity Information: The property to the northeast and south is developed for industrial uses. The western portion of the property is within the 100 year floodplain of Fanno Creek. The property west of the greenway is currently designated urban low den- sity residential and is partially developed. C. Public Facilities and Services: The provision of public facil- sties and services is not relevant to this application as no development is proposed at this time. D. Applicable Ordinances and Plan Considerations: The application is controlled by the comprehensive plan for the City of Tigard, adopted in October, 1971, but not yet acknowledged; by the Environmental Design and Open Space Plan adopted in August, 1977, but. not yet acknowledged] the indus- trial anO parks and open space sections of the plan adopted by NPO #5; Section 18. 57 of the Tigard Municipal Code, and applicable LCDC Goals. The provisions of the Tigard documents are incorporated by reference herein. The comprehensive plan for the City of Tigard contains the objective to "utilize the natural drainageways provided by Fanno Creek. as the basic element in a system of connecting open spaces. " (Objective 1, page 51) . It also states that the greenway system will " (a) tie together recreation areas, schools, and their service areas; (b) provide protective buffers between incompatible land uses; (c) reduce flood hazard by restricting development along natural drainageways; . 51) (f) preserve the amenity of the area. " (Objective 3, page The comprehensive plan for the City, under the policies and standards section provides that the City should "Preserve natural drainageways by prohibiting development that would obstruct the flood plain. (Standard 2, page 51) , but then states in a subsequent standard that the City should "Encourage developers on both sides of Fanno Creek to con- serve all trees within 50 feet of the adjoining bank. This Page Three John and Janice Duncan M 2-82 will create a physical buffer over 100 feet wide (including ing the creek channel) to separate potentially conflicting uses lying on opposite sides of the creek. Since the 100- year flood plain ranges from 100 to 800 feet in width along the creek, the buffer will not upsurp [sic] land that is suitable for development. " (Standard 4, page 52) Standards 2 and 4 seem incompatible on their faces, one suggesting that the flood plain should be retained for open space, and the other suggesting that only a buffer of 100 feet should be retained, so land "suitable for development'° is not usurped. Unfortunately, Standard 4 does not define some of the key words used to describe the Fanno Creek area, such as "adjoining bank" or "creek channel" . Those words have specific meanings in most flood plain ordinances, al though they are not defined specificai'_y in ordinance 18.57 under of the City Code. However, in 18. 57.020 of the Code, the definition of "flood" , "stream channel" is used to mean that area carrying the "normal flow of water" distinguishing that area from the area that floods periodically. If one Standard 4 of the comprehen- uses that definition, reading sive plan, only a buffer of 100 feet, plus the channel width of approximately 5-10 ' would constitute the only buffer between the industrial zone and the residential zone in this area. The balance of the land (on either side) could be filled and used for development, so long as the storage capacity of the f loodplain, and the carrying capacity of the floodplain, were preserved under the y;,idelines set forth in 18.57 of the Tigard Code. However, in 1977, the City of Tigard adopted Thatthe documentEnvironmental Design and Open Space Plan for the City. cognized that I' [w]hile Tigard is fortunate to have a viable eployemnt [sic] base in the form of industrial and coy (pl m , 2) businesses, it is fundamentally a residential community.. " (p.• It goes .on to say [a] residential environment calls for a pleasant, relaxing atmosphere. The community design then, s should include those aesthetic and natural features considered living environment. One of the complimentary to a desirable key features is the maintenance of a sense of openness. Open I relief but also recreational space not only provides visua opportunity. Therefore, one of the objectives of this section is to ensure that a full complement of open space, in both large and small reserves, is provided as future development occurs. Once again, nature provides the essential ingredients, as well as a development guide. Fanno Creek and its tributary cel system provides an excellent opportunity for linear open spay linking the entire community together." (p. 12) Based on those conclusions, the City adopted Policy 7 , which states: i f Page Four John and Janice Duncan M 2-82 Retain the 100-year flood plain of Fanno Creek, oen its tributaries and the Tualatin aRiver lsben estab- preserve (Greenway) - lished as the backbone fbenefitopen canpbeederived}, and when a direct public ld Green- i.e. , adjacent developed forpassiee verecreationand ould be way pedestrian/bike travel. Today, there is a marked change in attitude, generally, about encouraging industrial development, often at the cost of he intangible benefits. In fact, that attitude may d pre- more e is not valent in the City of Tigard. However, he that City, particularly reflected in the adopted documents of t lanwhich must guide the Environmental Design pinion. Fd open rom the adoptee: documents this Hearings officer' sarent that the City has made a choice: of this City, it is app ace, in its natural keep Fanno Creek flood plain as open sP state, and allow only passive recreation and pedestrian/bike travel uses within its boundaries. While the applicant in this matter met his burden of proof technically, that fill could safely a in establishinbe g, lain, without reducing the carrying placed within the flood P of the flood plain, his aPPli- capacity, or storage capacity this cation contravenes the policy already established Fanno by City of no development within.the flood plain of d openCSpa e Interestingly enough` the Envronmental Design and ment Plan speaks to the technical side of considering develop in Fanno Creek. It states, in part, " [iii the process of eval- uating the plan area for flood plains and wet lands, several informational problems were identified: 1. Discrepancies e were between nlculated flood elevaions and demarcatononthe officialmaps. 3. Lack. of distinction between the flood plainw y (area of fastest stream flow) an 4. Lack of reliable hydrologic data regarding flood levels expected from future development. " (pages 9-10) to those problems, Policy 2 was written, stating: In response interjurisdictional "The City shall initiate a cooperative, 7 interim water shed, storm drainage and flood plain management study of the Fanno Creek basin, untilssufficienttablish sdatatiseavailable standards for an develop Interim to set standards at identified levels of addqros standards shall limit the rate of runoff and eerosion caused MEN= Page Five John and Janice Duncan M 2-82 by a development both during and at completion of construction, wetlnd areas as well as development in all flood plain and Ludy is underway identified in the physical inventory. " That study now, as a cooperative effort with the cities perha Perhaps after Beaverton t and Tualatin, and with Hashing �'. p study is completed, the City will consider a revision to e FannCreek their current policy to preservossiflood plain or bility isnotbefore recreational purposes. But that p this Hearings Officer. As the application fails to meet the standards and policies of the various plans of the City of Tigard, the Hearings Officer has not addressed the LCDC issues which may be relevant. CONCLUSIONS: The application violates the policies of the Comprehensive Plan of the City of Tigard and the Policies ofthe Environmental Design and Open Space Plan of the City of Tigard. RECOMMENDATION: Denial. The applicants shall remove all fill material pre- viously placed within the flood plain of Fanno Creek no later than November 15, 1982. Dated this 7th day of October, 1982. HEARINGS -0 CER i i BETH B UNT STAFF REPORT AGENDA ITEM 2 . 1 CITY OF TIGARD HEARINGS OFFICER SEPTEMBER 23 , 1982 - 7 : 00 P.M. DURHAM WASTE TREATMENT PLANT - CONFERENCE ROOM Corner of S.W. Durham & S .W. Hall Tigard, Oregon A. FINDINGS OF FACT 1. GENERAL INFORMATION CASE: M 2-82 Sensitive Lands Permit REQUEST: For a Sensitive Lands Permit to include landscape and fill within the floodplain, for future development of a building and landscaping. RECOMMENDATION: Based on staff analysis ft e tecanical information supplied by thesite inspection, staff recommends that the Hearings Officer approve the Sensitive Lands Permit with the conditions listed •.: on Page 5 of the staff report. APPLICANT: John & Janice Duncan OWNER: Same 16055 S .W. 74th Tigard, Oregon 97223 LOCATION : 16055 S.W. 74th (WCTM 2S1 13A lot 1500) LOT AREA: 6 .9 acres PRESENT ZONE DESIGNATION: M-3 Light Industrial NPO COMMENT: No comments from NPO # 5 had been received at the writing of this report. PUBLIC NOTICES MAILED: 18 public noticcess were mailedners to surrounding p p y September 13 , 1982. One written response was received and is attached as Exhibit "A" . 2. BACKGROUND to On July 21, 1982, the Public Works Director wrote a The memoowner the City Council which is attached as Exhibit property without a had filled in the floodplain area of his property mit was filed Sensitive Lands Permit. A Sensitive Lands Per on September 7 , 1982. STAFF REPORT M - PAGE 2 3 . VICINITY INFORMATION The property to the northeast and south is developed for industrial uses . The western portion of the property is within the 100 year floodplain. Fanno Creek runs southerly through the property. All of the land within the 100 year floodplain is designated greenway/open space on the Comprehensive Plan. The property west of the greenway is currently designated urban low density residential. 4 . SITE CHARACTERISTICS There is an existing warehouse on the site which occupies approximately 4 of the total land area. A little more than 40% of the property lies within the 100 year floodplain. The property slopes toward Fanno Creek. B. APPLICABLE LAND USE POLICIES AND STAFF ANALYSIS 1. LCDC GOALS AND GUIDELINES a. Citizen Involvement - The intent of this goal is to insure the opportunity for citizens to be involved in all phases of the planning process. Owners of record within 250 feet of the site were notified by mail on September 13 , 1982. In addition, a legal notice was published in the Tigard Times on September 9 , 1982. b. Land Use Planning - All applicable LCDC goals and guidelines, NPO # 5 policies and Tigard Municipal Code sections have been considered in review of this application. C. Open Spaces, Scenic and Historic Areas and Natural Resources - The intent of this goal is to protect land which may have a value as open space, historic or natural resource areas . There are twelve resources to be considered in review of this goal. The resources applicable to the applicant's proposal are as follows: 1. Land needed or desirable for open space; a portion of this site is designated greenway on the City' s adopted Parks and Open Space Plan. There is a C bike path proposed for the greenway in this area but no other greenway uses are proposed. There is 100 feet of greenway between the residential lands to the west and the area the property owner c has filled. t 1 .STAFF- REPORT M -2-82 (--. - r PAGE 3 2 . Water areas , wetlands , water sheds and groundwater resources . A portion of the property lies within the 100 year floodplain of Fanno Creek. The applicant is proposing to remove approximately 850 yards of earth sloping to the 100 year floodplain to mitigate the fill which will allow for construction of a new building in the future. Section 18. 57 . 070 of the Tigard Municipal Code addresses standards for reviewing proposals to cut and fill within the floodplain . d. Areas Subject to Natural Disasters and Hazards - In the case of this site, flooding is a concern. The excavation proposed by the applicant will be done to meet the re- quirements of the City under Section 18.57.070 of the Tigard Municipal Code. This code section prohibits any fill or excavation which would reduce the capacity of the floodplain area or raise flood surface elevations or adversely affect flow direction on upstream or downstream properties. e. Economy - The purpose of this goal is to improve and encourage diversification of the State's economy. Economic growth and expansion of existing businesses should be encouraged by the City. However, the benefits of encouraging business expansion in this case needs to be weighed against the effect of the applicant' s proposal on the floodplain and flood control measures. f. Public Facilities and Services - The intent of this goal is to insure the availability of public services to developing areas . Sewer, water and storm drainage are available to service the site. Specific locations will be addressed at the time furture development occurs. 2 . APPLICABLE NPO # 5 POLICIES POLICY 22. The industrial portion of the NPO is seen as an economic asset .to Tigard community and land use decisions which affect this area must be judged according to their economic implication. 3 . APPLICABLE POLICIES FROM ENVIORNMENTAL DESIGN AND OPEN SPACE t PLAN POLICY 1. Designate areas of physical limitation (poorly drained, seasonally flooded, ground instability) and incorporate } these designations in the City zoning Ordinance and Map, and k develop gradutated development restrictions according to the distinct characteristics of the constraints and anticipated limitations. A portion of the site is designated greenway/floodplain and is subject to requirements under Chapter 18. 57 of the Tigard Zoning Code. C STAFF REPORT M 2--C t` PAGE 4 Policy 5 . The City shall adopt an ordinance to regulate the removal and/or replacement of existing natural vegetation in designated areas , e.g. floodplains , drainageways , areas of high visibility, unique habitats , or rare species . Significant trees or stands of lumber shall be protected. Chapter 18.57 of the Tigard Municipal Code regulates activity within the floodplain. 4 . APPLICABLE POLICIES FROM THE TIGARD MUNICIPAL CODE Chapter 18.57 Sensitive Lands a. 18.57 .010 Statement of Intent - The floodplain district_ has for -its purpose the preservation of natural water storage areas within the floodplain district by dis- couraging or prohibiting incompatible uses. b. 18.57.040 Uses and Activities allowed with a Special Permit (2) (B) Any change in the topography or terrain which would change the flow of waters during flooding periods , or which would increase the flood hazard or alter the direction or velocity of floodwater flow. The new fill and excavation proposed by the applicant will alter the topography of the site. C. 18.57 .060 Special Use Permits - The applicant has provided the staff and Hearings Officer adequate in- formation to make a decision on the proposal. d. 18.57 .070 Standards - (a) Application for a special use permit in floodplain areas shall be granted or denied in accordance with the following standards : (1) No structure, fill, excavation, storage or other use shall be permitted which alone or in combination with existing or proposed uses would reduce the capacity of the floodplain area or raise either the flood surface elevation or flow rates, or adversely affect flow direction on upstream or downstream properties ,-or create a present or forseeable hazard to public . healt4 safety and general welfare. The applicantb narrative (Attached Exhibit "C") addresses standards required for action on a Sensitive Lands Permit to allow fill and excavation within the 100 year flood- plain. The City Engineer ',as reviewed the applicant's narrative. His commer =s Lire attached as Exhibit "D" . Briefly, the City Engi-eer f4.zds that the proposal is consistent with the City' s "zero foot" f lobdway ordinance and that any change in direction of flow are not detrimental to the health, safety and welfare of the public and will not adversely affect upstream or downstream properties. STAFF REPORT PAGE 5 5 . APPLICABLE OREGON REVISED STATUTES SECTIONS Staff has attached applicable ORS sections to this report (attachment "E") . C. STAFF ANALYSIS AND CONCLUSIONS After careful review of the technical data submitted by the applicant, it is the opinion of the City Engineer and staff that the fill presently in place, if offset by the excavation proposed by the applicant, does not violate the intent or purpose of the floodplain district. Further, 100 feet of green- way/open space buffer will remain between this site and the land designated single family to the west. It is staff 's opinion that 100 feet is adequate for the purpose intended for the Greenway. The applicant's proposal will not reduce the capacity of the floodplain area, raise the flood surface elevations or flow rates , adversely affect flow direction or create a hazard to public health, safety and general welfare. Remaining issue regarding this proposal involves the Greenway Bikeway System. In accordance with the adopted Parks and Open Space a bike path is to be constructed along Fanno Creek within the Greenway area. (see attached map Exhibit "F" . ) When development occurs adjacent to greenway area, it is the responsibility of each property proposing development to complete their portion of the Greenway Bikeway System, or at a minimum acquire an estimate for the construction of the bike path and submit a deposit to the City to cover the cost of construction. Staff recommends approval of the Sensitive Lands Permit allowing the new fill to remain and permitting the excavation as proposed with the following conditions: 1. A soils investigation by an approved soils engineer of the area to be filled shall be made before and after the filling and excavation occurs . 2. The material used for stream bank protection shall be as required on attached plan from the City of Tigard Drainage Plan. (figure # 6 .1) The rip rap shall go in prior to November 15 , 1982. 3. All lands remaining in the 100 year floodplain shall be dedicated to the public prior to the issuance of any permits. The dedication document shall be recorded with Washington County after it is approved by the City. M® STAFF REPORT PAGE 6 Conditions continued: 4 . A plan showing the topography of the entire site and potential areas of cut and fill, if any, as a guide for determining Greenway boundaries , shall be submitted prior to permit approval. 5. The applicant shall construct a bikeway to City standards the length of subject property, to meet the approval the City Engineer; or at a minimum the applicant shall submit to the City an estimate for the cost of construction for the bikepath and a deposit to cover those costs. Should the permit not be approved the new fill shall be removed prior to November 15 , 1982. Z 4 cCin QAC PREP D BY: Elizabeth A. New n APPROVED BY: William A. MO n Associate Planner Director of Planning and Development REVIEWED BY: Frank A. Cuzrie Public Works Director C t MAIM Ej:HIBIT "A" 81._ Sentember 15, 1932 1 51 1 5 S.W. 74th Ave SF p ' Ti--ard, Oregon 97223 T!'-a-rd :,-e rin-;s Cffice€/TY Planning Director pLAOF T/G!{/Zp 12755 S.W. Ash Ave N/V//VG DEP *r.Oregon 97223 7- _ D-ar Sir: Re: Sensitives Lands Permit M- 2-82 Jadco Chemical PTPO -5 As the owner of 2 acres on S.t'i. 74th Ave. for 40 years or so I thin'_- the. permit should be denied and I am wondering 1 . ':lhy vaith city, county and state police passing the corner of 74th Ave. and Durham Ro�•d this illegal la--d fill on the flood Dlain of Fanno Creels was ever allowed to start. Each fall and string during flood tine the waters of the creek easily reach 74th Ave. at this point. 2. In spite of three desist orders from the city, orders plainly posted on trees the dumpin- has still tone on and is still in progress. 1'o:r besides the fill dirt rubbish and cement tailings are being added to the fill to polute the creelk:. 3. Mr. John Duncan or whoever ;s responsible for the fill should be required to turn the area to its original state, for the loss of this reservoir for floodwater will push the flood water farther up the creek and caused lost fall the flooding of the parking area_ of the new apartrr.ents on Bonita Rod. 4. To the city official concerned: It should be noted that the drain- - ser: :��ho was responsible for the fill, has neglected to place a screen or grate over the mouth of the sewer where it flog s- into the creels and right now ,ith the creep low small children could creep into the tile without even get-tin- their feet wet. grating should be installed at once. Sincerely yours, C.A. Hubbard Carbon retained Vie[MrWAM - - __ <— EXHIBIT "B" l July 21, 1982 i MEMORANDUM TO: City Council FROM: Public Works Director kItl r SUBJDCT: Floodplain Filling at 74th Avenue & Durham Road is z An estimated 5,000 cubic yards of fill have been placed in the floodplain at ' SW 74th Avenue and Durham Road without a permit. a A stop work order has been issued and the property owner given until Wednesday, � July 21, 1982, to pick up a sensitive lands application at City Ball. ''his peti.it will require considerable engineering and soils work on behalf of the property owner to give us the information necessary to evaluate the extent of the impact on the floodplain, floodway, greenway and open space. i y °-- Z anticipate allowing the property owner until the end of August to accomplish I the necessary engineering and hydraulics work and submit a completed sensitive ' lands application. Staff evaluation and staff report should be completed in time to allow the Hearings Officer to render a decision in -September, in plenty of time to have any material removed before the rainy season should that be required. Ple will keep the Council updated on the progress of this issue. I . 1 Y Y� V'•r. 1�tir,. !r~ V w"Y 7T..... . �M —r Tt. �} IA it f Y. ` • 'fix'-'.5 .�"a AR Uri �t • �. _ � `�� _*, ori _ .,,� yam;:-e• � l:. v MR mrownw��MMMM . MAC:KENZIE ENGINEERING INICORPORATED Sheet 1 of 3 'EXHIBIT "C" MEI Job #182367 JADCO INTRODUCTION The following narrative will provide brief responses to the Tigard Zoning Ordinance criteria for a Sensi- tive Lands Permit. The proposal includes cut and fill within the floodplain, for future development of build- ing, landscaping, and open space. The fill material which has been placed on the site, was obtained by the applicant from the contractor in- stalling a new storm water drainage pipe in Durham Road, as well as other local construction projects. The applicant received the material after checking with the State of Oregon. He was unaware that a per- mit for filling, from the City, was required on the assumption that disposing of the excess material in this manner would be of value to all parties concern- ed. The filled area was previously a low depression, sub- ject to periodic flooding from Fanno Creek. With the addition of the fill, the applicant will utilize the r upland area for future building, parking and land- scaping, while the slope, floodplain, and stream chan- nel will remain in a natural character. It should be emphasized that although the fill has been placed, the applicant was not aware of the necessity of permits, and did not intend to circumvent any regula- tions. P 1 In addition to the following statements addressing Sec- tion 18. 57 (Sensitive Lands) and Part II (a) 4 of the floodplain application, a site plan has been prepared f and accompanies the application. Also, complete engi- neering calculations have been submitted to the Direc- tor of Public Works. A. The proposal will not reduce the capacity of ` the floodplain area or raise either the flood surface elevations or flow rates. The proposal maintains the floodplain capacity in two ways: 1. The channel flow capacity is maintained by reducing the wetted perimeter of the channel which reduces flow resistance and friction, and increases the hydrau- lic efficiency of the channel. The flood Principals: • Thomas R.Mackenzie Eric T.Saito M.U.Qreshezirs 0690 S.W. ®ASV 0 A MACKENZIE ENGINEERING INCORPORATED Sheet 2 of 3 MEI Job 1182367 JADCO profile is controlled downstream by the constriction at the Durham Road bridge. This constriction remains unchanged by this proposal . 2. The storage volume of the floodplain will be maintained by excavating areas between the top of existing creek bank and toe of fill slope. .._ The capacity of Fanno Creek, adjacent to the subject property, has been calculated for the following conditions: 1. Existing stream (prior to fill) . 2. Existing stream plus fill to date. 3. ]Proposed total fill, floodplain alteration. i I B. The proposal will not adversely affect the flow direction on upstream or downstream properties The proposal does not include any relocation of the main stream channel, therefore, no redi- rection of flood flows will occur. C. Identify any foreseeable hazards to public health, safety and welfare, and how they will-be mitigated. The proposal will not create or increase any hazard to the public health, safety or general welfare since the basic drainage way character will not change. In most cases a drainage way is not considered hazardous , since in its natural state a flood water rise will occur slowly enough to pose no particular danger. Currently, large boulders and trees have been { r dropped over the edge of the fill. These will be removed, as they present minor flow restric- tions in their current location (the log could ' float out and result in substantial constric- tion in the stream channel) , r. MAC:KENZiE ENUINr:I.K1Nh 11NUU1< VUKH1hL Sheet 3 of 3 MEI Job #182367 JADCO The earthwork (cut and fill) proposed will re- sult in no change in the 100 year flood profile, which is consistent with the City of Tigard' s adopted " zero foot" floodway ordinance. (see attached General Data Sheet and Computa- tions submitted to the City Engineer) . s D. erosion Control. Erosion Control must be an integral part of the alteration proposal. The alteration increases the average stream velocity only about 13%, (approx..5 fps. ) , however, the existing stream velocity is detrimental to unprotected native material. The relatively granular fill should be rip- rapped with 6" - 12" pit run rock to 1above I the 100 year floodplain: The excavation area should have an established native grass cover prior to any major stream flows, as stream velocities above 4 feet per second could cause l erosion of the silty-clay soil. CONCLUSION The proposal as herein outlined will allow industrially zoned property to be developed to a higher level. It has been demonstrated that the proposed modifications to the 100 year floodplain will not cause a rise in the flood profile; will not create re-direction or increase in flow; will not cause erosion and sediment transport utilizing the recommended erosion control methods. i i IDL/slm E f~ GENERAL DATA SHEET Backwater Curve 100 year flow rate at Durham Road - 5903 CFS, based on Corps of Engineers Data for river mile 1. 44 . Downstream control is the Durham Road Bridge, as channel and flood profile steepen significantly downstream of the bridge. Mannings "n" = 0.06 Velocity Coefficient = 1.36 Control PT elevation: C.O.E. 100 year elevation, 129 .19. 100 Year Flood Profile Elevations Before and After Construction Sec- Elev. before Elev. after Elevation Elev. - after Elevation tion Current Fill Current Fill Change Proposed Fill/Exc. Change 0 129 .19 129 . 19 0 129. 19 0 A 129. 62 129. 64 +. 02 ' 129. 63 +.01 3 B 129 . 81 129. 85 ;-: 04 ' 129. 80 -.01 C 129.99 130. 03 +. 04 ' 129.99 0 a kerage Stream Velocity Before and After Construction f i Vel. before Vel . after Velocity Vel. after Velocity _tion Current Fill Current Fill Change Proposed Fill/Exc. Change 0 7. 47 7 .47 0 7. 47 0 A 4 . 22 4. 86 ft/sec. +0. 64 f t/sec. 4 . 87 +.55 ft/sec. B 3. 33 3.77 ft/sec. +0. 44 f t/sec. 3. 71 +. 38 ft/sec. C 3. 46 ? . 43 -0. 03 ft/sec. 3. 09 +.44 ft/sec. i f t C. f. •tl WASHINGTON COUNTY.OREGON CASE No. C-4EN.AL APPLICATION F01ai CITY of TICARD, 12755 SW Ash , PO Box 23397 IzECEIPT No. Tigard , Oregon 97223 - (503)639-4171 FOR STAFF USE ONLY: 1. GENEPAI. INFOFI-IATION PROPERTY ADDRESS � 16055 S. W. 74th- Associated Cases:__ Tigard, Oregon 97223 LEGAL DESCRIPTION T25 RlW Section 13 (A) TL 1500 INTERNAL PROCESSIXG: Accepted for Pre•:•App. : SITE SIZE 6.9 acres John A. Duncan, Janice M. Duncan B PROPERTY CWNER/DEED HOLDER` Y ADDRESS 16055 S. W. 74th PHONF. 684-0044 pre-App.: CITY Tigard, Oregon ZIP 97223 �' /. Date &` Time . APPLICANT* Same as caner _/!: �//? i ADDRESS PHONE Accepted for Decision: CITY- ZIP By: here the owner and the applicant are different people , the applicant must be the purchaser of record or a leasee in Hearing Date- -)ssession with written authorization from the owner or an agent of the owner with written authorization. The written Hearing Reset To: authorization must be submitted with this application. 2. REQUIRED LETTER OF AUTHORIZATION IS ATTACHED ❑ YES 11N0. Decision: filed mailed 3. ' THIS APPLICATION INVOLVES THE FOLLOWING: APP- Accepted for Appeal: FEE FT?-ED PAID Comprehensive Plan Amendment _. from to By: quasi-judicial r legislative Date of Hearing: i Zone Change from to quasi-judicial DESCRIPTION: legislative i Planned Unit Development Comp. Plan Designat: i concept plan detailed plan NPO No. Subdivision Major Partition Minor Partition Zoning District Design Review Zoning Map No. ! Conditional Use �- Variance to Zoning Ordinance (Title 18) Quarter Section Variance to Subdivision Ord. (Title 17) STAFF NOTES: Sensitive Land Permit Floodplains Drainageways '— Steep Slopes �— Other C;ENE*,i1':i_ APPLICATION F01Z, - PACI'. 2 CASE No. — ,(—TY OF TICARD , 12755 Su Asti , PO Box 23397 t _gard . Oregon 97223 - (503)639-4171 :�._PPLEMENTAL INFORMATION (TO BE PROVIDED BY APPLICANT) FOR STAFF USE ONLY c Notie of Response 4 . DISTRICTS A e n t ' res� No Yes SCHOOL DISTRICT Tigard 23 J NATER DISTRICT Tigard Wates District FIRE DISTRICT Tualatin Rural F.P.D. _ PARI: DISTRICT Tigard LJ UNIFIED SEWERAGE AGENCY - Sewer Available : YES X NO OTHER 5. ' PUBLIC UTILITIES ELECTRICITY P.G.E. NATURAL GAS Pacific Northwest Natural Gas. TELEPHONE General OTHER 6 PUBLIC TRANSIT (TRI MET) NEAREST BUS ROUTE AND STOP #37 & ##38 at Durham & Boones Ferry _ ##43 at Hall & Durham 7. . OTHER INTERESTED AGENCIES (SPECIFY) Unified Sewerage Agency 8. CHARACTER OF THE AREA EXISTING LAND USE PLAN DESIGNATION ZONE VERIFIED BY STAFF NORTH Vacant R 7 SOUTH Durham Rd. M 4 EAST 74th Avenue R 7 l NEST Vacant R7 MWER " NE'1Z!�t. APPLICATION FORM - PACE 3 CASE No. P, -TY OF TIGARD, 12755 S%4 Ash , PO [sox 23397 .i.gard , Oregort 97223 - (503)639-4171 9. CIIANGE:S IN THE CHARACTER OF THE AREA WHICH AFFECT THIS APPLICATION. Please Discuss: s Recently, a gradual develoEnent of property along 72nd and Durham Road of an industrial nature has taken place. This project involves creation of additional building area for future building(s) , and-thus would be an extension of this gradual growth of industrially zoned property in the City of Tigard. a 10. DESCRIPTION OF THE SITE � E Lot Area (acres, square feet) 6.90 acres 11. EXISTING STRUCTURES ON THE SITE Square Distance. From Property'Line s Use Feet North South East West a 7800 + � '�' , + � f i Light Manufactur' - 300 - 2 - - (County Zoning MA-1) t E i r NATURAL CONDITIONS 12. Percent Slope: 13. Vegetation Types: Average Diameter Percent Of Each Yes No Size Of Trees Per Size Trees: X 2" & Less 80 ` Brush: X 10 - 12" 20 .% ee reR>nva] at--this tame Grass: X 14 . Floodplains• X How much of the site is in floodplain? 43% .5. Water Courses X What type? Small intennittent '6. Pock Outcroppings X 17. Other: s 18. Proposed Development: Please briefly describe the proposed development: The Proposed sensitive land application request includes landscaping and filling for future building development. The owner seeks the city's approval of the filling that was accomplished 11'PLICATION FORM-- rAcr•. 4CASE No . C'•'-y OF Tlr KD, 12755 Sty' Ash , YO Box 23397 1 . _ard , Oregon 97223 - (503)639-4171 is not ❑ required. 19. The following is ❑ C 1 20. Overall Site Development Residential Commercial Yndustrial Open Space Other Roads Total + Future ( arkiTx3 No. of acres Building are _ 3000 300,564' or square --- 7800 2891,764 feet per use Percent of l % site _ 26% 96.4$ — covera e T pe of Residential Use and Characteristics # of Bedrooms/Unit T pe of Use # of Units EFF, 1 2 3 4 Proposed Density Where applicable , please explain how the open space , common areas and recreational ` facilities will be maintained. i If the project is to be completed in phases , please describe each phase of the project. y r CASE No. k-ENERA, APPLICATION FOI'T - PAGE 5 f _TY OF TICf,RD, 12755 SW Asti , PO Box 23397 "gard , Oregon 97223 - (503)639-4171 THE FOLLOWING PEOPLE, AS REQUESTED BY THE APPLICANT, SHALL BE NOTIFIED OF EACH HEARING_ En ineer) Staff Notice (e_g. Attorney, Surveyor . E Notice Report Decision of Revie%4 Name Dave Iarson/Mackenzie Engineering Street 0690 S. W. Bancroft Street State Zip 972 city Portl Name Street State zip Cit Name Street State zip Cit Name Street State Zip ity 2PLICANT OWNER EXHIBIT "D" 1 . City Engineer has reviewed all calculations presented with the application and finds that the proposed alterations to the site are consistent with the cit* s adopted"zero foot/floodway ordinance and further, that any increase/ in velocity or change in direction of flow are not detrimental to the health, safety and welfare of the public and will not adversely affect upstream or downstream properties. The city engineer also finds that the proposed changes actually increase the hydraulic efficiency of + the stream. 2. applicant to provide a plan for development of the col-liplete parcel . (At least on this side of the creek) If no more filling is proposed in the 100-year floodplain, then all land in the 100-year floodplain after all proposed filling should be dedicated to the public for greenway purposes. 3. Contribution to proposed bike trail system should be required in lieu of of construction of a bike trail portion at this time. 4. It appears some filling has been done in the northeast portion of the property which may also be involved in an intrusion into the 100-year floodplain. Should be "checked out." l rw rr aper EXHIBIT "E" - othcrwise Damage resulting from extraordi- 541.080 Suits involving water rights; nary and unforeseen action of the elements, or parties; decree as to priorities. In any suit attributable in %,,•hole or in part to the wrong- commenced for the protection of rights ful interference of another person or irriga- water acquired under the provisions of the Act a= 3� tion, drainage, water improvement or water of 1891, pages 52 to 60, Oregon Laws 1891, control district organized pursuant to ORS the plaintiff may make any or all persons who Y chapter 545, 547, 552, 553 or 554 with the have diverted water from the same stream or water source parties to the suit, and the court may irrigation, drainage, water supply, ,sy ay not in one decree determine the relative priorities control or flood control works, which m be known to the person or irrigation, drain- and rights of all parties to the suit. Any per- age, water improvement or water control son claiming a right on the stream or source, district organized pursuant to ORS chapter not made a party to the suit, may become such a f 545, 547, 552, 553 or 554 for such length of on application to she court, when it is made to time as would enable the person or irrigation, appear that he is interested in the result, and r control may have his right determined.The court may drainage,water improvement or wate ,ice rict organized pursuant to ORS chapter at any stage, on its own motion, require any dist dist 547, 552, 553 or 554 t the exercise of persons having or claiming rights to water on me, shall the stream or source, to be brought in and reasonable efforts to remedy the sa not be recovered against the person or irriga- made parties, when it appears that a complete tion, drainage, water improvement or water determination of the issue involved cannot be control district organized pursuant to ORS made without their presence. chapter 545,547,552,553 or 554. APPROPRIATION OF`PATER (2) An action or suit under subsection (1) FOR MINING AND ELECTRIC of this section must be commenced within two POWER,UNDER 1899 ACT years from the date when the damage is first `' discovered or in the exercise of reasonable 541.110 Use of water to develop min- ` care should have been discovered. However, in eral resources and furnish power. The use no event shall any such action or suit be com- of the water of the lakes and running streams _ t menced more than four years from the date of Oregon for the purpose of developing the the damage actually occurred. (1979 c.882§1) mineral resources of the state and to furnish electric power for all purposes, is declared to 541.060 Waste of water; flooding be a public and beneficial use and a public r premises; unnecessary diversion. Every necessity. Subject to the provisions of the corporation having constructed a ditch, canal Water Rights Act(as defined in ORS 537.010), }_ or flume under the provisions of the Act of the right to divert unappropriated waters o :- ^a 1891, pages 52 to 60,Oregon Laws 1891, shall any such lakes or streams for such public and carefully keep and maintain the embank- beneficial use is granted. ments and walls thereof, and of any reservoir 1.120 Ditches, etc., through lands; constructed to be used in conjunction there- with, so as to prevent the water from wasting two or more prohibited; use of existing and from flooding or damaging the premises ditch by others than owner; joint liability. No tract or parcel of improved or occupied of others. The corporation shall not divert at land in this state shall, without the written any time any water for which it has no actual consent of the owner, be subjected to the bur- ,* use or demand. den of two or more ditches, canals, flumes or 541.070 Ditches, canals and flumes as pipelines constructed under the Act of 1899, pages 172 to 180, Oregon Laws 1899, for the real estate. All ditches, canals and flumes purpose of conveying water through the prop- permariently affixed to the soil, constructed ert when the same object can be feasibly and under the provisions of the Act of 1891, pages �'• 52 to 60,Oregon Laws 1891,are declared to be Practically attained by uniting and conveying :g=- all the water necessary to be conveyed real estate, and the same or any interest through such property in one ditch, canal, therein shall be transferred by deed only,duly witnessed and acknowledged. The vendee of flume or pipeline. Any person having con- . T structed a ditch, canal, flume or pipeline for the same, or any interest therein,at any stage the purpose provided in the Act of 1899 shall shall succeed to all the rights of his vendor, allow any other person to enlarge such ditch, and shall be subject to the same liabilities canal, flume or pipeline, so as not to interfere during his ownership. 102 �� rviIS(.,f':LLAN['OU5 PICOVIsIoN5 z NATER COMPANIES ditches, canals, flumes, distributing ditches, ORGANIZED UNDER 1891 ACI' and feeders of any corporation appropriating water under the provisions of the Act of 1891, 541.010 Furnishing of water for cer- across all lands belonging to the State of tain purposes declared to be a public Oregon and not under contract of sale, is utility; rates; amendment of law. (1) The granted. use of the water of the lakes and running streams of Oregon, for general rental, sale or 54I.040 l;Ieadgate; mode of construc- distribution, for purposes of irrigation, and tion. Every corporation having constructed a ditch, canal or flume under the provisions of supplying water for household and domestic the Act 18 consumption, and watering livestock upon dry � lands of the state, is a public use, and the 1891, shall ll erree pages 52ct and keepp in good repair a 60, Oregon Laws right to collect rates or compensation for such fm , to at the head of its ditch, canal or flume, use of water is a franchise. A use shall be flue, which, together with the necessary embankments, shall be of sufficient deemed general within the purview of this .height section when the water appropriated is sup- and strength to control. the water at all ordi- ' plied to all persons whose lands lie adjacent to nary stages. The framework of the headgate or within reach of the line of the ditch, canal shall be of timber not less than four inches or flume in which the water is conveyed,with- square, and the bottom, sides and gate shall out discrimination other than priority of con- be of plank not less than two inches in thick- tract, upon payment of charges therefor, as ness. ` long as there may be water to supply. 541.050 Leakage or overflow; Uabili- (2) Rates for the uses of water mentioned t7'; exception. Every corporation having in this section may i,-. fixed by the Legislative constructed a ditch, canal, flume or reservoir Assembly or by such officer as may be given under the provisions of,the Act of 1891, pages s that authority by the Legislative Assembly, 52 to 60, Oregon I:aws l$91.shall be liable for but rates shall not be fixed lower than will all damages done to the persons or property of allow the net profits of any ditch,canal,flume others, arising from leakage or overflow of or system thereof to-equal the prevailing legal water therefrom growing out of want of rate of interest on the amount of money act u- strength in the banks or walls, or negligence ally paid in and employed in the construction or want of care in the management of the : and operation of the ditch, canal, flume or ditch, canal, flume or reservoir. However, system. damage resulting from -extraordinary and unforeseen action of the elements,or attribut- (3) This section and. ORS 541.020 to able in whole or in part to the wrongful inter- b ' 541.080 may at any time e amended by the ference of another with the ditch,canal, flume Legislative Asses:=�y, and commissioners for or reservoir, which may not be known to the the management of water rights-and the use corporation- for such length of time as would s of water may be appointed. enable it by the exercise of reasonable efforts to remedy the same, shall not be recovered 541.020 Construction of ditch, etc., by against the corporation. corporation; route across lands. Whenever any corporation organized under the Act of 541.055 District liability for seepage 1891, pages 52 to 60, Oregon Laws 1891, finds and leakage from water or flood control it necessary to• construct its ditch, canal, works; limitation on commencement of flume, distributing ditches, or feeders across action. (1) Any person or irrigation,drainage, the improved or occupied lands of another, it water improvement or water control district shall select the shortest and most direct- route organized pursuant to ORS chapter 545, 547, practicable, having reference to cost of con- 552, 553 or 554 that owns, operates or main- - struction upon which the ditch, canal, flume, tains any irrigation, drainage, water supply, distributing ditches, or feeders can be con- water control or flood control works shall be structed with uniform or nearly uniform liable for damage caused by seepage and leak- grade. age from such works only to the extent that such damage is directly and proximately 541.030 Ditches, etc.. across state caused by the negligence of the person or lands; grant of right of way. The right of irrigation, drainage, water improvement or way, to the extent specified in the Act of 1891, water control district organized pursuant to pages 52 to 60, Oregon Laws 1891, for the ORS chapter 545.547.552.553 or 554 and not ' 301 -•1 CHANNEL 13ANK PROTECTION 6.01 .00 General • Channel bank protection is necessary when natural bank material is unstable as discussed in Section S. Riprap of rock, rubble masonry with grout, sacked concrete, and broken concrete slab are most commonly used to protect embankment or channel slopes of unstable material . -_02_00Rock R_ rao Rock riprap is either light loose or heavy loose riprap. Either - should-.be p•1 aced-on a one-foot thick f i 1 ter material graded from sand to- 6 inch gravel to protect the original bank material from scour or sloughing. The filter should be graded in layers from fine to coarse out to the' ri•prap. Riprap thickness should be 2 feet thick for light loose and 3 feet thick for heavy loose riprap. The toe of the riprap . should be placed below the channel bed a depth equal to the thockness of the riprap. i o = /00 hood depth �J 4 /.O min. or O f/cr}tem '•-•�. O / . fl Tirpica/ Rock Riora Fig. 6-1 TRANSCRIPT 01' IIEARING BEFORE CITY 017 TIGARD HEARINGS O1'NICE..R September 23, 1982 - "/ :00 p-m. Durham Waste Treatment Plant Conference Room Corner of SW Durham Road and SW Hall Blvd. Tigard, Oregon Re: M 2-82 - Sensitive Lands Permit - Jadco Chemical Present as Staff: Beth Blount, Hearings Officer, City of Tigard Elizabeth Newton, Associate Planner, City of Tigard Note: The Hearings Officer introduced herselk- and Elizabeth Newton. She referred to the written procedures for the hearing, and set forth the procedure to be followed. She ascertained there were no objections by those present to her hearing this case. Newton: This is a sensitive lands permit request to fill within the floodplain, including landscaping, for future development of a building and landscaping. The applicants are John and Janice Duncan. The property is located at 16055 SW 74th in Tigard; it is 6.9 acres, the zoning designation is M-3 Light Industrial. We received no comment from NPO 5 at the writing of the staff report. We mailed 18 notices, and one written response was received. t On July 21 the Public Works Director wrote a memorandum to the City Council which is also attached to the staff report. The owner had filled in the floodplain area of this property without a sensitive lands permit. Since then a permit- wa-3 filed with the city on September 7, 1982. Based on staff analyses of the technical informa- tion supplied by the applicant and site inspection, staff recommends that the hearings officer approve the sensitive lands permit with the conditions listed with the staff report . The staff has applied all applicable I.CDC Foals, NPO 5 policies, policies from the invironmental design and ripen space plan, poli- cies from the sensitive lands chapter of the Tigard Municipal Code, and we can go over the conditions. Blount: (. . . .Suggesting she do so. . . .) Newton: Okay. Staff recommends approval with five conditions. The conditions are: 1. A soils investigation by an approved soils engineer of the area to be filled shall be made before and after the filling and excavation occurs. 2. The material used for stream bank protection shall be as required on attached plan from the City of Tigard Drainage Plan. The riprap shall go in prior to November. 15, 1.982. -1- TRANSCRIPT OF HEARINGS 01'FICER HEARING Jadco Chemical Sept . 23, 1982 Newton: 3. All lands remaining in the 100 year floodplain shall be (Cont.) dedicated to the public prior to the issuance of any permits. The dedication document shall be recorded with Washington County after it is approved by the City. 4. A plan showing the topography of the entire site and poten- tial areas of cut and fill , if any, as a guide for determining Greenway boundaries, shall be submitted prior to permit approval. 5. The applicant shall construct a bikeway to City standards the length of subject property, to meet the approval of the City Engi- neer; or at a minimum the applicant shall submit to the City an estimate for the cost of construction for the bikepath and a deposit to cover those costs. Blount: I have one question on your recommendations, recommendation on Condition No. 1. What are you accomplishing on the soils investi- gation -- do they want to know whether the fill is solid? Newton: Yes, for future building if there is to be a building placed on the fill. And the before would be only in the case of the excavation that is to occur. i Blount: But your goal in the soils investigation is to make sure that it is suitable for a building? Newton: Yes. Blount: All. right. Are there any questions that need clarification regariiing the staff report? This is a time for questions, not testimony. i Duncan: That engineering report- that you anticipate on the sensitive lands i fill permit and the engineering report will follow? Newton: The engineering report would be filed after the permit. Blount : Again we are ta.Lking about the soils report? is that what you are i talking about? Any other questions in clarification? Okay. Then I wilt open the public portion of the hearing, and I will ask either the applicant or his representative. i Duncan: I am John Duncan. (Wrote out his name and address.) I am John Duncan, and I am the property owner at 16055 SW 74th. . . . . . the history of what happened, I did put the fill in, and i had advice from certain people which didn' t turn out to be correct. After I did this I found I heard from the City of Tigard. They said I had to file a permit for this, and when I heard from them I merely had the people stop putting the fill in. I fulfilled the -2- TRANSCRIPT OF F1F.ARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Duncan: request of the City of Tigard, and I hired McKenzie Engineering, (Cont.) Dave Larson, to do the work after the fact. And that's where we are at. As far as goiciF over this stuff right here (referring to conditions) : No. 1, you know, that's fine, the soils investigation check on the material used. Going on to No. 2. The thing that 1 would like to delay is item No. 3 (dedication of floodplain) . Blount: You just want to delay it? Duncan: No, I would, you know, go along with this at the time we are ready to put up a building or do something with tice property. Blount: Well, you are doing something with the property now: you are filling. Duncan: Right. Blount: But I guess I need some more information why you would like No. 3 waived. Duncan: I just don' t think this is the proper time to turn something like this over to the city. Blount: Why not? Duncan: Well, (hesitating) I just feel. that when the time comes that I • do want to do something --- Blount: What's the difference, Mr. Duncan -- What's the difference between giving it to the city now, and giving it to the city at the time you want to build a building? You are stillgiving it to tice city. , of it is, if I do,you know, they might have, when it up comes Duncan- Well, the thing time that r do, you know--when I do, want to p building, they might have some other conditions. You know maybe hen 1 put up my l>uild I could use that property for negotiating wceg or do something, maybe for landscaping or something like this, _-- use this as a trade off. (Long pause.) That , basically, is what Blount: You don't have any objections to 4 and 5? Duncan: Yeah, let's see here. Four, I don't have any objection tothat. No. 5, as far as -- again when the time comes as far as , you know. putting the bike path and stuff, I don't want to put up any money right now, but when the time comes to put a bike path up, I will have the money to pay for it. The reason I don't want to do it at this particccl.ar time is due to economic. conditions. That's basically what --- -3- TRANSCRIPT OF fiEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Blount : All right , thank you. Anyone else wishing to speak in favor of the application: Larson: My name is Dave Larson. I represent McKenzie Engineering, Portland. Regarding Condition No. 4, it asks that further information be provided on the entire site topography, and then also an idea of what the ultimate development of this side of the creek would be. At an appropriate time I would like to submit this. Blount: Okay, you can submit it; but I am not a qualified engineer to approve whether this meets city standards or not, so --- Larson: Frank Currie asked that I generate this and have it available. Blount: Okay, that's fine. Okay, why don't you -- Just let me mark this. Are these three copies all the same thing? Larson: All the same thing. Blount: Okay, I will mark this as Exhibit 2. Exhibit 1 tonight is the Planning staff report. So this is the topographic map? A side view cross sections. Okay. Existing warehouse, here's the creek, top of the cut, tope of the slope, top of the slope. Okay. But you have not shown any proposed building sites here? t Larson: At this time the applicant came to us merely to satisfy his require- ment by the city to resolve this matter in the most expeditious manner. He represents that there is no immediate plan for a building-, and that at some time in the future he will be approaching the city for appropriate permits when planning the building. Blount : All right, thank you. Larson: I preserved the work on this , if there arc any questions. Blounr : Thank you. Anyone else wishing to speak in favor of the application? Okay, I see none. Those in opposition? Okay, come up front. Your name is -- Schwartz: John Schwartz (wrote it out) . Okay. It's not that I am personally against a person developing their own property as they see fit. I am very sensitive in that area myself. However, I feel that possibly the Hearings Officer should have a little background knowledge of how this hearing came about tonight. Blount: Okay, wait a second. Let me state something for the record here that will put this all in context. I realize there is a substantial amount of unrest about the fact that fill occurred before the permit application. I do not consider that particular sequence of events in -4- TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical tiept. 23, 1982 Blount: determining whether in fact a fill should be o" that site or not, because theoretically we could refuse to accept an application, (Cont.) ] and we would he could remove all the fill, turn around and apply, have exactly the same data before us that we are going to have So I am considering this zdpplication as if before us tonight. there is no fill on the property, and I am considering the engineer- ing data that's available, both regarding the fill and the need of protections for the fill to see whether it falls within the criteria of the sensitive lands permit. So, keeping that in mind, and the fact that I am aware of the sequence of events -- okay? Schwarts-• I happen to own a piece of property lying not adjacent to this property, but on the strip -- Blount: Are you across Fanno Creek? Schwartz: I am across Fanno Creek. I live on 76th. All the property on industrial. I have a couple of concerns 74th is zoned commercial or on this in the fact that other sensitive lands permits have been denied due to the flood plain issue, and I believe this is by the county some time ago. Allowing all the commercial to fill in to the property lines would basically abut -- could abut industrial ectly up to residential which borders, and in some properties dir cases the property lines cross the creek. Do you follow me? Blount: No, I am afraid I don' t. You are suggesting that on your side of . the property -- on your side of the creek where the property is zoned commercial -- Schwartz: No, it is residential. Blount : Oh, I am sorry--residential. Where is the commercial property? This i.s zoned industrial. Schwartz: That's right. The property -- get a map -- (rustling- of papers) Newton: We are down here on the creek, and Mr. Duncan's property is on this side -- Schwartz: Okay, the property lines basically come right down the center here. Okay. A Corner of my property happens to be on the opposite side, the industrial side of the creek; the property is zoned industrial. Now if it is a habit that we are going to allow these landfills into the floodplain, joining thaL up, then we are joining up and abutting up against a residential property directly adjacent to industrial property, and which the Tigard Planning staff themselves -5- W EMS W MEW TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept . 23, 1982 Schwartz: have attempted or supposedly have attempted to put in some kind of (Cont.) a buffer zone between zoned residential and industrial. Blount: Okay. It is my understanding -- and let me just see if you knew this -- that between the edge of the developed industrial land and your property there will be a greenway buffer on this side of it that's what Mr. Duncan was asking that I waive right now 'was that i particular greenway buffer, and that is -- do you know how'wide z it is, off the top of your head? ` 4 Newton: Approximately 100 feet. E Blount: Approximately 100 feet wide. Schwartz: On that particular property. Newton: On that particular property. c f Schwartz: Okay; but what about the rest of the property? Blount: Z can' t consider the rest of it; I don't have jurisdiction over the rest of it right now. All I have got is jurisdiction over this particular piece of property. Now do you know the city policy on that--is there an established policy? c. i Newton: That's what the greenway policy is for. There's the greenway policy and the floodplain situation, and this staff report attempts to outline concerns both deaifng with the floodplain concerns. There is a policy in the city now to leave a greenway buffer between commercial and residential, or industrial and residential. Blount: And that's part of the comprehensive plan? Newton: Yes; it is also part of the Code. "s Schwartz: The comprehensive plan at this time is not complete--it is being 3 developed. Blount: But it is also part of the Code. Schwartz: That could be. Also in a letter to the city council on July 21 from the staff. , when originally this problem came up, a staff report to the council at that time was that the permit would require consideration on behalf of the property owner to give us information necessary to evaluate the extent of the impact �. on the floodplain, floodway, greenway and open space. I do not feel that it is proper to give this sensitive landfill permit and to issue it until all engineering studies have been acquired and developed. The bridges along Fanno Creek, both at Durham and at -6- TRANSCRIPT OF HEARINGS OFFTCER IIE.ARING Jadeo Chemical Sept. 23, 1982 Schwartz: Hall Boulevard on the other end are considered substandard and will (Cont. ) and do at timesflood in times of high water. Filling these flood- plains in, how is that going to assure the residents and the other people in the area that the water -- this extra amount of fill will not cause this water to flood more often and more deeply across the existing bridges? Blount: Do you understand how fill works? rill under the Tigard ordinance you can't just fill. Every place you fill you have to do some compensatory excavation to handle the water that you have just filled. So it isn't as if this property is just being filled. That's what happened prior to the permit application, but as soon as the application of the standards of the city were imposed, then their engineer in fact, you know, presented us with a plan whereby there would be fill in one location and eRcavation in another to handle the additional water, because the ordinance says you cannot increase the flow. Schwartz: That's correct. And I don't see how it's possible on that particular property until a study has been made, and how this -- Blount: Well, there has been. That is what this particular engineer did. McKenzie Engineering. That's his proposal. That's what I have. That's part of the staff report. Have you seen this particular -- Schwartz: No, I haven' t. Blount: Okay, this is an engineering report. It is attached to my staff report so it is part of Exhibit 1, from McKenzie Engineering, Inc. And that in fact -- Mr. Larson, are you the one that in fact did the work? Maybe it would be helpful to the people here if you went through the work that you did and explained exactly what you did and how you arrived at the conclusions you arrived at. Would you be interested in hearing it? Schwartz: Yes, T would. Blount: Okay, why don' t we table you -- we can continue your testomony; but let's take it out of: order and let Mr. Larson explain what he did. Larson: (Business of mounting drawings on blackboard.) This is 74th Avenue; -this is Durham Road. The bridge is approximately here. The fill that was established up to this point in time is roughly in this area as documented by an engineering survey that was done on the property. The creek runs rottghly through here, and the initial calculation on the fill indicated that the 100 year floodplain would rise somewhere in the vicinity of a half an inch to an inch adjacent to this area. The reason that is true from an engineering standpoint i -7- MMMUMV TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept . L3, 1982 Larson: is that this land over here is fairly shallow with some grasses on (Cont.) it and wasn' t going to be highly efficient for carrying flood water. When you fill here, indeed you raise the floodplain, because you have restricted the stream's ability to carry the water. The floodplain in this area is roughly right in here, and I am taking this section from the center, roughly in here. You can see that this 4 area in here is not as efficient because it is flat -- bear in mind the scale is exaggerated -- this is approximately 100 feet here, and this is approximately four feet here. But by doing this fill that he did up to this limit, the actual 100 year floodplain was raised, and when a 100 year flood comes by you are going to notice a rise here and an equivalent rise to a certain extent for a length upstream. In order to take care of that, you provide an excavation I adjacent to the creek. This is more efficient for two reasons: it giver, approximately the same area of this area that was filled for the water to flow through. The other thing it does is reduces the amount of water that is touched by land: in other words, efficiency of the channel is greater. This is a cross section that is very similar to a cross section that is proposed in the City of Tigard Drainage Plan prepared by CH2M. It is a generation of that same cross section. What you have done is replaced the shallow overgrown area with a seeded area much closer to the main channel of the water, and therefore this fill in this area is mitigated by this excavation adjacent to the stream. < It should be noted that no change in the center line of the stream is proposed here--it is merely an offset, and you have to calculate that at intervals to get any sort of accuracy on it, and that's where our study was taken into accoul-L. The City Engineer reviewed the calculations and found that we made reasonable engineering assumptions in developing the work, and he had no suggestions oa how I might improve on my work. Blount: Okay, in the ? of your report, is the fill banked? It is rip- rapped -- Larson: I suggested in the report that it be ripr.apped. That was supple- mented by Condition, I. believe No. -- Blount: Could it be done. by November 15? Larson: Right. Condition No. 2. And that is a valid consideration, because near the bridge the channel is restricted and the velocity is increased and this proposal would not be survivable without the riprap. It would risk whatever materials were subject to that high velocity water into the stream and possibly create some constriction in the stream or deposit material on properties downstream. I think I should -8- r` 'TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Larson: mention that this technique is similar to other uses along Fanno (Cont. ) Creek in Tigard and Beaverton, in particular the Main Street planned shopping center area was a very similar procedure and the same general approach from an engineering standpoint. Could I answer any questions on that? Blount: I have a question. The ordinance provides that the proposal "shall not reduce the capacity of the floodplain area, or raise either the flood surface elevation or flow rate." Now if I understand your testimony, the flow rate is increased. The water is moving faster through the channel. Larson: That's correct. The way to evade that is to riprap the bank. Blount: Does that slow the water down? Larson: It does to a certain extent; but it is more used to protect the bank. You should bear in mind that the increase in velocity is a small percentage of the total, and that as it passes under the bridge, that extra energy is more than abated. The flood profile downstream of this bridge drops the elevation--the flood surface lowers con- siderably as it passes through this bridge. The bridge is a constriction and therefore does tend to dissipate the energy. Blount: Is the bridge structurally sound enough to dissipate the energy of an increased flow rate? Larson: A flow rate of this magnitude is not damaging. The bridge was -- Blount: What are we talking about in terms of an increase? I don't recall seeing that figure (shuffling of papers) the general ? ? Larson: Right. Blount : (Reading) "Velocity before the current fill , velocity after the current Fill, velocity change." Larson: At station zero. Blount: Is that the cross section we are talking about? Larson: Right; at station zero; at the bridge there is no change because there is no work done right up next to the bridge. At Section A-1. it's increased a half a foot per second. Typically the soils in this area are susceptible to erosion at 4 to 6 feet per second, ( and that's why we endorsed the riprap. Blount: And the current rate is ? Larson: The current rate at that section is 4.22. -9- a,���_ TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1382 Blount: Okay, I guess 1 am a little confused how you lose the increased velocity. Viere does it go? Particularly with the constriction of the bridge? I could see losing it on the other side of the bridge if you have got more room for the water to spread, but between your excavation and the bridge, where does it go? Larson: I am not sure I know how to explain that. The fact that the bridge is there and the fact that the water passes under the bridge through the tightening of the channel, and then it has more room to spread. It is a transition from here to here. Blount: So what you are saying is that the section zero is measured below the bridge--after it has gone through the bridge? Larson: Section zero is right at the upstream edge of the bridge. Blount: Of the upstream edge. Well, I guess you still haven' t answered my question then. Larson: The work is here. Blount: Itow -- You have demonstrated, of course -- you have demonstrated that the section A which is your section nearest to the bridge -- Larson: do the work, and I admit that we have closed the channel down some, made less area, the same amount of water going through a smaller area yields a higher velocity. But at roughly 50 feet from the b:;,Ige we haven't changed the work and at that point in time we have the same sect-.ion as it always had to get through. So consequently at zero, since we haven' t changed from zero to zero plus 50, it still has the same cross -section to go through. Blount Lt will slow in that 50 feet? Larson: That's ri-ht. Blount : 1 see what you are• saying. Any other questions? Schwartz: (?) Have you ever been out there in the spring? Larson: No. Schwartz: Then you are guessing. All this is guessing based on engineering principles and hundred-year flood floodplain, and all that. Is that really a guess? Have you ever been out there in the spring to measure the velocity of the water, any of that? Larson: No, I have not -- -i.U- r TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Schwartz: Then it's based on engineering principles. Larson: Based on engineering principles. Schwartz: Purely and simply. Larson: I don't want to admit to guess work because there is -- Schwartz: Well, okay. Blount: Where did you arrive at your velocity figures? Larson: The velocity figures are the set of calculations that went to Frank Currie. Those are in his files. You have a summary of those calculations. Blount: Based on your measurements on the site? Or -- Larson: Based on my calculations and the Corps of. Engineers information which came from the Tualatin River to about a mile above this site. That is what they sent me. I think the information they had was 7.5 feet per second at the bridge. So the Corps of Engineers recent flood study on Fanno Creek work is base information for my calculation. Blount: Of course. How did you arrive at these figures? Can you give us just a thumbnail sketch of how you developed these figures--your vela:fty figures? Larson: Of course. Utilizing the Corps' information on the reference of the channel, we use what is called the Mannings (?) equation to determine the channel hydraulics of this reach. When we analyze• it, this was analyzed in three stages: (1) before the f.ill was done, to obtain a base line of the flood profile before any work was done. Blount : How did you get that figure if you were called in after the fill was done? Larson: We obtained topographic surveys of the area before it was touched by machinery to develop this cross section; and using the Mannings equation we could determine, given the Corps of. Engineers hundred year flow, cubic feet per second, you can determine how high that water is. The problem is the Corps didn't take sections at every ( hundred-foot intervals. That's why we have to develop some to `. supplement their work. They have them roughly every four or five hundred feet, and so you can check each ? each time you hit one of their sections. So you apply the Mannings equation to the channel hydraulics and the amount of flow that the Corps of Engineers -11- i TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept . 23, 1982 Larson: says the hundred-year flood is, and that establishes your water (Cont. ) surface. You do that going through each one of these sections before the work is done, based on past history and topographic surveys. Then the surveyors picked up the actual configuration of the fill, and that 's -- I think you see it -- Blount: Elevation after the current fill. Larson: And it shows that there is some rise in the hundred-year profile through that reach. At that point, then, we applied what might be an ultimate amount or work, and then also at the same time what would be the excavation work to be done, apply the same principle and bring it back through; and what you actually do is keep increas- ing this area and reducing this area until you get it so that you have no rise in the hundred-year flood profile. The City of Tigard recently enacted a zero flood floodway ordinance, which in essence mandates no rise in any activity in the flood- plain, and the first review went through and it came up in the order of a half an inch. The City Engineer was consulted. He agreed with our analysis that a half an inch is not acceptable. If you let everybody all the way up to a half an inch, the end result is going to be a building of that amount. It is going to compound as you get upstream, but eventually someone upstream will have an extra foot of water. So in order to comply with the intent of the zero foot floodway ordinance, we shoot for a zero rise or a slight reduction. BluL:.:t: Okay. Any other questions from the audience? Yes, sir. Schwartz: (?) Seeing that you are only addressing one side of the bank . . . . . . Larson: We at this particular point in time, we are trying to address what is in fact, I guess you could call a violation. We are attemptin- to obtain a sensitive lands permit on this side. The owner currently has no plans for this side of the stream. I suppose it is conceiv- able that we may come back for some other modification for that side of the stream at some future date. It just depends on the nature of the proposed use on that side of the stream. I will say that from the calculations standpoint, we limited ourselves to this side of the stream. We didn't assume there was any need to go to the other side of the stream to abate this. . That was sufficient. Schwartz: Okay, if you fill in on this side--you are putting riprap and every- thing down there to stop the erosion -- Okay, you have in fact speeded up the stream. Now across there on the other side of the stream, that is going to speed up the river or the creek on his side of the creek. How can you guarantee that you are not going to start an erosion problem on that side? -12- MNNMMNWN-Nlo slalom MM TRANSCRIPT OF HEARINGS OFFICER HLARING Jadco Chemical Sept . 23, 1982 Llrsoci: Well, one answer to that is the same owner; but I wouldn't put him in that position. If it is going to speed up on that side, part of the property would have to be riprapped also. . . . . (Something about the same owner) Schwartz: Another question I have is -- Larson: Let me finish: If indeed it was a danger to him, I would have pointed that out; but the reason for the ripraps is that either we are filling on a 2 to 1 slope with materials that are obtained off-site and may be subject to erosion; we are riprapping this bank, and we are also going to be required to riprap this bank, where we will have a new cut and will be taking the vegetation off of the ground. The vegetation will add some further protection to the erosion from the higher fill, so we are going to riprap both this bank here and this bank here--this one to protect this fill from falling into the creek, and creating some kind of a problem downstream; and this also to maintain a configuration of this to insure that the creek will still have the carrying capacity. Schwartz: Then the last question I have yet is, Okay, we have speeded up the flow through there--you said it is no problem. But the bridge itself right now can take:. so much water through it. t! Larson: That's right. Schwartz: Okay; at times now at high water it i.s right up to the top. Larson: At the point in time when it's up against- the bridge and is backing; up, then the velocity is reduced, and in a sense you have created to a certain degree a pond, and it's like a dam. At that point the velocity is not -- Schwartz: But you have reached that point now--to take all. the fill put in there--now that's like taking a bathtup of writer--okay' And you took a big rock and put it in that bathtub--that's going to fill the water level . So at the point in time it has come down to the bridge with the bridge as a pool, and if as you said it is going to form a pond that is backing up, you have already displaced that much fill or open area with the fill that you put in it, so that is going to raise the water level. Larson: Yes, what you are alluding to there is what in the Code is talking about storage flood waters. That requires that the material that we fill under the hundred-year floodplain be balanced by the amount we excavate. This drawing is -- I think I misplotted this line - but one of the conditions that we have to meet is that the fill and cut be balanced under that amount, so that when you are talking about the problem you are discussing of storage, I think -- -13- _. ' - ._ f1-► - �orvWW v TRANSCRIPT OF REARINCS OFFICER HL:ARINC Jadco Chemical Sept. 23, 1982 Schwartz: If there is 1-0,000 -ubic yards of fill put iu, you have to remove 10,000 cubic yards? Larson: That's right. Or more. We have to at least balance it, and those calculations were submitted to . . . . . . . Keep in mind that is the volume under the hundred-year flood elevation. The owner has hopefully filled above that level, but the volume above it is not taking away from the volume that can be stored, because the water only goes this way. Now that is a condition that the city has required, that you balance the cut and fill under the floodplain, and the fact that it piles up against the bridge is probably not great for the bridge, and it is happening now; but it will abate those higher velocities. Schwartz: Where will you attempt to excavate from--from the edge of where the fill is toward the river? Larson: The intent of the staff is that a bench be provided between the toe of the fill and the top of the cut for the compensation area; this is the area that would be used for the bike path. Schultz: Then you won't actually dig out any of the floodplain--if you do, you are going to uncover the sewer because that is not very deep there. t Larson: The sewer is -- t f Schwartz: There is a 40 foot right-of-way on that. Larson: It is a 30 foot easement. t 4 Schwartz: 30 foot easement? G Larson: And that easement goes right through here, and indeed we are cutting over the top of it. Tn a check with the Uni!-icd Sewerage Agency , the top of their line is about elevation 112 , and at this section we are cuttin3 down to about elevation 121 . We will still have nine feet of cover according to their plan. f have not opened up the t sewer to see how deep it is, but accordin, to their plans -- i Schwartz: The fill in there now, is that the extent of the fill, or will there be additional fill? Larson: It will be slightly more, and it will be monitored by the ? to assure it is not in excess of specifications. Schwartz: Now that is the normal river level there, I take it? Larson: Well, it is, more or less; yes. -14- IM TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Schwartz.: Because I drive by and look at it, and it looks like there is a couple-foot bank, and that's almost flat right through there. Larson: Okay, you are looking at this bench. What we have done to get it all on the drawing, we have used four feet to the inch here, and 40 feet to the inch here, and so you would need to stretch this out-- it would be ten times wider in order to represent it better. This bank on this other side is not this steep, and in fact much less steep. Before we filled, it was flat out in that area. Blount: Yes, sir. Voice: (Too low to understand, but presumably a question dealing with the channel.) Larson: Well, I am not sure I can answer that accurately. The corps of Engineers cross section could bear that out. The area that it has going under the bridge is obviously smaller and the velocity is almost twice. Voice: (Concerning the depth near the bridge.) Larson: Well, I can approximate it, if that would be okay. Well, 134 to approximately 1.16 from the top of the bridge to the bottom of the channel is approximately 18 feet. Voice: Larson: Are you asking now this elevation? That down into about in here? Voice: What is the distance by your (?fill?) and the hundred-year floodplain? Larson: Oh, from here to the hundred-year floodplain? That 's about in the neighborhood of 10 Leet -- 9 to 1.0 feet . Voice: . . . . . . . . . Larson: Right; we have deliberately held this excavation so that summer low flows will not be in this area. This stream is considered a fishery by the State Game Commission, and they have a problem with people relocating channels to any great extent. So in the applications that I have been involved with, we have sought to find ways other than to alter the stream. (Tape changed, nothing lost.) That's an approximation; I want prepared to answer that sort of question. t•. Voice: Okay; well even so, even if that is an approximation, I tell you that every spring there's 18 feet of water racing underneath that bridge for days on end, and there is still a great big pond bib enough for -15- TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept . 23, 1982 Voice: whatever you like to do in it short of driving a yacht. If you (Cont.) narrow that area any you are going to wash out that road because that water will go over the road because there is nothing on the road, but a sunken area on the other side and a sunken area on this, and the only reason that water doesn' t go over the road right now is because there is an area large enough to hold it. Larson: Well, but we have met the intent of the Code in that we are storing the same amount of water, and the difference is instead of being wide and shallow it will be narrower but deeper, with the same holding capacity and the same flow character. Voice: I'll bet it washes out the road. Larson: Well, our proposal will not change the jeopardy to the road. Blount: Yes, sir; in the back? Voice 2: My property joins this gentleman's property here, and I have lived there for over 40 years, and there isn't any erosion in my place, ° and it covers about five or six acres; and as far as the water only stays up not over 24 hours. It can be -- I don't think it gets within four or five feet of the road surface of the bridge, and then within 24 hours it's gone. I have a fence that runs right through the property there . . . . . . it is only about four feet deep. Blo;:,r: I would like to get wba.t you are saying on tape as testimony. I€ you have a question right now for the engineer, this i:; the proper time for it. Voice 2: A question? HLount : A question. But if you have got testimony, as soon as we are done with the engineer I would like you to conic forward and say up here what you have just said so 1 have got it on tape. I can' t catch it from back there. Okay. Any more questions or the engineer right now? Yes, sir. Schwartz: (?) You are relying on going deeper for your fill.. How will you guard against future sedimentation when the wager brings things down Larson: Well, when you are talking about the silt coming down stream, you ( are going to have an increased velocity across the whole channel, ` . and that increased velocity will be in effect very close to the surface in this excavation. The silt is ;oinb to he in suspension in the water, and the water will still lie movin;; fast enough along the surface so that very little if any would be deposited some would be carried along. -1G- TRANSCRIPT OF HEARTNGS Ol'FICER HEARING Jadco Chemical Sept. 23, 1982 Schwartz: I would like to ask: I believe that is a county road? Is there any plans for a new bridge on that road? Larson: The Tigard Drainage Study addresses several bridges along Fanno Creek, and Bonita Road is one targetted for a Hopeful bridge soon. I don' t think the Durham Road bridge was endorsed -- Newton: I would like to correct myself. I believe from Hall east, Durham is a state highway, I believe. Do you know? Larson: Yeah; it is. Newton: Yes, of course. It is a state highway. Schultz• . . . . (?) contacted the state on that . . . . Larson: On replacement? No, I haven't. I don't know what the situation of the bridge is from the state's standpoint. CH2M drainage report did not target the Durham Road bridge as one of the recommended ones. They targetted the North Dakota Street bridge, and they targetted Bonita as a hopeful; but I don' t think, according to my recollection, that the Durham bridge was -- Schwartz: I believe that is part of the plan, and I. believe Durham Road was one that is claimed(?) as having flood problems. ? has a map in his office that has all the bridges . . . . . . has a flooding problem, and I believe Durham was one. Newton: I don't know that. Blount: Okay; more questions? Yes, sir. Schwartz: !. would like to know, is this going to change the runoff in any way by putting fill. in there. Will the runoff still go towards the creek, or is it ming to to be increased drainage, and if it does, that water from the fill down there is quite an area that would be filled. Larson: In the case of this fill, I would recommend to the owner that when he moves ahead with the building plan, that drainage be diverted here to the front, and then flow out in this direction; or if he were to go this way, that it first be collected in catch basins and a pipe rather than allow it to drain over the face of the fill. it could have some detrimental effect on the fill, although in this area drainage is not going t? be significant. The typical practice is to put in catch basins,py rain drains in a pipe and drain it to a point where it isn' t going to cause any additional erosion. -17- TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical. Sept. 23, 1982 Blount: More questions? All right. Thank you. All right. Anyone else wishing to speak in opposition?• Speaker: I am Clifford Speaker. I have a couple of statements here:, and then some observations. Blount: Are those things you would like to submit in writing, or -- Speaker: This Y will submit in writing; I would like to read it into the record. This is to Tigard Hearings Officer from the Tigard Planning Commission dated yesterday: "The Tigard Planning Commission under open agenda at its meeting on-September 21,-. 1982 briefly discussed the Sensitive - Lands"iPermirt- Application pending before you for Jado Chemical. - The=Cotimmission has several concerns which were expressed by individual members. Following are the comments of those Commission members who are unable to attend the hearing on September 23, 1982. "Commissioner Bonn: Any amount of fill permitted must be offset by removal of more fill so the net effect is zero or less. "Commissioner Edin: There is not enough depth to build on this site even with the fill.. I am not certain that they have formed a buildable lot. I am not happy with it, however, we can't do anything else but support the City's Engineering staff." Chairman Tepedino, who is an attorney and is knowledgeable about certain things that most of us aren't: "1. The landowner was, or should have been, on notice that he was filling in the floodplain. "2. Ameliorative waste has occurred. The owner violated the Tigard Municipal Code by performing this act. I suggest that any decision by the Hearings Officer must be in compliance with the Tigard Municipal Code and subsections dealing with fill. I am concerned that this filling has violated the Tigard Municipal -Code. By his..act, the owner has established a precedent. We must stand against this by forcing the owner to remove the fill and then apply for a permit for consideration under the Tigard Municipal Code. We cannot allow developers to frustrate the intent of the code. i "Submitted by: Clifford Speaker Planning Commissioner" -18- FW= mom TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Blount: This will be marked Exhibit 3 as the Tigard Planning Commission memo. Speaker: Right. Now I was at that Planning Commission meeting, and becaus:� I was going to present that they did not record what I said, but this in effect is what I commented on at that time: (Reading) "I have observed for years that nothing succeeds like a fete accompli. I, like President Tepedino, do not feel that the presence of an accomplished fact should sway the Hearings Officer, the Planning Commission or the City Council from upholding the declared and very plain intent of the floodplain ordinances which have been thrashed out over a period of several years in public hearings to my personal knowledge. I feel no landowner of property in the floodplain has-any excuse at -this time- for being unaware�of tlierestrictions' oft�the -floodplain In the Tigard Municipal Code. Consequently I -can only agree with President Tepedino when he says, 'We cannot allow developers to frustrate the intent of the Code. "' ( Now I think that anybody who has followed the Planning Commission's C deliberations and actions on the floodplain--and believe me, we are very sensitive to it--all they have to do is to see what we have done on The Meadows -- (To Newton) Isn't that the one down there -- �e Newton: Yes. Speaker: (Continuing) -- The Meadows as an example of our resistance to any fill in the floodplain. In that case the man wanted to put a little fill at the top of the floodplain in order to get two or three azure building sites, and in effect we said "NO". Now what has happened since it has left us I don't know. I would say this, that had we known that it was intended to put a building on that floodplain fill, the response would have been a resounding No! One other observation: Our experience over the last several years is that residents along the creek tell us the Corps of Engineers elevations are not accurate, and I think probably you are getting at that -- aren't you? -- that ordinary floods are higher than the Engineers indicate for a 25-year or SO-year flood. Blount: I have a couple of questions, Mr. Speaker. Speaker: Yes? Blount: First of all -- Maybe I should just make a statement. In your ( remarks you urged that the de facto -- the existence of the fill -- not sway my decision. I think I can assure you4 as I said at the beginning, I consider neither its presence nor its absence in considering the application. I will consider whether it meets the -19- TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept . 23, 1982 Blount: ordinance. But I am a little concerned about what you said about (Cont.) the Planning Commission--that you consistently approve no fill in the floodplain. Are you saying that even if it meets the provisions of the ordinance, you do not allow fill in the floodplain? ' Speaker: No. I wouldn' t say that. But -- Well, I think a review of The Meadows would indicate the extent and the depth of our concern for floodplain fill. Bount: Does your concern go farther than--as far as to ignore the engineering that he says we are not displacing any more water? Speaker: I think Liz (Newton, of staff) will agree with me that Yes, inspite of engineering that says we are gonna fill here but we are going to excavate at least an equivalent amount and it will not change the _ carrying capacity or alter the stream flow adversely upstream or downstream. We take a very hard look--I would almost say with a jaundiced eye--at that. Would you agree with that, Liz? �. Newton: Yes. Blount: Thank you, Mr. Speaker. Anyone else who wishes to speak in opposi- tion? Yes, sir. R Havery: My name is John Havery; I live at 19570 SW 76th, Tigard. I came to give you some historical perspective, because I was on the initial NPO 5 who originally set up the comprehensive plan for this area, and apparently 1 sm still presently a member, but perhaps the reason you didn't hear from me before was nobody knew I was a member. When the NPO originally did this whole area for the comprehensive plan for Tigard--and I am glad to see some of the things are being followed--the Greenway, the bike paths--we intended to preserve that whole area through there, through the river area, all the way through Tigard as a refuge for its citizens, a beautiful place to walk, where there are still wild animals in there and a variety of other things. I am not the great environmentalist as that may sound; but I do enjoy seeing the wild animals there and I would hate to see them run out by the change in the stream. There are mink back there; -there are all kinds of things in that river still. We intend to keep it as a greenway and bike paths for the enjoyment 1 of the people, and I do believe that the engineering, with all due ; respect for the education and background and experience of the engineers--I do not believe that what the engineer says here is what will happen here. I believe that either backing up that water will wash out the bridge or will wash out the road--one or the other-- in a very short time. As a matter of fact, when Mr. Duncan first applied to build over there, he went to the county and the county sent out letters saying, "Any objection, write a letter." I wrote F, r. -20- TRANSCRIPT OF BEARINGS OFPICER HEARING 3adco Chemical Sept . 23, 1982 Havery: a letter. They told Mr. Duncan he had to fret me to release that (Cont.) letter before he could do anything. Well, Mr. Duncan and I had breakfast and he told me that the county wouldn't let him build out there where he is trying to build right now. They made him move farther back in on 74th, and I tell. you only as -- no one can prove that lie said that to me, but I know he said that to me -- and he told me what a great place he was going to nsake it over there. He was going to clean out that little pond, and he was going to landscape it. He has done really none of that. There is no land- scaping there. Instead he has cut down all the trees that were between him and Durham Road. He has put that fill in there illegally. The place has big barrels and stuff piled all around his building, and truly Mr. Duncan has not been a good neighbor--either a good business neighbor or a good neighbor in any way that way. He has not bothered me other than through my eyes, to see the mess that has been made of it. And if in zny way there was to be a buffer zone and those people who do live adjacent to that industrial zone, no trees and a big open expanse and a river that has perhaps changed its course--and no one has talked about the downstream or upstream implications of this fill, and I don' t know them either--i am not an engineer--but I can tell you the NPO had an en;ineer on it, and one of the things that came out as a result of the NPO or the engineering look at the river is that that's why we did not want the floodplain filled anywhere, because it would affect the upstream and downstream people. And I don't think Mr. Duncan cares about the upstream or downstream people--I think Mr. Duncan cares about himself. Blount: Thank you. Anyone else speaking in opposition? Yes, sir. Your name is -- Bledsoe: Bob Bledsoe. Blount: Which shall I put you down as--opposition or in favor? Bledsoe : . . ? . . . T was at the Planning Commission meeting when the state engineer presented the master storm drainage plan. I work in engineering as a technician. I would like to get in the area of flood control. The storm drainage plan for the most part advocated that Tigard is supposed to try 'to move the water through faster to get it out of the area so it is no longer -- move it out quicker so it wouldn't cause higher flooding levels. And this is at the bottom of the flood control area. But the aspect of the increased velocity, I think, is actually where it came into conjunction with Tigard's --at least the city engineer's--overall proposal for handling the whole area of the basic concept of flood control. It kind of bothered me that he only dealt with half of the stream bed study--the whole stream bed, and he relies on increased depth to handle the water through there. I am concerned, though, that under various conditions, -21- TRANSCRIPT OF HEARINGS OFFICER HEARING Jadco Chemical Sept. 23, 1982 Bledsoe: sometimes you will have a scouring loss comes out, and (Cont. other times when the water is not that high but just a little bit high, it starts sedimentation. And you see the way the stream has already formed the channel through the years, that it tends to sediment, tends to deposit sediment in that area. I think if this is approved that the applicant should have the requirement to maintain that depth through dredging--there should be a bigger requirement placed on him to maintain that depth through dredging whenever the depth is no longer to the level which he is creating, if that is the course he is going to take. Blount: Thank you. Anybody else speaking in opposition? Okay. I see none. Is there any rebuttal by the proponents? Okay, I see none. I close the public portion of the hearing. Are there any other points that need clarifications--questions that haven't been answered? Okay. Under the hearing procedure I generally issue an oral opinion. I am not prepared to make an oral opinion tonight. I want to look at the comprehensive plan section for NPO 5; I want to look at the greenway ordinances in some more depth; I want to go visit the property; I want to look at the bridge, and I want to review the engineering report once more. r The applicant is entitled to an oral decision. If you want an oral decision I can set the hearing over for a week and I can give you oratorio exterogate (?) , but I can give you an oral decision at that time. In fac, my written decision will be faster. If you wish to waive an oral decision I will have a written decision to you within ten days, or to the city within ten days. By the same token, opponents, do you wish an oral decision--look square in the eye and let me tell you what my decision is--or will you let me get by on paper, huh? Okay. All right. But I will file a written decision within ten days of tonight's hearing, which will be Monday, October 4. All right, that concludes tonight's hearinn. Thank you. i -22- O'DONNELL. DATE November 15, 1982 SULLIVAN & RAMIS r ATTdRNEYS AT LAW TO Tigard City Council 1727 N W HOYT STREET PORTLAND. OREGON 97209 15031 222.4402 FROM EJS \ RE Attached Case List The City Council heard me summarize the attached list of cases involving recent developments in the field of land use law at its meeting of November 1, 1982 and requested that I supply them with the same in writing. Briefly summarized, the Council should be aware of legal develop- ments in the following areas: 0 - Constitutionality - general attacks against the LCDC system were refected in the Tillamook County case (p. 6) and Kerns t (p.7) . Objections that local comprehensive plans or implementing regulations were inconstitutional were also rejected in Miller (p. 5) and Suess Builders (p.7) . - The Statutory Scheme - In the Ochoco case (p. 5) , the Department of Land Conservation and Development was denied a "✓policeman" role and to monitor local plans already acknowledged to assure that actions taken thereunder would be correctly implemented. The case is pending review in the Supreme Court. In the League of Women Voters cases (p. 6 & 9) , plaintiffs tried a two-track appeal from an initiative ordinance on lots of record in Washington County. Their appeal to LUBA was rejected because it was not a land use decision under the former law (since changed) ; however, in the second case the court found that the remedy could not be limited to objections of acknowledgment and that the matter could be challenged in the circuit court. Finally, in the most important decision, LCDC ' s attempt to amend Goal 14 so as to preclude consideration of Goal 3 (farm land goal) within city limits was overturned by the Supreme Court, which found the amendment inconsistent with the jist of legislative policy toward reservation of agricultural lands and open space. The Land Use Process - In Bryant (p.7) the court decided that the time for appeal did not begin to run until a written decision was formally entered. In Roth (p.8) it was decided that one could win a challenge to an urban growth boundary by taking up the single amendment on one day and lose the effect of the decision on the next day if the urban growth boundary, as a whole, were acknowledged. In Stewart (p. 9) , the court determined that LCDC had the duty of reviewing the record before LUBA if a challenge were made on insufficiency of evidence and that LCDC was not bound by LUBA' s findings of fact, but could reach their own conclusion. In Ludwick (p.9) the court distinquished the subdivision standards for the grant of a variance from the procedure were the same, saying that the use of the variance procedure does not require a local government to apply variance standards. EJS:dn 11/15/82 Page 1 O'OONNELL. DATE November 15 , 1982 SULLIVAN & RAMIS - ATTORNEYS AT LAW To Tigard Cit Council 1727 N.W. HOYT STREET g y PORTLAND. OREGON 97209 15031 222.4402 FROM EJS t RE Attached Case List - LUBA - In Gordon (p.4) , the court decided a rule limiting submission of petitions without consent of all parties 20 days after return of the record was valid and one submitted _ ..__ on the 21st day could have the case dismissed without considera- tion of the merits. In Lima (p.7) , the court decided that, notwithstanding the LUBA provisions for review of local government decisions, the decision which was legislative (i.e. , policy making) in nature would be reviewed under legislative standards (i .e. , whether the action were arbitrated capricious) rather than cause judicial standards (which require a substantial evidence approach and the use of findings and conclusions) . Thus, detailed findings were not required for the adaption of zoning ordinances and comprehensive plans, but only for individual actions taken under such plans and ordinances. - Land Use Decisions - The Council may want to look closely at the Hitchcock decision (p.2) . Here there was no requirement for council action, so the failure of the council to take action was not reviewable . In Kerns (p.7) , the extension of a street in the adoption of a local improvement district to do so was found to be a land use decision because it had significant effects on land uses in the area_ In Westside (p.10) , the decision to close the schools was found not to be a land use decision. - Standing - In Merill (p. 3) , a factual decision of standing because one was affected by the decision was upheld by the court. .. In Stewart (p.9) , a city automatically had standing because the land use proposed occurred on the borders of the city. In Lemmon (p.8) , county commissioners heard an appeal by someone two miles away and then, after the decision was reversed by LUBA, complained that the appellant had no standing. It was found to be too late. In Benton County (p. 6) , attempts to limit standing to those within 250 feet were rejected and the court adopted LUBA' s policy of looking at the actual or potential affects of the change, rather than using any parti- cular distance. - The City or County Role in Land Use Planning - The Bear Creek Valley cases (p.3 & 10) , resulted out of a long fight between the district and Jackson County and the City of Medford for supremacy in deciding what facilities should, should not, be built. The emphasis on the decision was that the general purpose of local government (city or county) had such supremacy and special districts had to conform to the city or county comprehensive plan and implementing regulations. Further, the district could not circumvent the process by declaring a "health hazard" unless statutorily authorized to do so. j EJS:dn 11/15/82 Page 2 o'DoNNELL. DATE November 15 , 1982 SULLIVAN & RAMIS ATTORNEYS AT LAW TO Tigard City Council 1727 N.W. HOYT STREET PORTLAND. OREGON 97209 15031 222-4402 FROM EJS RE Attached Case List Quasi-Judicial-Legislative Distinction - By labeling a decision liquasi-judiciall, a reviewing agency or court increases the procedural safeguards required and also puts the burden on the local government to show by way of adequate findings and conclusions the decision was correct. In a legislative decision, standards for notice and hearing are much lower and there is no necessary requirement for findings. In Miller (p. 5) , Portland was not required to hold an individual hearing for every property owner who wished to be heard, nor to enter specific findings and conclusions, if the action undertaken was done on a city- wide basis. That same approach was taken in Lima (p.7) . Application of the Goals - In Columbia Hills (p.l) , the court decided that goals applied to building permits if there were no comprehensive plan or zoning regulations applicable to the property. That is a pretty narrow holding, however'. In Hilliard (p.2) the court determined that the goals were applicable ble to all land use decisions, including site plan reviews. The fact that goals might have been addressed earlier does not relieve a local government from that obliga- tion (however, local government could rely upon the previously adopted findings) . In Seafood Harvesters (p. 2) , it was found that the obligation to apply goals to a land use decision also inhered a state agency. In Mayea (p. 3) , the court rejected constitutional challenges to LCDC , but also found LCDC' s action in imposing an enforcement order to be valid and the penalty (halting of most building permits) to be appropriate in the light of Curry County' s recalcitrance. In Lemke (p.8) , county denial of the subdivision application even after it had issued an unzoned area permit was valid, if the local plan of the goals required such rejection. Discretion on the Part of Local Governments - In Cascade Broadcasting (p. 2 , the court allowed local governmentTs freedom to interpret their own ordinances, if that interpretation were reasonable and not contradicted by the clear wording of the ordinance. In Kite Ranches (p.3) , the county was given the authority to redecide a case, even though the previous decision had been rejected on appeal, because the county could validly reach a different policy decision supported by adequate findings. Housing - In McIntyre - Cooper (p.4) , the court found that requirements of goal 10 to provide for an adequate supply of housing did not require a certain "up zoning" to be made, but was a requirement for the planning process of the local government. The court also found that there were additional reasons for denying the application relating to the dangers of building in an area without adequate drainage. In Metro Home Builders (p.3) , the court decided submission of more EJS:dn 11/15/82 Page 3 r RECENT DEVELOPMENTS IN OREGON LAND USE LAW - APPELLATE CASES Cook v. Clackamas County, 50 Or Ap 75, 622 P2d 1107 (1981) . Appeal from dismissal of mandamus action brought by neighbors against county and intervenor - mobile home park developer . The appeals court found sufficient evidence in the trial court record to support a finding of acquisition of vested right prior to enactment of comprehensive plan designating subject area as "rural. " The court purported to apply test of Clackamas County v. Holmes , 265 Or 193, 508 P2d 190 (1973) . Columbia Hills Development Company v. Land Conservation and Development Commission, 50 Or App 483 , 624 P2d 157 (1981) , rev. den. Appeal from order by LCDC under former ORS 197 . 300 to 197 . 315 invalidating building permits for lots in previously undeveloped subdivision in an unplanned and unzoned area. The appeals court affirmed LCDC and stated that, at least in these limited circumstances, issuance of building permits was a discretionary "land conservation and development action" which was reviewable under the State-wide Planning Goals . Fisher v. Colwell, 51 Or App 301, 625 P2d 1333 (1981) , rev . den. The Land Use Board of Appeals (LUBA) lacks jurisdiction over the issuance of a city revocable permit for a business use in a residential zone if city does not have a comprehensive plan or there are no State-wide Planning Goal issues involved. Carmel Estates, Inc. v. LCDC, 51 Or App 435 , 625 P2d 1367 (1981) . LCDC invalidated zone change by county under former ORS 197 . 300 to 197 . 315 on grounds of alleged violation of State- aide Planning Goals. The court held that subsequent adoption of a neva compre- hensive plan and zoning maps mooted the issue. Oregon Business Planning Council v. LCDC, 290 Or 741 , 626 P2d 350 (1981) , reversing 49 Or App 153 , 619 P2d 1291, 49 Or App 150 , 619 P2d 1299 , 49 Or App 151, 619 P2d 1300 (1980) . LCDC acknowledgment orders are neither "rules" nor "contested cases" and, therefore, are governed by ORS 183 .484 . Jurisdiction, therefore, lay in the circuit court. NOTE: The effect of this case has been limited by the 1981 Legislature in the enactment of ORS 197 .650 . Jakob v. Dunes City, 51 Or App 505, 626 P2d 376 (1981) , where LCDC "deadlocked" in reviewing a LUBA goal interpretation, LUBA could not issue its own determination, absent LCDC sanction, under the statutory scheme of Chapter 772 , Oregon Law 1979 . Case remanded to LUBA and LCDC for a final order. 90-day limitation for LUBA action had not yet run; therefore, case remanded to LUBA and LCDC for determination within the statutory 90-day period, but not including time spent in appellate court. i O'DONNELL. DATE November 15 , 1982 ` SULLIVAN & RAMIS " ATTORNEYS AT LAW TO Tigard City Council 1727 N.W. HOYT STREET PORTLAND. OREGON 97209 (503) 222-4402 FROM EJS RE Attached Case List statistics did not require expansion of the Metropolitan Urban Growth Boundary if the evidence relied upon by the decision-maker were adequate. The court would not reweigh the evidence. In Kerns (p. 10) the LCDC " annexation rule" was upheld, so that cities lacking an acknowledged urban growth boundary could not annex unless there was a showing of need for the annexation or that the area was already developed. In Phillipi (p. 11) , a most significant case, the court determined that an area planned and zoned for residential use could not be denied a subdivision plat solely because of a general plan policy favoring retention of agricultural lands. Findings - It is impossible to detail all of the findings cases. However, this is a most important part of the city' s land use process and the council should read the summaries of the following cases: Lane County (p. 3) , Homebuilders' Association (p. 3) , Atwood (p. 4,City of Gresham (p. 4} i 5 Ron Jones & Company p. 5 Valley & Siletz Fu3imoto p. ) . � Railway (p. 6) , City of Medford (p. g) , Stewart (p. 9) , and Lee (p. 10) . - Nonconforming Uses and Vested Rights - In Cook (p. 1) and Milcrest p. 10) , t_ e extent of a nonconforming use was decided by the physical commitment of the land to the non- conforming use on the date of the passage of the more restrictive ordinance. In Polk County (p. 4) , a similar test was applied; however, the fact that a gravel quarry was involved and that the use was far more periodic than i most nonconforming uses, led the court to determine that the use could continue despite noncompliance with the zoning ordinance. cc: Bill Monahan Adrianne Brockman i Bob Jean t 4 C page 4 Cascade Broadcasting Corp. v . Groener, 51 Or App 533 , 626 Ptd 386 (1981) . Writ of Review challenging county determination that radio transmitter towers were not permissible in certain residential zones. The court held that it would defer to county interpretation of its own ordinance unless "clearly contrary to the express language and intent" of the ordinance. City of Pendleton v. Land Use Board of Appeals , 51 Or App 539 , 626 P2d 388 (1981) . The court upheld LUBA reversal of city annexation and rezoning decision against a variety of technical procedural challenges . One raising a LUBA procedural rule violation must have been injured by that violation; compliance with the rules is not jurisdictional. Woodcock v. LCDC, 51 Or App 577, 626 P2d 901 (1981) . LCDC reversed county plan change decision under former ORS 197 . 300 to 197 . 315 . Applicant' s zone change application, with an exception under State-wide Planning Goal 2, had been approved 8 months earlier and the supporting findings were incorporated by reference into the plan change approval order . The court upheld LCDC, stating that where zone change could not be permitted without plan change, and both required an exception, failure to appeal the earlier zone change order did not preclude a challenge of the later plan change and exception. NOTE: In other words, an "exception" is never "final" until the plan is acknowledged. Hilliard v. Lane County Commissioners, 51 Or App 587, 626 P2d 905 (1981) . Site design review implementing local plan and land use regulations is a ".Land use decision" and, therefore, subject to LUBA jurisdiction. Failure of an unrepresented petitioner to explain adequately the basis for her objection would not prevent LUBA from considering the issue, especially where LCDC directed it to consider the issue. NOTE: The court indicated its displeasure at deciding substantive matters of exceptions and goal violations on technical procedural grounds. Hitchcock v. McMinnville City Council_, 291 Or 404 , 631 P2d 777 (1981) , affirming 47 Or App 897 , 615 P2d 409 (1980) . Where a zone change petition was recommended for denial by Planning Commission and City Council held a public hearing to gain "public input" rather than to focus on any particular rezoning proposal, and after such hearing, adopted a motion to "leave the zoning as it is , " there was no final order upon which to predicate a Writ of Review Petition. Federation of Indepedent Seafood Harvesters v. Oregon Fish and Wildlife Commission, 291 Or 452 , 632 P2d 777 (1981) , affirming 46 Or App 659 , 612 P2d 765 (1980) . Contested case on permit to construct and operate release/recapture salmon hatchery facility must include State-wide Planning Goals as a necessary criterion for the issuance of such permit. Obligation is on state agency to demonstrate, by way of findings, consistency with such goals . -2- ! 1 Jackson County v Bear Creek Valley Sanitary Authority , 53 Or App 823 , 632 P2d 1349 (1981) . Appeals court reversed LUBA determina- tion that sanitary district' s plans for sewers are superior in that field to those of county, concluding that a city or county government had both a coordinative role and a planning role . Under ORS 197 . 185 and State-wide Planning Goal 2 , special district plans must be consistent with county plans . Kite Ranches, Inc. v. Shipsey, 53 Or App 833, 632 P2d 1355 (1981) . The LCDC invalidated comprehensive plan change and rezoning . On remand, the applicant sought to reapply the same plan zone changes . Neighbor-opponents sought declaratory relief , asserting that the original decision was res judicata . The Court of Appeals held that such LCDC invalidation did not prevent reapplication and, therefore, was not res judicata. Lane County V. City of Eugene, 54 Or App 26 , 633 P2d 1306 (1981) . LUBA order reversing county-granted partition of agricultural land affirmed by Court of Appeals . Livestock agent letter to the effect that it was possible to use a 5-acre site as a "home base" for sheep-herding operation was insufficient to uphold county commissioner determination that five acres was a typical size for a sheep-herding operation in the county and, therefore , division of land into tracts of 137 and 5 acres was invalid under Goal 3 ' s minimum lot size requirements. Home Builders Association of Metropolitan Portland v. Metropolitan Service District, 54 Or App 60 , 633 P2d 1320 (1981.) . Appeals Court affirmed LUBA determination that defendant service district validly amended its urban growth boundary . In view of conflicting evidence for larger UGB asserted by plaintiff association and a smaller one adopted by defendant service district, the Court of Appeals ' position was only to determine whether there was substantial evidence to support the service district' s decision, rather than to re-weigh the evidence. Mayea v Land Conservation and Development Commission, 54 Or App 510 , 635 P2d 400 (1981) . Judicial review of LCDC "Enforcement Order" issued under ORS 197 . 320 . Court of Appeals upheld issuance of order, finding uncontradicted evidence that county was neither in conformity with State-wide Planning Goals , nor on a compliance schedule. LCDC was under statutory obligation to secure conformity and acted within its discretion in limiting the issuance of building permits so as to secure such conformity. Merill v. Van Volkinburg, 54 Or App 873, 636 P2d 466 (1981) . Opponents of subdivision residing on a hillside facing the development had standing to challenge the same when they were within sight and sound of the proposed development, where probabilities were that the proposal would alter the scenic value of the land, and traffic intensity and safety considera- tions , all mitigated towards a determination that their interests were adversely affected or aggrieved. NOTE: Good collection of standing cases in Oregon. -3- Polk County v. Martin, 292 Or 69 , 636 P2d 952 (1981) , reversing_ 50 Or App 361 , 622 P2d 1152 (1981) . Lawful use of rock quarry at time of passage of restrictive land use ordinance may be continued, even if such use is sporadic or intermittent where use continued uninterrupted but rock stockpiled and sold periodically, as well as being quarried and crushed, nonconforming use could be continued even if there were little capital improve- ment or investment by the landowner. NOTE: The issue of the level of the nonconforming use was not extensively discussed in this case. See Bither v. Baker Rock Crushing Company, 249 Or 640 , 438 P2d 988 , 440 P2d 368 (1968) . Gordon v. City of Beaverton, 292 Or 228 , 637 P2d 125 (1981) , affirming 52 Or App 937 , 630 P2d 366 (1981) . Failure to file Petition for Review in LUBA within 20-day period, contrary to LUBA rule and without consent of opponents , was an adequate basis for dismissal. LUBA had authority to adopt such a rule in absence of contrary statutory policy . The McIntyre-Cooper Company v. Board of Commissioners of Washington County, 55 Or App 78, 637 P2d 201 (1981) . Goal 10 requirement for buildable land inventory, encouragement of availability of adequate numbers of housing units and promotion of varieties of housing types requires a county to undertake a process for determining housing needs and the means of implementing a strategy -to meet those needs . If that process is not complete, the county may rely upon its existing plan, which included a "neighborhood preservation" standard until the county completes its Goal 10 process . Further, the county adequately denied a rezoning to a higher density use, based on drainage considera- tions . Plontmore Home Owners Association v. Brydon, 55 Or App 242 , 637 P2d 931 (1981) . Case dismissed under rationale of Fisher v. Colwell, supra. Atwood v. City of Portland, 55 Or App 215 , 637 P2d 1302 (1982) . Rev. den. LUBA and Portland City Council upheld as to adequacy of both findings and conclusions to support a variance and sufficiency of substantial evidence to support those findings and conclusions. City of Gresham v Realty Investment Company, 55 Or App 527 , 638 P2d 1177 (1982) . Appeals Court reversed LUBA determination that legislative redesignation of certain property during the course of wide-ranging comprehensive plan hearing had to be supported by a basis of fact in the record. Because this was a legislative hearing, the court used the "arbitrary and capricious standard, rather than the usual quasi-judicial "substantial evidence" standard. The opinion showed the extensive and focused discussion by the City Council on the redesignation appealed from and, therefore, upheld the same. -4- ` Miller v. City of Portland, 55 Or App 633 , 639 P2d 68) (1982) . Legislative adoption of city plan and implementing regulations does not require a personal notice, quasi-judicial hearing and individual written findings for each parcel covered by the plan and ordinances . A parcel with severe geological limitations validly zoned for low-density residential use need not either be acquired by the city for park use or redesignated for low-density apartments . Fujimoto V. City of Happy Valley, 55 Or App 905, 640 P2d 656 (1982) . Appeals Court reversed LUBA determination on adequacy of city' s density being invalid, as contrary to service district' s urban growth boundary findings. These findings were based on the service district' s regional average density assumptions and were asserted to require a 50/50 housing split of single- and multi- family housing and a net residential density of six units per acre for all vacant, buildable residential land. Plans had 150 acres of undeveloped land within the city. The Appeals Court determined that these density assumptions were one of many factors considered in establishing the UGB and that there was no rule or goal which required such a density. Therefore, LUBA's requirement of consistency with these regional average density assumptions on Goal 2 grounds was "unlawful in substance. " NOTE: LCDC has recently adopted a rule requiring conformity with these housing density and housing split assumptions, so / the case is somewhat moot. Solberg v. City of Newberg, 56 Or App 23, 641 P2d 44 (1982) . LUBA affirmance of city denial of building permit extension upheld. Reading zoning and building codes together, LUBA agreed with the city that the building permits had expired, that new permits had to be applied for, and that the more restrictive zoning regulations applied. Ochoco Construction, Inc. v. Department of Land Conservation and Development, 56 Or App 36 , 641 P2d 49 (1982) . Department of Land Conservation and Development does not have authority to contest county decision granting preliminary plat approval in an exclusive farm use zone, where county plan and implementing ordinances had been acknowledged. Appeals court examined statutory scheme in reaching its conclusion and determined that Department had no post-acknowledgment "policing" role except under ORS 197, 32( Ron Jones & Company v. Faye Wright Neighborhood Plannin Council, 56 Or App 70 , 641 P2d 68 (1982) . LUBA reversal of city grant of variance to allow 1, 100-foot street in area where 800-foot street is the rule, upheld by appeals court. City ordinance required showing of unreasonable hardship. That standard is not met by a showing that, without the variance, 15 nonuniform lots ranging in size from 6,000 to 67, 500 square feet would result and would require removal of considerable vegetation on the smaller lots. -5- The variance must be based on some condition inherent in the property . League of Women Voters v Washington County, 56 Or App 217 , 641 P2d 608 (1982) . LUBA order dismissing petition for review of county ordinance adopted by initiative process upheld by appeals court. LUBA jurisdiction dependent upon ordinance enacted by "governing body. " NOTE: This difficulty was cured by amendments enacted by the 1981 Legislature. Fuhrman Land Company v Watery Lane Homeowners Association, 56 Or App 329 , 641 P2d 657 (1982) . Dismissed on basis of Fisher v. Colwell, supra. Valley & Siletz Railroad v. Laudahl , 56 Or App 487 , 642 P2d 337 (1982) . LUBA reversed on substantial evidence question. Where there was evidence on both sides of the question and the county believed one side and entered adequate findings and conclusions , LUBA was bound by an adequately stated finding of fact for which there is substantial evidence in the record. Benton County v Friends of Benton County, 56 Or App 567 , 642 P2d 358 (1982) . Appeals court upheld LUBA determination that Friends of Benton County had standing through one of its members , a farm operator two miles downstream from the site of a proposed gravel F extraction operation, citing Duddles v. City of West Linn, 21 Or App 310 , 535 P2d 585 (1975) . As-petitioner alleged injury by way of the threat of a change in the river channel, he was in " reasonably close proximity" to the gravel pit because of such potential injury and need not wait until harm has actually occurred. "Possible injury'' is sufficient. Here , the member also bolstered his standing by submitting a letter from the Army Corps of Engineers regarding the possible effect on river channels by the proposed mining operation. Tillamook County v Land Conservation and Development Commission, 56 Or App 459 , 642 P2d 691 (1982) . In three paragraphs , the appeals court dismissed a "blunderbusss attack" on the consti- tutionality and validity of Oregon ' s land use legislation and its application. 1000 Friends of Oregon v. Land Conservationand Development Commission,on, 292 Or 735, 642 P2d 1158 (1982 . Amendment to Goal 14 making all lands within city limits automatically "urban" or "urbanizable" invalid. There were other alternatives to this result which do less violence to farm and forest land and open space. Further, the amendment is contrary to the gist of Oregon legislation on farm land preservation and land use. -6- Suess Builders Company v. City of Beaverton, 56 Or App 573 , 642 ! P2d 361 (1982) . Park designation on portion of plaintiff ' s land from 1972 to 1979 amounted to an insufficient intrusion to support a civil rights lawsuit based on inverse condemnation, especially where parkland designation taken -from parcel in 1979 , though plaintiff ' s request to increase the density on the parcel was denied. The court cited Fifth Avenue Corp. v. Washington County, 282 Or 591, 581 P2d 50 (1978) . Inverse condemnation by regulation lies only if the landowner (1) is precluded from all economically feasible private uses pending eventual taking for public use; or (2) the designation results in such governmental intrusion as to inflict virtually irreversible damage. Neither occurred in this case. Lima v. Jackson County, 56 Or App 619 , 643 P2d 355 (1982) . Appeals court confirmed LUBA, which found that petitioner was not entitled to quasi-judicial review of a rezoning of his parcel from commercial to open space/development in 1979 , if the county legislatively changed the plan designation, by legislative action in 1980 and made similar designations with respect to petitioner ' s property. Review would be undertaken from a legislative' stand- point. A more interesting issue was whether Section 4 , Chapter 772, Oregon Laws 1979 requires LUBA to use a quasi-judicial standard of review (i.e. , substantial evidence) for all local government actions . The court determined that only if the underlying action were quasi-judicial would the substantial evidence criterion be invoked. Bryant v. Clackamas County, 56 Or App 442 , C43 P2d 649 (1982) . Appeals court affirmed LUBA determination that the time limitation within which to take appeal from hearings officer decision ran from the date of the written decision, rather than the oral decision. ORS 215 . 416 (7) . LUBA was also found to be correct in failing to dismiss Petition for Review for failure to comply with technical procedural requirements of the Board. City of Pendleton v. Kerns, 56 Or App 818 , 643 P2d 658 (1982) . Appeals court affirmed LUBA determination that street extension and an accompanying local improvement district was neither a tax nor a budgetary decision, but a land use decision and, therefore, subject to LUBA jurisdiction. One had standing to seek review of such a decision even if there were a pending Circuit Court decision on the local improvement district. One entitled to notice of the decision who appears in the proceeding has standing to challenge the decision made by the local government. Finally, the court determined that the power of LCDC to adopt State-wide Planning Goals did not violatesthte constitutional provisions , including "home rule. " -7- Lemke v. Lane County, 57 Or App 55 , 643 P2d 1306 (1982) . Appeals court affirmed LUBA in upholding county denial of subdivision plat after having given the applicant an "unzoned area permit" previously . Prior to acknowledgment of a comprehensive plan, State-wide Planning Goals must be applied at :-]_1 stages of land use decisions. City of Medford v. Jackson County, 57 Or App 155 , 643 P2d 1353 (1982) . County reclassified city-owned land in its plan as industrial and zoned the land as open space reserve. The Court of Appeals affirmed LUBA's determination that this was sufficient to reserve the land for future industrial use because such land was not currently needed for industrial uses . Detailed findings in this legislative action were not necessary as the plan required such a designation under its policies . The appeals court remanded the case to LUBA for further explanation as to why the county 's urban containment boundary was adequate or not adequate. Lemmon v. Clemens, 57 Or App 583 , P2d (1982) . Petitioner appealed the grant of a conditional use permit by Lane County to LUBA and was challenged as to his standing, in that he lived over two miles away. Under the Lane County Code , only those within 300 feet of the subject parcel are entitled to notice ; however, for a hearings officer decision, copy must be given by mail to other parties of record who have requested the same and an appeal may be taken to the Board of Corunissioners of Lane County by any "interested person. " Because the county heard the appeal and, thereby, inferentially found the petitioner to be an "interested person, petitioner was found to have met both LUBA's standing requirements of having appeared orally or in writing below and having been entitled to notice of the hearing officer 's decision. Moving to the substance, the appeals court affirmed LUBA's determination that insufficient findings have been made to show that the agricultural goal, Goal 3, was either not applicable or had not been met. Additionally, a previous decision made without reference to the State-wide Planning Goals to allow a nonfarm use on land that otherwise might be subject to Goal 3 cannot be "bootstrapped" into committing the land for nonfarm uses . Roth v Land Conservation and Development Commission, 57 Or App 611, P2d (1982) . On two occasions , LCDC affirmed LUBA' s determination that the expansion of the urban growth boundary of Newberg was invalid. The day after the second action, LCDC acknowledged Newberg' s comprehensive plan and urban growth boundary, containing the same property, as conforming with the State-wide Planning Goals . The court determined that LCDC had acknowledged a validly established urban growth boundary and that action, if correct, was dispositive. The court observed that the LCDC determination in the LUBA case, which required an exception to be taken, was incorrect. The overall boundary had been acknowledged and that was sufficient. -8- Stewart V. City of Eugene, 57 Or App 627 , P2d (1982) . A city has standing to challenge a land use action made on the unincorporated territory next to its borders and is sufficier_tly adversely affected or aggrieved to appeal the decision to LUBA. Additionally, when a LUBA determination goes to LCDC, LCDC is not bound by LUBA' s findings of fact and thereby restricted to determining whether the facts as found support LUBA 's recommenda- tion, but may review portions of the record before LUBA where it deems it necessary. Therefore, when a substantial evidence question is raised to LCDC from a LUBA finding of fact, LCDC has the duty to review those portions of the record involving that finding. while there was some question as to whether one of four deficiencies found by LUBA in the county decision was supportable, the other three were supportable and the decision was, therefore, affirmed. The appeals court also found the Goal 2 exceptions i criteria sufficiently stated as a standard for evaluating f exceptions. 1 Hoffman v. City of Portland, 57 Or App 688 , P2d (1982) . Dismissal of petition filed one day late, affirmed under Gordon v. { City of Beaverton, supra. 1 Yamhill County v. Ludwick, 57 Or App 764 , P2d (1982) . LUBA reversed county grant of conditional use permits and variances to place two- homes in an F-40 (Forest, 40-acre minimum lot size) zone. LUBA found that the two lots were not "existing legal lots of record" , due to violation of Oregon subdivision statutes. The court held that the violation of a consumer-protection statute did not affect the lawfulness of the creation, thereby reversing LUBA. The court also determined that county references to variance procedures did not require that subdivision variance standards be applied to the conditional use permits for the homes on each lot. League of Women Voters v. Washington County, 57 Or App 784 , P2d (1982) . Trial court dismissed declaratory judgment on the validity of an ordinance adopted by initiative amending county comprehensive plan, allegedly in violation of State-wide Planning Goals. The court dismissed the case for lack of subject matter jurisdiction. The appeals court held that "double filing" due to doubt as to where jurisdiction lay would not bring a ground for dismissal because there were "other actions" pending; especially when the other action had already been dismissed and that action had been affirmed. The appeals court also determined that the ordinance could be challenged under ORS 197 . 251 . (acknowledgment proceedings) . 1 f �f E ( �• f -9- t Lee v. City of Portland, 57 Or App 798 , P2d (1982) . �. The Court of Appeals upheld LUBA affirmance of Portland City Council decision granting itself a conditional use for a fire station. The appeals court considered the city' s conditional use criteria to be sufficiently stated and the findings made thereunder, both with respect to goal and non-goal issues, to be sufficient. City of Pendleton v. Kerns, 58 Or App 641, P2d (1982) . Appeals court affirms LUBA determination to reverse and remand city decision to annex a parcel of land. The court dismissed a number of technical challenges based on LUBA procedural rules, finding them not to be jurisdictional. The court also affirmed LUBA' s interpretation of the LCDC "annexation rule, " OAR 660-01-315 , stating that land may not be annexed to an unacknowledged city unless adequate public facilities and services can be reasonably made available and either the land is physically developed for urban uses or is in an area physically developed for urban uses or is clearly and demonstrably needed for urban use prior to acknowledgment. LUBA found the facts failed to show either of the second alternatives to be met. VanSant v. Yamhill County, 59 Or App 127 , P2d (1982) . Applicant or his predecessor failed to appeal a 1979 Yamhill County determination that his parcel was not a legal lot of record. This determination was used as a basis for denial of a variance to allow a dwelling to be built on his property. The court concluded that even if the applicant were in a position to attack the previous determination collaterally, he did not attempt to do so in his brief. Westside Neighborhood Quality Project v. School District 4J, 58 Or App 154 , P2d (1982) . Appeals court remanded case involving school closure to LUBA with instructions to dismiss , finding the closure not to be a "land use decision. " Milcrest Corp. v. Clackamas County, 59 OrApp 177 , P2d (1982) . Appeals court affirmed as modified trial court' s determin t on in Declaratory Judgment proceedings that plaintiff had vested rights in developing a subdivision on work which had been done prior to the county' s first attempts to regulate land use by the adoption of its 1974 comprehensive plan. The issue treated by the appellate court was .-the extent of the nonconforming use and whether the non- conforming use on a 220-acre parcel had been abandoned. The appeals court determined that no nonconforming use had ever been acquired on the parcel, as there had been no construction thereon and plaintiffs had never acquired ownership when the 1974 plan was adopted. The appeals court also remanded the case to the trial court to reconsider the form of its injunction. City of Ashland v. Bear Creek Valley Sanitary District, 59 OrApp y , P2d (1982) . Appeals court reversed LUBA determination at special district decision to declare a health hazard and build an cxpanded sewer treatment system was not a land use decision and, therefore, LUBA had no jurisdiction. While the appeals court -10- that the State Health Division had authority to under- recognized ~ take health hazard declarations under ORS 222.870 to 222.880 and ORS 431.705 to 431.760, were not land use decisions under West Side Sanitary District v. LCDC, 289 Or 393 , 614 Ptd 1141 (1980) and related cases of the same name, there was no similar statutory scheme to eliminate considerations of tsstate-wide planning declaration special district goals and local comprehensive plans by P expanded sewer of a "health hazard" and the decision to build an natives were available_ system, especially when other alter City 295 Ptd (1982) . Phillipi v. Cit of Stayton, 59 OrApp lication on the basis of City denie petitioner s subdivision favoring retention of various plan policies, including oneThe request to divide a 10-acre parcel located agricultural land. was within the urban morewadequateafin4 sr roth dings.Theissuebeford before the appeals to the city for court was whether development of land within an plannedeanddzonedn is p growth boundary may be postponed if the land for residential use. The postponement was done on , rather than a specific policy threbatingis oto general plan policies the area. The plan also, however, determined that there would be no agricultural land within the urban growth boundary. The court ruled that to allow a city to "pluck" a general plan policy as the in its comprehensive basis for denial of a use it had provided for Plan anorrly d zoning ordinances as "dest oliciesvweref consideredain desig- planning. Because such g P plan and zoning regula- nating the area for residential use in the - a more specific basis in the plan or implementing tions, there must be decision was limited ordinances to support a denial. The the reten- use of the inconsistent and general plan policy favoring timing mechanisms tion of agricultural land and did not state that all would be invalid. The case was remanded to LUBA for a new order consistent with the opinion. Northeast Neighborhood Associatiori V. City of Salem, 59 d theApp 499 . Ptd 1982 Appeals court affirmed both LUBA and the►1urch. respondent city in granting an extension to a nonconforming .LUBA also remanded for further findings on a variance application, but that matter was not cross-appealed. The appeals court and LUBA both determined that the applicants did not need a conditional use permit, thus mooting the bulk of the appeal. The court also deter- mined that, because no quasi-judicial hearing was required, it would not pass upon petitioners' contentions that they were not afforded an impartial hearing. -11- October 28, 1982 MEMORANDUM TO: Mayor and Council FROM: City Recorder, Doris Hartig SUBJECT: Meeting Material for 11-1-82 Council Meeting Information was distributed in last week's Council packet for the Floodway and Open Space Discussion scheduled for the 11-1-82 meeting. Please bring that information with you to the meeting. lw MGM Sv TO: MEMBERS OF THE CITY COUNCIL FROM: William A. Monahan, Director of Planning & Development « `� DATE : October 21, 1982 RE: Floodplain Greenway and Parks and Open Space Issues Attached are copies of the following papers : 1) Floodway/Greenway Policy Discussion 2) An excerpt from "Finding, Policies and Implementation Strategies" These documents were passed out to you at the October 18 , 1982 study session. Please take a look at these prior to the next scheduled study session on November, 1 when we will. d1scuss these issues. I would also be interested in your comments befoxe,'' r �- hand as I am working with Jeremy Coursolle to finalize policies for the Comprehensive Plan. FLOODWAY / GREENWAY POLICY DISCUSSION Over the past several months a possible conflict between provisions of the Tigard Municipal Code relating to Floodplain and city policy concerning Greenways has been identified. There is a need for review of definitions, established policies and community needs in order that the City Council may determine the appropriate course of action for the future. Following is a brief description of the problem which staff will elaborate on at the City Council meeting tonight. Floodway - The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation. Floodplain - The relatively flat area or lowland adjoining the channel of a river , stream, watercourse or other body of water which has been or may be covered by floodwaters within the area of applicability defined by the floodplain district. (18.57 .020) (6) Floodplain District - Those areas within the City of Tigard inundated by the 100 year regulatory flood. (18.57.020) (7) Regulatory Flood - The flood used to define the outer boundary lines of the floodplain district. The maximum flood predicted to occur within 100 years. (18.57.020) (11) Greenway - Means all lands within the one-hundred-year flood- plain. of Fanno Creek and the Tualatin River and the lands on either side of natural drainageways as designated by the Park Board and Comprehensive Plan for preservation. (18. 57.020) (9) PROBLEM Both the floodplain and greenway are defined as the area in which flooding during a 100 year storm takes place.. When a property owner chooses to apply for a special use permit to perform work in the flood- plain under Tigard Municipal Code 18. 57 , he is led to believe that it is possible to receive a permit if he meets the standards presented in 18.57.070. The standard reads as follows: MW 18. 57.070 Standards. (a) Application for a special use permit in floodplain areas shall be granted or denied in accordance with the following standards: (1) No structure, fill, excavation, storage or other use shall be permitted which alone or in combination with existing or proposed uses would reduce the capacity of the floodplain area or raise either the flood surface elevation or flow rates, or adversely affect flow direction on upstream or downstream properties, or create a present or foreseeable hazard to public health, safety and general welfare. (2) The applicant must obtain the permit required by the state of Oregon under ORS Chapter 541 for removal or filling of waterways , or demonstrate that the provisions of this statute do not apply. A problem arises when the City greenway policy seems to govern the same land that is earmarked for filling the the welands. The question then is posed, "If the area of the 100 year flood- plain is also designated to remain as public greenway, how can the City grant a Sensitive Lands Permit in the floodplain thus changing the boundary of the greenway?" That is, land which becomes buildable or usable as the result of filling will be utilized for some economic use thus making is unavail- able for public use. This results in reduced greenway area. The creation of additional economically useful land is of prime concern to Tigard. Much of the area which is designated flood- plain is either in a commercial or industrial zone. Carefully engineered filling could either allow for expansion of a business use at some sites or actually be the deciding factor whether or not a piece of :Land has sufficient buildable land to site a commercial or industrial building. Whether such engineered filling will be allowed is up to the City Council. GREENWAY POLICY Policy 7 of the Environmental Design and Open Space Plan adopted by the Tigard City Council in 1977 reads : POLICY 7. Retain the 100 year flood plain of Fanno Creek, its tributaries and the Tualatin River as an open preserve (Greenway) . The Greenway shall be established as the backbone of the open space network and when a direct public benefit can be derived, i.e. , adjacent residen- tial development, the Greenway should be developed for passive recreation and pedestrian/bike travel. Page 2 - It appears that current City policy, governing land along Fanno Creek will not allow any development within that floodplain. Thus , if the greenway policy is to govern as the prevailing policy of the City, this pre-empts the use of the Sensitive Lands Permit process within the 100-year floodplain of Fanno Creek making it impossible to receive a permit to -expand the amount of useable land in Tigard. ALTERNATIVES The Alternatives available to the City Council are: 1. Take no action - as a result the Sensitive Lands process as it relates to the Fanno Creek and other areas, will continue to conflict with the established Greenway Policy. 2. Revise the Greenway Policy - the policy can be revised to allow adjustment of the greenway zone in conformance with any floodplain zone changes accomplished through the Sensitive Lands process. CONSIDERATIONS r If the policy and code conflict is not resolved it is likely that litigation will result to force the City to resolve this apparent inequity. Until that scenario unfolds,, property owners and City staff are not in a position to adequately explain City policy or determine the status of land in the floodplain as potenial buildable land. The situation also makes it difficult for staff to assess the amount of land available for economic development expansion. Further, it creates yet another administrative roadblock that may deter a company from locating or expanding in Tigard. s f: Page 3 f A.A, Page 13 3.1 PHYSICAL LIMITATIONS AND NATURAL HAZARDS FINDINGS The physical features which form the make-up of any piece of land have a direct relationship to the type and density of deve Compent whichons such can be accommodated on that property (carrying capacity)• as steep slopes and unstable soils create severe development constraints. ed areas greatly thee potentialeseverity of landslide, earthquake treases damage, flooding, etc POLICY 3.1.1 THE CITY DESIGNATE AREAS OF PHYSICAL LIMITION (POORT.__v TReINED, SEASONALLY FLOODED, GROUND INSTABILITY) AND INCORPORATE THEESSEE DESIGNATIONS IN THE TIGARD COMMUNITY DEVELOPMENT - CODE AND MAP, DEVELOP GRADUATED DEVELOPMENT RESTRICTIONS ACCORDING TO THE DISTRICT CHARACTERISTICS OF THE CONSTRAINTS AND ANTICIPATED LIMITATIONS. IMPLEMENTATION STRATEGIES on of 1 The Community Development sCodehe senstive lands to identify those areasie shall that have district ard comma y constraints and limitations. 3.2 FLOODPLAINS AND WET LANDS FINDINGS on o The objective of the City is to use the detailed of Engineers, net3andsnand tareas of floodplains from the U.S. Armand yCorps development policies to: serious drainage problems, 1. Control development, as to not adversely affect the floodplain and floodway areas, 2. Minimize the runoff-erosion impact of development on the surrounding area and downstream properties, and tation 3. Erainagewa she toetention of a reduce runoff ndeflood damage and along provide streams erosion drainageways,, control. o In addition, there is the issue of the cumulative effect of development upstream of Tigard. Flood levels in Tigard will be substantially determined by the controls exercised over development outside the plan i area, as well as inside Tigard's Planning Area. o The Fanno Creek drainage system includes numerous small courses. The integrity of these natural drainageways is intrinsically connected to the no Film Page 14 system's capacity to reduce excessive runoff and subsequent flood levels. 4 "=Often;" however*' -developers,.:,alter these- water 'courses to " suit- •their"` development purposes, usually,. to provide more useable land. The.. resultant- adverse.-impacts are detrimental,- to,-.the entire drainage system: . o, • Besides the basic need ;to control":development. in .flood prone areas, it was tfia . Phblic` kaowledge=�of_�floodplain-.hazards..,was=-lacking. ` Many :of the;-obstructions "-previously.: placed :in"":the floodplain were the result"of_ J either ignorance or overly optimisticattitudes about potential ,flooding problems These obstructions (e.g. Irisin Street- Bridge) hinder the flow of high water and tend to increase flood levels. o Proper • administration of - the-;-- floodplain area-- relies heavily.--upon.- the availability.- of . adequate information `upon which to assess the environmental' impacts of a" project. The development, which creates the need, should be responsible for providing the City with the necessary data for ma�ciug sound decisions. 4::The "burden• is on-:the applicant to prove that a project; wil ''not' _adversel affect-,,the euviroment or create undue._.future e liabiilites for the City > Y o "-'They City. of.--Tigard, with,assistance ;;from :the•'II.S-"'Army Corps of Engineers, s hasp established an"area:,. ignated>-within the:100.year:floodplain. o -The City of Tigard has been accepted as an eligible area for the National Flood Insurance Program. o The City of Tigard currently has ordinances, policies and standards within the Tigard Community Development Code which provide adequate controls for development within the floodplain areal';. 4 POLICY 3.2-.1`" .THE, CIT _. SHALL-DIRECT' DEVELOPMENT. AND LAND FORM ALTERATIONS .WITHIN -THE - 100 YEAR FLOODPLAIN IN. A -MANNER. THAT MINIMIZES LOSSES DUE TO STREAM FLOODING AND SEASONAL PONDING. D'LEMENTATION STRATEGIES 1. The Tigard Community Development Code for the City of Tigard shall identify the 100 year floodplain and urban uses which would be subject to property flood damage or-people loss. . , entdTigard_.Commnity,:Developm Za�TneSensitive sha1Z ''identif -t y " hose-'uses''ahat are.' permitted- witliin the 100 :year' - floodplain and- the approval process."-: 3.- The City shall--require a . site development- report, e.g., hydrology,, • soils, geology, for major projects in designated floodplain area and a statement reflecting method to be used to minimize the runoff erosion impact of the development on . the surrounding area and downstream properties. page 15. initiate aactive neighborhood jurisdiction in 4. The City shall ' developing-and.-actively participate with Wahsington County, MSD;•,water- - ater-shed, storm drainage• _and floodplain management study of the- Fanno Creek basin, and:^establish restrictive standards a identified levels of adequacy...-*.-.',Interim standards shall limit the rate oiE:_-sunoff...and- erooLon�:caused - by___La' development both during and at completion:.. .of-.-. - a_ -construction;mss f*,well_ -a development all.-- floodplain aad wetland f press-'ideiitified„in"=the :physical inventory. 5. The City shall implement the strategies and recommendations cited in the adopted-."1981 Tigard Master Drainage Plan.- 6. The City -sha11` develop methods of removing and/or -flood proofing major obstructions .within the floodplain. The City shall- also consider methods of educating the public regarding the floodplain- -..7. Development within Floodway areas shall be prohibited.' ZZ" RUNOFF.-EROSION.ANTI-GROUND ` INSTABILITY �r f`t°s"<�, x� .a. _ iti s s _ FINDINGStai _ aspects o Many portions of the floon area con areasaandtarenauralvaluable fort open . significant vegetation, wildlife, space and recreation. _ o Vegetation, without 'a, doubt, serves an essential function in the process of runoff and erosion control as well as for the protection and natural 4 - habitation of wildlife.: Nonetheless, -it is too often removed .and replaced by buildings and impervious surfaces. o Due-- ta-.the general nature of soils and geologic mapping, site specific analysis" is of tea necessary to determine the presence of geologic hazards i aad -the severity- of soil problems which are constraints to development. Such geologic hazards exist when certain combinations of slope; soil, and bedrock combinations, and moisture conditions render land unstable. o Barthflow and slump topography exist in hilly sections of- the planning area and are associated with poor drainage, shallow subsurface flow on ground water and springs, and high susceptibility to erosion--: Earthflow:.. and slump occurrences can destroy roads and buildings and adversely affect water quality. Mass movement has not resulted in any major_ loss of life or property thus far, because little in the way of urban development i 4 Y- 'exists:on-land with_serious..problems• o 'Increased--runoff _'and: sedimentation from poorly developed . hillsides can - require increased=- public expeditures for flood and erosion control and storm water management-k - 0 The City of Tigard had adopted a hillside clause within the Sensitive Lands ordinance which requires additional review of those developments. o The City of Tigard requires new developments to have a storm water runoff plan to ensure against adverse effects such as erosion and sediment. _ Or Page 16 m Vegetation contributes to the quality of the community through control of erosion 'absorption of sound, moderation of temperature, flow and moisture content of the .air, reduction of air pollution and glare, and softens the impact, of the urban environment. POLICY 3.3.1 THE CITY SHALL DIRECT DEVELOPMENT AND LAND FORM ALTERATION AWAY FROM AREAS OF SEVERE SOIL EROSION AND GROUND INSTABILITY POTENTIAL EXCEPT UPON SHOWING THAT DESIGN AND CONSTRUCTION TECHNIQUES CAN MITIGATE ANY ADVERSE AFFECTS TO SURROUNDING PERSON OR PROPERTY. IMLEMENTATION STRATEGIES 1. The City shall adopt an ordinance to regulate the removal and/or replacement of existing natural- vegetation. in designated floodplain __- and greenway areas, e.g... floodplain, :- drainageways, areas of ..:high -_ { visibility' unique habitats-,: or' rare "species:' Significant trees or 4 stands. or timber shall a9so be protected: -` 2. The City of Tigard may require site specific soil surveys and geologic studies where potential hazards are identified based upon available geologic and soils evidence. When natural hazards are Identified, the City shall require that special design considerations and construction measures be taken to offset the soil and geologic constraints present in order to protect life and property, and to protect enviromentally sensitive areas. t 3. Developments shall not be planned nor located in known areas of natural disasters and hazards without appropriate safeguards. 3.4 NATURAL RESOURCES FINDINGS ® Currently, there are extensive rock and gravel extraction areas located to the north and west of Tigard's planning area within Beaverton and Washington County. POLICY -47--1 �--THE- CITY OF TIGARD SHALL SUPPORT THE EFFORTS OFWASHINGTONCOUNTY, BEAVERTON AND THE METROPOLITAN SERVICE DISTRICT ENSURING THS AVAILABILITY OF THE ROCK MINERALS RESOURCES. IMPLEMENTATION STRATEGIES O THE CITY SHALL ENCOURAGE THOSE JURISDICTIONS TO CLOSELY MONITOR THE RELATIONSHIP BETWEEN THE DEMAND FOR THE RESOURCE AND THE AMOUNT OF LAND PLANNED AND DISTRICT FOR ROCK AND GRAVEL EXTRACTION AND PROCESSING SHOULD BE CLOSELY MONITORED. ,r Page 17 .5 NATURAL AREAS INDINGS There are a variety of plants, animals and water fowl within the Tigard planning area which greatly add to the quality of life within the community. Each species requires a complex and often narrowly specific set of conditions with respect to food, water, and vegetative cover or other natural features necessary for escape and reproduction. o The significant plant communities and animal habitat areas are the riparian vegetation adjecent to the water resources in the community, and various stands of timber and brush. o Development adjacent to existing wildlife areas can adversely effect these areas and in some instances can virtually eliminate these needed wildlife habitat areas. POLICY 3.5.1 THE CITY SHALL DESIGNATE AREAS OF SIGNIFICANT ENVIROMENTAL CONCERN, AREAS HAVING PUBLIC VALUE IN TERM OF: a. ECONOMIC VALUE, E.G., TOURIST ATTRACTION; t b. RECREATION VALUE, E.G., STREAM, LAKES, WETLANDS; C. EDUCATIONAL RESEARCH VALUE, E.G., GEOLOGICALLY AND SCIENTIFICALLY SIGNIFICANT LANDS; d. SERVICE VALUE, E.G. , AREAS VALUED FOR THEIR AESTHETIC APPEARANCE; OR e. NATURAL AREA VALUE, E.G. , AREAS VALUED FOR THEIR FAGILE CHARACTER AS HABITATS FOR PLANTS, . ANIMAL OR AQUATIC LIFE, OR HAVING ENDANGERED PLANT OR ANIMAL SPECIES, OR SPECIFIC NATURAL FEATURES, OR VALUED FOR THE NEED TO PROTECT NATURAL AREAS; IMPLEMENTATION STRATEGIES 1. Consider the inclusion of an adequate amount of land adjacent to riparian zones which will allow the area 'to continue to support a diversity of habitat during the evaluation of a floodplain or drainageway for dedication to the City's natural greenway system. 2. Encourage the retention of large, varied habitat areas on private and public lands including inventoried plant and animal communities. 3. The City shall review all development proposals adjacent to wildlife habitat areas to ensure that adverse impacts on any wildlife habitat areas are minimized, and if need be, request that other federal, state, and local agencies review the development proposals. a Page 18 4. Where there exist large or unique stands of trees or major vegetation areas within the planning area, the City shall ensure that development proposals do not substantially alter the character of the vegetation areas. 3.5 PARKS, RECREATION AND OPEN SPACE FINDINGS o In Tigard, public and private organizations play an important role in providing leisure and recreational opportunties and cultural activities. o Many of Tigard's residence cultural and recreational needs are served by many activities available in the Portland Metropolitan Regional Area. o There is a shortage of mini-neighborhood and community parks with the entire Tigard Planning Area. o Many of the Tigard School District sites serve to fulfill some of the recreational needs within the Tigard Planning Area. o Some of the land purchased for parks must provide for special recreational needs, such as softball and soccer fields, etc. , and where feasible it should be multiple use. o Small parcels of unbuildable land resulting from urbanization can provide mini-parks or landscaped areas. o A properly planned and managed system of open space and recreation lands reduces the impact of urbanization and serves the leisure and aesthetic needs of all residents. The system needs to reconize the relationship between urban uses and natural character of the land and drainageways. o The community has indicated a desire for open space linkages which follow scenic routes and connect parks, schools, playgrounds, shopping areas other public sites, and residental areas. ® The community needs to acquire, maintain, and develop an adequate system of open space, recreation lands, and facilities to retain and improve livability. o The Tualatin Valley Park and Recreation District boundary borders Tigard on the north side of Scholls Ferry Road and currently serves many of the residents in eastern Washington County. a In the process of planning for a park and recreation system, it is necessary to classify the individual components (neighborhood parks, greenway, etc.) which will or could comprise the park system. In addition, the establishment of a reasonable acquisition and development program requires a listing of priorities and minimum levels of service to be provided. The actual development of such a system requires relating the provision of facilities and services to the particular needs and recreation desires of the residents to be served. 0 Page 19 POLE IES 3.6.1 THE CITY SHALL ENCOURAGE PRIVATE ENTERPISE AND INTERGOVERNMENTAL AGREEMENTS WHICH WILL PROVIDE FOR OPEN SPACE, RECREATION LANDS, FACILITIES, AND PRESERVE NATURAL, SCENIC, AND HISTORIC AREAS IN APPROPRIATE PROPORTIONS IN A MANNER CONSISTENT WITH THE AVAILABILITY OF RESOURCES. PROVISION OF SUCH OPEN SPACE SHOULD NOT REDUCE THE DENSITY WHICH CAN BE ACHIEVED ON THE SITE. 3.6.2 THE CITY SHALL COORDINATE WITH THE SCHOOL DISTRICTS TO DISCOURAGE THE DUPLICATION OF RECREATIONAL FACILITIES RELATED TO THE CITY'S PARK AND THE SCHOOL DISTRICTS FACILITIES UNLESS THEY ARE NEEDED. 3.6.3 THE CITY SHALL DEVELOP INDIVIDUAL PARK SITES, AS DEFINED BY THE PARKS AND OPEN SPACE STANDARDS AND CLASSIFICATION SYSTEM ACCORDING TO ADOPTED STANDARDS. IMPLEMENTATION STRATEGIES 1. The Tigard Community Development Code shall require land divisions and major developments to set aside or dedicate land of the appropriate quantity and quality to provide: that which is developed, which may a. An area of like character to provide active recreation space; and b. Adequate passive open space to protect natural resources at the site and protect development from hazard areas. 2.. Lands set aside within developments may remain in private ownership provided: a. Portions are sufficiently improved and maintained to offer active recreation opportunities; b. They do not interfere with the continuity of or access to adjacent greenway lands; C. Easements transferring development rights are dedicated to the public. 3. Flexible design options within developments will be permitted to mitigate the impacts of required open space and recreation land dedication or reservation. ; 4. Natural parks shall include areas which have unique physical or aesthetic features and do not have to be developed to be of recreational use to the community. Areas which have special physical t features such as natural watercourse, significant vegetation, scenic vistas, and that provide habitat for wildlife shall be considered. ti E a Page 20 5. ®pen space and greenways shall be used to enchance the accessibility of residential areas, schools, and parks by establishing a safe and well-marked trail system which would also connect with significant regional trail systems. 6. Park classifications and standards shall be adopted and a program developed for acquisition and development of a park and open a space system to ensure an adequate supply of usable open space nd recreational facilities, directly related to the specific needs of the local residents. 7. Streets and drainageways should be combined with a parkway or greenway concept to permit linkages between open spaces, residential areas, recreation lands, and centers of economic activity. S. Continue the use of volunteer groups to assist is developing and maintain parks. 9. Master plans for each park shall be developed. These plans shall identify park facilities for each park and ensure that parks are developed so as to promote safe and aesthetically pleasing environments while minimizing the harmful effects of noise, air pollution, vehicular traffic, and other negative aspects of urban life. 10. Natural parks shall include areas which have unique physical or aesthetic features and do not have to be developed to be of recreational use to the community. Areas which have special physical features such as natural watercourse, significant vegetation, scenic vistas, and that provide habitat for wildlife shall be considered. 11. The City shall retain the 100-year floodplain of F'anno Creek, its tributaries and the Tualatin River as an open preserve (Greenway). The Greenway shall be established as the backbone of the open space network and when a direct public benefit can be derived, e.g. , adjacent residential development, the greenway should be developed for passive recreation and pedestrian/bike travel. 12. To augment the scenic benefit of the greenway, the City shall establish the major vehicluar transportation routes as scenic or visual corridors. The Park Board should plan and initiate a program (through public and private cooperation) for corridor landscape preservation and/or improvement. 13. In reviewing its park needs, the City may consider the Tualatin Valley Park and Recr. - tion District as a viable source to fulfill those Park needs. r �r ~� Rd O'd ain. ,fe y_ provisions TO0�1 tiAtJRt1'C is allowed.This prohibition is not due to found that the open-space poH as , ,3eo , of the flood plain ordinance more binding and ordered"the re- n- TIGARD — -.Tigard officials are -seeking to protect the area from flood- moved.Duncan has appealed:w mired in a conflictover two-contradic ing, but from the greenway preserva- sion to.the'City Council,which w }... policies, and the city tion,policy. It Nov.15. by tory floodplain po As the council discussed the policy. cil: ad*ttiinlstrator,warns that,$100 million "We're catchins this from all sides,' AttorneyEd S v n ind In tgizable industrial land rests in the said .planning director Bili Mahenahan this heewas listening clsely t& �- renter of the muddy tug-of war. "We have to have.something general discussion did not veer y ane policy-calls for absolute protec- future.We have to clean upthep=� nee_*tsure he specific appeal- don Co- tion of open space m a greenway along so W6 understand it,Y ( t3' the industrial, land 9 ity FAnno Creek. Another deems a 100- cIl) understand It, and the community' Fanno1C eek in limbo goes against �a. foot ands greenway adequate and'a1- understands it.'' city's goals of economic deveidS meat, ,at .lows properly engineered encroachment Monahan said that when potential according to city administrat "Bob of the flood plain. developers come in and ask about f9�_ing Jean. by approximately,70 acres off Indus- The problem is that thee open-space in the app "Under one interpretation tba,i�d ig policy defines the greenway as occupy- trial<land along Fanz;a Creek,he is at a es mg'the lOtl-Year flood plain. Although . loss,R advise them. is available, but it is not devei4alzle this may seem a simple�mgi�,i dpi. "Right now we're .confused,". he under this ultraconservative vpevr" id ninon,city planners say that yoldng the said."Should we tell them(the develop- Jean told the Tigard andyappWA:it to r- greenway to the flood plain cr:ales an ers)to file a sensitive-lands(fill)permit strict policy io or tell them to for it?" the state of Louisiana,half.Of th�,� to administrative nightmare. would be unbuildabW ' "We need to establish a definition of Although the policies have been on Jean estimates that the land vyith . its open space.- said City Engineer Frank the books for several:years,the conflict the cloud over it is worth $3(1.�A 4' . 58 Currie. "If we want to look at green- has become apparent only recently, even with the added developme}}tk, n. way, in a fleuible light, we need to sinceincreasedcosts have made what incumbent on.property near`a §`aeadn• al. change the definition of Mood plain." was once marginally useful land along Jean estimates that the land,onra«AevIl- - asked the City Council creeks more attractive to developers. oped, would be worth about $10*1- The staff n thinking about stream- like said conflicting policies lion: W said the addition of t!i� b Monday°to begi like these occar because they are draft- value could hold dawn city tai rat�.�& W linin and integrating the two Conflict- ed and a0proved"atdifferert ttmes by 10 percent over the coming years,.—f ing �Acies, but no formal discussions different people for different purposes" "We're putting our-heads will be held until after Jan.1. Saud,or in the creek in this ease7aG e ?he 100-ye�'flood plain is the area The issue crystallized this fall as • ,,Jean told the C0111101, along the`barky of a stn�eam that is ex- John Duncan;president of Jadco Chemi= ignore:this, ,., ufnpectp be inundated by a flood once Cal in Tigard, filled some land in the But Councilman Ken ScinecldS� Bald tar in-a century. Most yuris3fctIons allow flood plain?without obtaining a city per- that if anyone was we behind thus ' some sort of development in this kind of rmt it.was the=engineers who attenizgir a girea.if progcrty;;owners cut and fill — Although Duncan had made-an end treasure n*xeam flows niea+ ing that if.they'take away,from run around city ordinances, the staff "There are too many gr Y ?reps in .<the:ilolod' plain at one`paint they,must fecotnnlended'that the fill be allowed, flood,plain informatibil Ire dig'out`another area W accommodate basing its argument on the-flood-plain ••you're asking us. to make d�ions e, 'the displaced water ordinance and studies showing.t4at based an inadequate lnfarcflatnon;K TNr_ Howeter,since the city's greenway Duncan's'fill did.not harm the flood Jean said the en(gu►eering dot e along Famno Plain.' "as good as you're going to $eg `� Policy links the open space %t �rtz Creek to-the Hand plaid;no construction But hearings officer. Beth Blount business:' CIWOFTIGARD WASHIN�COUNTY.OREGON October 20, 1982 COMMISSIONER WARREN AND WASHINGTON COUNTY COMMISSIONERS WASHINGTON COUNTY 150 N. FIRST AVENUE HILLSBORO, OREGON 97123 SUBJECT: WALNUT STREET Honorable Persons: I would like to take this opportunity to thank Commissioner Warren for her particular interests and the Commission members generally for their assistance in the recent paving of Walnut Street in Tigard. Walnut Street certainly had to qualify as one of the worst collector streets in the County, and the road overlay was certainly approp- riate. The City wishes to particularly thank the County for showing that these types of projects are genuinely based on County- wide- need and that- roads within city.-areas can, in fact, receive a share of that County-wide attention. We appreciate your timely assistance in this matter. Yours truly, CITY OF TIGARD Wilbur A. Bishop, Mayor WAB dkr CC ?<City Council Frank Currie 12755 S.W.ASH P.O.BOX 23397 TIGARD,OREGON 97223 PH:639-4171 A4 C1 OF TIGARD VVASHIIW3'TOP:00 Wf Y.0REGON October 27, 1982 MR. DON MACK, EDITOR THE TIGARD TIMES 9730 S.W. CASCADE TIGARD, OREGON 97223 Dear Editor: I share the concern expressed by Mr. Wyffels of Tigard over the recent error which kept the Downtown Urban Renewal Tax Increment Finance questions off the November ballot. Just as I presented to the Council , I can assure Mr. Wyffels and your readers: o that the matter was brought to the Council personally by me as soon as we had the facts; o that because of State law we could not print a separate questionnaire to hand out at the polls as Mr. Wyffels suggested; and, o that we explored a variety of other means to make the Novemberballot, including mail-in and an emergency election. In calling for the November election, the Council wanted to achieve br<5ad-based advise prior to January 1, 1983. Staff has been pre- paring a Community Survey to ask the citizens to help in setting priorities for our City' s government. I will be recommending that the Tax Increment question be added to that general survey as a City Poll , with the results to be treated just like an official election. In this fashion we still hope to receive the broad-based advise on this as well as other issues yet this year. Yours truly, CXJW.OF TIGARD RobJean, Citministrat RWJ : dkr CC : mayor and City Council Mr. Wyffels 12755 S.W.ASH P.O.BOX 23397 TIGARD,OREGON 97223 PH:639-4171 REIN Oregon Liquor Control Commission City 0" 198 VICTOR.ATIYEH P.O. BOX 22297, 9079 S.E. McLOUGHLIN BLVD., PORTLAND, OREGON 97222 oOVEwnOn October 18 , _1982 Plaia Pentries, Inc. _,540 NE Riverside Wav Portland, OR 97211 LiCenSe Refusal--Package Store ('CRTTFIED VATL RETURN RECEIPT REQUESTED Plaid Pantry tiarket !-e116 _14600 SW Hall Q--Ivd. Tigard, OR 97223 Gentlemen: Your application for a Package Store license at the `hove loci- tion v.-as considered by the Regulatory Staff CO, nittee Of the Oregon Liquor Control Commission. The Staff's recommendation is that your application be refused. The Commission proposes to act Upon the recommendation. The Regul2tary Staff Committee' s recommendation is rosea Upon the following: ORS 471.295(1) . The granting of a license in the locality set out in the application is not demanded by public in- terest or convenience. OAR Chapter 845-05-035 . The Commission may refuse to Is- sue or renew a license if it determines that public opin- ion weighs against the issuance of a license. Interested persons may express their support for or opposition to the issuance to a particular license by petition or letter timely received at the Commission offices, or by personal appearance and testimony at a Commission hearings if any. Such public opinion will be evaluated in light of the rea- sons expressed and the extent to which the persons expres- sing it are likely to be affected by the issuance of the license. Greater weight will be given to opinions of per- sons residing, working or owning a business within a 1-mile radius of the proposed premises. AN EQUAL OPPORTUNITY EMPLOYER Plaid Pantry "'arket 2116 - October 18, 1982 Page 2 The Staff is aware of the receipt of eight letters of ob- jection anc+ a petitic-n bearing the signatures of 203 per- sons , all objecting to the issuance of this license. These objectors have indicate© that .hey all reside within a 1-mile radius of your proposed premises. Reasons stated by these persons for their ob_lections to the issuance of this license are: 1. Increased commercialization of residential area. 2. Sufficient Package Stare outlets already in the area. 3. PSc public demand for an additional Packaga Store out- let. 4 . Possibilities of increased traffic, noise, loitering, litter, and illegal activities in and around the pro- posed premises. The Staff believes that sufficient cause exists so as to recommend to the Commission that this application be de- nied. f You are entitled, to a hearing on the merits of your application and the Regulatory Staff Committee's recommendation. The Com- mission is not !)ound y the recommendation. If you wish a hearing to contest the recommendation, you must notify the Li- cense Division in writing within sixty (40) days of the date of this notice. If you do not request a hearing, the Com-mission will decide upon the merits of your application at its December, 1382 meating. Yours truly, C. dean Smith Administrator CDS:SS:kw/35078 cc: City of Tigard: `a M o r` � N N r rr�A VJ U U Ln. N CT �D H •.I-. 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