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City Council Packet - 11/14/1995
ODONNELL RAMIS ET AL 503-243-2944 Nov 14 95 17:33 No.022 P.02 AM& APPENDIX TWO: EQUAL PROTECTIONANALYSIS OF WEB CITED RYAPPLICANT Case Applicant's Allegadon fiesponse SDR 91.0002 "The City approved the construction of a new Although the City did not exact a pathway In commercial buildings (etc] of 8,000 sq. It. this case, it required trumpotudon Standard street tl;ontage dedication was required. improvements in the fbrm of dedication of In addition. no traffic impact costs were assessed street frontage and sidewalk improvements, to SDR 91.0002 in excess of the required TIF Those requirement, were not put on fees, As in the Dolan application, sidewalks are Applicant. Instead, Applicant was required required *am the building to the street f ntage to ded'i'cate land for the pathway, The and along the street frontage, However, in direct Supreme Court requiem that all dedications contrast with the requirements for the Dolans, this be individualized determinations. Moreover, applicant did not have to dedicate or be assessed an individualized interprttation neoessariiy for storm water drainage (the requirements for results from any quasi-judicial process. water quality are a different subject and ordinance There, street exactions were Imposed, In the restriction). The stormwater was allowed to run Dolan case, *a city Imposed a pathway into an existing storm line in 72nd Ave. This exaction. Both developments were thus storm line, In turn, flows into the ftmo Creek required to mitigate fbr traffic impacts, but drainage system. Similarly, there is no mention of through different methods. P. requirement for additional transportation costs related to an alleged 69% unreimbutsed costs In SDR 91-0002 the City found that the [sic) in ex6ass of the requited TIP fee." central storm drain probably was sufficient to bandlo tuno$'frcm the site. The City unposed a condition requiring applicant to "domonstrato that storm drainage runaff ain be discharged into existing drainsgewaye without significantly Impacting properties downstream." That is the same burden that the city placed on Applicant. Moreover, the property is not located on the creek. Therefore, it la not surprising that the City imposed a diflavat drainage rcgt&cment on this aplieant. Applicant's argument concerning imposition of a fee in excess of the WTIF fec is a red herring. Here, the City Is not attempting to impose such a in on Applicant Instead, it is using the WTIF methodology to decide rough proportionality In accordance with the requirements created by the Supreme Cdtut. It did not apply such a methodology In Its earlier cases because the existence of rough proportionality was not an issue. I BAIT A (REVISED) TO FINAL ORDER Page - a AML a Milli ligillill~ililillim=i OEM AMk 1flt . Tr.:•,.;:~%fr j;~%S.•`•` .a: rr'•#r'j~ :flT'%7w~ ~ ss%< f£Y.' : ;'i ~:iArn:ni;t rk:.. Ty~+~"r lG.}j"•d ITV OF TIGARD ++~~nf y,;}•rw '.vl' n.:; :a('{:o iu.v" n :i:.M1 ~`r:::i`•}F.::T.. Yc} .~~..cxy~ "'''•,0x{y~: ~i:f;;••: ~f~ ( ~ F v'N'f f .i . At:.:.!+..{ ~ '•Y{:! f': : T 'r.u..{•,f~f:~\i:,v,'. fi r'::Y~Yi$~'"Y{ f 4 Z, ~ fiF $'a,'o,:. Y{i'>"::Ci::i:N;:<ir i':'?':?'•r{ri<f i~,:><:::%',~...e L.k:}` f.'•°.?:.ir $s! J~ F'''M`k :i ~6.' '>^sU~rf(L::k>f.'~>.,...>:C•t .i:C•: 2~;'.,J'~•.,'~ ';.6s.as$teil. u::A . : :.;:}f:':b..yr ,Y.i2:7,fiL>{s::2.:iT ,;y; S`.>,r{•h~';'nl,~.:.df<.'iy iii~f~~:si'r•,.;SF,z2:r R:%.F'aF'. '.s':• ::::i•`U},'..~:c. .':cyi "r'`Sn~{?!T•:: i:rn:, w r T.:::T~:/,:'~;~~~:. .T•rf.:roo::vfi w.~hT'`'{,'Yy ~B:X.D».$:}Tr.•'.'~ ' :.f5.:~':n •s ;.,..~,`'/.:::{,{ak.:i3::i?~.n).:,:S9; v.; ~S.'Fl..•..~"t:::ii<:ii{J.•v~.}•.f;u PUBLIC NOTICE: Awyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Visitor's Agenda items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Administrator. Times noted are estimated: it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agendas itams can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 539-4171, Ext. 309 (voice) or 584-2772 (TDD -Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: ® Qualified sign language interpreters for persons with speech or hearing impairments; and ® Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone numbers as listed above: 539- 4171, x309 (voice) or 584-2772 (TDD - Telecommunications Devices for the Deaf). SEE A7TAC4IED AGENDA TIGARD CITY COUNCIL MEETING NOVEMBER 14, 1995 - 6:30 PM AGENDA 6:30 p.m. 0 STUDY MEETING > Executive Session: The Tigard City Council may go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), (h) 8t (1) to discuss labor relations, real property transactions, current ex pending litigation issues, and the performance evaluation of a public employee. > Agenda Review 7:30 p.m. 1. BUSINESS MEETING 1.1 Call to Order - City Council ex Local Contract Review Board 1.2 Roll call 1.3 Pledge of Allegiance 1.4 Council Communications/Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 p.m. 2. VISITOWS AGENDA (Two Minutes or Less, Please) 7:45 p.m. 3. CONSENT AGENDA: 't'hese items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. (Any items requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council has voted on those items which do not need discussion.) Motion to: 3.1 Approve City Council Minutes: October 10 and 17, 1995 3.2 Receive and File: a. Council Calendar b. Tentative Agendas 3.3 Authorize Sale of Bonds - Dartmouth Local Improvement District - Resolution No. 95- 3.4 Approve Wetlands Planning Grant Agreement 3.5 Approve Budget Adjustment for Wetlands Planning Grant - Resolution No. 95- 3.6 Initiate Vacation Proceedings for a 10-foot Wide Public Utility Easement Located on Lot No.. 9 in Benchview Estates Subdivision- Res. No. 95- 3.7 Dedicate Fight of Way Required for 72nd Avenue from the City-owned "American Legion" Property and Authorize the City Administrator to Sign a Warranty Deed - Resolution No. 95-_ 3.8 Authorize Staff to Soli,-'.t Proposals from Qualified Landscape Architectural Firms to Prepare a Plan for the Expansion of Cook Park COUNCIL AGENDA - NOVEAMER 14, 1995 - PAGE 2 7:50 p.m. 4. CONSIDER P G RESTRICTIONS ON COMMERCIAL STREET a. Staff Report: City Engineer b. Council Consideration: Ordinance No. 95- 8:00 P.M. S. UPDATE AND RECOMMENDATIONS: 130Ta1 BRIDGE CONNECTION ® Staff Report: City Engineer ® Council Discussion ® Council Consideration 8:1 s p.m. 6. BOARD AND COMMI'1- EE RULE AMENDME 'S: 6.1 Establish Term Limits (Ordinance ax Resolution) a. Staff Report: Assistant to the City Administrator b. Council Discussion C. Council Consideration: Resolution No. 95- Ordinance No. 95- 6.2 Formalize the application and review process for appointment to Boards and Committees: Discuss proposed resolution. a. Staff Report: Assistant to the City Administrator b. Council Discussion C. Council Consideration: Resolution No. 95- 8:25 p.m. 7. PUBLIC H G (Q I-JUDICIAL): APPS. OF SUB®MSION (SUB) 95- 0004/PLANNED DEVELOPMENT REVIEW (PDR) 95 5/SENSITIVE ADDS REVIEW (SLR) 93-0007 - ii ILLSHIRE WOODS PRASE IUSIERRA PACIFIC DEVELOPMENT (Continued from September 26, 1995) a. Applicant and Appellant have agreed to postpone the continuation of the hearing to December 19, 1995. b. Staff Recommendation: Continue Hearing to December 19, 1995. co Council Consideration: Motion to continue hearing to date certain of December 19, 1995. Ask COUNCIL AGENDA - NOI/EMER 14, 1935 - PAGE 3 4 ME= BUM 8:30 p.m. 8. CONSIDERATION OF FINAL ORDER (QUASI-JUDICIAL) - SITE DEVELOPMENT REVIEW (SDR) 914)0056V NCE (VAR) 91-0010 DOLAMMENDEZ) (Set over from October 24, 1995) ► To Consider the U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bikepath relating to the determination of the rough proportionality of those requirements. LOCATION: 12520 SW Main Street (WCTM 2S1 2AC, tax lot 700). APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 18.66, 18.84,18.86, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creek, and the City of Tigard Master Drainage Plan. ZONE: CBD (Central Business District). The Central Business District zone allows public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. a. Staff Report b. Council Consideration: Resolution No. 95- 8:35 p.m. 9. PUBLIC HEARING (QUASI-JUDICIAL) - ANNEXATION - ZCA 95 5 WILL S A request to annex one parcel of 1.52 acres into the city and change the zoning from Washington County R-5 to City of Tigard R-4.5. Location: The south side of S.W. Walnut Street between S.W. 116th and S.W. 121 st Avenues. Applicable Review Criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.1.1, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3, zoning designation. Community Development Code chapters 18.136, annexation requirements; and 18.138 land classification of annexed territory. Zone: Presently Washington County R-5. Times are estimates only. a. Open Public Hearing b. Declarations or Challenges C. Staff Report: Community Development Department d. Public Testimony Applicant Proponents Opponents Rebuttal e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Resolution No. 95- Ordinance No. 95- - AVMNL COUNCIL AGENDA - NOVEMER 14, 1995 - PAGE 4 8:45 p.m. 10. PUBLIC HEARING (LEGISLATME) - PARKS SYSTEMS DEVELOPMENT CHARGES (SDC's) AND MEMODOLOGY FOR CALCULATION OF THE SDCs. (Set over hum October 24, 1995 ) To consider changes to the City's Park Systems Development Charges (SDC's) and to the methodology pertaining to the calculation of these SDCs. Both public oral and written testimony is invited. A copy of the full 40-page SDC study is available upon request. (TECM we esdMon 019Y.) 8:45 pm a. Open Public Clearing b. Declarations or Challenges 8:50 pm c. Staff Report: Community Development Staff 10.1 Systems Development Charge Amending Ordinance to incorporate state legislative and replace the street SDC chapter of the Tigard Municipal Code. 10.2 Amendment to Park System Classifications and Acreage Standards for Consistency with those Used in the Park System Development Charge Study 10.3 Amend Park System Development Charge Methodology and Fee Structure d. Public Testimony (Proponents and Opponents: Please limit testimony to fsve minutes per person.) 9:00 pin ® Proponents e Opponents e. Council Questions f. Close Public hearing g. Staff Recommendation 9:00 pm h. Council Consideration: Item 10.1 - Ordinance 95-- Item 10.2 - Ordinance 95- Item 10.3 - Resolution 95 _ 9:15 P.M. 11. PUBLIC HEARING - CONSIDERATION OF OFFERING PROPERTY FOR SALE LOCATED ON THE CORNER OF 99W AND 72ND AVENUE FORMERLY KNOWN AS THE AMERICAN LEGION PROPERTY AND S G A MINIMUM PRICE a. Open Public Hearing b. Declarations or Cha3enges C. Staff Report - Finance Director d. Public Testimony e Proponents ® Opponents e. Council Questions/Comments f. Staff Recommendation g. Close Public Hearing It. Council Consideration: Resolution No. 95- COUNCIL AGENDA - NOVEMBER 14, 1995 - PACE 5 9:30 P.M. 12. REVIEW DEPARTMENTAL SERVICE STANDARDS (Set over ham the 10110195 Council meeting) a. Summary of Issue: City Administrator b. Council Questions/ Consideration: Motion adopting service standards proposed by City Departments. 9:45 p.m. 13. NOIN AGENDA nrENS 9:55 P.M. 14. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), at (h) to discuss labor relations, real property transactions, current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore nothing from this :neetieig may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. 10:15 P.M. 1 S. ADJOURNMEW fArecordeAccAccai 114.95 i COUNCIL AGENDA - N01JEIZER 14, 1995 - PAGE 6 AFFIDAVIT OF MAILING STATE OF OREGON ) County of Washington ) City of Tigard ) I, OCC-1--he ri me W1 ~pn ~1 . hereby certify: Please Print That I am a (!.a I-i JR-C C L>( r c 11 for the City of Tigard, Oregon. That I served notice of the Tigard City Council NA Ce 1-) (41 UrCAUL ` CUCL4.1 - S.D& ql-0005 071-UU/O of which the attached is a copy (Marked Exhibit A) upon each of the following named persons on the ova day of m~ 1 g 4 . by mailing to each of them at the address shown on the attached list (Marked Exhibit B), said notice is hereto attached, and deposited in the United States Mail on the ~a ~~day of ✓ f' ~'v J),"/, . 99E5J . postage prepaid. repared Notice Subscribed and sworn to before me thisday of ft&j . 19 q 5 OFFICIAL SEAL M JO ANN HAYES ' V1% 4-1 b NOTARY PUBLTC•OREGON COMMISSION NO. 042148 Notary . ~ficof Oregon MY C' I;SION EXPIRES MAY 05, 1999 My Commission Expires:TS11 14 9 h:\fog1n\cathy\afofmPj1 1155 ~~clti~ br f CITY OF TIGARD OREGON CITY OF TIGARD Washington County, Oregon NOTICE OF FINAL ORDER r* BY THE CITY COUNCIL Concerning Case Number(s): SITE DEVELOPMENT REVIEW SOR) 91-000511ARIANCE (VAR) 91.0010 Name of Owner.- Trustees for John T. Dolan Dame ofAppffrarpt.• Trustees for John T. Dolan Address ofAppllrant: 4025 SE Brooklyn Street City.- Portland State. Oregon Zip: 97202 Address ofProperty.• 12520 SW Main Street City.• Tigard State: Oregon Zip: 97223 3'azMap aridLot No(s).: WCTM 2S1 2AC, tax lot 700 Request ➢ Consideration of U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bikepath relating to the determination of the rough proportionality of those requirements. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 18.66, 18.86, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creek, and the City of Tigard Master Drainage Plan. 7_ane: CBD (Central Business District). The Central Business District zone allows public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. Action A ❑ Approval as requested Eff"Approval with conditions ❑ Denial Notice: Notice was published in the newspaper, posted at City Hall and mailed to: Z The applicant and owner(s) El Owners of record within the required distance ® The affected Citizen Involvement Team Facilitator ® Affected governmental agencies Final Decision: THE DECISION WAS SIGNED ON 11/14 /95 . M&, AND BECOMES EFFECTIVE ON l! l ql45 -V3%. The adopted findings of fact, decision and statement of conditions can be obtained from the City of Tigard Planning Department, Tigard - City Hall, 13125 SW Hall Boulevard, Tigard, Oregon 97223. A review of this decision may be obtained by filing a notice of intent with the Oregon Land Use Board of Appeals (LUBA) according to ,ahair QUESTIONS:. If you have any questions, please call the Tigard City Rccorder at (503) 639.4171. C!!D'QWAC/lAO7/CFL4rF/Kf(~tPAFA SDR91.OMMAR 91.0010 DOUNINI'A'DFZ CITY OF TIGARD, O EGON RESOLUTION NO. 95-I _ A RESOLUTION UPON CITY COUNCIL REVIEW TO CONSIDER THE U.S. SUPREME COURT REMAND OF CONDITIONS RELATED TO THE DEDICATION OF PROPERTY FOR FLOODPLAIN MANAGEMENT AND A BIKEPATH RELATING TO THE DETERMINATION OF THE ROUGH PROPORTIONALITY OF THOSE REQUIREMENTS - SITE DEVELOPMENT REVIEW (SDR) 91-0005/VARIANCE (VAR) 91-0010 DOLAN/MENDEZ WHEREAS, the Tigard City Council. held a public hearing on the U.S. Supreme Court Remand of Conditions, and WHEREAS, the Council reviewed the evidence related to the application and remand in a public hearing setting on June 27, 1995, July 18, 1995, and August 29, 1995. NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: Section 1. The findings and conditions of approval are specified as set forth in Exhibit A attached hereto. Section 2. The Council orders that the City Recorder send a copy of this final order to the applicant as a notice of final decision in this matter.A PASSED: This day of 1 19 5. . n M- City of Tigard ATTEST: l/ City Recorder - City of Ti and ::\1oain\cachy\do1an.res RESOLUTION NO. 95-~ azffffl~ FINAL S AL EXHIBIT A (REVISED) TO CITY COUNCIL OF THE CITY OF TIGAR.D FINAL ORDER IN (SDI) 91-005/(VAR) 91-0010 TABLE OF CONTENTS I. GENERAL MATTERS 1 A. Overview Approach to Findings 1 B. Evidence Admitted Into the Record 4 C. Adoption of Staff Reports 4 II. BACKGROUND ......................................................5 A. Basic Facts .....................................................5 E. Procedural Posture 5 III. ANALYSIS ..........................................................8 A. Introduction ....................................................8 B. Remand Condition One Passes the Nexus Test 9 1. The Supreme Court Found in Dolan II That Tigard Had Satisfied the Nexus Test Council Did Not Need to Revisit That Issue 9 a. The Court Upheld Tigard's Decision Concerning Original Condition One Under the Nexus Test 9 b. Because of the Court's Holding, Council Could Find That Remand Condition One Satisfied the Nexus Test Without Reapplying That Test 11 2. Although Unnecessary to Its Decision, Council Found that Tigard Had Satisfied the Nexus Test 12 IIq Ell a. Tigard Could Have Denied the Permit Without Effecting an Unconstitutional Taking 13 (1) Denial of the Permit Would Have Served Legitimate State Interests 13 (2) Denial of the Application Would Not Have Deprived the Property of Economically Viable Uses 14 (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application 14 b. Remand Condition One Advances the Same Legitimate State Interests Affected by Applicant's Project 15 (1) The Nexus Test Required That Tigard Show a Relation- ship Between the Impact of Applicant's Development and a Solution N itigating That Impact 15 (2) A Nexus Existed Between Remand Condition One and the Drainage and Traffic Impacts of Applicant's Project . 17 (3) Remand Condition One is Not a Gimmick or Ruse 17 (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One 13 (5) The Bicycle/Pedestrian Way is Meant to Reduce Auto Traffic, Not Just Pa ovide Recreational Opportunities 21 C. Remand Condition One Satisfies the New Rough Proportionality•Test from Dolan II 24 1. Requirements of the Rough Proportionality Test 24 2. The Required Flood Plain Easement Satisfies the Rough Proportionality Test ...................................................31 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's- Project Would Have Significant Impacts 31 EXHIBIT A (REVISED) TO FINAL ORDER Parse - ii . b. Tigard Established a Reasonable Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One 38 (1) Tigard Fixed the Deficiency the Court Identified 38 (2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited Public Easement for Enhancement and Maintenance of the Floodplain and Creek Channel ................................39 (3) Remand Condition One Does Not Call on Applicant to Provide "Excess Capacity" 41 C. Tigard Showed that the Floodplain Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development 46 d. Tigard Showed That the Floodplain Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development 47 3. The Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test 48 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts 48 b. Tigard Established a Reasonable Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One 56 C. Tigard Showed That the Bicycle/Pedestrian Pathway Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development 57 d. Tigard Showed That the Bicycle/Pedestrian Pathway Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development 61 EXHIBIT A (REVISED) TO FINAL ORDER Page - iii D. Most of Applicant's Other Arguments in Opposition to Remand Condition One Were Not Properly Before Council In This Remand Proceeding 65 E. A Condition Requiring Dedication of Easements for Flood Control and Alleviation of Traffic Impacts is Appropriate Under Tigard's Land Use Regulations ...................................................67 1. Tigard's Land Use Regulations Required Council to Impose Remand Condition One or to Deny the Application 67 2. Applicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded ........................................70 a. Applicant Received Adequate Notice of Tigard's Interpretation of Certain Land Use Regulations 70 b. Council Found That Approval Would Allow Applicant to Site Any General Retail Use on the Property 71 C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One 73 (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One 74 (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval 74 (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council Could Consider in Structuring Remand Condition One ................................77 (4) Remand Condition One Did Not Violate the CDC By Calling for Placement of the Pathway Outside of the Floodplain 78 (5) Role of the Parks Plan 79 EXFMIT A (REVISED) TO FINAL ORDER Page - iv i (6) Remand Condition One Is Consistent With Comprehen- sive Plan Policy 8.1.3 80 (7) Remand Condition One Does Not Violate Implemen- tation Strategies 2 and 5 80 F. Remand Condition One and Council's Rationale for That Condition Do Not Violate the WTIF 81 G. Remand Condition One and the Council's Rational for That Condition Do Not Violate State Land Use Statutes 81 H. Remand Condition One and the Council's Rational for That Condition Do Not Offend Article I, Section 20 of the Constitution of the State of Oregon or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States 85 1. Applicant Did Not Show That Remand Condition One Violated Article I, Section 20 86 2. Applicant Did Not Show That Remand Condition One Violated the Equal Protection Clause 88 I. The Procedure Used in Adopting Remand Condition One Did Not Offend the Due Process Clause of the Fourteenth Amendment to the Constitution ofthe United States 93 IV. CONCLUSION ......................................................93 Appendix One - Evidence in Record A Appendix Two: Equal Protection Analysis of Cases Cited by Applicant a EXHIBIT A (REVISED) TO FINAL ORDER Page - v 1111 EXHIBIT A (REVISED) TO CITY COUNCIL OF THE CITY OF TIGARD FINAL ORDER IN (SDR) 91-005/(VAR) 91-0010 1. GENERAL MATTERS A. OVERVIEW & APPROACH TO FINDINGS This Exhibit A sets out the findings supporting the Final Order in (SDR) 91-005/(VAR) 91- 0010 (the "Final Order"), which the City of Tigard ("Tigard") issued through its City Council ("Council') in response to the decision of the United States Supreme Court in Dolan v. City of Tigard, _U.S. , 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). Because of the long history of this case and the nature of the proceedings on remand, these findings begin with a review of the events leading to the Final Order as they influenced the approach Council took to making its decision. On September 17, 1991, Council approved the application of Florence and John Dolan' for site development review of a substantial expansion of retail uses on their property in downtown Tigard (the "September `91 Approval"). CR 01018.' Council imposed several conditions of approval, including one requiring Applicant to dedicate property in and near a floodplain to allow drainage improvements and construction of a bicycle/pedestrian way ("Original Condition One").' Applicant appealed either Original Condition One or its similar 1989 predecessor in two LUBA appeals and one appeal to the courts, culminating with a decision from the United States Supreme Court. See Dolan v. Ciry of Tigard, 114 S. Ct. 2309. In her appeals, Applicant challenged ' Mr. Dolan died while he and Mrs. Dolan were appealing aspects of the City's conditional approval. This Exhibit A will refer only to Mrs. Dolan, designating her as "Applicant." In this Exhibit A, references to the record generated in the remand proceedings are prefixed with the code "CR- followed by the page number in the current record at which the supporting materials can be found. 3 Original Condition One provided as follows: The applicant shall dedicate to the City as Greenway all portions of the site that fall within the existing 100-}rear floodplain [of Fenno Creek] (i.e., all portions of the property below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary. The building shall be designed so as not to intrude into the greenway area CR 01043-44. Original Condition One solely because through that condition, Tigard had allegedly taken her property without paying just compensation, in violation of the Takings Clause in the Fifth Amendment to the Constitution of the United States ` and Article I, Section 18 of the Constitution of the State of Oregon.' See Dolan v. Cary of Jgard, 20 Or. LUBA 411 (1991) [hereinafter cited as Dolan IJ; Dolan v. City of 771gard,.22 Or. LUBA 617 (1992). Although LUBA and the Oregon courts rejected Applicant's challenge, the United States Supreme Court applied its rough proportionality test, newly minted in the Court's Dolan opinion, to hold that Tigard had not justified Original Condition One adequately. The Court found that although the September `91 Approval satisfied the essential nexus requirement of Nollan v. California Coastal Commission, 483 U.S. 825 (1.987), see Dolan, 114 S. Ct. at 2318-18, Tigard had not made a sufficient, "individualized determination that [Original Condition One was] related both in nature and extent to the impact of the proposed development." Id. at 2319-20. The Court remanded the case for further proceedings, allowing Tigard to make the required findings. Id. at 2322. On June 27, 1995, July 18, 1995, and August 29, 1995, Council conducted hearings to comply with the Court's decision (the "Remand Hearings"). Applicant then made arguments under the Court's new test; but she also made arguments not raised in her appeals, challenging Tigard's authority to impose exactions like those in Original Condition One. Those arguments were based on statutes, Washiugton County's Traffic Impact Fee (the "WTIF"), Tigard's Comprehensive Plan i The Takings Clause in the Fifth Amendment to the Constitution of the United States provides: "[N]or shall private property be taken for public use. without just compensation." It applies to the actions of state and local governments by virtue of the Fourteenth Amendment to the Constitution of the United States. Sez Dolan v. City of Tigard,_ U.S. 114 S. Ct 2309, 2316, 129 L. Ed. 2d304 (1994), citing Chicago, B. & O.R. Co. v. Chicago, 166 U.S. 226.239 (1897); Dept. of Transportation v. Hewett Professional Group. 321 Or 118. 131 n.7, _ P.2d _ (1990; Dodd v. Hood River County, 317 Or. 172, 181 n.11; 855 P.2d 608 (1993) (dictum). ' Article 1. Section 18 of the Constitution of the State of Oregon provides: Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of :he state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use. EXHIBIT A (REVISED) TO FIIgAL ORDER Page - 2 IMM (the "Comprehensive Plan"), Tigard's Community Development Code ("CDC"), Article I, Section 20 of the Constitution of the State of Oregon and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. In making its decision, Council found that it should first consider procedural and substantive aspects of the Court's new test. Applying that test to the specific facts here, Council concluded that exactions like those imposed in Original Condition One would not result in an unconstitutional taking. Council also addressed Applicant's other arguments. Most of those arguments were not before Council in this narrow remand proceeding, however; Council nevertheless considered the substantive merits of each argument, finding none to be valid. Council was anxious to see Applicant develop her new store, but it could not ignore its responsibility to the city's taxpayers to ensure that Applicant contributed her fair share toward mitigating the impacts of her project. Thus, after undertaking its analysis and for the reasons detailed below, Council decided to impose a condition of approval similar to Original Condition One. The condition replacing Original Condition One provides as follows: The applicant shall dedicate by easement to the City all portions of the site that fall within the existing 100-year floodplain of Fanno Creek (Le., all portions of the property below elevation 150.0) (the "Drainage Area") and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary (the `Bike/Pedestrian Path Area") (the Drainage Area and the Bike/Pedestrian Path Area shall be collectively referred to as the "Easement Area"). The easement required by this Condition shall allow thy: City to undertake only the following uses in the Easement Area: A. The easement will allow the City access to the Drainage Area only for the purpose of conducting or constructing flood and drainage controls, repairs and improvements for the purposes of reducing or preventing flooding and erosion and for improving drainage within the City. The easement will not allow the general public to access the Drainage Area. EXHIBIT A (REVISED) TO FINAL ORDER Page - 3 B. The easement will allow the City access to the Bike/Pedestrian Path Area for the purpose of constructing and maintaining a bicycle and pedestrian path and to use as necessary for activities allowed in the Drainage Area. The easement will allow the general public access to the Bike/Pedestrian Area only for the purpose of walking and using unmotorized forms of transportation such as bicycles. The building shall be designed so as not to intrude into the Easement Area. Applicant may build a fence to exclude the general public from the Drainage Area and from access to tlce rear of the proposed building. (Hereinafter referred to as "Remand Condition One.") B. EvmENcE ADS INTO THE REcoRD In this remand proceeding, Council held two hearings at which it received written and oral evidence. Council also held a third hearing to allow representatives of Applicant and Tigard's staff ("Staff") to answer questions. In addition, Council accepted evidence and testimony during the periods between hewings, and it left the record open 29 days after the July 18, 1995, hearing for submission of evidence and arguments. Appendix One to these Findings lists evidence received and admitted by Council during these remand proceedings. Council also admitted into evidence and actually had before it the complete record of Tigard's earlier consideration of the applications of May 1989 and March 1991, the record of proceedings in the two LUBA cases, and the record of proceedings throughout Applicant's appeal to the courts. It was Council's intent to admit into evidence all materials and testimony that were actually before it for consideration in this matter. C. ADOPTION OF STAFF REPORTs Staff submitted reports dated June 20, 1995, July 11, 1995, August 2, 1995, and August 16, 1995, to Council for its consideration. Council adopted those reports as findings supporting its decision, incorporating them into this Exhibit A by this reference, excepting any portion of such a report which contradicted or was inconsistent with the findings set out herein. AdIL EXIiIBIT A (REVISED) TO FINAL ORDER Page - 4 ' mmummommem II. BACKGROUND A. RAsic FACTS Applicant and her son own 1.67 acres of property (the "Property") fronting on Main Street in downtown Tigard. See CR 00311 (ownership); CR 01022 (size); Dolan v. City of Tigard, 22 Or. LUBA at 618 (relationship to downtown). Fanno Creek runs along the southwest property line, and the Property is improved with a 9,700 square foot building and a partially paved parking lot. CR 01022. A-Boy Supply Co., Inc. ("A-Boy"), "an Oregon corporation doing business as a plumbing, electrical and related building retail supply business" is leasing the building on the Property as a store. CR 00311. A-Boy operates several such stores in the Portland Metropolitan Area. See CR 00757, et seq. (advertisements for several A-Boy stores). Tigard's zoning maps designate the Property CBD, Central Business District, subject to the Action Area Overlay, AA, Zone. CBD zoning allows for many land uses. Examples include retail sales, civic uses, meeting halls, offices, restaurants, motels and high density residential developments (40 units per acre). CDC § 18.66.030. The Action Area Overlay Zoning District, CDC Chapter 18.86, applies in areas of intensive land uses. CDC § 18.86.010. Its requirements ensure that projected public facility needs, pursuant to CDC Chapter 18.64, are addressed during redevelopment. CDC § 18.86.040.A. B. PROCEDURAL POSTURE On May 5, 1989, Applicant and her late husband filed an application for site development review. In paragraph 2 of the application, they described their project as being for "replacement of existing sales facility with a larger building." Dolan I, Record at 250. Applicant and her husband signed the application and were the sole applicants. A-Boy was not a party. Id at 251. Construction of the new 17,600 square foot building was only part of Applicant's plans for the Property. She expected to completely pave the gravel portion of her parking lot, tear down the 9,600 square foot existing building, and to develop later a "Phase II" retail building on the site. The Application did not, however, include a request that Tigard approve the Phase II building. EXHIBIT A (REVISED) TO FINAL ORDER, Page - 5 Section 18.120.020 of the CDC required Applicant to file the Application for the first phase of her development. That section requires "site development review" when a person plans to undertake a "major modification" of an "existing development." Applicant has always agreed that her proposed redevelopment of the improvements on the Property was a "major modification" sufficient to trigger site development review. Tigard's Planning Commission ("Commission") issued a decision approving the Application. That approval was subject to 15 conditions. Among those conditions was the precursor to Original Condition One. As drafted by Commission, that condition required Applicant to dedicate the flood plain and an area for the bicycle/pedestrian way, but it also included a requirement that Applicant build the bicycle/pedestrian way and provide a survey of the flood plain. Applicant appealed Commission's decision.to Council, assigning error to, among other things, the dedication and construction requirements. Council approved the Application subject to 15 conditions, adopting most of Commission's requirements. With regard to the precursor of Original Condition One, however, Council removed the requirements that Applicant build the bicycle/pedestrian way and provide a survey. Council also allowed Applicant to count the area of the flood plain and bicycle/pedesuian way towards the CDC's requirement that fifteen percent of the site be landscaped.' Applicant, who had objected to the precursor of Original Condition One solely on the ground that it was a taking in violation of the federal and state prohibitions on takings without just compensation, appealed Council's decision to LUBA. In that appeal, Applicant challenged Original Condition One, and she based that challenge solely on her allegation that the condition effected an unconstitutional taking. See Dolan I, 20 Or LUBA 411. LUBA, however, found that Applicant's takings claim was not ripe because she had not applied for a variance that would allow her to avoid the requirements in Original Condition One. Id. at 425-26. 6 In the September `91 Decision, Council also allowed Applicant to count the areas covered by the floodplain and pathway dedications towards the landscaping requirement CR 01035. E7UIIBIT A (REVISED) TO FINAL ODDER Page - 6 ONE Rather than appeal LUBA's decision in Dolan I, Applicant filed a new application seeking a variance to avoid the requirements of Original Condition One as imposed in Council's earlier decision. In that application, Applicant described the purpose of the project as follows: "[t]he construction of a 17,600 square foot building having a general retail sales facility." CR 00754. Applicant and her husband signed the application and were the sole applicants. A-Boy was not a party. Id The application set out the following justification for the variance: The variance requested by the applicant should be allowed as the conditions and dedications required by the City of Tigard violate the applicant's rights under the Oregon and United States Constitutions. Specifically, the City's demand for dedication constitute [sic: constitutes] an unlawful taldng and violation of the Oregon Constitution, Article 1 [sic: I], Section 18 and the Fifth Amendment to the United States Constitution. The proposed variance will not materially be detrimental to the purposes of the title nor conflict with the policy of the comprehensive plan as no park exists at this time nor does the City have sufficient funding in which to create a park that the bicycle/pedestrian path is theoretically going to be used to access. There are special circumstances that exist which are peculiar to the lot in that the building which the applicant proposes to construct cannot be erected without invading the City's proposed bicycle/pedestrian path if the land is dedicated. This hardship is not self-imposed but rather unposed by the City's dedication and the variance requested is the minimum variance which would alleviate the hardship to the applicant. Brief for Responded, United States Supreme Court No. 93-518, Appendix E at E-4, quoting "Statement of Justification for Variance." In its September `91 Approval, Council rejected Applicant's request for a variance. The September t91 Approval therefore reimposed Original Condition One. CR 01043-44. EXHIBIT A (REVISED) TO FINAL ORDER Paste - 7 Applicant appealed the September `91 Approval to LUBA, and, after LUBA upheld Council's decision, to the Oregon appellate courts and, ultimately, to the United States Supreme Court. Dolan v City of Pgard, 22 Or. LUBA 617, aff'd, 113 Or. App. 162, 832 P.2d 853 (1992), aff'd, 317 Or. 110, 854 P.2d 437 (1993), rev'd & remanded, _ U.S. 114 S. Ct. 2309 , order on remand, 319 Or. 567, 877 P.2d 1201 (1994) (per curiam) [hereinafter cited as Dolan II]. The findings in this. Exhibit A respond to the new constitutional test the United States Supreme Court promulgated in Dolan II, as provided for in that Court's remand decision. Dolan II, 114 S. Ct. at 2322. M. ANALYSIS A. INTRODUCTION In these proceedings, Council was presented with a narrow remand issue based on a test applied for the first time by the United States Supreme Court in Dolan H. There, the Court found that while Original Condition One had the requisite nexus with Tigard's legitimate interests in preventing flooding, securing adequate storm water drainage, and reducing traffic congestion, as required by Nollan, Tigard had not shown a rough proportionality between the condition and the impacts of Applicant's development. Because the Court remanded the case solely on that issue, giving Tigard an opportunity to make findings in compliance with the new test, Council found that the only issue properly before it was whether Tigard could satisfy the rough proportionality test. Applicant nevertheless argued on remand that several other issues were before Council. She claimed that Council had to decide whether Tigard had proven a nexus between the state interests proffered in support of Remand Condition One, the impacts of her development, and the required easement dedication. Applicant also advanced several arguments based on provisions of law other than the federal Takings Clause. Because Applicant advanced several alternative theories in opposition to Remand Condition One, Council considered the merits of her theories. Council nevertheless continued to believe that only the narrow issue remanded by the Supreme Court was before it. In making these findings, Council first analyzed whether it had to reapply the nexus test and, assuming that the test had to be reapplied, whether Tigard continued to satisfy that test. Council then considered the issue remanded from the Supreme Court, and finally decided the availability and merits of Applicant's other EXHIBIT A (REVISED) TO FINAL ORDER Page - 8 arguments. After making this analysis, Council concluded that it should impose Remand Condition One. B. REMAND CONDITION ONE PASSES THE NExus TEST 1. The Supreme Court Found in Dolan II That Tigard Had Satisfied tlse Nexus Test - Council Did Not Need to Revisit That Issue Original Condition One and Remand Condition One call for similar exactions, except that Remand Condition One clarifies that Tigard is not requiring Applicant to make the floodplain area available for recreational purposes and that Tigard does not intend to acquire fee title.' Because the conditions are so alike, the Supreme Court's decision that Original Condition One satisfied the nexus test equally applies to Remand Condition One. Indeed, the Court's holding on that point was not legally subject to reconsideration here. a. The Court Upheld Tigard's Decision Concerning Original Condition One Under the Nexus Test In Nollan a California Coastal Commission, 483 U.S. 825 (1987), source of the nexus test, the plaintiffs owned a small beach-front house situated between the beach and a coastal road. They decided to expand the size of the house greatly, which they could not do without a permit from the Commission. When the Commission granted the permit, it required as a condition of approval that the plaintiffs give it an easement allowing the public lateral access on the adjoining beach, which the plaintiffs' owned. In support of the condition, the Commission argued that the larger house would block views of the beach from the coastal road. The Commission said that giving the public lateral access along the beach would mitigate for the loss of the view. In rejecting the Commission's justification, the Court created the nexus test, which Applicant said Council must reapply here. The Court found that requiring an easement without compensation or other justification would have been an unconstitutional taking. Id. at 841-42. To avoid such a Remand Condition One also provides that Applicant can fence the floodpluin area to prevent the public from accessing that area. Such a provision was not included in Original Condition One. Council felt it appropriate to insert such a provision because of Applicant's concerns about security a%pressed during the remand hearings. EXHIBIT A (REVISED) TO FINAL ORDER Pace - 9 result, the Court required the Commission to show that the condition had a nexus to legitimate state interests affected by the larger house. Id at 837. I1~ for example, the Commission had required the plaintiffs to dedicate part of their property as a view point from the road to the beach, the condition would have passed the Court's scrutiny. Id at 835. The Court found, however, that the requirement of an easement allowing people to walk along the beach-had no relationship to protecting the view from the road. Because the exaction did not advance the state interest offered as justification, the Court held that the Takings Clause forbade the Commission from imposing the condition. Id. at 837. In Dolan II, the Court found that Original Condition One passed the nexus test. Tigard argued that the city's legitimate interests in preventing flooding and reducing traffic congestion justified the condition. The Court agreed, finding that Original Condition One was quite different from the condition invalidated in Nollan. [In Nollan,] [w]e agreed that the Coastal Commission's concern with protecting visual access to the ocean constituted a legitimate public interest.... We resolved, however, that the Coastal Commission's regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollan's beachfront lot.... The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry No such gimmicks are associated with the permit conditions imposed by the city in this case. Dolan 11, 114 S. Ct. At 2317 (emphasis added). According to the Court in Dolan 11, the interests Tigard advanced in support of Original Condition One did have a sufficient nexus to the impacts of Applicant's project. It seems obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, EXHIBIT A (REVISED) TO FINAL ORDER Page - 10 Nis= thereby expanding the impervious surface on the property and increasing the amount of storinwater run-off into Fanno Creek. The same may be said for the city's attempt to reduce tra.Ic cong,;sticn by providing for alternative means of transportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers Id. at 2318 (emphasis added). After deciding that Original Condition One passed the nexus test, the Court in Dolan II reached the issue it had left open in Nolkni. That issue concerned the required degree of relationship between the condition, the interests justifying the condition, and the impacts of the development. The Court held that Tigard was required to show rough proportionality between the condition and the impacts of the development. Because it found that Tigard had not made such a showing, the Court remanded the case to allow the city to make findings satisfying the new test. Hence, the only issue before Council was whether Tigard satisfied the new rough proportionality test in these remand proceedings. b. Because of the Court's Holding, Council Could Find That Remand Condition One Satisfied the N~-,zus Test Without Reapplying That Test On remand, "parties may not raise old, resolved issues again." Beck v. Tillamook, 313 Or. 148, 153, 83I P.2d 6', 8 (19:.). Old issues include those which the local government and appellate bodies have actually resolved and those which "could have been, but were not, raised in the first appeal." Louisiwia Pacific v. Umatilla County, 28 Or. LUBA 1086, 1090 (1994). Here, Applicant argued throughout the appeal of Original Condition One that the floodplain and pathway dedications did not meet the nexus test. In that argument, she raised all of the challenges she has raised on remand, including contentions that the dedication did not have a nexus with the drainage impacts of her project and that the pathway was only for recreation. Every EMMIT A (REVISED) TO FINAL ORDER Page - 11 . appellate body to consider her argument, including the Supreme Court of the United States, found that it was mistaken. Each body held that Tigard had satisfied the nexus test. Applicant claimed to Council that the Court's decision on the nexus test was not binding because Remand Condition One differed in some respects from Original Condition. One. However, as pertains to the nexus test, Council found that no significant differences existed. Indeed, the only change of any account in that regard was that Remand Condition One clarified that the floodplain dedication was not meant to further recreation. Because the issues concerning the nexus test were resolved in the previous appeal, they were not before Council on remand. 2. Although Unnecessary to Its Decision, Council Found that Tigard Had Satisfied the Nexus Test Although Council found that the Supreme Court's decision prevented reconsideration of the nexus test, Applicant asserted that minor differences between Remand Condition One and Original Condition One made this decision subject to that test. Accordingly, Council found that it should reapply the nexus test on the chance that LUBA or the courts would agree with Applicant. As detailed above, the nexus test, if applicable to this decision, required Tigard to show that Remand Condition One advanced the same legitimate state interests affected by Applicant's development. With regard to traffic, for example, Tigard was required to show that the easement dedication for the bicycle/pedestrian way had a nexus with mitigating the increases in traffic that the larger store would cause. Besides establishing a nexus between the interests impacted by the development -and the state interests supporting the condition, some dictum in Nollan and Dolan H implied-but did not hold-- that Tigard was required to show that the supporting interests would have justified denial of the Application. If mich a rule did apply, Tigard was required to show that denial of the permit would advance legitimate state interests and would not deprive the property of all economically viable uses. See Agins v City of Tiburon, 447 U.S. 255, 260 (1980) (stating test for finding regulatory takings).' $ In Section III.E.1, infra, this Exhibit A sets out Council's Bounds for finding that Tigard's local land use regulations would have allowed it to deny the Application. EXHIBIT A (REVISED) TO FINAL ORDER Page - 12 Council did not decide whether such a showing was mandatory, however, because it found that Tigard had satisfied even the strictest version of the nexus test. Council therefore applied the nexus test with the assumption that Tigard was required to show that it could deny the Application without effecting an unconstitutional taking. In applying the nevus test, Council was not concerned with the proportionality of the relationship between the easement dedications and the impacts from the development. Council's reasoning on that issue--the rough proportionality test-is set out below. Here, Council addressed only whether the type of relationship the Court required in Nollan was present. a. Tigard Quld Have Denied the Permit Without Effecting an Unconstitutional Taking (1) Denial of the Permit Would Have Served Legitimate State Interests The Court has "not elaborated on the standards for determining what constitutes a `legitimate state interest,'" but it has made clear "that a broad grange of governmental purposes and AMh regulations" satisfy the test. Nollan v. California Coastal Commission, 483 U.S. at 834-35; see, e.g., Agins, 447 U.S. 260 (scenic zoning); Penn Central Transportation Co. v. New York CYry, 438 U.S. 104 (1978) (landmark preservation); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning). In Dolan 11 the Court held that Tigard's interest in managing the floodplain and drainage system and in mitigating traffic congestion were legitimate state interests. Dolan 11, 114 S. Ct. at 2317-18. Tigard proffered those same interests in support of Remand Condition One, and they would have supported denial of the Application. Applicant, through her representatives, freely admitted that her project would have drainage and traffic impacts. As detailed in Section III.C, infra, those impacts would be significant. Had Council denied the permit, the impacts of the project on Tigard's drainage and street systems would never occur. Therefore, denial of the Application would have advanced Tigard's legitimate state interests in preventing flooding, managing drainage, and mitigating traffic impacts. EXHIBIT A (REVISED) TO FINAL ORDER Page - 13 Ask (2) Denial of the Application Would Not Have Deprived the Property of Economically Viable Uses If Council had denied the Application, its decision would not have deprived the Property of economically viable uses. Evidence in the record showed that Applicant is currently leasing a store on the property to A-Boy. CR 01421. This use or a similar use would have remained if Council had denied the Application. Therefore, denial of the Application would not have deprived the property of economically viable uses. As the Court held in Dolan II, "There can be no argument that the permit conditions would deprive [Applicant] `economically beneficial us[e]' of her property as she currently operates a retail store on the lot. [Applicant] assuredly is able to derive some economic use from her property." Dolan 11, 114 S. Ct. at 2316 n.6 (emphasis added). (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application In summary, Council could have denied the Application to advance the legitimate state interests of flood and drainage control and traffic mitigation. Indeed, Applicant's attorney, Mr. Smith, admitted that Tigard had the authority to deny the Application in the following colloquy during oral argument before the Supreme Court of the United States: QUESTION Mr. Smith, are you going to comment on the question whether the city would have been within its rights to deny the building permit entirely? MR. SMITH Yes, Your Honor. And we would agree that the City would have been within its authority to deity the permit outright. However, that - that of course might raise a different takings question that's outside the realm of dedications and municipal exactions, and not only that, that no, Your Honor, we are not. QUESTION: We we take the case on the assumption that the City could have denied it? EDIT A (REVISED) TO FINAL ORDER Page - 14 .MR. SMITH: Yes, Your Honor, that is correct. CR 00823 (emphasis added). b. Remand Condition One Advances the Same Legitimate State Interests Affected by Applicant's Project I . (1) The Nexus Test Required That Tigard Show a Relationship Between the Impact of Applicant's Development and a Solution Mitigating That Impact Council found, as did the Court in Dolan H, that the existence of an impact on legitimate interests plus a regulatory solution directed toward mitigating the impact were sufficient to satisfy the nexus test. See Dolan 11, 114 S. Ct. at 2318. Council was concerned, however, that this holding not be misinterpreted. The distinction which the Court has drawn between the nexus test and the new q Ram W mmm serve that lyder= Would the condition Is the condition rouprtly AWk tN es Would ep1O1 Yes Yes Yes RN= and not deny the owner of serve same purpose as proportional in nature 6 an economically -Aeble that eveloped by the extarY? rqe? (Perhaps hot nd development? reamed.) I i ' No No No i The conddron It i permutable i i I I The condition i s Impermisable I Figure i Nollan/Dolan Decision Process E?H1131T A (REVISED) TO FINAL ORDER Page - 15 rough proportionality test is somewhat artificial. The nexus test requires a showing that the proposed .aL condition will address a development's impacts on legitimate state interests, but it does not require a finding that the proposed condition is proportional to those impacts,. Instead, it leaves that requirement up to the next step in the analysis, the rough proportionality test, which this Exhibit A applies below. Thus the nexus test concerns itself with an either/or proposition. A condition survives scrutiny under the nexus test so long as it advances a legitimate state interest which the development impacts to any degree. It is the rough proportionality test of Dolan H which examines whether a condition passing the nexus test is sufficiently tailored to survive scrutiny under the federal Takings Clause. The resulting decision process is set out in Figure 1 and is the process Council used here. A comparison of the Nollan decision with the decision in Dolan 11 confirmed the accuracy of Council's holding. In Nollan, the Court did not reach any issue concerning the required degree of relationship between the impact of the development and the nature and extent of a condition purporting to mitigate that impact. The Nollan Court held that no such inquiry was necessary because in that case the facts showed that there was no nexus between the development's impacts and the challenged condition. Nollan, 483 U.S. at 838-39. In Dolan 11, by way of comparisom the Court found that Original Condition One satisfied the nexus test applied in Nollan because it was reasonable to believe that the condition would mitigate for the project's impacts on the floodplain and Tigard's traffic systern. Dolan 11, 114 S. Ct. at 2318. After making that finding, however, the Court in Dolan 11 found that Tigard had not satisfied the rough proportionality test, showing that the Court believed the two tests to be analytically distinct. See Dolan 11, 114 S. Ct. at 2318 The second part of our analysis requires us to determine whether the degree of exactions demanded by the city's permit conditions bear the required relationship to the projected impacts of petitioner's proposed development.") (emphasis added)." " In Dolan H, the Court explained its reasoning process as follows: In evaluating petitioner's claim, we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the cirv.... If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Mollan, because we concluded that the connection did not meet even the loosest standard.... Here, however, we must decide this question. Dolan 11, 114 S. Ct. at 2316. Ash EXMIT A (REVISED) TO FINAL ORDER Page - 16 i (2) A Nexus Existed Between Remand Condition One and the Drainage and Traffic Impacts of Applicant's Project Applicant admitted that her project would increase the amount of storm water running into Fanno Creek and the number of automobile trips that would be on the city's streets. See, e.g., CR 00104 ("The issue is not whether the Dolans are generating stormwater from their site, they are."); CR 00146 ("The expansion of the Tigard A-Boy store will add 206 trips per day to the surrounding street system."). Evidence in the record showed that Remand Condition One would mitigate for these increases, thereby advancing Tigard's legitimate interests, which also would have supported denial of the Application, in managing flooding and drainage and mitigating traffic impacts.10 Therefore, the condition satisfied the nexus test by advancing the same legitimate state interests that Applicant's project impacted and which would have supported denial of the Application. (3) Remand Condition One is Not a Gimmick or Ruse Applicant made several arguments that Tigard had not shown a sufficient nexus to pass the test. She began those arguments by claiming that Remand Condition One was "trickery" or a "ruse" to justify acquisition of the floodplain for recreational purposes. According to Applicant, the AMk bicycle/pedestrian way will draw the general public to her property and will induce those people to go into the floodplain in violation of the easements called for in Remand Condition One. Council found that Applicant's accusation that Remand Condition One was a trick or ruse was not well taken. The Supreme Court of the United States rejected a similar accusation in Dolan II, finding that Tigard's decision to impose Original Condition One involved " [njo such gimmicks." Dolan II, 114 S. Ct. At 2317 (emphasis added). Further, Council reviewed several slides, which showed the steepness of Fanno Creek's banks on the Property. CR 01553. They showed that the creek's banks are very steep, which will deter persons who use the path from going into the floodplain. Moreover, Remand Condition One would not eliminate the ability of Applicant to exclude the general public from the floodplain area. Under Remand Condition One, Applicant would remain entitled to all of the remedies, such as an action for trespass, that she currently had to exclude others to Council's detailed analysis the evidence showing that Remand Condition One would Mitigate for the impacts of Applicant's project appears infra at 46, 58. This Exhibit A incorporates that analysis in support of Council's finding . that Remand Condition One satisfied the nexus test by this reference. EXHIBIT A (REVISED) TO FINAL ORDER Page - 17 from the floodplain. The condition also provides that Applicant can fence off the floodplain so that the public is not lured into a belief that they can freely access the area. (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One Applicant also argued that Remand Condition One failed the nexus test because, according to her, Tigard had failed to justify ownership by the public of an easement allowing limited access to the floodplain. According to Applicant's lawyer, Tigard could just as well rely on private landowners to maintain the floodpWn in a piecemeal fashion. Evidence in the record refuted her lawyer's assertions, however. Mr. McGuire, an expert drainage engineer (CR 00085), testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan, provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flows. Required maintenance items include debris removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing."' CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential: Efficient and cost-effective maintenance of drainageways requires that the City have the physical and legal ability to access the drainageway. High labor costs typically dictate the use of large mechanical equipment. Adequate access for this equipment reduces the time required for maintenance work and its cost. Emergency maintenance or repair to the drainageway is also accomplished quicker with proper access. Fanno Creek serves to remove storm water from upstream areas much the same as a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic benefits, the two function in similar capacities. Sanitary sewers also require periodic maintenance to function as intended. Where sewers are located out of public rights- of-way, easements are provided to allow municipal access for maintenance. Maintenance of public sewers is a traditional agency function. Providing maintenance on a larger scale allows purchase of specialized equipment and trained labor. Because EXHIBIT A (REVISED) TO FINAL ORDER Page - 18 , the dra-iageway functions as a complete channel, the proper maintenance of the entire channel by a single agency is important. It is not practical to rely on individual " property owners to adequately maintain a large system like the F'anno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain should not have come as any surprise to Applicant. The National Floodplain Managers Association submitted a brief on precisely this point to the United States Supreme Court as a friend of the Court. That brief was placed in the record of the remand proceedings. In its brief, the Association explained precisely the rationale advanced by Mr. McGuire. According to the Floodplain Managers Association, the most efficient flood management system requires that channels remain unblocked and be capable of receiving the full water flowing into a portion of a channel from upstream. The alternative would be large flaws feeding water into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated. Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). Notwithstanding the strong evidence supporting public ownership, Applicant's lawyer claimed that the Comprehensive Plan said that Tigard had adequate regulations to administer the floodplain without acquiring floodplain easements. However, the lawyer seriously misunderstood the Comprehensive Plan. EXHIBIT A (REVISED) TO FINAL ORDER. Pase - 19 Section 3.2 of the Comprehensive plan sets out some of Tigard's approaches to floodplain management." Part of that section, which Applicant's lawyer used to make his argument, states that "[t]he City of Tigard currently has ordinances, policies and standards within the Tigard Community Development Code which provide adequate controls for development within floodplain areas." In taking this section out of context, Applicant's lawyer claimed that it showed that public access to the floodplain was unnecessary. However, in context that is not what the section says. The regulations which led Tigard to find that its floodplain controls were adequate anticipate, among other things, that Tigard will require dedication of easements, such as that imposed here, to allow Tigard access to the floodplain. For example, Policy 3.2.4 provides that "[t]he City shall require the dedication of all undeveloped land within the 100-year floodplain Although because of Dolan 11, Tigard cannot apply Policy 3.2.4 without first conducting a nexus/rough proportionality review, the policy shows that Tigard evaluated the adequacy of its floodplain regulations based on an understanding that they i,-icluded dedications offloodplain easements. Thus, the language on which Applicant's attorney relied does not show that Tigard found its regulations to be adequate without the need for public ownership. Another portion of the Comprehensive Plan supports this conclusion. The Comprehensive Plan at Volume I, page 193, provides that Tigard should implement the recommendations of the Master Drainage Plan. The Master Drainage Plan calls for the dedication of floodplain easements to prevent floodplain development and to allow maintenance of the floodplain and creek channel. Master Drainage Plan at 9-1. The CDC carries out these provisions by requiring dedication of easements where necessary to address drainage problems in accord with the Master Drainage Plan. See CDC §18.164.100; see also CDC §18.120.180.A-8 ("Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require dedication of sufficient open land area."); CDC 18.120.18.A..15 ("All drainage plans shall be designed in accordance with the criteria in the adopted 1981 master drainage plan [sic]."). Applicant also argued that no essential nexus existed with the floodplain easement because, she asserted through her lawyer, Tigard has no policy calling for maintenance of the floodplain and creek channel. That assertion is untrue. The Master Drainage Plan, which is part of the Comprehensive Plan, calls for major channel improvements near Applicant's property and for i i i Chapter 7 the Comprehensive Plan also sets out floodplain policies. AIRL EXHIBIT A (REVISED) TO FINAL ORDER Page - 20 FAM MISSION maintenance of the floodplain and creek channel. See, e.g., Master Drainage Plan at 7-11, 7-2-74. Furthermore, the Master Drainage Plan recognized that improvements would occur over many years because of funding and other limitations. See, e.g., Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area. Fiscal and political constraints, however, will dictate the need for phasing the various strategies."). Tigard has undertaken improvements and maintenance required in the Master Drainage Plan. For example, as Applicant's lawyer testified, Tigard replaced the Main Street Bridge, one of the improvements called for in the Master Drainage Plan. See, e.g., CR 00104 (noting replacement of the Main Street bridge). Evidence in the record also showed that Tigard has exercised its maintenance responsibilities under the Master Drainage Plan. CR 00095. Finally, Applicant's claim that Tigard has the right under general municipal law to go on property during emergencies to clear the creek channel misses the point. The Master Drainage Plan calls for improvements and maintenance to prevent emergencies. (5) The Bicycle/Pedestrian Way is Meant to Reduce Auto Tragic, Not Just Provide Recreational Opportunities Applicant argued that the bicyclelpedestrian way could not satisfy the nexus test because Tigard 's planning documents said that its purpose was recreational. She reasoned that the trips which her project will generate will be for shopping and commercial purposes. Therefore, according to Applicant, a nexus did not exist between her impacts-more shopping and commercial trips--and the bicycle/pedestrian way. Applicant's argument was not well taken, however, because Tigard's planning documents and expert testimony showed that the bicyclelpedestrian way was intended to and will serve shopping and commercial trips, mitigating the traffic impacts of the project. To make her argument, Applicant introduced selective quotations from Tigard's planning documents to give the mis-impression that the city intended that the bicycle/pedestrian way serve only recreational trips. However, when Council put all of the relevant provisions together, it found that Tigard intended the bicycle/pedestrian way to serve a wide variety of trips, including those for shopping and commercial purposes. Tigard's Park and Pathway Plans showed the multiple purposes that the bicycle/pedestrian way would serve. Applicant, for example, criticized the bicycle/pedestrian way because it would run EXHIBIT A (REVISED) TO FINAL ORDER Pace - 21 J into Fanno Creek Park, claiming that connection proved the pathway to be solely for recreational purposes. The Park Plan directly refuted this inference. Instead, it established that the park was meant to act as a hub,'2 drawing people to use the path for both recreational and commercial purposes. Besides helping to meet the recreational needs of the community, and preserving important natural areas, the implementation of the [Park and Pathway] Master Plans will work to support commercial and residential development in the City. The development of Fanno Park will directly complement anticipated improvements to the City Center. The outdoor recreational opportunities offered in the park will attract area residents to the Main Street area and increase their exposure to this commercial center. Further, the park improvements will provide an attractive setting for the commercial area, making it a more pleasant experience for shoppers and the commercial clients. CR 01522. Fanno Park, to which the pathway tuns, "is designed to be intensively used and programmed for a variety of recreational, civic, and corrtmercial functions.... This site is seen as an important part of developing the Main Street and City Center area into an important focus for the citizens of Tigard and surrounding areas." Id. Similarly, the Pathway Plan included among its criteria Tigard made its intent that the park act as a hub for alternative mode trips clear in the Park Plan, as follows: Access to the site [Fanno Creek Park] can be made at various points throughout the park. The principle locations are found at the end of Ash Street, at Hall Boulevard, from the Civic Center and Senior Center, and from the residential areas south of the park. Pathways and bridges through the developed area of the park provide safe and convenient access between the Senior Center, the Civic Center, residents from the Chelsea subdivision, and other visitors to the park. As more pathways and bridges are completed, neighborhood residents and park visitors will have better access to the park and the downtown commercial area. As the greenway pedestrian/bicycle pathways are completed, Fanno Creek Park will serve as an important connection and provide access to the downtown area for residents both north and south along Fanno Creek. CR 01395. This part of the Park Plan responds to Applicant's claim that the path avoids major development area. From its review of the maps in the record Council found that this path does use the park as a hub, connecting it to outla%ing areas and to the downtown. By running through the park, the path will provide an attractive route to the downtown not provided by other bicycle/pedestrian links. The path thus does not limit access "like a freeway," as Applicant's lawyer mistakenly claimed. EXHIBIT A (REVISED) TO FINAL. ORDER Page - 22 in establishing paths that they would serve major shopping areas, CR 01406, and, contrary to Applicant's assertions, included downtown Tigard, which this path will serve, as a major generator of such trips. CR 01407. Expert testimony also established that the bicycle/pedestrian way would reduce trips. Although analyzed in more detail below, Mr. Larson, an expert traffic engineer, testified that Tigard's pathway system would result in a nine percent reduction in automobile trips. CR 00781. He also testified that the segment of the pathway running through the Property was essential to obtaining that reduction: In order to achieve the, the, pedestrian environment factor such that traffic by pedestrian and bicycles can reach a 14 to 15% of total trips, we need to complete critical elements of the project. And in particular the pathway system is missing this one last link, just downstream from the Main Street bridge. Completing that pathway system is critical to reaching the pedestrian environment that, that wili allow 85% of all trips 15% of all trips to be accomplished by pedestrian or bike travel. 7-18-95 Tr. at 16.. Council's review of Oversized Exhibits 69, 70, 71, and 79 confirmed this conclusion. Those exhibits mapped out all of the pathways intended under the Bicycle Pathway Plan. The maps showed that Tigard is developing an interconnected system and that this pathway is an integral part of the system to provide access to downtown from outlying areas. Based on this evidence and the statements in the Master Pathway Plan and the Parks Plan, Council found that a nexus did exist between the traffic impacts of Applicant's project and the bicyclelpedestrian way called for in Remand Condition One. Before closing its consideration of the nexus test, Council addressed one additional argument of Applicant having to do with the bicycle/pedestrian way. She argued that the pathway had to be for recreation because it would be located along the floodplain and not next to a city street. Her inference that the location of the pathway implies that it would be solely for recreation was mistaken. A bicycle/pedestrian way located away from auto traffic would provide a greater margin of safety than would an on-street path. "The interaction between pedestrians and vehicles places pedestrians EXHMIT A (REVISED) TO FINAL ORDER Page - 23 at a distinct disadvantage. One obvious result is the annual pedestrian accident toll of more than one- quarter of a million casualties including 10,000 deaths." CR 01326. "In the absence of separated . pedestrian and automobile facilities, pedestrian casualties rise [I]n the absence of sidewalks and pathways, the risk of pedestrian accidents increases by 72 percent." CR 01339; see also CR 01328 ("The pedestrian function extends to bicycling pathways as well. Bicycle riding in many American towns and cities, like walking, is neither enjoyable nor safe because of the dominance of the automobile."). The Master Pathway and Parks Plans recognized these dangers and called for off- street facilities. CR 01406,01395. Moreover, witnesses testified that walking and bicycle riding in Tigard was dangerous and that they would be more likely to walk or use their bikes for shopping and other commercial purposes if the path called for in Remand Condition One was built. CR 00468, 00467, 00465. For these reasons, "[t]he idea that separate facilities are needed to accommodate vehicles and walking is several thousand years old." CR 01328. Tigard did establish the required nexus. C. REm AND CONDITION ONE SATISFIES THE NEW ROUGH PROPORTIONALITY TEST FROM DOLANII 1. Requirements of the Rough Proportionality Test API& In Dolan II, the Court required the city to show that the condition also passed the new rough proportionality test. Before reviewing evidence on that issue, Council decided what that test required of Tigard. In Dolan II, the Court granted review "to resolve a question left open by [its] decision in Nollan of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development." Dolan II, 114 S. Ct. at 2312. The Court found this question to be germane because, unlike the Commission in Nollan, Tigard had satisfied the nexus test. Irk at 2316. "Since state courts ha[d] been dealing with this question a good deal longer than" the Court, it "turned to representative decisions made by them for guidance" in formulating its test. Id at 2318. From its review of state cases, the Court gleaned three different approaches. First, it identified a group of cases "where very generalized statements as to the necessary connection AMIN. EXHIBIT A (kEVISED) TO FINAL ORDER Page - 24 between the required dedication and the proposed development seem[ed] to suffice." Id. The Court found this standard to be "too lax to adequately protect [Applicant's] tight to just compensation if her property [was] taken for a public purpose." Id. The Court next considered a group of cases where state courts had "require[d] a very exacting correspondence, described as the `specifi[c] and uniquely attributable test."' Id., quoting Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N.E.2d 799, 802 (1961). "Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes "a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police power regulations." Dolan II, 114 S. Ct. at 2318, quoting Pioneer Trust & Savings Bank, 176 N.E.2d at 802. But the Court held that the specific and uniquely attributable test did not apply, stating bluntly that it did "not think the Federal Constitution requires such exacting scrutiny given the nature of the interests involved." Dolan II, 114 S. Ct. at 2318-19. After rejecting the lenient test of some states and the exacting test of others, the Court found a third category of cases where the state courts had taken a middle course, applying a "reasonable relationship test." Id at 2319. The Court quoted with approval the following description of that test: "The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking the property simply because at that particular moment the landowner is asking the city for some license or permit." Id quoting Simpson v North Platte, 206 Neb. 240, 292 N. W.2d 297, 301 (1980) (emphasis added). Although the Court referred to the reasonable relationship test with approval, it did "not adopt it as such." Dolan H, 114 S. Ct. at 2319. It did not do so "partly because the term `reasonable ARA E)=IT A (REVISED) TO FINAL ORDER Page - 25 , relationship' seems confusingly similar to the term `rational basis' which describes the minimal level of scrutiny under the equal protection clause of the Fourteenth Amendment." Id. (emphasis added). The Court did not describe its other reasons for not adopting the reasonable relationship test, but its use of the word "partly" in describing its justification for not to adopting that test implies that such reasons did exist. Considering the Court's favorable attitude towards the reasonable relationship test, Council believed it most logical to think that the test the Court ultimately chose was a new form of that test refined to address federal concerns. Thus, instead of adopting the reasonable relationship test per se, the Court minted a new formulation to be applied after a local government had shown the nexus required by Nollan: We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city trust make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Id. (emphasis added). The Court offered no list of factors that must be proven to satisfy the test. Nor did it set out black letter rules governing the required degree of relationship, merely saying that the test required only rough proportionality and not a precise mathematical calculation. The Court's factual analysis, however, went a way towards filling in these blanks. Original Condition One required Applicant to dedicate an easement to the floodplain, which might have allowed public access for recreation. Nevertheless, the Court found that the floodplain dedication satisfied the nexus requirement. Dolan II, 114 S. Ct. at 2318. However, in applying the rough proportionality test, the Court decided that the findings supporting the floodplain dedication did "not show the required reasonable relationship." Id at 2321 (emphasis added). The Court reasoned that although Tigard had shown adequate grounds to forbid development of the floodplain, it had not justified public ownership. The Court was concerned that Original Condition One allowed the public access to the floodplain for recreation because Tigard had not shown that Applicant's project would,affect that interest. Id at 2320-21. EXOMIT A (REVISED) TO FINAL ORDER Page - 26 At first blush, the Court's ruling appears to be only an application of the nexus test. At least Justice Souter thought so. Dolan 11, 114 S. Ct. at 2330 (Souter, J., dissenting). But the Court emphasized that it was creating a two-step process and that the floodplain dedication had satisfied the first step. Dolm:ll, 114 S. Ct. at 2318. Council therefore realized that it must find and adopt the explanatibn of the rough proportionality test fully honoring the approach required by the Court. To that end, Council first observed that to pass the nexus test Tigard needed only to satisfy an either/or proposition. Either Remand Condition One advanced a legitimate state interest to some extent or it did not do so. Because Council found that Remand Condition One did advance such an interest, it, like the Court with regard to Original Condition One, found that Remand Condition One passed the nexus test. See, supra at 9. However, unlike the nexus test, Council found that the rough proportionality test required proof that Remand Condition One reasonably related to impacts from Applicant's project as a function of their nature and extent. See Dolan 11, 114 S. Ct. at 2321 (finding that Tigard had failed to "show the required reasonable relationship between the floodplain easement and the petitioner's proposed new building.") (emphasis added). The Court's application of the test of Dolan II exemplified how it governs evaluation of an exaction as a function of its nature and extent, clarifying that the analysis is not limited to an either/or proposition. Instead, the holding in Dolan II shows that a condition's purpose must roughly correspond to the interests impacted by the development. Thus, the Court found that although Original Condition One satisfied the nexus test by advancing the legitimate state interest of flood and drainage management, the city had not shown that its purposes for acquiring a public greenway roughly corresponded to the drainage impacts of the project. Accordingly, the Court held that the condition had passed the nexus test but that the city's findings were insufficient to show rough proportionality. The Court's analysis of Tigard's justification of the bicycle/pedestrian pathway was also illuminating. There, the Court found that Applicant's project would seriously affect Tigard's street system. Dolan II, 114 S. Ct. at 2321. The Court also found that pedestrian and bicycle ways often help reduce traffic congestion. Id at 2318. Nevertheless, the Court held that Tigard had not "met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by (Applicant's] development reasonably relate to the city's requirement for a dedication of the pedestrian bicycle pathway easement." Id at 2321 (emphasis added). The reasons the Court gave for this conclusion illustrate another facet of the rough proportionality test. EXHIBIT A (REVISED) TO FINAL ORDER Page - 27 In its findings, Tigard had justified the pathway easement by saying that the path "could offset some of the traffic demand and lessen the increase in traffic congestion." Id at 2321-22 (emphasis added). The Court held that the city's use of the word "could" was too equivocal, adopting the suggestion in the dissenting opinion of Oregon Justice Peterson that Tigard be required to show that the path "`would"' or "`would be likely to"' offset traffic demand. Id at 2322, quoting Dolan 11, 317 Or. at 127 (Peterson J., dissenting). In imposing this requirement, though, the Court emphasized that " [n/o precise mathematical calculation is required." Dolan 11, 114 S. Ct. at 2322 (emphasis added). Under the rough proportionality test, "the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated." Id (emphasis added). Based on its review of the steps taken by the Court, Council found that the new test placed the following obligations on the city: ► Tigard was required to make an individualized evaluation of the impacts from Applicant's development. ► Tigard was required to establish a reasonable correspondence between the impacts of the development and the purposes offered in support of the easement dedications. ► Tigard was required to make some showing that the proposed easement dedications would or would be likely to mitigate for the impacts offered in justification for the condition. And, ► Tigard was required to show that the extent of the exaction was roughly proportional to the expected impacts of the project. EXHIBIT A (REVISED) TO FINAL ORDER Pase - 28 "REM In considering these requirements, ILLUSTRATION OF ROUGH. PROPORTIONALITY Council found that the Court Legend expressly rejected any demand for Range of Roughly Proportional Exactions specific or exact proportionality Exaction Clearly Less Than Impacts between the exactions and the project's impacts. Indeed, the 5 Court's approval of the reasonable a° relationship test, which it found to i . be a middle ground between exacting and permissive scrutiny, m showed that it intended to allow for . , a range of possible outcomes that a^ W- city could adopt in any given case. NahrR s Extent of mpacts Figure 2 illustrates this concept as a discrete band of outcomes Figure 2: Graph illustrating rough proportionality concept allowable under the Court's decision. Council found confirmation of its interpretation in the Court's explanation of the competing interests which must be weighed in deciding exaction cases. In Dolan II, the Court began by noting that cases such as the present raise two competing constitutional principles. On one hand, the Court found it obvious that if Tigard had simply demanded the easements from Applicant, the Takings Clause would have required the city to pay her just compensation. Dolan II, 114 S. Ct. at 2316. On the other hand, the Court has historically granted local governments broad discretion in zoning cases. Id. Here, the Court held that the quasi-judicial nature of the decision and the fact that Tigard was proposing to acquire an interest in the Property, tipped the balance against giving the city's decision the full deference usually accorded by courts to local zoning legislation. Id Indeed, it was for this reason that the Court imposed the burden on Tigard to show that the exactions passed the rough proportionality test. Id. at 2320 n.8. Although the Court selected a rule granting less deference than usual to Tigard's decision, it still recognized a zone of discretion based on the authority of local governments to regulate land use, illustrated in Figure 2 by the gray-shaded band, in which the city, not the courts, would be charged EXHIBIT A (REVISED) TO FINAL ORMER Page - 29 mom with deciding whether particular exactions were justified. This is what led the Court to describe its choice of tests as a requirement of only "rough proportionality," id. at 2319, and to reject the specifically and uniquely attributable test, saying, "[w]e do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved." Id. at 2318-19 (emphasis added). 13 Council was not sure whether Applicant disagreed with this understanding of the governing legal rule." Applicant appeared at some points to be arguing for a standard similar to the specific and uniquely attributable test. She claimed, for example, that the dedication must relate "directly" to the impacts and that "[t]he [city's] analysis must show how it relates to the size, scale, and effect of the Dolan property and its uses." Although these statements are not necessarily inconsistent with Council's understanding of Dolan II, to the extent Applicant meant to suggest that a very exacting test should apply here, she was mistaken. The Court expressly rejected such an approach. As with most abstract legal tests, the rough proportionality test draws real meaning from its application to specific facts. Therefore, rather than further debate Applicant's legal arguments in the abstract, Council chose to address them in its analysis of the evidence. Thus, after gaining an understanding of the Court's new test, Council moved on to decide whether Remand Condition One fell into the permissible range of exactions, considering the circumstances presented here. 13 A zone of discretion is also appropriate because "there never has been (and probably never will be) an ultimate criterion by which to distinguish clearly between regulation and taking, the tests (in corollary fashion) are lacking in standards that are precise, easy to apply, and productive of uniform results." J.C. Vance, Exaction of Right of Way by Ecercise of Police Power, in R.D. Netherton, Ed., 2 SELECTED STUDIES IN Hlct-twAy LAw 936-N227, at 936-N227 (1988). 14 Applicant has not consistently advocated a single approach to the takings question. Her lawvers have, however, made statements that imply she agrees with the formulation of the test set out here. In her Supreme Court Brief, for example, her counsel said the following, which appears to be in accord with Council's understanding of the rough proportionality test: If the city had, by a study, determined how much storm water entered Fanno Creek, and specifically how much more runoff would be caused by the Dolans' new store, it might have been able to constitutionally justify the aedication for the storm drain. and greenway.... If it had, by a study, determined the number of additional pedestrians, bicyclists, and automobiles the new store would generate, and how those numbers compared to the existing traffic loads on city streets, sidewalks, and bike paths, it might have been able to justify the pedestrian and bike path dedication. CR 00734. EXHIBIT A (REVISED) TO FINAL ORDER Paee - 30 2. The Required Flood Plain Easement .Satisfies the Rough Proportionality Test a. Tigard Through an Individualized Evaluation Showed That Applicant's Project Would Have Significant ImIlacts Applicant proposed to almost double the size of her store and to pave a now gravel parking lot. She thus planned to increase substantially the amount of impervious surface on the Property. "It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm-water flow from [Applicant's] property." Dolan 11, 114 S Ct at 2320. Indeed, Mr. McGuire, an expert drainage engineer, CR 00085, calculated that the project would increase the runoff from the site during a 25-year storm event from 1.32 cubic feet per second ("cfs") to 1.91 cfs, an increase of 0.59 cfs. CR 00847. Applicant's own engineer,-Mr. Harris, testified that the runoff from the project would be even higher, anticipating an increase of 0.91 cfs. CR 01531. Council therefore found that the project would increase runoff to Fanno Creek from the Property. Tigard used several methods to estimate the significance of the increase in runoff, including a method recommended by Applicant's attorney. In his testimony to Council on June 27, 1995, Mr. AML Smith, one of the lawyers for Applicant," argued that Council was legally required to use the methodology in the city's Master Drainage Plan to calculate impacts from the development. Mr. Smith not only argued that the city must use the Drainage Plan, but in the following testimony he also recommended it to Council as the best way to find the impact of increased runoff from the site: Similarly let me turn to the, to the master drainage plan. I've also asserted to you that the master drainage plan which was part of your Comprehensive Plan provides a methodology to you for computing how the proportionate share of cost for storm drainage improvements should be calculated. And at some point in time, the City spent what, what appeared to be a substantial sum of money to hire C112M Hill to do an excellent master ai;;age plan. One th at I commended with, with favor is Smith was also lead counsel for Applicant before the Supreme Court of the United States in Dolan 11. EXHIBIT A (REVISED) TO FINAL ORDER Page - 31 Milli III I Ham to the Supreme Court [of the United States] in oral argument as, as being a model of how one could calculate impacts on storm water runoff: 5-27-95 Tr. at 27 (emphasis added). In response to Mr. Smith's recommendation, Mr. McGuire undertook the calculation called for in the Master Drainage Plan. Using the increase in runoff calculated by Applicant's drainage engineer, Mr. Harris, Mr. McGuire found that "[i]f the Dolan site were to contribute toward the Fanno Creek improvements based on the impact of their proposed additional impervious area, the cost would be approximately $1,603." CR 00779. Because Mr. McGuire's calculation was based on the testimony of Mr. Smith and Mr. Harris, witnesses for Applicant, Council found it to be highly credible and concluded that the project would result in impacts on Tigard's drainage system of at least16 $1,603. Council did not rely solely on calculations under the Master Drainage Plan in its effort to fix the likely drainage impacts of Applicant's development. It also considered two alternative approaches. In one such approach, Mr. McGuire calculated the impact of increased runoff from the Property using a methodology originally developed to support system development charges of the Unified Sewerage Agency ("USA') for storm water drainage. See USA R&O 93-33 and exhibits, at CR 00626. Council reviewed the USA ordinance establishing the charges and the underlying methodology developed by Brown & Caldwell, a firm with expert experience in this field. CR 00680. System development charges such as those imposed by USA must be based on actual impacts and be proportional with such impacts, see ORS 223.297, et seq. and, as indicated in the following quotation from the Brown & Caldwell study, the USA ordinance was established based on a fair allocation of costs: 16 Council inferred that as representatives of Applicant, Mr. Smith and Mr. Harris would take a conservative approach to estimating impacts. Therefore, it concluded that their approach represented a conservative estimate of the probable impacts from the development. EXHIBIT A (REVISED) TO FINAL ORDER Paee - 32 The purpose of the analysis was to determine a typical range of costs for storm water facilities. These facilities are designed to reduce peak flood discharge increases associated with urban development. The intent of this study was to develop cost estimates which could be used in establishing a system development charge. CR 00682. Therefore, Council found the Brown & Caldwell study and the USA charges to be highly credibl-- indicators of costs associated with increased runoff. The USA system development charge is $280 per equivalent service unit ESU"). CR 00654.17 Of that amount, $180 is allocable to water quality impacts and $100 is allocable to water quantity impacts. CR 00654. Using the Brown & Caldwell Report, Mr. McGuire found that the total quantity impact for storm water was $563 per ESU for the 25 year storm and $1033 per ESU for the 100 year storm. CR Range of Impacts 00097. Mr. McGuire further testified that Drainage Plan & USA Methodologies it was appropriate to subtract the $100 i system development charge from these 5000 total impacts to determine the otherwise 4000 unmitigated impact of new development ~ 3000 ' 02000 on Tigard's drainage system. Id 1000-1,'- Therefore, because Mr. McGuire 0 determined that Applicant's project would Drainage Plan USA (25 Yr.) USA (100 Yr.) cause runoff equal to 4.36 ESU, he Method testified that it would have unmitigated impacts impacts of $2019 for the 25 year storm and $4,068 for the 100 year storm. CR Figure 3: Extent of Likely Impacts 00097-98. Besides estimating the impacts. of Applicant's project under the Master Drainage Plan and the USA ordinance, Staff presented evidence of the costs which would be associated with mitigating for 17 Under the USA resolution and order, a single ESU is equal to the amount of surface water runoff that would be generated by a single family residence. CR 00633. EXHIBIT A (REVISED) TO•.FINAL ORDER Page - 33 allml®\tllfl~lli/I ~ the increased runoff. Mr. McGuire testified that three options existed for mitigating for the increase Aft in storm water without acquiring the easement, called for in Remand Condition One. They were retention, detention, and in-stream detention. Mr. McGuire estimated the cost for each solution, respectively, to be $6,800, $8,500 and $2,500. CR 00848. Council found that the alternative methodologies substantiated Mr. McGuire's testimony under the Master Drainage Plan. They showed that the $1,600 prediction derived from that plan was probably conservative, and that the project would generate at least that much of an impact, if not significantly more. Applicant objected to Tigard's use of methodologies other than that called for in the Master Drainage Plan to estimate the impacts of her development. She argued, for example, that Tigard's land use regulations required the city to use the Master Drainage Plan. Council, however, did not interpret its regulations to place such a requirement on Tigard. The methodology in the Master Drainage Plan, which is part of Tigard's Comprehensive Plan, was set out as a recommendation. Master Drainage Plan at 8-10. Nothing in the Master Drainage Plan or other portions of the land use regulations created a binding rule requiring use of the Master Drainage Plan as the sole means of estimating drainage impacts from development. Furthermore, Tigard did determine the impacts from applicant's project using the methodology in the Master Drainage Plan. That methodology showed that the project would cause an impact of at least $1,600 on the drainage system. Council relied on the other methodologies proposed by staff to verify the accuracy of that number. Applicant also argued that Council was bound to use only the methodology in the Master Drainage Plan because it had applied that plan in Dolan II. Her argument is irrelevant because Council did use the Master Drainage Plan. Furthermore, although issues decided or which could have been de;;ided in Dolan II were not before Council, Council properly considered evidence and arguments concerning new issues arising from the Court's remand decision. In Dolan II, the Court placed a new responsibility on Tigard to quantify its findings; therefore, Council could consider new evidence and argument addressed to that instruction. The USA regulations, Brown & Caldwell Study, and Mr. McGuire's testimony all concerned new issues raised in the Court's opinion. Council, therefore, properly considered that evidence. E.Z-IIBIT A (REVISED) TO FINAL ORDER Pace - 34 Milli Applicant relied on testimony from Mr. Harris to claim that the predicted increase in storm water runoff would be insignificant. Although Mr. Harris found that the project would increase runoff from the site, he argued that the increase of flow in the creek would amount only to the thickness of five sheets of paper. CR 01532. Mr. McGuire responded to this argument by showing that even such an increase, if not mitigated, would be significant because of the cumulative effect of the runoff. If Tigard did not require developments to mitigate for even small increases in stream flow, according to Mr. McGuire, eventually the cumulative impact of the developments would break the drainage system. To demonstrate his point, Mr. McGuire used the Master Drainage Plan to formulate how much runoff development has or will add to the system. He estimated that, without mitigation, all of the development would lead to an increase in the stream equal to 11,908 sheets of paper, a stack four feet high. CR 00778. "Clearly, 11,908 sheets of paper is significant and is the result of considering only residential development in Tigard. Adding commercial and industrial sites, with their higher impervious areas, plus basin area outside of Tigard, would further increase impacts." Id In response to Mr. McGuire's testimony concerning cumulative impacts, Mr. Shonkwiler, one of Applicant's attorneys, argued that some of Tigard is outside the Fanno Creek basin. Fie then concluded that Mr. McGuire's analysis was in error. He also made the point that the areas of Tigard outside the Fanno Creek basin include some of the more undeveloped areas, and, thus, represent areas of higher expected growth and, he asserted, runoff. Council rejected Mr. Shonkwiler's criticism for several reasons. Not least among those reasons was Council's realization that Mr. Shonkwiler had missed the point. Mr. McGuire's testimony established that all increases in runoff have a cumulative effect if not mitigated. Even if his estimate of an increase in the stream level of four feet was inaccurate, Mr. McGuire's testimony established that all increases in runoff have a significant impact on the system. This, in turn, showed that all such increases result in a cost to the City by using up capacity. Based on the testimony of Mr. McGuire and others, Council found that here that cost was at least $1,600. Council found, moreover, that Mr. McGuire's analysis was conservative. If he had included all land in the Fanno Creek basin, the result would have been even more dramatic. Mr. Shonkwiler overlooked that while some of Tigard is outside the Fanno Creek basin, parts of Beaverton, Portland, EXHMIT A (REVISED) TO FINAL ORDER Page - 35 Lake Oswego, Durham, Washington County, and Multnomah County are all in the basin and were Ask not included in Mr. McGuire's analysis. These all add up to significantly more area than that part of Tigard outside of the basin. See Comprehensive Plan at I-192 ("The major drainage problem in Tigard is the storm water runoff throughout the area. This problem results from the increase in impervious land surfaces that can alter the quantity and quality of runoff from the land."); Comprehensive Plan at H-13 ("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 area, as well as inside Tigard's Planning Area."); see also CR 01530 (testimony of Harris) (Fanno Creek "is the major drainage way for the City of Tigard; in fact, the extent of the City approximates the watershed'of Fanno Creek."); CR 01530 (testimony of Harris) ("At the Main Street bridge, Fanno Creek drains a watershed of 25.1 square miles, equivalent to 16,064 acres."). Considering these factors, Mr. McGuire's was a conservative analysis that accurately described the cumulative effects of runoff in the drainage basin. A full accounting of the entire drainage basin area, topography, and past and potential development would more than offset for the small area of Tigard outside of the Fanno Creek basin. Mr. Shonkwiler also criticized Mr. McGuire by claiming that there had been no rise in the floodplain since the Master Drainage Plan was adopted, as Mr. McGuire's calculations would have predicted. Council found no evidence in the record to support that position. Figure 5.2 of the Master Drainage Plan showed the 100-year flood profile as it existed when the report was written and the future 100-year flood profile. As expected, the future profile was higher than the existing, indicating a rise in flood elevation resulting from development and increased flow rates. The Master Drainage Plan thus recognized the impact of development on existing flood plains. Future urbanization within the Fanno Creek basin will significantly increase flooding problems. The Master Drainage Plan considered a 20-year planning period that ends in the year 2000. Development in the Fanno Creek basin has occurred at least to the level anticipated by the Plan. Also we are now nearing the year 2000. To state, as did Mr. Shonkwiler, that there has been no rise in the floodplain elevation ignores the Master Drainage Plan, basic hydrology and hydraulics, as well as common sense. EXHIBIT A (REVISED) TO FINAL ORDER Page - 36 MENEM= Mr. Shonkwiler also criticizr..d Mr. McGuire's analysis because it did not distinguish between residential and commercial development. He asserted that "commercial and industrial properties are approximately three times higher in storm water runoff than residential." Again, this statement did not support Applicant. She proposed to develop her site as a commercial property, and it would ,generate runoff accordingly. The impact of development of this site would thus be "approximately three times higher" than a similar residential development. Based on the foregoing analysis, Council found that Applicant's project would generate additional runoff that would, by any reasonable measure, have a significant impact of at least $1,600 on Tigard's drainage system. Applicant's attorney tried to avoid this conclusion by arguing that Tigard's calculation of the impacts was not sufficiently specific to satisfy the rough proportionality test. Unsatisfied with the city's analysis of the drainage impacts, Mr. Shonkwiler claimed that Tigard had failed to prove rough proportionality. The nut of his argument appeared to be the following paragraph: The issue is not whether the Dolans are generating storm water from their site, they are. The City has made no attempt to calculate or proportionately assign storm water costs to properties both up and down stream. The issue is whether the cost assessed by the City is proportionate with the overall cost for storm water management. Here, it is not and the Dolans are being required to pay or contribute more than their fair share. Although it was not entirely clear what approach Mr. Shonk-viler would have found acceptable, his contention did merit a response. In contending that Council had to assign proportionate values to each property up and down Fanno Creek, Mr. Shonkwiler was saying that the Council must for each property make an exact analysis of impacts and proportionality. However, that was not the test selected by the United States Supreme Court. The Court held that the City had to shove only rough proportionality between the impact of the project and the exaction. Aft EXHIBIT A (REVISED) TO FINAL ORDER Paee - 37 Mr. Shonk--wiler tacitly acknowledged this point by saying that "[t]he issue is whether the cost assessed by the city is proportionate with the overall cost for storm water management." (Emphasis added.) However, Council found that Tigard had shown through several methodologies the proportionate impact of the development on the total system: • In response to Nor. Smith's argument that the City was required to use the Drainage Plan methodology and that that methodology would satisfy the rough proportionality requirement, the City showed that the impact of the project would be at least $1,603.18 • Tigard showed that by using USA's drainage system development charge methodology the impact would be calculated at $4,068 (for the 100 year flood). • The value of the exaction is far less than the public would pay to provide onsite detention or retention, or in-stream detention. Through all of these methods one result stood clear: the probable impacts of the development were AML equal to at least $1,600. b. ligard Established a Reasonable Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One (1) Tigard Fixed the Deficiency the Court Identified In its Dolan H decision, the Court found that Tigard had not shown a reasonable relationship between the drainage impacts of Applicant's project and its requirement that she dedicate the is Applicant's reaction to the city's calcuiations under the Master Drainage Plan showed a lack of sincerity in her repeated claims of willingness to bear the cost of development At the fast hearing, Mr. Smith, one of Applicant's attorneys, commended the plan as the correct approach to calculating impacts. Indeed, he said that the City was required to use that method However, once Applicant discovered that the method did not give rise to a favorable result, Applicant's attorneys abandoned the plan and began criticizing Tigard on other grounds. EXHIBIT A (REVISED) TO FINAL ORDER Page - 3 8 floodplain area to the public. What seemed to especially bother the Court was its perception that Original Condition One would allow the public to use the floodplain for recreational purposes. Because Tigard had not shown that the project would impact its legitimate interest in providing recreational opportunities, the Court held that the city had not established the requisite relationship between impacts and purposes. Dolan H, 114 S. Ct. at 2320-21. Responding to the Court's decision, Remand Condition One expressly provides that Tigard is acquiring the floodplain easement only to further its legitimate interests in managing flood and drainage problems. Remand Condition One expressly disavows any intent that the floodplain be used for recreational purposes. Furthermore, the condition allows Applicant to fence off the floodplain to make clear to the general public that it is not open for their use. Thus, Council found that Tigard had corrected the problem the Court perceived in Original Condition One and, therefore, satisfied this element of the rough pr. ?ortionality test. ;2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited Public Easement for Enhancement and Maintenance of the Floodplain and Creek Channel Notwithstanding Tigard's correction of the problem identified by the Court, Applicant's attorneys continued to argue that it had not shown a sufficient correspondence between the purpose of the easement and the need for an easement allowing Tigard's agents access to the floodplain. Council found, however, that Tigard had justified the easement. Mr. McGuire, an expert drainage engineer (CR 00085), testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan, provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flows. Required maintenance items include debris removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing."' CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential. Agh EXHIBIT A (REVISED) TO FINAL ORDER Page - 39 i Efficient and cost-effective maintenance of drainageways requires that the City have the physical and legal ability to access the drainageway. Hgh labor costs typically dictate the use of large mechanical equipment. Adequate access for this equipment reduces the time required for maintenance work and its cost. Emergency maintenance or repair to the drainageway is also acecmplished quicker with proper access. Fanno Creek serves to remove storm water from upstream areas much the same as a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic benefits, the two function in similar capacities. Sanitary sewers also require periodic maintenance to function as intended. Where sewers are located out of public rights- of-way, easements are provided to allow municipal access for maintenance. Maintenance of public sewers is a traditional agency function. Providing maintenance on a larger scale allows purchase of specialized equipment and trained labor. Because the drainageway functions as a complete channel, the proper maintenance of the entire channel by a single agency is important. It is not practical to rely on individual property owners to adequately maintain a large system like the Fanno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain was also confirmed by the National Floodplain Managers Association. In its brief to the Court, the Association explained that , the most efficient flood management system requires that channels remain unblocked and be capable of receiving the full water flowing into a portion of a channel from upstream. The alternative would be large flows feeding water- into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated. EXHIBIT A (REVISED) TO FINAL ORDER Page - 40 Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). (3) Remand Condition One Does Not Call on Applicant to Provide "Excess Capacity" Applicant argued to Council that Remand Condition One was improper because it would require her to provide more capacity than necessary to handle the increase in runoff from her site. For example, her lawyer said the following in one of his submissions to Council: The projected improvements in the CH2M Hill plan adopted by the City and partially implemented to date, ultimately result in greater capacity of the floodwater flows through the Fanno Creek basin. This, in turn, creates greater capacity or a lowering loam, of the 100 year floodplain at the Dolan site. The City refuses and utterly fails to calculate a credit to the Dolan storm water generation allocated for a shared basis in this excess capacity. Council found Applicant's argument to be meaningless and factually incorrect. The argument is meaningless for the following reasons, supplied to Council by the National Fooodplain Manager's Association, which it adopted as findings: [Applicant] seems to suggest that there must be a quantitative equality between the amount of runoff water generated by a development and the amount of water that would be controlled by the channel improvement. But that is a physically meaningless comparison. NNE EXHIBIT A (REVISED) TO FINAL ORDER Page - 41 NNENINNUM The purpose of a channel improvement is not to store water but to convey it rapidly downstream and out of the problem area. It will convey floodwaters from a wide variety of sources, and the amount of conveyance will therefore be far greater than the amount of runoff from any one site. But that does not represent a huge contribution by each individual channel area improved because the utility of a channel improvement at any one point depends on the utility of the adjacent channel. There is little value, and generally a problem, in conveying water more rapidly through one portion of a stream if the downstream portion lacks the same conveyance capacity because that would simply mean more flooding at the point of bottleneck. Any one channel area only makes a small but necessary contribution to the utility of the channel as a whole. There is no obvious way to compare the improved utility of any portion of a channel with the amount of increased runoff from one particular site. CR 01299 (emphasis added). This reasoning was consistent with the opinion of Mr. Berry, the city's utility engineer, who testified as follows: "I do not agree with the applicant's characterization of this effect [building out the improvements called for in the Master Drainage Plan] as 'creating *-surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(x) and 7.2.1(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters." CR 00056; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area."). The Flood Plain Managers Association and Mr. Berry are experts in the field. Council found them to be much more qualified than Applicant's lawyer to opine on this issue. Therefore, Council found that the drainage improvements called for in the Master Drainage Plan did not cause Applicant to make a disproportionate contribution to Tigard's drainage system. Council also found Applicant's argument concerning excess capacity to have no basis in fact. Her lawyer, Mr. Shonkwiler, claimed that improvements less than all of those called for in the Drainage Plan had resulted in adequate capacity by partially achieving the goals of the Master Drainage Plan. He then asserted that the impact of Applicant's development would be so slight as to not justify any additional improvements. Council found him to be mistaken. EXHIBIT A (REVISED) TO FINAL ORDER Page - 43 F Mr. Shonkwiler reasoned that the improvements have been sufficient to provide a capacity sufficient to maintain the floodplain at 150 feet of elevation at Applicant's site. This argument was based on the assumption that 150 feet of elevation was an acceptable level of service for the drainage system. That assumption, however, was badly misplaced. The Master Drainage flan identified flood problems under the conditions existing at the time of the study. Indeed, Applicant's own drainage expert, Mr. Harris testified that "Master Drainage Plan, part 6.2.1 deals with extensive improvements proposed for the channel close to the Main Street Bridge. These improvements were proposed in July 1981, almost seven years before the Dolan site improvement plan was prepared, demonstrating that the problems of flooding on Fanno Creek are quite independent of any activities proposed by Mr. Dolan." CR 01532. When Tigard adopted the Master Drainage Plan the creek's floodplain was at 150 feet. In essence, the plan identified a deficiency in the existing drainage system. It proposed steps to correct that deficiency and steps to prevent new development from negating the City's efforts to reach a better standard of service. This observation means that the improvements which have occurred to date have not created "excess capacity." Instead, they have been directed toward curing existing problems, providing an increased margin of safety and to mitigating the effects of new development. Council thus found that Applicant must be required to mitigate for the additional drainage impact her project will have on the system. Cf. CR 00155 (Amicus Brief of Flood Plain Managers Association) ("All of those who support risky behavior, either directly or indirectly, must share in floodplain management and in the costs of reducing that risk. The federal government can lead by example; but state and local governments must manage their own floodplains. Individual citizens must adjust their actions to the risk they face and bear a greater share of the economic costs."). In a twist on her excess capacity argument, Applicant contended that Tigard's recent replacement of the Main Street Bridge provided so much additional capacity in the creek channel that she should not have to mitigate for her own impacts. Again, Council found Applicant's argument to be meaningless and factually incorrect. Straying far outside his field of expertise, Applicant's lawyer argued, without, so far as Council could tell, any expert assistance, that construction of the bridge solved any drainage problem her project might create. Mr. Bent', an expert engineer, responded to Mr. Shonk-wiler by explaining that the Master Drainage Plan could not be used to estimate the effect of any given improvement. EXHIBIT A (REVISED) TO FINAL ORDER Page - 43 instead, its predictions were reliable only if ail of its recommended improvements were completed. CR 00055, 00056, 00057, 00464; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the' 100-year flood throughout the Tigard area"). Furthermore, Mr. Berry testified that merely changing the bridge structure, without making channel improvements on the Property would not mitigate for additional runoff. CR 00055, 00056, 00057, 00464. Although Mr. Shonkwiler claimed that the cure of a drainage problem was the sum of its parts, that claim only illustrated his ignorance of hydraulics. As Mr. Berry explained, the creek functions much life a coronary artery. The goal is to have water run swiftly throughout its entire reach. Fixing a blockage at the Main Street bridge, without making the major channel improvements called for on the Property would only shift the flood back upstream. CR 00055. Mr. Berry established that many of the channel improvements were not done along with the bridge. According to Mr. Berry, moreover, the bridge was not the primary cause of flooding. Instead, channel constrictions-some of which must have been due to the fill placed oil the Dolan property19-were the primary culprits. As explained by Mr. Berry, these channel restrictions are the reason why simply replacing the bridge did not cure flooding problems in the city. Furthermore, as Mr. Berry testified, to achieve a reduction in the floodplain both structural--e.g., channel improvements-and nonstructural improvemerts-e.g., regular and coordinated maintenance--are essential. Mr. Shonkwiler claimed that because most of the storm water runoff in Fanno Creek is upstream of the Main Street bridge, replacement of that bridge is alone enough to create adequate capacity for the Dolan project were completed. As Mr. Berry testified, the report cannot be used to extrapolate other results. The Master Drainage Plan does not say that replacing the bridge would alone solve the City's flooding problems. The Plan does not say that making only a few of the other suggested improvements would solve the problem. Instead, the Plan predicted a 1.5 foot reduction in the floodplain if all of the improvements were completed. Its reasoning cannot be extrapolated to sonte other, partial solution. 19 See CR 00093 (report of Harris-McMonagle Associates, Inc. concluding that previous owner of the Property put fill in the floodplain). EXMIT A (REVISED) TO'FIINAL ORDER Page - 44 Applicant, through Mr. Shonkwiler, also argued that the city had erred in not considering water quality facilities in computing the runoff effects of her development. However, Council found that Tigard had taken the correct approach. In opposition to the testimony of Applicant's lawyer, the Council received expert testimony as to the effectiveness of water quality facilities from Mr. Berry, a qualified professional engineer. Mr. Berry found that water quality facilities do not provide any retention benefit in a 25 year or larger storm because they are not designed to operate in those circumstances. CR 00058, 00464. Furthermore, Mr. Berry testified that CH2M Hill did consider such facilities when it prepared the Master Drainage Plan, but did not find them to provide any benefits relating to severe flooding. C R 00058. Although W. Shonkwiler criticized Mr. Berry's testimony, Mr. Shonkwiler was not an expert in the field and he presented no evidence to support his layman's arguments. For example, Mr. Shonkwiler claimed that upstream water quality facilities had resulted in a 10 percent reduction in runoff. However, Council could not identify any evidence supporting that claim, and Mr. Berry's August 1 memorandum noted that the Master Drainage Plan did not indicate any such mitigation in runoff attributable to such facilities. Assuming for the sake of argument that Mr. Shonkwiler was correct that upstream water quality facilities offer some small benefit in detaining storm runoff, the argument was still not helpful to Applicant. The same development that is required to provide water quality facilities can also be expected to add impervious areas, decreasing the time required for runoff to concentrate. Furthermore, storm sewers may be built both on site and off site, that will further speed discharge of runoff to Fanno Creek Even if the water quality facilities provide some detention value, the reduced time of concentration on site and through the developed conveyance system will deliver water to Fanno Creek in greater volume and at higher peak rates following development. Hence, developments use up far more drainage capacity than the limited amount they might supply in water quality facilities. Water quality facilities, even if they work to retain some storm water, also do not eliminate the cost imposed on the city by Applicant's development. Council found the following testimony of EXHIBIT A (REVISED) TO FINAL ORDER Page - 45 Mr. McGuire to be persuasive on this point and adopted it as findings in support of Remand Condition One: If it is assumed that all new development located upstream from the Dolan site were to detain runoff to existing levels, then it could be concluded that the peak flow rates would not increase at the Dolan site. Runoff from the Dolan site (not detained) could be added to Fanno Creek and the resulting downstream peaks not increased to those predicted by the Drainage Master Plan. While the downstream peak flows would be less in this scenario, the Dolan site would still produce an increase in peak flows and impact to flood levels. The cost to mitigate the impacts would be less with the upstream detention; hove v :!r, the assessment area paying for mitigations (sic] would be smaller (if upstream sites were to provide detention, they should not be assessed for impacts caused by downstream sites). In this case, impacts to the Dolan site would be similar to those occurring without the assumption of upstream detention. CR 00780. Based on the preceding evidence and analysis, Council found that Tigard had shown a reasonable correspondence between the interests it advanced in support of Remand Condition One and the probable impacts of Applicant's development. C. Tigard Showed Mat the Floodplnin Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development Council found that Tigard showed that Remand Condition One would facilitate mitigation for the significant impacts that the development would cause. The Master Drainage Plan found that making major channel improvements at the Properly would, when combined with other system improvements, help' mitigate for increased runoff. Furthermore, Applicant did not argue that dedication of the floodplain area would not help mitigate for drainage problems. Instead, she agreed that the projects in the plan would create additional capacity, but argued that the plan would result EXHIBIT A (REVISED) TO FINAL ORDER Page - 46 AOL in excess capacity. Although her argument about excess capacity was not correct, she apparently agreed that the channel improvements called for ir_ the plan would or likely would result in improved drainage. d. Tigard Showed That the Floodplain Easement in Remand Condition One Was Roughli Proportional in Extent to the Impacts of Applicant's Development .As explained above, Council found that Applicant's project would impose costs on Tigard of at least $1,60". It found those impacts to be proportional in extent to the value of the easement called for in Remand Condition One. Council received conflicting testimony concerning the value of the floodplain easement. Staff presented an appraisal done by Palmer, Groth c& Pietka, Inc., a firm of professional appraisers, which concluded that the floodplain easement likely had no value, or at most was worth $1,300. CR 0091?. Applicant, however, subn'utte•d an affidavit from her son claiming that the floodplain and *bicycle easements together had a value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $1,300 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards and according to standard procedures. The appraisers, for example, based their valuation on comparable properties, which were shown in the record. Applicant's son, on the other hand, did not detail his qualifications to appraise the property as opposed to making an educated guess about its value and he did not provide comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law suit with the city for inverse condemnation. For purposes of that suit, it was in his personal interest to maximize the value of the floodplain property. Accordingly, he was undoubtedly biased toward overestimating the value of the floodplain property, in which he has an ownership interest. This observation was borne out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to be without credibility in this regard, while it found the valuation of the appraisers to have been conducted in an objective, independent manner. EXHIBIT A (REVISED) TO FINAL ORDER Page - 47 Because the floodplain easement had Proportionality a value of only $1,300,=0 Easement Value vs. Impact while Applicant's project would have drainage 00 impacts of at least $1,600 Council found Remand Condition One to be proportional to the {'%r• exaction. Figure 4 visually illustrates this conclusion. Impact of Development Value of Easement Figure 4: Visual Illustration of Proportionality 3. The Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test a. Tigard. Through an Individualized Evaluation. Showed That Applicant's Project Would Have Significant Im acts, Applicant acknowledged that her project would increase the number of car trips on the city's street system. CR 00146 ("The expansion of the Tigard A-Boy store will add 206 trips per day to the surrounding street system."). Applicant disagreed only about the number of new trips, arguing that Staffs projection was an overstatement. Council thus had to choose between conflicting evidence, but began its analysis with a recognition that the project would have a significant traffic impact whichever evidence it accepted. 20 Indeed, Council found this amount to overstate the value of the easement because the decision allowed Applicant to count the easement area toward the mandatory fifteen percent landscaping requirement. By allowing Applicant to count the easement prop", toward the landscaping requirement, the city allowed Applicant to develop more of her more valuable and usable upland property. Without the easement, Applicant would have been required to devote fifteen percent of that more valuable property to landscaping. EXHIBIT A (REVISED) TO FINAL ORDER. Page - 48 Council began by noting that in the September `91 Approval it found that, for purposes of estimating the WTIF, the project would generate an additional 419.29 trips per day. CR 01026. Because the WTIF did not contain a trip generation number for general retail, the use for which Applicant applied, Council had relied on the traffic generating characteristics of hardware and paint stores. CR 01026. Council included this trip generation figure and reasoning in the September `91 Approval. Applicant did not appeal Council's finding. Moreover, the Supreme Cow. of the United States relied on the finding to conclude that traffic impacts from the development were likely. Dolan Zl, 114 S. Ct. at 2321 n.9. Because Applicant could have presented evidence of actual trip generation at the earlier hearing and did not do so, and because she did not appeal Council's finding, the issue of trip generation from the project was decided in the earlier proceedings. Council's finding that the project would generate an additional 419.29 trips is an old, decided issue and was not subject to further review. See, supra, at 11. Notwithstanding this finding, Council felt it should make new findings on evidence concerning trip counts in case LUBA or the courts held that evidence to have been properly before it on remand. Hence, the following discussion of trip generation assumes for the sake, of argument only that the question of trip counts was actually before Council for decision. In approaching this issue, Council found that the project would generate at least as many trips as Applicant said it would. Applicant submitted evidence from Mr. Woelk, a traffic engineer, which purported to state the number of trips a plumbing and electrical store could be expected to generate. Mr. Woelk concluded from his study that the new building proposed for the Property, if it was occupied by an A-Boy store, would generate an additional 206 automobile trips per day. CR 00146. Therefore, Council found that approval of the application would result in an increase of at least 206 trips per day on the city's street system. Council next considered evidence showing that the actual trip generation from the project was likely to be much higher than Mr. Woelk predicted. Tigard retained David Larson, an expert traffic engineer, CR 00085, to determine the likely impacts of Applicant's project. Mr. Larson found that the proposed development was properly characterized as a Hardware/Paint Store for purposes of predicting trip generation. Based on that EXHIBIT A (REVISED) TO FINAL ORDER Page - 49 F conclusion, W. Larson used the ITEMwmal, a respected industry source, to predict that Applicant's project would result in an additional 404.17 trips per day. CR 00931. W. Woelk admitted that Mr. Larson's projection was in accord with. accepted engineering practices and was the method he would normally select to make predictions regarding trip generation. 6-27-95 Tr. at 22 ("The methodology that your traffic engineer used would be the same methodology that I would use in an evaluation such as this. Everything that Mr. Larson has done is within the realm G practice."); iu. at 24 ( The City's :Ti@iuGuow-,. y is %GilSist2ilt w7tu what is uGi18 in the traffic engineering field."). Mr. Woeik, however, disagreed with Mr. Larson's prediction here. He argued that the ITEMwwal used only four studies in projecting trips that a hardware/paint store was likely to generate. 6-27-95 Tr. at 24. He said that under those circumstances, and pursuant to the WTIF, Council should rely on the predictions in his study, which were generated from a sample of A-Boy stores. See, e.g., 6-27-95 Tr. at 20. Council found for several reasons that it should reject Mr. Woelk's argument and rely on the trip generation figure provided by Mr. Larson. Applicant applied for site development review approval for general retail uses. Although Applicant said that A-Boy would occupy the larger store, A-Boy was not a party to this application. A -Boy was merely the current lessee of the existing store. Furthermore, as landlords Applicant and her son could rent the new store to another tenant. Mr. Woelk's study is only valid, if at all, as to A- Boy stores. Although Mr. Woelk claimed that his study showed trips expected from a plumbing and electrical store, he obtained his data only from A-Boy stores. Therefore, Council believed it more correct to say that Mr. Woelk's study is relevant only to estimating trip generation from A-Boy stores. Plumbing and electrical stores operated by other companies conceivably could generate more ITE ALLOWED USES DAILYTRIP RATE/1000 SF 816 Hardware and Paint 51.29 A-Boy (ATEP) 26.45 814 Specialty Retail 40.67 912 Walk-in Bank 140.61 Figure 5: Potential uses ANAL EXHIBIT A (REVISED) TO FINAL ORDER Page - 50 111 1151 or less trips than a typical A-Boy. Mr. Larson testified that given the range of uses available to Applicant upon receiving approval of a general retail use, Council should consider the trip generation rates of a variety of possible uses in predicting the impacts of the projects. CR 00083.=t Figure 5 sets out some of those uses and their relative trip generating characteristics. Mr. Larson concluded, and Council accepted his opinion, that given the range of possible uses for the development and the limitations in Mr. Woelk's study, 12 Council should expect the development to generate 404 additional trips. Council also found the designation "Hardware/Paint Store" appropriate, even for an A-Boy store. Evidence in the record showed that other A-Boy stores sold hardware and held themselves out to the public as hardware/paint stores. See CR 00048, 00049. Applicant submitted much evidence saying that A -Boy needed to expand the Tigard store to meet competition, presumably by expanding its product line. E.g. CR 00128. Although her son testified that the Tigard A-Boy would not sell hardware and paint, Council did not find him to be credible. His testimony was self-serving and appeared to be contradicted by pleadings filed in the Circuit Court action he and Applicant have brought against the city. Id Furtltetmore, his testimony was not credible because other stores in the A-Boy chain, which Applicant apparently represented to Mr. Woelk to be only plumbing and electrical stores, actually sell hardware and paint. CR 00781; CR 00773; CR 00771; CR 00757; see also, e.g., CR 00765 (advertisement for A-Boy beginning with banner caption "LARGE PAINT Mr. Larson testified on this point as follows: The Dolan traffic study for an A-Boy plumbing supply store addresses only one of the uses applied for and approved The correct way to assess impacts to the transportation system for the property under this zone is to examine the uses that can be made without further hearings. Our testimony of July 18, 1995, with an accompanying table of range of possible uses, clearly demonstrates that the outright permitted use of this property and resulting impacts are significantly higher than the A-Boy proposal. This is the correct methodology, because it does not ignore the impacts that can occur under the permitted uses as the ATEP report does. CR 00083. 22 In addition to the other flaws in his study, Mr. Woelk apparently misunderstood the test applicable here. He "agreedo there are many multitudes of uses that could be done in a general retail area. But we're talking about a specific use." 7-18-95 Tr. at 24. However, Council's task was not to evaluate a single use. Instead, it had to predict the likely impacts of the project based on all of the uses open to Applicant. EXMIT A (REVISED) TO FINAL ORDER Page - 51 S 11 DEPARTMENT").' Council can only assume that the Tigard A-Boy store will eventually follow suit, especially considering that A-Boy considers its Barbur Boulevard store, which sells a wide range of home improvement items, to be its "flagship" store. CR 00773. In addition, evidence in the record showed that Applicant had sought the flexibility inherent in approval of a general retail use.. In paragraph 2, Proposal Summary, of the application, the following was typed in as a summary of the project: "The construction of a 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not' A-Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLICANT(S) SHALL CERTIFY THAT: C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such statements are false. The applicant has read the entire contents of the application, including the policies and criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate 23 Council found much of Mr. V'oelk's testimony that-Council should consider A-Boy to be only a plumbing and electrical business to be questionable because he did not seem to know the product line sold in such stores. On June 26. 1995, for example, he testified that it was his opinion that the ITE classification "hardware/paint store" did "not represent the A-Boy Plumbing Stores since A-Bov plumbing stores [sic] do not sell paint nor what could be considered as 'Hardware. CR 01360. However, later he had to admit that several A-Bov stores did sell such items, saving, "[a]s I testified in my original presentation on June 27, 1995, I randomly picked four of the A-Boy Stores to survey. At that time I did not, know that these stores were also part of the ACE Hardware system. Only this week did I become aware that they were in part hardware stores." CR 00145. Because the nature of the stores was so basic to Mr. Woeik's' testimony, his lack of care in that regard discredited much of the rest of his testimonv by implying that his other conclusions were reached with a similar lack of care. EXHIBIT A (REVISED) TO FINAL ORDER Pace - 52 and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail rises. Mr. Shonkwiler argued that Council should not consider a range of uses because the city would have an opportunity to impose new conditions if A-Boy did not or ceased to occupy the building. Council did not accept this claim because the CDC would not require a review of conditions under those circumstances. See, infra, at 76. Mr. Shonkwiler invited Council to condition approval on a requirement that the building be used only by A-Boy and only for the sale of plumbing and electrical supplies. Council found his suggestions to be unworkable. Almost constant inspection would be required to know whether the A-Boy was selling something other than plumbing and electrical supplies. Tigard lacks the resources to undertake such an aggressive enforcement responsibility. Furthermore, enforcement of the condition would be rife with disputes. The distinction between electrical and plumbing supplies and those carried by a hardware store is far from clear. For example, screws can be both "hardware" and electrical or plumbing components. See, e.g., CR 00756 ("In a visit to the [Tigard A-Boy] store on Monday, June 26, 1995, I observed items for sale at the store which ranged in size from assorted nuts, bolts and screws, light bulbs, faucet handles, phone jacks, tubes of bath caulk and light switches to larger items such as toilets, sinks and bathtubs. Additionally, I observed a person purchase a roll of duct tape."). In addition, A-Boy, a legal entity apart from Applicant will be running the store. A- Boy has stated that it plans to expand the line of goods sold in the store to "meet competition" (CR 00128), and it identified the Barbur Boulevard store as its flagship (CR 00773). Therefore, it likely would try to expand the types of goods it was selling in the store, and the inspection condition would require continual monitoring of an entity that was not a party to this application. Council, therefore, declined Mr. Shonk--wiler's invitation. E?HIIBIT A (REVISED) TO FINAL ORDER Pare - 53 Whatever the result of Applicant's proposal, be it 404 trips, Added Trips 206 trips, or something in between, Range of Predicted Trip Increases Tigard established that the development would have a significant 500 impact. Although Council found the 400 rf ifji I r x., 404 trine to be more credible, that n 300 r:•::::''•:,:•f`:,. r%•i:irfrrrrrfi'%i%fr %/;i / l r r'r„r findin :;r.•;~s f:,f`.' ~`'f''f rr•`: g was not essential to its f, : rf:. r.;;:'/,. ' :%/.r/f..f: r decision. i !,rfrlf • :•i ! r/f!//%/`; % 'fji 0200- 'B f ~,f /frf f`•f: /:fi .i' ~~,f• :ir 'fi:.!; •r r,,'r.ff/•~; Any number in the range Q 100 ` r•.r fi •,rt%~r rf~ it i'`f•J%r',r between 206 and 404 was sufficient to •:r.... r: ;;•f!/; 0 /,f satisfy the first requirement of the Minimum Expected Likely Increase rough proportionality test. Q Increase in Auto Trips Both Staff and Applicant Figure 6: Range of Traffic Impacts submitted evidence and made arguments over how to quantify the cost of additional trips from the development, but Council did not believe it essential to quantify the cost of the additional trips. Because Dolan II required proof only of the impacts from the development, which the Court said did not need to be mathematically certain, Council's finding that the development would cause at least 206 additional trips, with the probability that it would cause 404, was sufficient to satisfy the test. Council concluded that it should nevertheless make findings going beyond the strict requirements of Dolan H to ensure that in imposing Remand Condition One, Tigard had fully honored the decision of the United States Supreme Court. Mr. Larson provided Council with a report setting out a methodology for deciding the cost of the additional trips based on his review of the infrastructure costs used to set the WTIF. Council found based on its review of the WTIF and Mr. Larson's testimony, that Washington County had set the WTIF based on a proportional allocation of all infrastructure needed to support traffic growth in Washington County, including Tigard, through the year 2005. CR 00931 This allowed Mr. Larson to determine the total cost of building infrastructure in Tigard and Washington County as a whole. Mr. Larson then determined that the WTIF would cover only.32 percent of Tigard's projected costs for building transportation infrastructure to accommodate growth. Id. He testified that it was thus EXHIBIT A (REVISED) TO FINAL ORDER Paee - 54 appropriate for Council to find that approval of the application would result in unmitigated impacts df $'33,496.22. CR 00931-32. Applicant's attorney, Mr. Shonkwiler, argued that the approach taken by Mr. Larson was invalid. He claimed that the projects supporting development of the WTIF were somehow controversial and that it was therefore inappropriate to use them as a basis for estimating the cost of development. He further argued that the WTIF somehow forbade Council from using the facts supporting the WTIF methodology as a basis for judging the impacts of Applicant's development. Council rejected Mr. Shonkwiler's arguments for several reasons. As an initial matter, nowhere did the WTIF forbid using its supporting data as a basis for judging the costs of infrastructure. Based on its review of the WTIF methodology and Mr. Larson's testimony, Council found that the data supporting the WTIF were intended to be a proportional allocation of infrastructure costs which provided the best and most fair basis on which to judge cost impacts. Furthermore, Mr. Shonkwiler was not an expert on traffic impacts. He was just a lawyer. Mr. Larson, on the ether hand, whose testimony Council chose to accept, was an experienced traffic engineer. Mr. Larson testified that the WTIF methodology was the best possible basis on which to base Council's cost projections. Perhaps more telling in this regard was the testimony of Mr. Woelk. Mr. Woelk, Tice Mr. Larson, is an experienced traffic engineer. As a representative of Applicant, Council would have expected him to criticize Mr. Larson's work wherever possible. Indeed, Council noted that Mr. Woelk did disagree with Mr. Larson on several points. In his testimony concerning cost projections, however, Mr. Woelk agreed with and supported Mr. Larson's selection of methodology. 6-27-95 Tr. at 22, 24; see also CR 01362 ("Tigard used the correct methodology in their analysis"). Mr. Woelk's only disagreement with Mr. Larson concerned whether the project would generate fewer trips than Mr. Larson predicted. 6-27-95 Tr. at 24. Council found that Mr. Larson used the correct methodology in predicting the cost impacts of Applicant's development. Using Mr. Larson's trip generation figures, the methodology yielded a cost impact of $33,496.22 in otherwise unmitigated costs. CR 00931-32. Although Council found Mr. Larson's trip generation figures to be more appropriate than those of Mr. Woelk, it noted that Mr. Woelk estimated that the project could be expected to have an unmitigated impact of around EXHIBIT A (REVISED) TO FINAL ORDER Page - 55 S 17,000. 6-27-95 Tr. at 23 ("The actual, based upon the actual trip generation rates, you can see that all of that comes down to an actual unmitigated impact of $17,000."); accord CR 01361 Either way, Council found that the impact would be significant. b. Tigard Established a Reasonable Corresnnndence )Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One In Dolan 14 the Court held that Tigard had not established a reasonable relationship between the need for public access to the floodplain and the drainage impacts of Applicant's proposed development. Dolan 11, 114 S. Ct. at 2321. It did not find the same deficiency as to the easement requiring the bicycle/pedestrian way. Instead, it found that the city had not shown that the pathway would or would be likely to mitigate for the traffic impacts of the expansion. The Court thus held that as to the pathway Tigard had established the reasonable correspondence required by this element of the rough proportionality test. Council therefore fc`lnd that this element of the test was not an issue on remand. See, supra, at 11. Council nevertheless chose to make factual findings on the question. The Court held that the city had not justified public access to the floodplain because it had shown no justification for a public easement to the floodplain and because of a concern that the easement was intended to support wholly recreational uses. Remand Condition One corrected for those problems with regard to the floodplain, and it did not present similar concerns with regard to the pathway. Tigard's land use regulations establish several purposes for the pathway, including support of bicycling and walking for commercial and shopping purposes. See, supra at 21. Although Mr. Shonkwiler argued that the pathway was purely for recreational purposes, those arguments were refuted above. Furthermore, as detailed below, Council found that the pathway would mitigate for car trips occurring for commercial and shopping purposes. Therefore, Council found the easement to have a reasonable correspondence between the increase in traffic caused by Applicant's store and the purpose of mitigating for those trips. EXHIBIT A (REVISED) TO FINAL ORDER Pase - 56 Aft Applicant made one additional argument that might have been addressed to this element of the rough proportionality test. She argued that the city had not shown that the pathway would mitigate for trips that would otherwise have come by car to the A-Boy store. Council found that Tigard did not bear such a burden. In Dolma 11, the Court recognized that traffic is fungible. For example, if Applicant's project generated a trip from her store but the pathway removed a commercial trip otherwise destined for downtown, no net increase in trips would have occurred. Thus, so long as the pathway removes trips from the road system, it would create capacity for new trips generated by Applicant's project and prevent increased traffic congestion. Council held this to be a sufficient correspondence to satisfy the Court's new test. Cj: CR 01347 ("Even when an argument can be made that a particular commercial tenant has no use for bicycle traffic this relationship is reasonable since tenants come and go but commercial activity per se is dependent on all forms of traffic."). C. Tigard Showed That the Bicycle/Pedestrian Pathway Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development In Dolan II, the Court identified only one deficiency in Tigard's findings concerning the pathway. There, Tigard had found that the pathway "could" offset some of the traffic demand created by the development. The Court held that finding to be too equivocal, adopting the suggestion of Oregon Justice Peterson that Tigard be required to show that the easement "would" or "would be likely to" mitigate for the project's traffic impacts. "No precise mathematical calculation is required," however. Dolan 11, 114 S. Ct. at 2321. Responding to the Court's instructions, Tigard arranged for Mr. Larson to evaluate the importance of this segment of pathway. Mr. Larson used a recent study, 4A The Pedestrian. Environment, 1993 ("LL IRAQ"), by Parson Brinkerhoff Quade 8_ Douglas, Inc., in cooperation with Cambridge Systematics, Inc. and Calthorpe Associates, all recognized experts in this field, which carefully analyzed the effect of; among other things, pedestrian and bicycle ways on automobile trips in the Portland Metropolitan area. CR 01072. As Mr. Larson explained, LUTRAQ established a set of factors which together resulted in a value referred to in LUTRAQ as the Pedestrian Environment Factor ("PEF" CR 00932. Based on application of the LUTRAQ factors to Tigard, Mr. Larson found that the area in the vicinity of the Property currently has a PEF of 4-6. Id EXHIBIT A (REVISED) TO FINAL ORDER Page - 57 OEM LUTRAQ used sophisticated statistical analysis to show that PEF strongly correlates to trips. For example, LUTRAQ found that in areas with PEF 4-6 about 94 percent of the trips were by car. In areas with'PEF 9-10, LUTRAQ found that about 86.7 percent of trips were by car. Based on its current PEF of 4-6, Mr. Larson testified that LUTRAQ would predict that only four to six percent of the trips in the vicinity of the Property currently are made by bicycle or walking. Mr. Woelk's report verified the accuracy of this prediction, and increased the credibility of the methodology, by showing that about five percent of the trips to the Tigard A-Boy occurred on foot. CR 01361. Mr. Larson testified that by increasing the PEF in downtown Tigard, the city could expect to replace car trips with trips by bicycle or by foot. Testimony from several Tigard residents confirmed the likelihood of this occurring. CR 00468; CR 00467; CR 00465. Mr. Larson said that he had undertaken a careful analysis of existing and planned bicycle and pedestrian ways in the city. He found that the city could expect to achieve a PEF of 9-10, and an additional nine perce-lt reduction in car trips, by building the planned pathway system. CR 00932. He further testified that completion of the pathway link on the Property was "essential" to obtaining that reduction. CR 00781. Nfiichael A Replogle submitted evidence confirming Mr. Larson's testimony. Mr. Replogle was highly qualified to address the issue before Council, being co-director of the Transportation Project of the Environmental Defense Fund with outstanding credentials in planning and engineering. CR 01133. Mr. Replogle testified that he was familiar with Tigard and the Portland metropolitan area . He reviewed the specifics of the current case with staff from METRO, Tigard and other planners. Based on that review he testified that "the proposed dedications will certainly offset a portion of the traffic and associated air quality impacts generated by the Dolan's [new] facility." Id. Mr. Replogle continued by saying that Lt1TRAQ showed "that increasing pedestrian/bicycle friendliness (and the corresponding PEF) in suburban areas like Tigard can reduce Vehicle Miles of Travel by motor vehicles by as much as 10 percent. However, such an increase will not be possible without creation of sienificant new pedestrian/bicycle facilities, including the trail that requires dedication of a portion of Dolan's property," CR 01137. Considering this testimony, Council found that the Fanno Creek pathway would or would be likely to mitigate for the new car trips that Applicant's project will generate. Although not required E'3a1IBIT A (REVISED) TO FINAL ORDER Page - 58 to specifically quantify that reduction; Council fniind that the ratl:•Lay •.=.,ot;id or ;;•o,,:id be lively mitigate for at least nine percent of those new trips.2' Not surprisingly, Applicant did not agree with Mr. Larson's conclusions. She did not, however, take issue with the basic methodology underlying LUTRAQ, perhaps because her expert, Mr. Woelk, testified that Mr. Larson had made appropriate use of the study. Instead, Applicant argued that the path was unnecessary or that the city did not consider all relevant factors in making its analysis. Council did not agree with these arguments for several reasons. The city demonstrated with Mr. Larson's testimony that the path was necessary to achieve the trip reduction predicted in LUTR.AQ. Mr. Larson also testified that the planned location for the path is reasonable and necessary, rebutting Mr. Dolan's claims in his affidavit.'-' Finally, LUTRAQ `s Applicant introduced the results of some informal surveys taken at the Tigard A-Boy to argue that the path would result in zero pedestrian/bicycle replacement. Council found the evidence from Mr. Larson, Mr. Replogle and the citizens who testified in person to be more persuasive than Applicant's unscientific survey. Indeed, even Mr. Noelk adrivtted that current pedestrian ways provide five percent of the store's business. 25 Applicant raised several arguments that alternative locations were available for the path. However, Council found that the proposed pathway route was the only suitable one for the reasons provided by Mr. Larson, as follows: It was suggested at the July 18, 1995, hearing that the pathway could be routed through the parking lot for the A-Bov facility. The following reasons make this alternative unfeasible: 1. The pathway along the creek is the more direct route to Main Street. To route through the A-Boy parking lot would require angle points to be constructed in the pathway. 2. The parking lot pathway would be in conflict with the vehicles maneuvering in and out of parking spaces, in an area where neither vehicles, bikes, nor pedestrians would expect conflicts. 3. The pathway along the creek is a more clearly defined public space. 4. The pathway along the creek is the more attractive route, reinforcing pathway utility and LUTRAQ goals; it will attract more riders. 5. The pathway along the creek is the established standard, and therefore is consistent and clearly identifiable. Alibi EXHIBIT A (REVISED) TO FINAL ORDER Page - 59 % vas the oniy independent study presented to Council. Mr. Dolan's attempt to challenge the City's traffic analysis by alleging that the City failed to consider the effect of weather and other factors was mistaken because of the statistical method used in LUTRAQ. LUTRAQ found that PEI' factors had independently significant effects on transportation mode decisions. Thus, other factors such as weather, whip perhaps also relevant to such decisions, do not detract from LUTRAQ's predictions as to the results to be expected from pedestrian and bikeway improvements. LUTRAQ found that forphvwingpurposes local governments could expect the reductions in auto usage predicted by Mr. Larson's application of LUTRAQ in this case. Therefore, Council rejected Applicant's arguments. Applicant also argued that currently existing paths were sufficient to serve downtown. However, she was mistaken. As Mr. Larson testified, the Fanno Creek path is needed to achieve an adequate PEF. See, supra, at 58. In addition, Applicant's argument concerning the adequacy of the existing system was founded primarily on Mr. Woelk's testimony that the Burnham Street pathway was adequate to serve downtown. However, Mr. Larson explained why that path was not a replacement for the Fanno Creek Pathway: In the July 18, 1995, hearing, Mr. Woelk indicated that the Burnham Street pathway is an acceptable alternative to completing the Fanno Creek Pathway. First, the Burnham street and Fanno pathways are both indicated on the City's Pathway plan. Second, the Burnham street pathway, as a replacement to the Fanno pathway, would result in less direct access to Main Street from areas currently connected to the Fanno pathway. Significant out-of-direction travel would result, reducing the attractiveness of pedestrian/bicycle travel and therefore dinvnishing pathway effectiveness. Standing alone, the Burnham Street pathway is not an adequate alternative. CR 0083 (emphasis in original). Council found Mr. Larson's testimony to be persuasive and found that the Burnham Street pathway was not an adequate substitute for the Fanno Creek pathway. FinaLy, Mr. Woelk argued that the city has not shown what effect this development will have on intersections in Tigard. He missed the point. Mr. Woelk had to agree that each new trip had a CR 00083. Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 60 cumulative impact on the city's traffic system. See CR 00782 (showing that any increase in trips has a significant impact); see also 7-18-95 Tr. at 25 (testimony of Woelk: "I concur that when you incrementally add traffic, just like you incrementally add water, the cumulative is the result. We have no, we have no problem with that."). Each individual trip thus has a cost which it imposes on that system. Id. It is fair to impose that cost on the trip generator, whether or not it is that generator who breaks the system. Here, the city developed a reasonable basis for deciding the cost impact of Applicant's development. It also showed that the exaction's value.is far less than that impact. d. Tigard Showed That the Bicycle/Pedestrian Pathway Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development To analyze this element of the test, Council first considered evidence establishing the value of the pathway easement. After finding that property to be worth $4,500, Council then considered whether that amount was roughly proportional to the traffic impacts expected from the development.26 Council received conflicting testimony concerning the value of the pathway easement. Staff presented an appraisal done by Palmer, Groth & Pietka, Inc., a firm. of expert appraisers, which concluded that the easement was worth $4,500. CR 00776. Applicant, however, submitted an affidavit from her son claiming that the pathway and floodplain easements had a combined value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $4,500 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards in the appraisal field and according to standard procedures. In addition, the appraisers based their valuation on comparable properties, which were shown in the record. Applicant's son, on the other hand, did not supply 26 At the first of the Remand Hearings Staff suggested a modification to the bicycle/pedestrian way in Oversized Exhibit 18. That diagram showed a notch in the pathway to accommodate Applicant's building as originally proposed. Council chose not to take Stags suggestion for two reasons. First, Mr. Larson testified that the niched path would create significant safety concerns. CR 00082. Second, Council adopted the interpretation of unappealed Condition Three set out in the August 16, 1995, Staff Report. CR 00016. Under that interpretation Council could not allow the building to be placed in the notch. EXH03IT A (REVISED) TO FINAL ORDER , Page - 61 Nil! comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law. suit -with the city for inverse condemnation. For purposes of that suit, it was in his personal interest to maximize the value of the pathway property. Accordingly, he was undoubtedly biased toward overestimating the value of the property, in which he has an ownership interest. This observation was born out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to'be without credibility in this regard, while it found the valuation of the appraisers to have been conducted in an objective, independent manner. Applicant criticized the appraisal for not including severance damages, which she claimed would result because she would have to redesign her building to accommodate the proposed pathway. Council rejected her argument for several reasons. First, under Oregon law, severance damages are not available for the condemnation of bare land. Council found that this same rule should apply when the city requires an exaction that is otherwise constitutional. Second, the appraisers found the severance claim to be without merit. They testified that a buyer of the Property would not discount the price he or she was willing to pay because of the easement. CR 00776. Finally, unrebutted evidence in the record showed that the pathway would not prevent Applicant from building a structure of the same square footage while accommodating the pathway. Oversized Exhibit 72 is a set of diagrams Staff submitted showing possible alternative designs that would accommodate the Aft pathway but fully carry out the purposes for this application.' Therefore, Council found based on unrefuted evidence that the easement could not and would not result in severance damages. Council also rejected a related argument made in an affidavit submitted by Mr. Dolan. There, he argued that the location of the pathway would cause security concerns by transversing the rear of the proposed building. Staff, however, submitted testimony by independent appraisers saying that the location of the path would not cause security concerns sufficient to reduce the Property's value. CR 00776. Because, unlike Mr. Dolan, the appraisers did not have an ax to grind, Council believed These exhibits also show that Applicant could have built the new building any time after the September '91 Approval. After that approval, she had the land use permit she needed to build on the building. As the exhibits show, she could have slightly modified her design to build precisely the same number of square feet of space any time after she received that approval. EXHIBIT A (REVISED) TO FINAL ORDER Page - 62 their testimony to be more credible and relied on it to find that the location of the pathway did not reduce the Property's value.-8 After finding the pathway easement to be worth $4,300, Council next considered whether that amount was proportional to the traffic impacts from the development. In undertaking that analysis, Council noted that the Court did not promulgate black letter rules as to how specific a local government must be in making this analysis. However, the Court was clear that mathematical certainty was not required. Council compared the relatively small value of the easement dedication to the likely traffic impacts of the development. At the very least, the development will generate 206 additional trips per day. Council found that the cost imposed by that minimum number would be $17,000. The exaction was thus very much smaller than the project's impacts using the most conservative numbers available. Council thus found the easement to be roughly proportional to the project's impacts. This conclusion became especially obvious when Council Value Comparison considered the more likely result that the value of Easement v. Cost of impacts development would generate an 4.- ' 4t?..:'.~' t'.....S.b.3.. trips per day, having an 35000 : ~ .s;.~«.:;.,.• additional 404 30000 impact of about $33,496. Considering 25000=` 20000 15000 10000 5000 0 Dollars Larson EE Woelk Q Easement Figure 7: Value/Cost Comparison in deference to Iy1r. Dolan's concerns Council modified Remand Condition One to allow Applicant to fence the easement areas'off from other portions of her propemr. EXHIBIT A (REVISED) TO FINAL ORDER Page - 63 Roam= that number, an easement worth $4,500= appeared to be a very small burden to expect Applicant to bear.30 After concluding that the easement satisfied the Court's requirements, Council considered one final measure, not required by the Court in Dolan 11. Using the methodology developed by Mr. Larson and his predictions concerning mitigation, Council determined the value of the mitigation the pathway would or would be likely to provide. Mr. Larson predicted and the Council found that the pathway would result in a nine percent reduction in automobile trips. Multiplying this amount by the predicted increase in trips from the development (404) and by the cost each trip would have imposed on the system, showed that the pathway would result in mitigation of $4,433.06. CR 00933. This 29 Indeed, Council found this amount to overstate the value of the easement because the decision allowed Applicant to count the easement area toward the mandatory fifteen percent landscaping requirement. By allowing Applicant to count the easement property toward the landscaping requirement, the city allowed Applicant to develop more of her more valuable and usable upland property. Without the easement, Applicant would have been required to devote fifteen percent of that more valuable property to landscaping. so Requiring Applicant and others to bear the cost of automobile traffic generated by their developments is fair to the city's taxpayers and has strong support in basic policies. According to Dr. Nelson, an expert in planning practice and economics, automobile-dependent property, including downtowns and commercial areas devoid of pedestrian and bicyclist facilities, enjoy considerable automobile subsidies proffered by society at-large [sic]. These subsidies are not paid by benefiting property. As such, society is entitled to have these subsidies compensated through a variety of public-serving planning decisions including dedications and improvements resulting in improved walking and bicycling activity. CR 01333. Dr. Nelson explained the consequences of not requiring developers to bear the actual costs of their developments as follows: By not ha%ing autcmobile users face up to these costs [generated by automobile use], the costs are borne by the public and the avoidance of such costs are internalized as benefits by private property. If these costs were accounted for, land use patterns would change to reflect the true cost of automobile use relative to alternative modes. Public agencies need to devise ways in which to offset this inefficient outcome. A logical method is to exact the provision of pedestrian and bicycle access ways from new development. Such an exaction would have at least three important positive outcomes. First, congestion, pollution, and other adverse effects of automobile-dependency are reduced. Second, private development is made somewhat more responsible for otherwise contributing to the adverse effects of automobile-dependency. Third, by improving access to property, property value improves. In this latter regard, commercial and residential property would likely see the largest gains in value attributable to the provision of pedestrian and bicycle ways, although all property value is likely to gain in some respect. CR 01344. EXHIBIT A (REVISED) TO FINAL ORDER Pace - 64 REM number was proportional to the $4,500 value of the easement. Therefore, Council found the city to have met ever. the most demanding interpretation of the rough proportionality test. D. MOST OF APPLICANT'S OTHER ARGUMENTS IN OPPOSITION TO REMAND CONDITION ONE WERE NOT PROPERLY BEFORE COUNCIL. IN THIS REMAND PROCEEDING When considering an application on remand, Council must determine the scope of issues which are subject to review. That discretion, however, is not without limits. Old issues or issues that could have been raised in earlier proceedings are not subject to reconsideration in a proceeding alter remand. See, supra, at 11. This case had gone through four levels of appellate review before coming back to Council on remand. Hence, the questions before Council here were narrow. They were limited to the question whether Remand Condition One satisfied the rough proportionality test and any issues which were created by the Supreme Court's decision that could not have been raised in the earlier proceedings. Applicant made many arguments other than those concerning the Court's rough proportionality test. Most of those arguments, as shown in Table 1 were not subject to reconsideration in these remand proceedings. TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's land use No. Applicant had ample opportunities regulations allowed Tigard to' in the earlier proceeding to raise any impose a condition requiring the argument she would have liked dedication of floodplain and pathway concerning Tigard's authority to easements. impose a condition like Remand Condition One under its land use regulations. She chose not to Crake any such arguments, but focused only on her claims under the T, kings Clause. EXHIEIT A (REVISED) TO FINAL ORDER Page - 65 Aft TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's decision to impose No. Applicant had ample opportunities the exaction based on the trip in earlie- proceedings to challenge generating characteristics of a the characterization of her hardware/paint store violated the development as a hardware/paint %XITIF. store. She chose not to raise such challenges and therefore was precluded from doing so on remand. Whether Tigard's interpretation of No. Tigard made substantially the same its land use regulations violated state interpretations of its land use law. regulations in the earlier proceedings to impose Original Condition One. Applicant should have made her arguments about code interpretation then. Whether Tigard's decision violated No. Applicant's arguments under the the Equal Protection Clause of the Equal Protection Clause and Article Fourteenth Amendment to the I, § 20 in this remand proceeding Constitution of the United States and were entirely based on local land use Article I, § 20 of the Constitution of decisions made before or while her the State of Oregon. application was pending. Furthermore, she actually contended in the earlier proceedings that Original Condition One was unfair because Tigard treated upland land ousters differently than Applicant. CR 00736 ("The fact that the city approves many applications that have similar effects and does not require property dedications was of no concern to the Oregon court.") No review body accepted that argument, and it is now decided and riot available to Applicant on remand. EXHIBIT A (REVISED) TO FINAL ORDER Page - 66 , - TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether these remand proceedings Yes. Technically Applicant's argument violated the Due Process Clause of under the Due Process Clause was the Fourteenth Amendment to the before Council, but only because she Constitution of the United States made the facts in her lawsuit against where Ap plicant introduced the fact the city par! of the record. of a pending lawsuit against the city and her lawver actively solicited a settlement discussion with Council during the remand hearings. Although Council was not required to address issues not properly before it, Council chose to make findings concerning those issues in case a review body disagreed with its understanding of the rules governing reconsideration of old issues on remand. However, Council's findings under the old issues were made for the sake of argument only. Council did not intend to waive any argument of Tigard that the issues were already decided and,not subject to further decision and review. E. A CONDITION REQUIRING DEDICATION OF EASEMENTS FOR FLOOD CONTROL AND ALLEVIATION OF TRAFFIC IMPACTS IS APPROPRIATE UNDER TIGARD'S LAND USE REGULATIONS I. Tigard's Land Use Regulations Required Council to Impose Remand Condition One or to Deny the Application Although the Supreme Court's opinion in Dolan H required Tigard to show that a condition requiring dedication of property satisfied certain constitutional requirements, that case did not alter the rule under the CDC that Applicant bore the burden of proving that she was entitled to approval of her application. CDC § 18.32.250.A.1. Applicant failed to show that the proposed development would, without Remand Condition One, meet the Tigard's approval criteria. 9ft E)MMIT A (REVISED) TO FILIAL ORDER Passe - 67 Applicant tried to satisfy the approval criteria governing flood control and transportation impacts by filing a variance request. See, supra, at 7 (quoting variance request). Petitioner's one- half page statement attempting to justify a variance did not, however, contain the information required concerning storm drainage and traffic impacts, including an analysis of the impact of the development on the city's storm drainage and traffic systems. CDC 18.32.050, 18.84, 18.120.090, .100, 18.164.030 and 18.164.100. For example, CDC § 18.164.100.A provided that a permit may be issued "only where adequate provisions for storm water and floodwater runoff have been made." The cited CDC sections when read together implemented the Comprehensive Plan requirement that development address storm drainage and traffic impacts. With regard to drainage, the Comprehensive Plan provided in relevant part as follows: The City shall require as a precondition o development that: a. the site development study be submitted for development in areas subject to poor drainage, ground instability or flooding which shows that the development is safe and will not create adverse off-site impacts; b. natural drainage ways be maintained unless submitted studies show that alternative drainage solutions can solve on-site drainage problems and will ensure no adverse off -site impacts. C. the City shall require as a pre-condition to development that all drainage can be handled on-site or there is an alternative solution which will not increase the off-site impact on the drainage system. Comprehensive Plan Policy 7.2.1. The Comprehensive Plan also explained that, [p]roper administration of the floodplain areas 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 making sound decisions. The burden is on the, applicant to prove that a project will not adversely affect the environment or create undue future liabilities for the city. E)MI]BIT A (MVISED) TO FINAL ORDER , Page - 68 ISDN, Ham Comprehensive Plan Policy 3.2 Floodplains, Findings, p. II-14. Tigard implemented these policies through the Sensitive Lands Chapter (CDC § 18.84) and Utilities Standards Requirements for Storm Drainage (CDC § 18.164.100). Similarly, the Comprehensive Plan addressed transportation facilities by requiring that infi-astructure be capable of serving the proposed development. Comp. Plan Policy 7.1.2(b)(1). This requirement implemented Statewide Planning Goal 11, "Public Facilities and Services," which mandated that urban development be supported by appropriate levels of public facilities and that cities plan for key facilities. Goal 11 defined "key facility" to include transportation. To address this requirement the CDC required Applicant to submit a site plan detailing existing and proposed streets, ways and easements, including those on surrounding properties. CDC § 18.120.120.A.3. The exact nature of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application. CDC § 18.164.0203 ("The City Engineer may recommend changes or supplements to the standard specifications consistent with the application of engineering principles." CDC 18.164.030, 18.164.070, 18.164.110. Tigard must condition developments that would "principally benefit" from bikeways identified on the adopted pedestrian/bikeway plan to include the cost of bikeway improvements. CDC § 18.164.110.B. Applicant completely failed to address these standards in the Application. She thus failed to meet her burden of proof. Applicant likewise failed to use her opportunity to prove facts justifying a variance. She did not produce evidence of the "possible negative or positive attributes of the proposal" or show that there had been changes or mistakes in the comprehensive plan or the zoning map as it related to the Application. CDC § 18.32.250.B. The submission of an incomplete application did not "negate the applicant's burden of proof." CDC § 18.32.050.G. Based on the lack of evidence concerning drainage and transportation impacts, Council could have denied the Application. CDC 18.32.250.A, .E, 18.10.010,18.16.010.B. Indeed, Applicant's attorney admitted to the Supreme Court of the United States that the city could have done so. See, supra, at 14. Instead of denying the application, however, Tigard processed it using information in the record. Based on the impacts of the proposed development, see supra at 31, 48, Remand EXHIBIT A (REVISED) TO FINAL ORDER Page - 69 MEN= BONN- Condition One, which requires dedication of easements for flood control, drainage management, and alleviation of traffic impacts, was necessary to address the requirements of the CDC and to allow Council to issue an approval. See CDC § 18.32.250.E. l.a (conditions of approval authorized where "necessary to cant' out provisions of the Tigard comprehensive plan."); CDC § 18.32.250.E.2 (authorizing the City to require property dedications as conditions of approval). 2. Applicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded Applicant, through her attorneys, made a series of arguments under Tigard's land use regulations. She claimed that those regulations did not allow Council to impose Remand Condition One. Although, as set out supra at 65, Applicant had lost the opportunity to raise such arguments: Council nevertheless considered them. After analyzing Applicant's arguments, Stars response, and the relevant regulations, Council found none of Applicant's arguments to have merit. Council reached this finding based on the reasoning set out below. a. Uplicant Received Adequate Notice of Tigard's InteEpretation of Certain Land Use Rteaulations Applicant claimed that Tigard had not provided her with adequate notice of several interpretations Staff proposed for various local land use regulations. However, Council found her argument not to be well taken because she had adequate notice of those interpretations and a sufficient opportunity to respond. Staff did not propose and Council did not adopt any unreasonable interpretations of Tigait's land use regulations. Under Oregon law, Council had primary responsibility for malting interpretations of the city's land use regulations which applied to the Application. So long as those provisions could reasonably be identified as applicable, parties were expected to discern their potential significance. Moreover, this process, in which Staff published its report a full week before the initial hearing and Council allowed one continuance and an opportunity for the submission of additional evidence and argument after the close of oral testimony provided ample opportunity for Applicant to contest any of the interpretations proposed by Staff and adopted by Council. EXHIBIT A (REVISED) TO KNAL ORDER Page - 70 b. Council Found 213t APproval Would Allow Applicant to-Site ert~ Any General Retail Use on the Prop Applicant's lawyer argued that Council would violate the city's land use regulations if it applied traffic counts for a "general retail use" in evaluating the likely impacts of the project. He claimed that Council should find that any approval would be limited to the A-Boy and that A-Boy's use would be limited to selling "bulky merchandise." He further claimed that Applicant sought approval for a "general retail facility" only because that designation was required by Staff at the pre- application conference. Council did not accept this argument, but held that under the local land use regulations Council was required to consider all possible uses for the site allowed under the Application. Although Applicant's lawyer suggested that Staffhad somehow required Applicant to request approval for a general retail sales facility when all she wanted was a plumbing store, evidence in the record showed otherwise. A-Boy is the company that would use the new store for selling plumbing and electrical supplies. It is a legal entity distinct from Applicant, yet was not a party to the Application. Instead, it was at the time of these proceedings a tenant of Applicant. Accordingly, an approval would not limit the tenant to an A -Boy. Indeed, under the Constitution of the United States and the Constitution of Oregon, Tigard could not condition Applicant to rent solely to A-Boy because such a condition would impair the obligation of contract existing between herself and A-Boy under the lease. U.S. CONST. ART. I, § 10 ("No state shall... pass any law impairing the obligation of contracts... ORE. CONST. ART. I, § 21 ("No ...law impairing the obligation of contracts shall ever be passed Other evidence in the record showed that Applicant had sought the flexibility inherent in approval of a general retail use. In paragraph 2, Proposal Summary, of the Application, the following is typed in as a summary of the project: "The construction of a 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not A-Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLICANT(S) SHALL CERTIFY THAT: Aft EXHIBIT A (REVISED) TO FINAL ORDER Page-71 C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such statements are false. The applicant has read the entire contents of the application, including the policies and criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses. Assuming that Applicant did intend to limit herself to a plumbing and electrical store, however, Council still could not agree with her argument. In the Original Decision, Council found CDC Chapter 18.66, CBD: Central Business District, to be an approval standard. Applicant did not appeal that interpretation. That chapter required Applicant to prove that the use proposed in the Application was permitted in the zone. To allow such proof, Applicant was not free to design a description of her proposed use not specified as allowed in the CDC. Instead, the CDC required r Applicant to state which of the permitted uses listed in the CDC she proposed for the Property. Here, the Application selected such a listing. It said that Applicant planned to tear down the existing 9,700 square foot building and to replace it with a "17,600 square foot building having a general retail sales facility." The requirement of CDC Chapter 18.66 led to the following finding, which Applicant did not appeal: The applicant intends to construct a new and larger structure suited for general retail sales use. Such a use is permitted outright in the CBD (Central Business District) zone. Therefore, the intended use is acceptable for this site. Applicant thus bound herself to conduct only general retail sales in the building, but not to operate only a plumbing and electrical store. E) IIBIT A (REVISED) TO FINAL ORDER Page - 72 Applicant's claim that somehow Staff persuaded her to apply for more than she wanted was AMh factually incorrect for another reason. The Application explained that the project would allow "replacement of [the] existing sales facility with a larger facility." Indeed, the record showed that Applicant had sought the flexibility inherent in approval of a general retail use. See, supra, at 71. The objective evidence for the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses.31 Applicant also tried to claim that the Original Decision, by granting a parking variance based on a "bulky merchandise" exception, limited use of the site to the A-Boy operation. Council found no merit in that argument. Council allowed the parking variance as an accommodation to Applicant, but it did not limit her use to bulky merchandise. Instead, Council found that A-Boy would most likely be a tenant of the new building, at least at first. During that period, Council found that it could allow Applicant to build three fewer parking spaces than the CDC otherwise would have required. However, Council also found that it would have opportunities to require additional parking on the site when Applicant built the Phase II building. That parking, Council believed, would provide sufficient assurance that adequate parking existed on the site, whatever use ultimately came to occupy the building. Because Council saw an opportunity to require additional parking in the long-run and because it did not limit the uses to which Applicant could put the new building, its grant of a parking variance was irrelevant to the question whether the CDC required Council to limit its impacts evaluation solely to those likely from an A-Boy store. C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One As set out in Section M.E. 1, supra, Council found that Remand Condition One was necessary partly because under Comprehensive Plan Policy 7.1.2(b)(1) and related regulations, Tigard cannot grant approval in site development review unless it finds affected transportation facilities to be st Applicant criticized Council's consideration of all uses allowed under general retail sales by arguing that it would result in speculative planning for only worst case situations. Council disagreed with that critique for two reasons. First as explained supra at 63, Tigard satisfied the rough proportionality test even when using Mr. Woell:'s calculations, which were specific to A-Boy. Second, Council's determination that it should consider a range of uses was limited only to those which could be classified as being "general retail." EXHIBIT A (REVISED) TO FINAL ORDER Page - 73 LMM moms= capable of serving the proposed development. Applicant raised three challenges under this policy and related regulations which Council addressed in the following findings. (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One Applicant argued that Tigard did not have authority to impose Remand Condition One However, as Applicant's attorney told the Supreme Court of the United States, Tigard did have authority to deny the Application. Plan Policy 7.1.2(b)(1), which required provision of adequate transportation facilities, was one source of Tigard's authority to refuse approval. Because Tigard had authority to deny the Application pursuant to the Comprehensive Plan, it also had authority to condition its approval. CDC § 18.32.250.E. La., authorized Council to condition approval of the Application because such a condition was "necessary to [c]arry out provisions of the Tigard comprehensive plan." Furthermore, CDC § I8.32.250.E.2 allowed Council to require Applicant to dedicate an easement. See also CDC § 18.164.020.8 (exact character of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application). (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval Applicant argued that under Comprehensive Plan Policy 7.1.2, Council could impose only conditions based on the public facility impacts of the precise use proposed by Applicant. Applicant thus suggested that the city should micro-manage the phasing of developments. As Council understood the argument, it would, for example, require a new site development review when a candy store moved and was replaced by a book store. Or, Council supposed, Applicant's reasoning would require a new review even where a book store specializing in history was replaced with a store selling murder mysteries. Surely, thought Council, this approach was too intrusive and unworkable to be required by the Comprehensive Plan and CDC. Council's review of the relevant land use regulations confirmed this reaction. Council rejected Applicant's crimped and unworkable approach for two reasons. EXHIBIT A (REVISED) TO FINAL ORDER Page - 74 III Igil 11111 t mom First; Tiaar~t's land - repal- oris ulna not require the city to play big brother over the affairs aLl of property owners, searching out all deviations in use or tenancy. Instead, they provided for review of developments in phases only where applications propose a formal phasing plan calling for such a review. Implementing Strategy 4 of Policy 7.1.2 addressed the provision of public facilities to phased development as follows: "(b) [the CDC] shall allow for the phasing of services if a development proposal indicates such phasing." (Emphasis added,)" From this provision it was apparent that Tigard's land use regulations allow approvals for developments based on phasing of public facilities only where the application sets out a formal phasing plan. Furthermore, Council found that the CDC does not envision such a phasing plan to be based on the ebb and flow of new uses but on the development of new improvements on property to which the plan attaches. Council found this to be a sensible approach, because a phasing plan would allow the city to conduct enforcement activities according to a rational plan and with the consent of property owners. As explained later in Strategy 4, The intent of these policies is to develop a mechanism for orderly and logical development and expansion of services to promote an efficient use of land and thus an efficient growth pattern. This mechanism will basically be concerned with: Planning for public facilities in advance of need in a manner which will implement land use policy. This shall help direct the urban expansion and growth. (Emphasis added.) Council found that Strategy 4 explained the intent underlying the Comprehensive Plan concerning the timing of public facilities. Council held that it established that the Comprehensive Plan did not require Council to require only those public facilities which address only immediate needs generated by precise uses, but required Council to consider public facility needs in light of the entire range of future uses which an approval would allow. 3" Council noted that this principle was applicable here. Applicant plans to develop a second phase on the Property, which will include another retail store. However, in this review Council did not consider the impacts of that second proposed store. EXHIBIT A (REVISED) TO FINAL ORDER Page - 75 Council also rejected Applicant's suggestion that the city micro-manage uses because it was unworkable. Council found that Tigard had no way of learning of changes in use so that it could enforce Applicant's suggested approach. Applicant argued through her attorney, Mr. Shonkwiler, that because any change in use of the building would require a new site development review process, Council would have an opportunity to impose new conditions if A-Boy did not use the new store. He thus concluded that Council should have considered only the traffic impacts of an A-Boy store in evaluating traffic impacts. Council, however, found Mr. Shonkwiler's interpretation of the CDC to be incorrect. CDC § 18.120.020 provides in relevant part that "[s]ite development review shall be applicable to all new developments and major modification of existing developments, as provided in Section § 18.120.070 (Emphasis added.) Before considering the elements in CDC § 18.120.070 that distinguish a major from a minor modification, the City must select an interpretation of the word "modification." Only when an applicant suggests a modification is it necessary to decide whether that modification is major or minor. The CDC does not define the word "modification"; therefore, the City must give it its common, dictionary meaning. See CDC § 18.26.010. Webster's New Collegiate Dictionary gives "modification" the following relevant definition: "mod-i-fi-ca-tion 3 a : the making of a limited change in something...." To apply this definition it is necessary to decide the "something" to which a change will trigger design review. Council found three "somethings" to be possible. First, a change in the use of a building might trigger the review. Second, a cosmetic change in a building might be a trigger. Or, third, a change in the placement of structures on a site might be the trigger. CDC § 18.120.010, which sets out the purpose for design review, provided the basis for choosing between these alternatives. CDC § 18.120.010 emphasizes that the purpose of site development review is to serve the public interest in the proper placement and orientation of buildings and other structures. It focuses on the importance of good site planning and the preservation of environmental amenities. This focus shows that site development review is triggered only when an applicant proposes to place a new structure on a site or to change the footprint of an existing structure. It is not triggered by a mere EXHIBIT A (REMISED) TO FINAL ORDER Page - 76 change in outright allowed use, by remodeling the interior of a building, or by cosmetic changes to the exterior of a building, none of which implicate the purposes of site development review. Because a simple change in use will not trigger site development review, Tigard's only meaningful opportunity to evaluate the impacts of development is during site development review triggered by a modification to improvements or when a party proposes a conditional use. Council thus concluded that it must, therefore, consider all potential uses of Applicant's project to properly , gauge the Application's likely impacts on the city's infrastructure. (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council 'Could Consider in Structuring Remand Condition One Applicant's attorney claimed that Plan Policy 7.1.2 or other portions of Tigard's land use regulations required Council to use traffic counts specific to A-Boy stores because of requirements established in the WTIF. However, nothing in Policy 7.1.2 or any other part of Tigard's land use regulations limited the evidence which Council could consider in that regard. The only limit on the evidence Council could consider was the general requirement that the evidence be relevant and reliable. Council found the WTIF to be an assessment imposed under county ordinance, being completely separate from tha City's Comprehensive Plan and Community Development Code. Therefore, nothing in Tigard's Plan or the CDC refers to the WTIF, much less makes it the exclusive method of traffic impact analysis in the city. In fact, the WTIF is imposed by the County (Washington County Code (WCC) § 3.17.040(A)), in an amount set by the county (WCC § 3.17.050), through a process entirely separate and apart from this Site Development Review, and which may be appealed only to the county. CR 00102. Furthermore, nothing in the WTIF or in Tigard's land use regulations limits Council's authority to impose exactions to address transportation facility impacts. To the contrary, the WTIF recognized that it was merely "one component of a muitifaceted program." Washington County Ordinance 379, Section 2. As City Attorney Tim Ramis testified, Tigard replaced its own systems EXHIBIT A (REVISED) TO FINAL ORDER Page - 77 development charge for roads with an exaction approach to mitigating impacts at the request of the development industry. 7-18-95 Tr., at 5. (4) Remand Condition One Did Not Violate the CDC By Calling for Placem-unt of the Pathway Outside of the Fooodplain Applicant argued that Remand Condition One violated CDC § 18.120.180.A.8 by requiring the pathway to be located outside of the floodplain. That section provided as follows: Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. Applicant argued that this section required the pathway to be located within the floodplain, to the exclusion of any other location. Council found Section 18.120.020 to be ambiguous. It allowed dedication requirements wIkh included land within and adjacent to the floodplain, including . property at a "suitable elevation for construction of the pathway within the floodplain Compounding this ambiguity was the section's requirement that the dedications be in accord with the adopted pathway plan, which shows the pathway on the Property to be outside the floodplain. Thus, the section does not adequately explain what is required when, as here, there is no elevation within the floodplain which is suitable for construction due to steep slopes of a pathway segment called for in the Pathway Plan. CR 01553 (slides showing steep slopes)." 33 Council found that the bicycle/pedestrian way could not be located in the floodplain because, besides existing steep banks, the channel improvements called ;or in the Master Drainage Plan called for relocation and Stabilization of the bank. CR 01025. "The Engineering Division has stated that the proposed structure should be at least 10 feet awav from the relocated outer bank in order to accommodate an eight foot wide pathway and the planned reconstruction of the storm drainage channel along the floodplain." CR 01043 (from the September `91 Decision). Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 78 111 111,111 Will-il 11' 11 115 1 Considering this ambiguity, Council found that it should interpret the section as requiring the pathway to be placed immediately adjacent to the floodplain. Council found this interpretation to be supported in that the section designates as "greenway" all dedications which consist of land either within or adjoining the floodplain, thus including both the floodplain and pathway dedications. Further, Council found its interpretation to be consistent with the Pathway Plan, a part of the Comprehensive Plan, which called for the Fanno Creek pathway to be adjacent to the floodplain. Indeed, this section nowhere mandates placement of the path in the floodplain. It only says that the city should require a land dedication when possible that includes space in the floodplain for the path. Further, it does not set the location of the path. It relies on the pathway plan to do that. Thus, Applicant's argument that Remand Condition One would violate this section is simply wrong. (5) Role of the Parks Plan Applicant asserted that Comprehensive Plan Policies 3.5.3, 3.5.4, 3.6.2, 3.2.4 and Implementing Strategy 4 required Council to apply the City's Parks Plan to require Applicant to allow public access to the floodplain for recreational pun?oses. Applicant then claimed that because the city could not constitutionally impose such a requirement, it could not impose any easement condition on Applicant. Council, however, did not believe itself to be in such a. Catch-22. The Court did not hold that the Parks Plan was per se unconstitutional. Instead, it held that before Tigard could implement that plan the Constitution required that it make certain findings. Under the Supremacy Clause,3s Tigard's local land use regulations must be interpreted consistently with supervening federal law. Therefore, Council interpreted the Parks Plan's dedication provisions to be subject to findings as required in Dolan 11. Because Council had never intended that the floodplain easement would serve as a park, it decided as a matter of policy that it did not need to secure a recreational easement to the floodplain to carry out the intent of the Parks Plan. Accordingly, in deference to federal law, it did not attempt to justify a recreational easement under Dolan II. 34 The Supremacy Clause of Article VI of the Constitution of the United States pro-,ides as follows: This Constitution, and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of anv State to the contrary notwithstanding. EXHIBIT A (REVISED) TO FINAL ORDER Page - 79 (6) Remand Condition One Is Consistent With Comprehensive Plan Policy 8.1.3 Applicant argued that Remand Condition One would result in an exaction in excess of allowed WTIF fees, thus illegally modifying "Plan Policies 8.1, 8.1.3 and Implementation Strategies 2 and 5." ,31 Council rejected this argument because it was not sufficiently developed to allow a response. Policy 8. 1.33 set forth various preconditions to development for the provision of transportation facilities. Applicant did not specify which provision of this policy was "reinterpreted" by Staff or Council. Council noted that no portion of this policy, or any other provision of the Comprehensive Plan, limited the city's ability to seek offset of development impacts in excess of the WTIF. Indeed the Comprehensive Plan did not incorporate or even refer to the WTIF, so the criteria requiring Applicant and the city to mitigate transportation impacts existed apart from any consideration of the WTIF. (7) Remand Condition One Does Not Violate Implementation Strategies 2 and 5 Implementation Strategy 2 of the Comprehensive Plan required the city to develop and implement a capital improvements plan containing certain listed elements. Applicant argued that r Council would violate this strategy if it imposed Remand Condition One. However, her argument lacked merit because it was not sufficiently specific to allow a response. Applicant did not explain how Remand Condition One would violate this strategy. Neither Council nor Stag' had cited it as an approval criterion, and neither believed it was relevant here. Implementation Strategy 5 required land developers to dedicate necessary rights-of-way and construct necessary street improvements when such improvements did not already exist. While Applicant's attorney did not explain why he cited to this strategy in submissions to Council, he evidently felt that Strategy 5 set an exclusive form of exaction for offsetting transportation impacts. Council rejected this narrow view, finding the implementing strategy to be only part of the Comprehensive Plan's overall effort to ensure the adequacy of public facilities. 35 In fact, there is no Plan Policy 8.1. EXHIBIT A (REVISED) TO FINAL ORDER Page - 80 F. REMAND CONDITION ONE AND COUNm's RATIONALE FOR THAT CON:,rTION DO NOT VIOLATE THE WTIF Applicant argued that by imposing Remand Condition One, Council would be violating the WTIF by classifying the proposed larger building as a Hardware/Paint store for purposes of the TIC, trip generation study, rather than allowing Applicant to elect to make the determination based on actual trip generation numbers. Her argument is completely meritless because Council did not apply the W'11F in this proceeding, having only estimated the WTIF fee in the `91 Decision. CR 01026. Applicant will have the opportunity to propose actual trip counts later, when she applies for building permits. CR 00934. Council did not apply the WTIF. Rather, Council relied on the facts which the County used in establishing the WTIF as substantial evidence of the cost associated with the traffic the proposed development will generate. It was reasonable for the Council to rely on the trip generation figures set in the WT7F. See, supra, at 54. G. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION DO NOT VIOLATE STATE LAND USE STATUTES Applicant's attorney argued at various points in the remand process that the City was violating statutory rules regarding what standards and criteria apply to this application. ► "[T]he City's required placement of the pathway outside the floodplain is an attempt to impose land use restrictions that were not adopted at the time of the application acceptance. This is in violation of ORS 227.178(3) and the requirements for clear and objective standards under ORS Chapters 227 and 197." Shonkwiler, June 27, 1995 memorandum, at 5. ► "The City has attempted to impose an assessment for traffic impacts in excess of its legislatively adopted WTIF fee (Traffic Impact Fee) requirements.... [T]he City has no comprehensive plan nor code provision specifically authorizing the imposition of this excess assessment. upon property owners. Imposition of land use requirements that are not in conformance with clear and objective standards and have not been EXHIBIT A (REVISED) TO FINAL ORDER Page - 81 adopted prior to the City's acceptance of the application is in violation of the provisions of ORS Chapter 197 and ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 6-7. "[T]he comprehensive plan requires implementation of the City's Parks Plan. The City's proposed easement restriction for the floodplain to preclude the public is in violation of these City mandatory provisions. The City cannot change these provisions without seeking a • comprehensive plan and zoning ordinance text amendment reviewable during a separate public hearing and by LCDC. This did not occur before the 1991 applicafon was accepted. The City's legal choices now include imposing the requirements or finding them invalid pursuant to the U.S. Supreme Court decision. ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 8. "The City's standards for approval of all other applications in 1991 did not require imposition of these dedications. Thus, the City is precluded from asserting an unwritten special standard just for floodplain abutting properties. ORS 227.178(3)." Shonkwiler, August 16, 1995 memorandum, at 3. "[T]he approval standards the City was using in 1991 establishes that the City calc-slated WTIF fees during the approval hearings and included them in the approval ` order. . . . ORS 227.178(3) requires their application during this remand." Shonkwiler, August 16, 1995 memorandum, at 8. "The City staff has asserted a new policy not found in the Code or comprehensive plan. Particularly, it was a policy that was not in place in 1991 when the application was approved. Therefore, ORS 227.178 precludes its application in this proceeding. The proposed new policy would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone.... [T]he City has adopted no regulations setting clear and objective standards for the imposition of these new requirements. This conflicts with both ORS Chapters 227 and 197." Shonkwiler, August 16, 1995 memorandum, at 9-10. EXHIBIT A (REVISED) TO FINAL ORDER Page - 82 BMW These arguments are based on two statutory requirements. ORS 227.17809 requires that: If the application was complete when first submitted or the applicant submits the requested additional information,. ritlun 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted. The application became complete in 1991. Moreover, the city's comprehensive plan and land use regulations were acknowledged then. Therefore, the statute requires that the city's approval or denial of the application be based on the standards and criteria applicable when Applicant submitted the application. Applicant's arguments, without specific citation to authority, regarding a statutory requirement of clear and objective standards are a bit confusing, as no statute requires that the city's applicable land use regulations be "clear and objective," per se. It is most likely that Applicant intended to argue here that the city was failing to stick to the requirements of ORS 227.173(1), which requires that: Approval or denial of a discretionary pen-nit application shall be based on standards and criteria, which shall be set forth in the development ordinance and which shall relate approval or denial of a discretionary permit application to the development ordinance and to the comprehensive plan for the area in which the development would occur and to the development ordinance and comprehensive plan for the city as a whole. InBCTPartnership v. City of Portland, 130 Or. App. 271, 881 P.2d l76 (1994), the court clarified that standards and criteria applicable to a land use application need not detail how they might apply in any circumstance. That is left for the interpretive function of local decision makers. Id, at 276. "[I]f an ordinance contains provisions that can reasonably be interpreted and explained as embodying the standards and criteria applicable to the particular decision, it is specific enough to satisfy ORS 227.173." Id EXHIBIT A (REVISED) TO FINAL ORDER Page 83 Applicant's first and third arguments pertain to Council's interpretations of code and plan provisions. Specifically, Applicant is arguing that in interpreting the referenced provisions--CDC 18. 120. 180.A.8 and 18.86.040.A. Lb. and the Parks Plan--the City is imposing regulations that were not in effect at the time the application was completed. Applicant misapprehends the interpretive function of local governments. Interpretation of an ordinance provision does not constitute adoption of "a "new" standard or criterion for purposes of ORS 227.178(3). The interpretive authority of a local government is triggered whenever a local ordinance provision "is capable of more than one tenable interpretation." Weeks v. City of Tillamook, 117 Or. App. 449, 454, 844 P.2d 914 (1992). Moreover, this interpretive function is not discretionary, but is a responsibility of local governing bodies. Id Applicant can point to no case that holds that in carrying out this function, local governments are adopting new standards for purposes of ORS 227.178(3). Applicant's second argument pertains to Council's authority to impose Remand Condition One. Specifically, Applicant claims that no standard existed on the date of submission of the application which would authorize imposition of an assessment besides the WTEF, and that, pursuant to the same statutory provisions just discussed, the City has no standard upon which to base such an assessment. As discussed siipra at 81, the dedication requirements of Condition Onv do not impose an assessment beyond the WTIF. The County imposes the WTIF, in an amount set by the County. Contrary to Applicant's contention, the 1991 order specifically states that Council is not imposing the WTIF as part of this approval. Instead, CDC § 18.32.250.E authorizes Remand Condition One, which was adopted and applicable as of the date of submission of this application and, therefore, is not a new standard. Applicant's fourth argument is that the fact that other application approvals have not included the same sort of dedication condition shows that Council is applying an "unwritten standard" to this application. Again, the standard under which Council has imposed Remand Condition One, CDC § 18332.250.E, is not new for purposes of this statute. Applicant's fifth argument is similar to the second. She claims that calculation of the expected WTIF assessment in the September `91 Approval required application of the WTIF during this remand process. Again, Applicant misreads the decision. Council did not impose the WTIF then EXHMIT A (REVISED) TO FINAL ORDER Page -'84 because the WTIF was not a criterion applicable under the plan or code. indeed, the `.'Tu Ord;-. itself states that the tax is not due until "the issuance of a building permit by the city." WCC § 3.17.060.A. Applicant's sixth argument is that the City is here applying a new standard that "would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone." Under :31an Policy 7.1.2 each applicant provide transportation infrastructure capable of serving the proposed development. As discussed supra at 71, Council found that this application sought approval of "general retail use" of the property, and was approved as such. Council further found that Plan Policy 7.1.2 did not limit the scope of potential uses of the Property which Council could consider when fashioning an appropriate condition of this development's approval, and therefore requires each applicant to provide transportation facilities based on this range. Because, Applicant did not dispute that Plan Policy 7.1.2 was applicable to the application when submitted, the policy referred to in the above quotation is not a new standard for purposes of the statute. H. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION DO NOT OFFEND ARTICLE I, SECTION 20 OF THE CONSTITUTION OF THE STATE OF OREGON OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT To THE CONSTITUTION OF THE UNITED STATES Applicant argued that Tigard had singled her out for disparate treatment from other property owners, attacldng Remand Condition One under Article I, Section 20, the Privileges and Immunities Clause 6f the Constitution of Oregon,37 and the Equal Protection Clause of the Fourteenth 36 Although she claimed that this argument also supported her claim that Remand Condition One was a taking, Council did not agree. The tests of Nollan and Dolan II were the sole legal grounds for her taking claim. Because Tigard satisfied the requirements of those tests, Remand Condition One did not violate the Takings Clause. However, if Applicant's arguments concerning alleged discrimination do provide an independent basis for a claim under the Takings Clause, Council intended that the findings in this section also be considered findings in response to that claim. 31 Article I, § 20 of the Oregon Constitution provides as follows: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terns, shall not equally belong to all citizens." EXHIBIT A (REVISED) TO FINAL ORDER Page - 85 Amendment to the Constitution of the United States.38 Although Applicant did not distinguish netween her ' cliu siatc cCtu •we.M;- tkennAC rlifFPrPnt 1P, n] tests anD1V under the different IeBCIdr aa ~rv....v.. , constitutional provisions. Article I, Section 20 bars the state from conferring a privilege or an immunity on one class of persons while excluding other classes or individuals bared on immutable characteristics, such as race, for invidious reasons, or through arbitrary rules. The Equal Protection Clause, in contrast, forbids the state from discriminating zgainst a particular class unless, in the case of economic regulations, the state has a rational basis for drawing such a distinction.39 1. Applicant Did Not Show That Remand Condition One Holated Article I, Section 20 The lave under Article I, Section 20 is currently uncertain, see Ag West Supply v. Hali, 126 Or. App. 475, 478, 869 P.2d 383 (1994); however, the courts have made a sufficient number of decisions under the section to derive an outline of the approach to such a case. To prove that Remand Condition One violated Article I, Section 20, Applicant was required to show that it denied her of a "constitutionally recognized privilege or immunity." D. Schuman, The Right to "Equal Privileges and Immunities A State's Version of "Equal Protection, " 13 VT. L. REV. 221, 244 (1988). Assuming she made such a showing, Article I, Section 20 established three categories of classification, each creating a separate requirement. Those categories are cases in which the challenger is in a "true class," cases in which the challenger is in a "pseudo-.-lass," and cases where the challenger is not a member of a class, but is considered to be an "individual." Id Applicant did not identify the constitutionally recognized privilege or immunity of which Remand Condition One allegedly deprived her. Thus, she did not articulate her argument sufficiently to allow a specific response, and she did not meet her burden to identify and prove that Remand 38 The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States provides as follows: "No State shall deny to any person within its jurisdiction the equal protection of the laws." 39 Under the Equal Protection Clause, whrre, as here, a person challenges regulations not drawing distinctions based on a suspect categorv--e.g., race, or, to a lesser degree, sex--that person bears the burden to prove that the government had no rational basis for the distinctions. E)MMIT A (REVISED) TO FINAL ORDER Page - 86 11 J OEM Condition One deprived her of such a privilege or immunity. Therefore, Council found that her argument under Article I, Section 20 had failed.'° Assuming, however, that Applicant did have some basis for claiming that Remand Condition One deprived her of some constitutionally recognized privilege or immunity, Applicant did not explain the basis for her allegations. She did not, for example, say whether she was proceeding as part of a true class, a pseudo class, or as an individual. Thus, her argument was not sufficiently developed to allow a specific response, and she failed to meet her burden of proof. Although Applicant's claim under Article I, Section 20 failed because of a lack of proof, Council considered, for the sake of argument, how such a claim might be structured. The first step in structuring such a claim would be to decide Applicant's status. "[A] `true class' is one that is created not by the law itself but is based on antecedent personal or social characteristics or societal status." Ag West Supply, 126 Or. App. at 480. Race, sex, and nationality are examples of true classes. D. Schuman, supra, 13 VT. L. REV. at 232. Here, Applicant did not claim that Remand Condition One was based on any such factors. Therefore, Applicant was not a member of a true class. Applicant argued that the city through its decision created two classes of persons. One class owning property next to the creek and the other, favored class being those who owned upland property. Thus, the classification system she attacked was created by the city's land use regulations and its land use decisions. Furthermore, she was free to bring herself within the "favored class" by purchasing upland property. Thus, she claimed to be a member of a pseudo-class. See Hale v. Port of Portl=4 308 Or. 508, 515-16, 783 P.2d 506 (1989). However, such a class is entitled to no protection under Article I, Section 20, see id at 516, or is entitled to protection only from government decisions which lack a rational basis, see Ag West Supply, 126 Or. App. at 480 & n.3. Either she had no claim under Article I, Section 20 or that claim failed because, as shown below, Remand Condition One has a rational basis. See, infra, at 89. 40 In addition, as detailed below, the city, has not discriminated between upland and riparian owners in any meaningful way. See, infra, at 90. EXHDBIT A (REVISED) TO FINAL ORDER Page - 87 Applicant also appeared to believe that she was denied a privilege or immunity as an individual which Tigard grants to other citizens. Under those circumstances. Applicant was required to chow that Tigard applied the law in an arbitrary or haphazard manner. D. Schuman, supra, 13 VT. L. REV. at 245. As shown below, however, Tigard did not apply its land use laws in such a manner, but imposed similar conditions in similar cases. See, infra, at 89. Therefore, her claim under Article I, Section 20 failed. 2. Applicant DidNotShow That Remand Condition One Holated the Equal Protection Clause The Supreme Court of the United States has established three levels of review to be applied when a regulation is challenged under the Equal Protection Clause, referred to as "strict scrutiny," "intermediate review," and "rational basis," respectively. Strict scrutiny applies where the state discriminates against a class based on race, religion, legitimacy or, possibly, some other immutable characteristic ("suspect classifications"). The Court applies intermediate review when a law draws distinctions similar to those triggering strict scrutiny, such as sex ("intermediate classifications"). Finally, the rational basis test applies to classifications not based on suspect or intermediate classifications. That final set of classifications includes any created by Remand Condition One, Ala because Applicant has not shown-and cannot show-that the city is requiring Remand Condition One based on a classification such as race or sex. Under the Equal Protection Clause, Council could find Remand Condition One to be valid if the city "could rationally have decided" the measure adopted might achieve a legitimate objective. Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 466 (1981) (emphasis in original); see also Medford Assembly of God v. City of Medford, 72 Or. App. 333, 339, 695 P.2d 1379 (1984) ("selective enforcement of an ordinance violates equal protection `only if there is no rational basis to justify the selective enforcement"') (quoting City of.Eugene v. Crooks, 55 Or. App. 351, 354, 637 P.2d 1350 (1981), rev. denied 292 Or. 772 (1982)); Wagner v. Marion County, 15 Or. LUBA 260, 272 (1985) ("[U]nequal application of the law is not by itself a constitutional violation. The complaining party must establish intentional or purposeful discrimination, i.e., that the has been singled out based on an unjustifiable standard such as race, religion, or other arbitrary classification. Unless such suspect classes are involved, the equal protection clause is violated only if there is no rational basis to justify the selective application of the ordinance."). Applicant apparently believed EXHIBIT A (REVISED) TO FINAL ORDER Page - 88 that Remand Condition One offended this standard for two reasons. First; she claimers rI'?t iirl?n.i MM IM owners were not required to make similar dedications for flood and drainage control. Second, she claimed that other T igard developers had not been required to make similar dedications for transportation infrastructure. However, her claims were without any foundation. In an attempt to establish her equal protection claims, Applicant submitted several cases decided by the city around the time of the September `91 Approval. She argued that the city had imposed different drainage and traffic dedications in those cases, proving, she claimed, that the city had improperly discriminated against her. Council had to admit to some confusion about this argument and to what Applicant expected from the city. In making her takings argument, Applicant emphasized that the Takings Clause required Council_ to make an individualized determination whether the impacts of her project justified the exactions called for in Remand Condition One. Not surprisingly, such an approach leads to somewhat different conditions in different cases. However, in making her equal protection argument, Applicant criticized the city for allowing such differences to exist. Applying her wooden equal protection approach-requiring all cases to be treated identically--would lead to the absurd result that any decision satisfying the Takings Clause would be a violation of the Equal Protection Clause and Aft, vice versa. Council did not believe the law to require such a result. Instead, Council found that differences arising because of factual distinctions between cases were rationally based because such results were necessary to meet the requirements of the Takings Clause, a legitimate government objective. Therefore, the premise underlying Applicant's equal protection argument failed and along with it, her entire argument. Although Applicant's equal protection claims were wholly invalid because of her faulty premise, Council nevertheless reviewed the specific cases she introduced in support of her claim. Each of those cases involved an upland property owner, and in each the city did impose conditions differing in specifics from Remand Condition One. However, those differences were not sufficient to establish a claim. Interestingly, Applicant omitted from her submission the case decided by the city most closely resembling the present. SDR 89-21, George Morland Plumbing, involved site development review for a plumbing business also bordering Fanno Creek. The city required dedication of the floodplain EXHIBIT A (REVISED) TO FINAL ORDER Pace - 89 and a bike path area, it required the developer to build the nath and it also -e....:-ca L_~r street .-4"a a vu a elnuu- improvement, which included storm drainage improvements. CR 00746. Thus, based on almost identical facts, Tigard imposed exactions very similar to those in Remand Condition One. If anything, they were more extensive. To escape the fact that Tigard has treated similarly situated land owners similarly, Applicant in her later submissions claimed that Tigard created two classes of landowners: Plumbing stores next to the creek and upland developments. She alleged that Tigard discriminated between these two classes by putting more significant drainage and traffic requirements on developments next to the creek than were imposed on upstream land owners. With regard to drainage, Applicant's claim was meritless because any distinctions drawn in the cases had a rational basis. As a general matter, the city had a rational basis to treat riparian owners differently than those in the upland areas, as explained by the Floodplain Managers Association: "Developments near the floodplain have unique impacts that differentiate them fi-om upland developments. They result in "increased exposure to flooding caused by development near the existing 100 year floodplain, which, absent structural improvements to the flood channel, would be exposed to flooding in the future." CR 01295. [Applicant's] claim that the easement dedication condition does not relate to impacts of [Applicant's] development requires that [the city] ignore the distinction between property in or adjacent to floodplains and property that itself is at no risk of flooding. The floodplain easement dedication was designed to address the increased property damage likely to result from [Applicant's] expanded development in a floodprone area. To address that problem, Tigard undertook in large part at public expense to improve the flood carrying capacity of the original 100 year channel. Although [Applicant] and other floodplain landowners were required to donate the property, the City picked up the substantial expense of the channelization work itself. CR 01298. In addition to this general. justification, Council's investigation of the facts of each case submitted by Applicant showed that dedications for drainage and traffic were required. Although EX 03IT A (REVISED) TO FINAL ORDER Page - 90 different in kind from those required here, the dedications were proportional in magnitude. For example, in several of the cases the city required dedication and construction of half-street AVOL improvements. Such improvements mitigate for traffic impacts and also contribute to the city's drainage system. See, infra, note 42.31 Moreover, they are much more expensive than the dedications called for in Remand Condition One.42 Council's reasoning and justification for the 41 Council found that it was not proper to impose a requirement for a half-street improvement here for the following reasons, which it firer described in the September '91 Approval: A 1986 engineering study of the condition of S. W. Main Street recommends that the pavement be completely reconstructed and that the storm drainage system be replaced. It appears to be impractical to perform the proposed reconstruction of Main Street in a piecemeal fashion on a lot- by-lot basis; instead, the reconstruction needs to occur in larger segments beginning at Fanno Creek Bridge and working uphill. Therefore, we do not propose that any reconstruction of Main Street be required as a condition of approval of this development proposal. CR 01024 (citing recommendations of City Engineering Division). This observation rebuts Applicant's argument that Council should not compare the half-street dedications called for in other cases and the floodplain and pathway easements called for in Remand Condition One. She claimed that the comparison would be invalid because such improvements had already been installed next to the Property. However, the record did not show that she had paid for those improvements, they were not required as part of this decision, and their cost would have been equal to or greater than the easements required of her. See, infra, note 42. Furthermore, the city decided that restoration of the improvements on Main Street should not be done by exactions. Tigard will pay for any such improvements. Thus, Council found the street and drainage improvements called for in the other cases to be similar or greater in magnitude than the exactions called for in Remand Condition One. 42 The following testimony from Mr. Berry supported this conclusion: In addition, I do not agree with the applicant's characterization of this effect as 'creating surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(a) and 7.2.1(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters. This is most commonly accomplished by dedicating additional right-of-way along street frontages and installing drains. Therefore, development throughout the City is required to provide adequate facilities for the conveyance of drainage. The condition proposed in this case is no different. The applicant is simply being asked to dedicate an easement for a drainageway which is open and not part of a half-street improvement. Similar requirements are imposed by the City's Master Plan on developments that include open channels such as drainageways and creeks: 'swictural and non-structural programs necessary to reduce darnlages to the 100-year flood to an acceptable level.' Ash EXHIBIT A (REVISED) TO F 4AL ORDER Page - 91 conditions in each case is set out in tabular form in Appendix Two to this Exhibit A. Because Applicant was not required to make dedications and improvements more extensive those required in her example cases, no violation of equal protection occurred.. The city had a rational basis for distinguishing the exactions from those imposed here based on the facility needs and geographical location of the developments. Cf. Seto v Tri-County Metropolitan Transp. Dist. of Oregon, 311 Or. 4456, 466-67, 814 P.2d 1060 (1991) (upholding classifications based on geographic location where they had a rational basis). Applicant's final argument concerning equal protection was an allegation that she had been discriminated against because Council approached this remand proceeding with a more thorough review than in earlier cases. She cited, for example, the use Council made of the WTIF and argued that such a use had never been made before. Council, frankly, found her argument to be incredible and almost frivolous. The United States Supreme Court had never imposed the rough proportionality requirement before it made its decision in this care. Furthermore, earlier cases decided by the Oregon courts indicated that the process Tigard used in making the September `91 Approval, which was like the process used in Applicant's example cases, did satisfy the Takings Clause. Thus, it is not surprising that Council applied a different and more involved approach to these remand proceedings than the city had taken in earlier cases. Council could not accept Applicant's claim that the procedure she demanded in the United States Supreme Court violated the Equal Protection Clause merely because her's was the first case to which that procedure applied. Since full street improvements along applicant's Main Street frontage, including drainage, were previously installed, additional improvements and dedication are not now being required. Had the applicant been required to provide these improvements, the drainage components (curbs and drains) would cost anywhere from $10,000 to $20,000. CR 00056; see also CR 00084 ("The cost for half street improvements is approximately $150 to $200 per lineal foot of street frontage.") EXHIBIT A (REVISED) TO FINAL ORDER Page - 92 Irv I. THE PROCEDURE USED IN ADOPTING REMAND CONDITION ONE D® NOT OFFEND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES Applicant asserted that Council could not give Applicant a fair hearing because Applicant had sued the city in Circuit Court. However, it was Applicant who introduced facts concerning the Circuit Court case in this matter, and it was Applicant's attorney who solicited a settlement discussion with Council during the Remand Hearings. Furthermore, it was Applicant who initiated the Circuit Court case. The upshot of the bias claim would be to disqualify Council from exercising its land use . authority whenever an applicant brought an action against the city. For these reasons, any claim that discussion of the lawsuit in these proceedings indicates bias is without merit. In addition, each member of Council considered whether he or she could render a fair decision in this matter in light of Applicant's law suit. Each found that he or she could and would separate the two matters when making this decision. Council thus found that these remand proceedings did not deny due process to Applicant. I`'. CONCLUSION Council found that Tigard had presented evidence satisfying the rough proportionality test of Dolan 11. It therefore found it appropriate to impose Remand Condition One to mitigate for the flood, drainage, and traffic impacts of Applicant's project. Although most of the other arguments raised by Applicant were not before Council, Council nevertheless considered their merits. It found them to have none. Thus Council entered its Final Order imposing Remand Condition One. C^.GFHiDOL..a\'1FINDI~IGS~FINDr4AST. WPD EXHIBIT A (REVISED) TO FINAL ORDER face - 93 Appendix One - Evidence in Record Item o. esCription a P o. 1 Council Agenda Item Summary, Agenda Item dated CR 1-5 10/10/95 2 Continuation of Public Dearing (8/29/95) 0 Council Agenda Item Summary, Agenda Item 6 CR 6 dated 8/29/95 (Exhibit 82) 0 Letter to City Council from John Shonkwiler re CR 7 Request to Strike Exhibits dated 8/26/95 (Exhibit 83)CR 7 ® Letter to William Monahan from Timothy Ramis re CR 8-9 Request to Strike Exhibits dated 8/21/95 (Exhibit 84) 4 Supplemental Staff Report dated 8/16/95 CR 10-19 (Exhibit 85) ® Applicant's 8/16/95 Memorandum (Exhibit 86) CR 20-39 ® Supplemental Staff Report dated 8/2/95 CR 40-102 w/exhibits 1-11 (Exhibit 87 ) ® Applicant's 8/2/95 Memorandum (Exhibit 88) CR 103-121 ® Affidavit of Dan Dolan received 8/2/95 (Exhibit 89) CR 122-144 ® Memorandum from Dick Woelk to John Shonkwiler CR 145-147 dated 8/1/95 (Exhibit 90) ® Memorandum from Cathy Wheatley to file re CR 151-150 6/27/95 and 7/18/95 Transcripts (Exhibit 91) Continuation of Public Hearing (7/18/95) EXHIBIT A (REVISED) TO FINAL ORDER Page - A Lem o. ,description a e o. ® Council Agenda Item Summary, Agenda Item 5 CR 151-152 dated 7/18/95 (E>Jubit 40) ® Draft transcript of 6/27/95 public hearing CR 153-201 (Exhibit 41) ® Copies of slides presented by the City Attorney at CR 202-216 6/27/95 public hearing (Exhibit 42) ® Letter to City Council from John Shonkwiler dated CR 217-237 7/9/95 w/exhibit (Exhibit 43) 0 Letter to John Shonkwiler from Richard Woelk CR 238-256 dated 6/27/95 w/attachments (Exhibit 44) ® Letter to City Council from John LeCavalier, CR 257-267 P President of Friends of Fanno Creek, dated 6/29/95 w/"From Rooftop to River" article and "Courts Reject Wetlands Takings" article (Exhibit 45) 0 Memorandum of Dolan/A-Boy Inc. w/exhibits A-L CR 268-434 submitted 6/27/95 (Exhibit 46) ® Memorandum from Cathy Wheatley to Bill CR 435-436 Monahan re past Council and Planning Commission meetings dated 7/10/95 (Exhibit 47) Supplemental Staff Report dated 7111/95 CR 437-454 (Exhibit 48) Memorandum to City Council from Timothy Ramis CR 455-462 dated 7/13/95 (Exhibit 49) Letter to City Council from Loreta Pickerell, Vice CR 463 President of STOP, dated 7/18/95 (Exhibit 50) ® Memo to Tim Rams from Greg Berry dated CR 464 7/18/95 (Exhibit 51) EXHMIT A (REVISED) TO FINAL ORDER Page - B jt r o- Descri does Page No. 0 Letter to City Council from Brian Martin dated CR 465 7/18/95 (Exhibit 52) r 4 Letter to City Council from Marti McCausland CR 466 dated 7/18/95 (Exhibit 53) A Letter to City Council from Jeff Paine (Exhibit 54) CR 467 ® Letter to City Council from Dan Velasquez dated CR 468 7/17/95 (Exhibit 55) A List of exhibits submitted by Timothy Ramis for CR 469 7/18/95 continued hearing w/notes by James Coleman Unified Sewerage Agency Resolution and Order CR 470-625 No. 91-47 (Exhibit 56) ® Unified Sewerage Agency Resolution and Order CR 626-678 No. 93-33 (Exhibit 57) ® Unified Sewerage Agency - Wattr Quality and CR 679-715 Detention Facilities System Development Charge \ Improvement FEI Cost Analysis dated 6/5/91 (Exhibit 58) US Supreme Court Brief for petitioner in Dolan v. CR 716-745 Ciry of Tigard (Exhibit 59) ® Notice of decision Site Development Review, CR 746-753 SDR 89-21, George Morland Plumbing (Exhibit 60) Site Development Review Application (SDR 91- CR 754-755 0005), Joseph Mendez, applicant (Exhibit 61) Memorandum to file from Dick Bewersdorff dated CR 756 6/26/95 (Exhibit 62) EXHIBIT A (REVISED) TO FINAL ORDER Page - C tem No. Desc~tion Page No. ® A-Boy Stores advertisements from the Hillsboro CR 757-769 Argus and Oregonian newspapers (Exhibit 63) 0 A-Boy Stores Yellow Pages advertisement CR 770-771 (Exhibit 64) ® Memorandum from Jay Featherston to Frank CR 772-775 Hammond dated 7/5/95 (Exhibit 65) ® Memorandum from Rick Walker and David Pietka CR 776 to Pamela Beery dated 7/10/95 (Exhibit 66) ® List of maps retained by the City until time of oral CR 777 argument under OAR 661-10-025(2) (Exhibits 67- 75 and 79) ® Memorandum to File from Tim McGuire dated CR 778-780 7/17/95 (Exhibit 76) 0 Memorandum to file from Dave Larson dated CR 781-783 7/17/95 (Exhibit 77) ® Copies of slides presented by Tim Ramis at 7/18/95 CR 784-798 hearing (slides have been retained by City until time of oral argument under OAR 661-10-025(2)) (Exhibit 78) 0 Testimony of Charles Swindells on behalf of 1000 CR 799-800 Friends of Oregon dated 7/18/95 (Exhibit 80) ® Letter to City Council from John Shonl.-wiler dated CR 801-805 7/18/95 w/three color photos (Exhibit 81) 4 Public Hearing - Remand of Conditions Related to Dolan/A-Boy - SDR 91-0005/Var 91-0010 (6/27/95) ® Council Agenda Item Summary, Agenda Item 5, CR 806 dated 6/27/95 (Exhibit 1) EXHIBIT A (REVISED) TO FINAL ORDER Page - D r to NO. ~escri~tivn Page o. A Memorandum to City Council and City CR 807 Administrator from Pamela Beery dated 6/20/95 (Exhibit 2) ® Staff Report to City Council from Planning CR 808-820 Department dated 6/20/95 (Exhibit 3) 0 Exhibit list for 6120195 staff report (Exhibit 4) CR 821 0 Partial transcript of US Supreme Court Case CR 822-823 (Exhibit 3, staff report) (Exhibit 5) ® US Supreme Court Opinion, Dolan v. City of CR 824-839 Tigard (Exhibit 4, staff report) (Exhibit 6) 0 Notice of Public Hearing for 4/25/95 remand CR 840-841 hearing (Exhibit 5, staff report) (Exhibit 7) 0 Applicant's Request for Continuance dated 4/17/95 CR 842-844 and 5/10/95 (Exhibit 6 staff report) (Exhibit 8) Amicus Brief: Association of State Floodplain CR 845-846 Managers, pages 12-13 (Exhibit 7, staff report) (Exhibit 9) Drainage Impact Study prepared by Tim McGuire CR 847-879 dated 6/20/95 (ai-hibit 8, staff report) (F--Jubit 10) Appraisal of Proposed Bike Path and Flood Control CR 880-926 Easements dated 5/3/95 (Exhibit 9, staff report) (Exhibit 11) ® "Private Provision of Public Pedestrian and Bicycle CR 927-930 Access Ways" article by Prof. Arthur Nelson, pages 11-13 (Exhibit 10, staff report) (Exhibit 12) ® Transportation Impacts Study by David Larson CR 931-933 dated 6/16/95 (Exhibit 11, staff report) (Exhibit 13) EXHIBIT A (REVISED) TO FINAL ORDER Page - E teroi o. nescdpdon Page No. s Washington County Traffic Impact Fee Ordinance CR 9314-982 w/related schedules and reports (Exhibit 12, staff report) (Exhibit 14) ® Notice of Final Order and Resolution Adopting CR 983-1011 Final Order dated 9/17191 (Exhibit 15) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1012-1014 dated 6/27/95 w/easement map (Exhibit 16) 4 * Site Plans - 8 sheets of plans (Exhibit 17) CR 1015 4* Large map of site illustrating easements (Exhibit 18) CR 1016 ® List of exhibits submitted by Timothy Ramis for CR 1017 6/27/95 hearing w/notes by Pamela Beery ® Notice of Final Order and Resolution Adopting CR 1018-1046 Final Order dated 9/17/91 (Exhibit 19) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1047-1049 dated 6/27/95 w/easement map (Exhibit 20) ® Article by John Vance in Selected Studies in CR 1050-1071 Highway Law, Vol. 2 (Exhibit 21) LUTRAQ Study, "The Pedestrian Environment," CR 1072-1125 dated 12/93 (Exhibit 22) ® National Flood Insurance Program Flood Insurance CR 1126-1127 Rate Map (1982) (Exhibit 23) Letter to Mayor Nicoli from Andrea Ferster, CR 1128-1162 General Counsel for the Rails to Trails conservancy, dated /26/95 (Exhibit 24) LUBA Record for Dolan v. Clay of Tigard, LUBA CR 1163 No. 90-029 (Exhibit 25) EXHIBIT A (REVISED) TO FINAL ORDER Page - F Item o. DescdR on Page No. LUBA Record for Dolan v. City of Tigard, LUBA CR 1164 No. 91-161 (Exhibit 26) ® Brief for respondent, Dolan v. City of 7-1gard, US CR 1165-1264 Supreme Court (Exhibit 27) 4 Copies of slides presented by Tim Ramis at 6/27/95 CR 1265-1279 hearing (slides have been retained by the City until time of oral argument under OAR 661-10-025(2)) (Exhibit 28) 6 Amicus Brief. Association of State Floodplain CR 1280-1301 Managers, Dolan v. CYry of ?igard, US Supreme Court (Exhibit 29) ® Amicus Brief. Rails to Trails Conservancy, et al, CR 1302-1320 Dolan v. City of Tigard, US Supreme Court (Exhibit 30) ® "Private Provision of Public Pedestrian and Bicycle CR 1321-1353 Access Ways," article by Prof. Arthur Nelson (Exhibit 31) Tigard Comprehensive Plan w/Pedestrian/Bicycle CR 1354 Plan, Master Drainage Plan, Parks Master Plan, Parks Improvement Program, and Tigard Park Plan (Exhibit 32) ® Letters to John Shonkwiler from Timothy Fermis CR 1355-1357 dated 4/19/91 and 4/20/95 (Exhibit 33) Four traffic studies for Beaverton, Vancouver, CR 1358-1377 Hillsboro, and Tigard A-Boy Stores w/letter to John Shonkwiler from Richard Woelk dated 6/27/95 (Exhibit 34) EXHIBIT A (REVISED) TO FINAL ORDER Page - G Peen Description Page No. Memorandum of Dolan/A-Boy, Inc., CR 1378-1542 w/exhibits A-I. submitted 6/27/95 (Exhibit 35) Letter to City Council from David Smith dated CR 1543-1546 6/27/95 (Exhibit 36) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1547-1549 dated 6/27/95 (Exhibit 37) ® Memorandum to file re Dolan telephone calls CR 1550 (Exhibit 38) "Sharing the Challenge: Floodplain Management CR 1551-1552 Into the 21st Century," Report Abstract dated 6/94 (Exhibit 39) 0* Slides presented by Jim Hendryx at the 6/27/95 CR 1553 hearing *These items have been retained by the City until time of oral argument under OAR 661-10-025(2). C:IGFHIDOL.AN\I-MMINGS\FINDMAST.wpD EXHIBIT A (REVISED) TO FINAL ORDER Page - H APPENDIX TWO: EQUAL PR 0TECTIONANAL YS'IS OF CASES CITED ~YAPPLICANT EXHIBIT A (REVISED) TO FINAL ORDER Page - a Elm. Case Applicant's Allegation Response SDR 91-0002 "The City approved the construction of a new Although the City did not exact a pathway in commercial buildings (sic] of 8,000 sq.: this case, it required transportation Standard street frontage dedication was required. improvements in the form of dedication of In addition, no traffic impact costs were assessed street frontage and sidewalk improvements. to SDR 91-0002 in excess of the required TIF Those requirements were not put on fees. As in the Dolan application, sidewalks are Applicant. Instead, Applicant was required required from the building to the street frontage to dedicate land for the pathway. The and along the street frontage. However, in direct Supreme Court requires that all dedications contrast with the requirements for the Doians, this be individualized determinations. Moreover, applicant did not have to dedicate or be assessed an individualized interpretation necessarily for storm water drainage (the requirements for results from any quasi-judicial process. water quality are a different subject and ordinance There, street exactions were imposed In the restriction). The stormwater was allowed to run Dolan case, the city imposed a pathway into an exLSt?ng storm lme in 72nd Ave. This exact on. Roth developmCuu ware thus storm line, in turn, flows into the Fanno Creek required to mitigate for traffic impacts, but drainage system. Similarly, there is no mention of through different methods. a requirement for additional transportation costs related to an alleged 68% unreimbursed costs In SDR 91-0002 the City found that the (sic] in excess of the required TIF fee." central storm drain probably was sufficient to handle runoff from the site. The City imposed a condition requiring applicant to "demonstrate that storm drainage runoff can be discharged into existing drainageways without significantly impacting properties downstream." That is the same burden that the city placed on Applicant. Moreover, the property is not located on the creek. Therefore, it is not surprising that the City imposed a different drainage requirement on this applicant. Applicant's argument concrming imposition of a fee in excess of the WTff fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. EXHIBIT A (REVISED) TO FINAL ORDER Page - b Case Applicant's Allegation Response SDR 91-0007 "The City approved the construction of a two [sic] Applicant incorrectly asserts that no MLP 91-0004 new industrial buildings totaling 112,960 sq.1 dedication was required in SDR 91-0007. A sidewalk was required along the street frontage. The City required a sidewalk along the street No Dedications (sic] nor any street construction frontage. No similar dedication was required costs were required of the applicant . In addition. of Applicant. Instead, they were required to no traffic impact costs were assessed to SDR 91- dedicate the pathway. 0007 in excess of the required TIF fees." Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. EXHIBIT A (REVISED) TO FINAL ORDER Page - c Case Applicant's Allegation Response SDR 91-0004 "The City approved the construction of a new Applicant ignores that the City did require a commercial buildings [sic] in the Central dedication of a street frontage and Business District in the Action Area overlay zone improvement. The City did not place such a (same as the Dolan property designations). requirement on Applicant. Instead, it Standard street frontage dedication and required dedication of the path. Although improvement were required. In addition, no different mitigation methods were required in traffic impact costs were assessed to SDR 91- the cases, the purpose of each dedication was 0004 in excess of the required TIF fees. In deed to mitigate for traffic impacts. [sic], the actual trip generation of a same or similar use was specifically identified as Applicant's argument concerning imposition acceptable for calculating the TIF fees. 'T'here is of a fee in excess of the WTIF fee is a red no mention of a requirement for additional hering. Here, the City is not attempting to transportation costs related to an alleged 68% impose such a fee on Applicant. Instead, it is -am-eimbursed costs in excess of the required TIF using the WTIF methodology to decide rough fee." (Emphasis in original.) proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. Appiicant's argument concerning use of actual trip generation is misleading in that it implies the City is applying a different standard here. Until the Remand Hearings in this matter Applicant did not argue that the City should use actual trip counts in estimating the WTIF. In the earlier decisions, the City used the FFEManual, a decision that was not appealed or disputed. EXHIBIT A (REVISED) TO FINAL ORDER Page - d Case Applicant's Allegation Response SDR 91-0011 "The City approved the construction of a new Applicant ignores that the City did require commercial building. A sidewalk was required dedication of half street improvements from the street frontage to the building being including sidewalks and curbs. The City did constructed No additional transportation impact not place such a requirement on Applicant. costs were assessed to the property other than the Instead, it required dedication of the path. street frontage dedication and improvements (as Although different mitigation methods were was already dedicated and improved at the required in the cases, the purpose of each Dolans' property). In addition, no traffic impact dedication was to mitigate for traffic impacts. costs were assessed zo SDR 91-0011 in excess of the required TIF fees." The City also required the applicant to demonsate "that storm drainage and runoff can be discharged into the existing drainageways without significantly impacting properties downstream.,. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. EXHIBIT A (REVISED) TO FINAL ORDER Page = e Case Applicant's Allegation Response SDR 91-0016 "The City approved this commercial use Applicant ignores that the City did require a (conversion from a lesser residential use) and only dedication of a street right-of-way. The City required the dedication of widening the street did not place such a requirement on frontage and bringing a sidewalk from the street Applicant Instead, it required dedication of frontage to the building. Similarly, the City the path. Although different mitigation required the Dolans to bring the sidewalk from methods were required in the cases, the the sleet frontage to their proposed building (the purpose of each dedication was to mitigate widening of the frontage street had .already been for traffic impacts. accomplished). However, the City also required an additional transportation impact costs [sic] in Applicant's argument concerning imposition excess of TIF fees by requiring the Dolans to of a fee in excess of the WTIF fee is a red dedicate a pathway in the rear of the building. In herring. Here, the City is not attempting to addition, no traffic impact costs were assessed to impose such a fee on Applicant. Instead, it is SDR 91-0016 in excess of the required TIF fees." using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court its It did not app%r Such a w~uiCuvivgr U1 I earlier cases because thr, existence of rough proportionality was not an issue. Aftk SDR 91-0017 "The Tigard Pedestrian/Bicycle Pathway Plan The City required dedication of right-of-way requires a pathway along Hall Boulevard and along Hall and Burnham streets. The City Burnham Street at this location. However, the found that no justification existed to exact City does not require both a pedestrian/bicycle additional water quantity facilities because pathway and a frontage street sidewalk as was existing storm drains were adequate to required of the Dolans. In addition, no traffic handle ntno'ff from the property. The City impact costs were assessed to this development in required the dedication of right of way as excess of the required T1F fees." adequate mitigation of traffic impacts, just as in this case it required dedication of the pathway as mitigation for traffic impacts. Here, Applicant was not required to dedicate right of way. The conditions require only that they repair damaged sidewalks and curbs. E=IT A (REVISED) TO FINAL ORDER Page - f Case Applicant's Allegation Response SDR 91-0019 "The City approved an expansion of an existing The City did require a dedication and commercial office building that would generate construction of a sidewalk. The City delaved additional traffic. The City only required the requirement of construction of the the constmcdon of a sidewalk along the frontage of sidewalk to allow that work to be coordinated the property for pedestrian/bicycle traffic impacts. with similar construction required of In fact, the City allowed the landowner to delay neighboring developments. The City did not constructing any portion of the sidewak until it place such a requirement on Applicant. was ready to develop the remainder of its Instead, it required dedication of the path. It property. In addition, no traffic impact costs were is worth noting that the City is not requiring assessed to SDR 91-0019 in excess of the Applicant to build the pathway. Although required TIF fees." different mitigation methods were required in the cases, the purpose of each dedication was to mitigate for traffic impacts. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. ro EXHIBIT A (REVISED) TO FINAL ORDER Page o g Case Applicant's Allegation Response SDR 91-0020 "The City approved this expansion of a The City had good reasons for not requiring commercial building that involved an additional transportation dedications in SDR 91-0020. 67,000 square feet in building size. Additional At the time of the expansion considered in traffic would be generated from this increased the application, the City had already size. the City noted that the applicant was a identified a need for street and transportation participant in a public facilities study for the area improvements in the area. As found in the and therefore did not require any additional decision, those improvements were needed transportation-related conditions of approval. No regardless of any increase in traffic that condition of approval was imposed to require the approval of the application would cause. applicant to participate in any public facilities, Furthermore, the City found that no including transportation facilities, that would be improvements proportional to the impacts of deemed necessary by the identified study. In the the expansion were possible. Therefore, addition, no traffic impact costs were assessed to the City found that it did not have any basis this development in excess of the required TIF justifying the imposition of transportation fees." exactions on the facts of the specific case. It also noted that the applicant was committed to assiting with traffic improvements in the future. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. C:\GFH\D OLAN\FINDINGS\FINDMAST. WPD EXHIBIT A (REVISED) TO FINAL ORDER Page - h E 1! I IN 11 11:1 :1 IN! III -L, b 61 ALBERT KENNEY, PE ROBERT E FRANZ CONSULTING ENGINEERIPLANNER OFFICE OF ATTORNEYS AND COUNSELORS 9500 SW BARBER BLVD, STE 111 P 0 BOX 62 TLAND OR 97219-5425 SPRINGFIELD OR 97477 - i s m ai µ 9s- (j ( w-«s rn e" (i DAN DOLAN JOHN SHONKWILER, ATTORNEY 1919 NW 19TH AVENUE 13425 SW 72ND AVENUE PORTLAND OR 97209 TIGARD OR 97223 ~j r sv Rc s. X15-[N u us 0- -C r{ TIM RAMS, ATTORNEY O'DONNELL RANIIS CREW CORRIGAN & BACHRACH DAVID SMITH, ATTORNEY 1727 NW HOYT STREET 6975 SW SANDBURG ROAD, SUITE 130 PORTLAND OR 97209 a Aso Res. a s. (,c r PORTLAND OR 97223 w u s rr, ai lcd DICK WOELK DOROTHY COFIELD, LEGAL COUNSEL ASSOC TRANSPORTATION ENGINEERING AND PLANNING OREGONIANS IN ACTION 4040 DOUGLAS WAY 5255 SW HUNZIKER LAKE OSWEGO, OR 97034 TIGARD, OR 97223 JOHN LECAVALIER, PRESIDENT J. rl KERR FANS OF FANNO CREEK 3917 SW FAIRVIEW WAY PO BOX 25535 WEST LINN, OR 97056 PORTLAND OR 97225 POLANS RICHARD BREAKIRON 16000 SW QUEEN VICTORIA PLACE J. C. REEVES CORPORATION KING CITY, OR 97224 4850 SW SCHOLLS FERRY ROAD, STE 302 PORTLAND, OR 97225 CHARLES SWINDELL, STAFF ATTORNEY PAM ALEGERIA, VICE PRESIDENT 1000 FRIENDS OF OREGON WI IAMETTE PEDESTRIAN COALI'T'ION 534 SW THIRD, STE 300 477 SW 11TH AVENUE PORTLAND OR 97204 PORTLAND OR 97205 LORETTA PICKERELL, VICE PRES JOHN HILLEY SENSIBLE TRANSP OPTIONS FOR PEOPLE 6401 SE THIESSEN 15405 SW 116TH AVENUE, #202B MILWAUKIE OR 97267 TIGARD OR 97224 BRIAN MARTIN MARTI MCCAUSLAND 10965 SW PATHFINDER WAY 2044 NORTH EMERSON TIGARD OR 97223 PORTLAND Ok 97214 T F PAINE DAN VELASQUEZ 9155 SW 69TH 10455 SW RIVERWOOD LAI4E TIGARD OR 97223 TIGARD OR 97224 Council Agenda Item l TIGARD CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 ® Meeting was called to order at 7:00 p.m. by Mayor Nicoli. 1. ROLL CALL Council Present: Mayor Jim Nicoli; Councilors Wendi Conover Hawley, Paul Bunt, Bob Rohlf, and Ken Scheckla. Staff Present: Bill Monahan, City Administrator; Dick Bewersdorff, Senior Planner; Jim Ilendryx, Community Development Director; Liz Newton, Assistant to the City Administrator; Tim Ramis, Pam Beery and Frank Hammond, Legal Counsel; Duane Roberts, Associate Planner; Ray Valone, Associate Planner; Catherine Wheatley, City Recorder; Ed Wegner, Maintenance Services Director; and Randy Wooley, City Engineer. The Tigard City Council went into Executive Session at 7:37 p.m. wider the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations, real property transactions, current and pending litigation issues. Executive Session adjourned at 7:46 p.m. BUSINESS MEETING 1.4 Council Communications/Liaison Reports There were none. 1.5 Call to Council and Staff for Non-Agenda Items City Administrator Monahan advised he would like to list the following from staff as non-agenda items: a Grant Bridge and Tiedeman Bridge proposal. G Request from League of Oregon Cities. s Tualatin Expressway. CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 1 2. VISITOR'S AGENDA: ® Jack Polans, 16000 SW Queen Victoria Place, Ding City, Oregon, 97224, said it was his understanding it was easier to construct new roads than to maintain them. City Engineer Wooley responded that more funding options were available for new streets. Mr. Polans commented about the process for appointing members to Boards and Committees. (Note: Appointment process is outlined in staff material prepared for Agenda Item No. 6.) Mr. Polans then asked several questions for clarification on the tentative agenda. ® Duane Meyer, 13210 SW Watkins Ave., Tigard, OR 97223, requested information on a dirt pile near Park and Watkins which was approximately four feet high. Mr. Meyer gave his telephone number. Staff will contact him to adv°_se of the status of the dirt pile. ® Martha Bishop, 10590 SW Cook Lane, Tigard, Oregon, 97223, commented on her visits to the four CITs. She noted concerns that there was no Park Board. She commented on the public input process for Greenspace projects and advised of the :need for additional sports playing fields and the Cook Park expansion plan. She reported that the CITs had not looked at the information concerning parks SDCs or a Cook Park master plan. 3. CONSENT AGENDA: Mayor Nicoli deck red a conflict of interest and advised he would not be voting on Item 3.6. In addition, Items 3.2(b) and 3.8 were pulled for separate consideration. Motion by Councilor Scheckla, seconded by Councilor Rohlf, to approve the following Consent Agenda items: 3.1 Approve City Council Minutes: October 10 and 17, 1995 3.2a. Council Calendar 3.3 Authorize Sale of Bonds - Dartmouth Local Improvement District - Resolution No. 95-55 3.4 Approve Wetlands Planning Grant Agreement 3.5 Approve Budget Adjustment for Wetlands Planning Grant - Resolution No. 95-56 3.7 Dedicate Right of Way Required for 72nd Avenue from the City-owned "American Legion" Property and Authorize the City Administrator to Sign a Warranty Deed - Resolution No. 95-57 CITY COUNCIL MEETING MINIJTES - NOVEMBER 14, 1995 - PAGE 2 Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf and Scheckla voted "yes.") 3.2b - Receive and File 'T'entative Agendas: Councilor Hunt noted his concerns about the upcoming public hearing on Greenspace projects. He advised he would want to have :a lot more information. He advised he still does not have an idea what the CITs are reviewing. He urged City Council to look at the properties. Community Development Director Hendryx advised he prepared maps and updated information on the Greenspace projects. Tours are being offered for the Planning Commission and City Council to look at the proposed sites. Motion by Councilor Hunt, seconded by Councilor Hawley, to approved Consent Agenda Item 3.2(b). Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") 3.6 - Initiate Vacation Proceedings for a 10-foot Wide Public Utility Easement Located on Lot No. 9 in Benchview Estates Subdivision - Res. No. 95-58. Motion by Councilor Hawley, seconded by Councilor Rohlf, to approve Consent Agenda Item No. 3.6. Motion was approved by unanimous vote of Council present (Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes;" Mayor Nicoli did not vote.) 3.8 - Authorize Staff to Solicit Proposals From Qualified Landscape Architectural Firms to Prepare a Plan For the Expansion of Cook Park. After brief discussion, motion by Councilor Hawley, seconded by Councilor Hunt, to set this item over for discussion at the November 21, 1995 Study Session. The motion was passed by a unanimous vote of Council present. (This item was set over, after briefly discussing concerns introduced by Councilor Hunt. Councilor Hunt questioned the procedure and advised he wanted to discuss this item in more detail; i.e., where in the budget where funds come from, and the scope of the work.) CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 3 4. CONSIDER PARKING RESTRICTIONS ON COMMERCIAL STREET City Engineer Wooley reviewed the staff report, which is on file with the Council packet material. Motion by Councilor Bunt, seconded by 'ouncilor Scheckla, to adopt Ordinance No. 95-25. ORDINANCE NO. 95-25 - AN ORDINANCE AMENDING T.M.C. 16.28.130 BY ADDING A PORTION OF SW COMMERCIAL STREET WHERE PARKING IS PROFITED. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes. 11) 5. UPDATE AND RECOMMENDATIONS: 130TH/WINTERLAKE BRIDGE CONNECTION City Engineer Wooley reviewed the staff report which is on file with the Council packet material. Also contained in the Council packet material was a memorandum to the Mayor and Council from the 130th Task Force members. Mr. Wooley referred to drawings which incorporated recommendations for the appearance of the bridge connection. There was discussion on the fact that the improvement of SW 130th Avenue between Scholls Ferry Road and Hawks Beard Street is classified as a minor collector street. Mr. Wooley also reviewed the six points contained in. the staff report, which consisted of the staff request for approvals from City Council. There was discussion on the mitigation of traffic concerns for the neighborhood. Mr. Wooley advised he met with the neighborhood last week and they are prepared to try to get speed bumps for their neighborhood during the Capital Improvement Project priority process next Spring. Mr. Bob Pavlukovich noted the neighborhood's involvement and their suggestion to close access to a pathway at 129th. In addition, the neighbors were also requesting that lighting be added to the pathway. In response to the concern by Councilor Rohlf, Mr. Pavlukovich advised the neighborhood would not let issues drop, and realized they would need to present their requests for speed bumps through the CIT process. Mr. Pavlukovich noted appreciation for the work done by the Assistant to the City Administrator Newton, and advised that Councilor Rohif was instrumental in working through the recommendation process with the task force. He advised the task force was a positive process. CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 4 Kim= Councilor Hunt commended Councilor Rohlf and the task force for mending the hard feelings on this matter. Motion by Councilor Hunt, seconded by Councilor Hawley, to accept staff's recommendation. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") 6. BOARD AND COMMITTEE RULE AMENDMENTS: 6.1 Establish Term Limits (Ordinance & Resolution) Assistant to the City Administrator Newton reviewed the staff report. She also reviewed the interpretation of Charter Section 20 regarding how appointments are made. (This information is contained in the Council packet material.) RESOLUTION NO. 95-59 - A RESOLUTION ESTABLISHING TERM LIMITS FOR MEMBERS OF THE BUDGET COMMITTEE Motion by Councilor Hunt, seconded by Councilor Rohlf, to approve Resolution No. 95-59. aim Motion was adopted by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") ORDINANCE M1. 95-26 - AN ORDINANCE AMENDING TMC 2.08.020 AND ESTABLISHING TERM LIMITS FOR MEMBERS OF THE PLANNING COMMISSION Motion by Councilor Hunt, seconded by Councilor Rohlf, to adopt Ordinance No. 95-26. Motion was approved by unanimous vote of Council present. (`Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") 6.2 Formalize the application and review process for appointment to Boards and Committees Assistant to the City Administrator Newton reviewed the staff report and accompanying information on this agenda item. (information is on file with the Council packet material). am 0 gas= CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 5 NMI mum LM L 11 1,11 RESOLUTION NO. 95-60 - A RESOLUTION ESTABLISHING A PROCEDURE FOR RECRUITMENT AND APPOINTMENTS TO BOARDS AND COMMITTEES Motion by Councilor Hunt, seconded by Councilor Scheckla, to adopt Resolution No. 95-60 Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes-") 7. PUBLIC HEARING (QUASI-JUDICIAL): APPEAL OF SUBDIVISION (SUB) 95- 0004/PLANNED DEVELOPMENT REVIEW (PDR) 95-0005/SENSITIVE LANDS REVIEW (SLR) 95-0007 - HILLSHIRE WOODS PHASE H/SIERRA PACIFIC DEVELOPMENT (Continued from September 26, 1995) Staff recommended this hearing be continued to December 19, 1995. In response to a question from Councilor Hunt, Community Development Director Hendryx advised this site is a potential Greenspace project and is being considered on the priority listing. Councilor Hunt referred to a letter that recently appeared in the Tigard Times, saying that the City Council had already approved this development he noted the development had not yet been approved. Motion by Councilor Hunt, seconded by Councilor Hawley, to continue the hearing to December 19, 1995. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") 8. CONSIDERATION OF FINAL ORDER (QUASI-JUDICIAL) - SITE DEVELOPMENT REVIEW (SDR) 91-0005/VARIANCE (VAR) 91-0010 DOLAN/MENDEZ) (Set over from October 24, 1995) o To Consider the U.S. Supreme Court remand of conditions related to the dedication of property for floodplain management and a bikepath relating to the determination of the rough pr9portionality of those requirements. LOCATION: 12520 SW Main Street (WCTM 2S1 2AC, tax lot 700). APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.32, 18.66, 18.84, 18.86, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.134 and 18.164; the Parks Master Plan for Fanno Creek, and the City of Tigard Master Drainage Plan. ZONE: CBD (Central Business District). The Central Business District zone allows CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGe, 6 public administrative agencies, cultural exhibits and library services, parking facilities, public safety services, religious assemblies, and a variety of commercial and service activities, among other uses. a. This agenda item was introduced by Legal Counsel Ramis. Councilor Rohlf noted that the proposed Final Order appeared to reflect Council comments and direction. He advised he was satisfied with the document. RESOLUTION NO. 95-61 - A RESOLUTION UPON CITY COUNCIL REVIEW TO CONSIDER THE U.S. SUPREME COURT REMAND OF CONDITIONS RELATED TO THE DEDICATION OF PROPERTY FOR FLOOD PLAIN MANAGEMENT AND A BIKEPATH RELATING TO THE DETERMINATION OF THE ROUGH PROPORTIONALI 1 Y OF THOSE REQUIREMENTS - SITE DEVELOPMENT REVIEW (SDR) 91- 0005/VARIANCE (VAR) 91-0010 DOLAN/M ENDEZ Motion by Councilor Rohlf, seconded by Councilor Hawley, to adopt Resolution No. 95-61. Motion was approved by a majority vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, and Rohlf voted "yes;" Councilor Scheckla voted "no.") 9. PUBLIC HEARING (QUASI-JUDICIAL) - ANNEXATION - ZCA 95-0005 WELLL4,M[S A request to annex one parcel of 1.52 acres into the city and change the zoning from Washington County R-5 to City of Tigard R-4.5. Location: The south side of S.W. Walnut Street between S.W. 116th and S.V. 121st Avenues. Applicable Review Criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.1.1, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3, zoning designation. Community Development Code chapters 18.136, annexation requirements; and 18.138 land classification of annexed territory. Zone: Presently Washington County R-5. a. Public Hearing was opened. b. Declarations or Challenges. Mayor Nicola asked the following: Do any members of Council wish to report any ex parte contact or information gained outside the hearing, including any site visits? (None were reported). CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 7 ROME- Have all members familiarized themselves with the application? (Council members indicated they were familiar with the application). Are there any challenges from the audience pertaining to the Council's jurisdiction to hear this matter or is there a challenge on the participation of any member of the Council? (There were no challenges). C. Staff Report Associate Planner Ray Valone reviewed the staff report, which is on file with the Council packet material. d. Public Testimony ® Suzanne Capone, 11710 SW Walnut Street, Tigard, Oregon, .97223, advised she does not want to be in the City nor does she want sewers coming across her property. Staff clarified that Ions. Capone would not be charged for sewers unless she decided to hook-up to the sewers. 0 Jack Polans, 16000 SW Queen Victoria Place, Ring City, Oregon, 97224, asked several questions with regard to the annexation. Be urged citizens to investigate issues. With regard to Mr. Polans' concerns with Section 10.1.3 of the Comprehensive Plan, Legal Counsel Beery noted that staff has addressed that point in the proposed ordinance. e. Staff Recommendation Staff recommended approval of the proposed resolution and ordinance in the Council packet material. f. Council Questions There were none. g. Public Bearing was closed. CITY COUNCEL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 8 mom h. Council Consideration RESOLUTION NO. 95-62 - A RESOLUTION INITIATING ANNEXATION TO THE CITY OF TIGARD OF THE TERRITORY AS DESCRIBED IN EXHIBIT "A" AND ILLUSTRATED IN EXHIBIT '-B-' (ZCA 95-0005) i. Motion by Councilor Hunt, seconded by Councilor Rohlf, to adopt Resolution No. 95-62. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") ORDINANCE NO. 95-27 - AN ORDINANCE ADOPTING FINDINGS AND CONCLUSIGNS TO APPROVE A ZONE CHANGE AND DECLARE AN EFFECTIVE DATE (ZCA 95-4005) j. Motion by Councilor Hunt, seconded by Councilor Rohlf, to adopt Ordinance No. 95-27. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") (City Recorder's note: Agenda Item No. 12 was considered at this time; minutes follow with items numbered in the same sequence as the agenda.) 10. REVIEW DEPARTMENTAL SERVICE STANDARDS (Set over from the 10/10/95 Council meeting) City Administrator Monahan reviewed the staff report, and advised the Service Standards would used as a benchmark tool to determine whether the departments feel they are working effectively. Mayor Nicoli noted that he favored adopting the Service Standards. Councilor Rohlf asked questions and then noted that it appeared that Service Standards would be a useful communication tool. He said he would not want to micro-manage the City's daily functions. During discussion it was noted that this information could be utilized as justification for requests for increases in number of staff. It was planned that this information would be also utilized for preparation of budget information. Councilor Rohlf said he would not object to a year's trial period. CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 9 Councilor Hunt advised that adopting the service standards represented micro- management by City Council. He also objected to the amount of paperwork he foresaw as necessary to maintain the service standards and reporting structure. During discussion it was also noted that the amount of information contained in the Service Standards was more than what Council was expecting. In the future, staff will reduce the amount of detail in the reports. Councilor Scheckla noted concerns that if this was in place, employees may try to meet timeframes rather than work toward quality of work and taking as much time as needed. He advised he would vote "no" on this issue. Councilor Hawley indicated she was in favor of using Service Standards as a communication tool. Motion by Councilor Hawley, seconded by Councilor Rohlf, to adopt the draft Service Standards. Motion was approved by a majority vote of Council present. (Mayor Nicoli and Councilors Hawley and Rohlf voted "yes"; Councilors Hunt and Scheckla voted "no. 11. PUBLIC HEARING (f.GISLATIIVE) - PARS SYSTEMS DEVELOPMENT CHARGES (SDC's) AND METHODOLOGY FOP. CALCULATION OF THE SDCs. (Sat over from October 24, 1995) P. To consider changes to the City's Park Systems Development Charges (SDC's) and to the methodology pertaining to the calculation of these SDCs. Both public oral and written testimony is invited. A copy of the full 40-page SDC study is available upon request. a. Public hearing was opened. b. Declarations or challenges - there were none. C. Staff report. Community Development Director Hendryx introduced this agenda item. It was noted that two letters were received as public comment from: (1) PacTrust; (2) Chamber of Commerce. CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 10 BE-RUM These letters have been included as part of the Council packet material. Associate Planner Roberts highlighted the study that was performed for Parks System Development Charges. Mr. Roberts also reviewed the relationship of fees with regard to Tigard's fee structure and other cities. Mr. Roberts reviewed the summary of existing park and greenway standards, and the situation as it now is in the City of Tigard. He also advised that calculations had been done to determine the cost of maintaining the current standards. There were questions with regard to the costs and the manner in which calculations were made. The agenda item was broken down into three parts: 11.1 Systems Development Charge Amending Ordinance to incorporate state legislative changes and replace the street SDC chapter of the Tigard Municipal Code. 11.2 Amendment to Park System Classifications and Acreage Standards for Consistency with those Used in the Park System Development Charge Study 11.3 Amend Park System Development Charge Methodology and Fee Structure d. Public Testimony. ® Jack Polans was signed up to speak; however, he had left the meeting. e. Council Questions and Comments. Council and staff reviewed the methodology and assumptions made for the charges calculated for new single-family development and for new business development. SDC charges for businesses were based on number of employees estimated to eventually be working at the new businesses. Mayor Nicoli referred to the amount of money available from the Metro Greenspace program. He said businesses support recreational programs in other ways; i.e., sponsorship of sports teams. He disagreed with the manner in which the SDC fees were calculated for businesses. Councilor Rohlf noted his concerns about hidden taxation. CITY COUNCIL MEETING MP UTES - NOVEMBER 14, 1995 - PAGE 11 Associate Planner Roberts noted this is a method to address concerns about development paying for its own impacts. Councilor Hunt said both single-family and commercial business should pay for the park SDC. In response to a question from Councilor Scheckla, City Administrator Monahan advised that existing businesses wou?d not pay additional fees unless they build or add substantially more square footage for a more intense use. f. Public hearing was closed. g. Council consideration. h. Item 11.1 ORDINANCE NO. 95-28 - AN ORDINANCE AMENDING TITLE 3 OF THE TIGARD MUNICIPAL CODE BY REPEALING CHAPTERS 3.16 AND 3.20 AND AMENDING CHAPTER 3.24. Motion by Councilor Hawley, seconded by Councilor Rohlf, to adopt Ordinance No. 95-25. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") Item 11.2 ORDINANCE NO. 95-28 - AN ORDINANCE APPROVING AMENDMENTS TO THE TIGARD COMPREHENSIVE PLAN RESOURCE AND POLICY VOLUMES BY CHANGING THE PARK CLASSIFICATION SYSTEM FROM 11 TO 5 CATEGORIES, AND CHANGING THE OVERALL PARK SERVICE STANDARDS FROM 10.00 ACRES P'ER THOUSAND TO 7.56 PER THOUSAND POPULATION. Item 11.3 Motion by Councilor Hawley, seconded by Councilor Rohlf, to adopt Ordinance No. 95-29. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, Rohlf, and Scheckla voted "yes.") AM& CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 12 Motion by Councilor Scheckla, seconded by Councilor Hunt, to approve Resolution. No. 95-63. Wscussion followed on the proposed resolution. Councilor Hawley noted she would be in favor of charging an SDC for parks to businesses. She advised she would like to discuss the methodology used. Mayor Nicoli advised he was not opposed to businesses paying when they place demands on the infrastructure. He noted he did not feel the current proposal offered an appropriate method for calculating the charge. After discussion, Councilor Hunt withdrew is second, and supported that the discussion be continued at a future date. The matter was tabled until November 21, 1995. Council meeting recessed at 10:04 p.m. (Councilor Rohlf left the meeting at 10:04 p.m.) Council meeting reconvened at 10:10 p.m. ® Councilor Scheckla reported he attended the dedication ceremonies for the new American Legion building. He advised this facility is very nice, and the membership encouraged people to come look at their building. Mayor Nicola noted the American Legion is a service organization and he was pleased they were able to stay in the City of Tigard after they had to move from their former property. 12. PUBLIC HEARING - CONSIDERATION OF OFFERING PROPERTY FOR SALE LOCATED ON THE CORNER OF 99W AND 72ND AVENUE FORMERLY KNOWN AS THE AMERICAN LEGION PROPERTY AND SETTING A MINIMUM PRICE a. Public hearing was opened. b. There were no declarations or challenges. C. Staff report. Finance Director Lowry summarized the staff report, which is on file with the Council packet material. d. Public Testimony ® Mel Anderson, 11570 SW Pacific Highway, Tigard, Oregon, 97223, reviewed history of his situation with his property and this adjacent property. He advised he bought his property 17 years ago, and has had the right to travel through this adjacent property bee4use of an CITY. COUNCIL, MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 13 easement. He advised this= easement is recorded at the County, and it is important to the value of his property to retain this easement. After discussion, 'Council consensus was to delay further consideration on the property until more information could be presented about Mr. Anderson's easement. e. Motion by Councilor Bunt, seconded by Councilor Scheckla, to continue the hearing to December 19, 1995. Motion was approved by unanimous vote of Council present. (Mayor Nicoli *correction * and Councilors Hawley, Hunt, Ids-A; and Scheckla voted "yes.") noted at 1/23/96 uu council R 13. leetir~gn-Agen[lacilor Rohlf was not at the meeting at this time. Grant and Tiedeman Rridees - City Engineer Wooley updated: The Grant Avenue bridge is being replaced to resolve several problems including obstruction of the creek. It is one of the first areas to flood during rains. The bridge will be widened, have sidewalks, and will be raised to accommodate a 100-year flood flow. Improvements to the Tiedeman bridge were described by City Engineer Wooley. The project will include road realignment and widening. He noted problems with cars occasionally hitting a fence on the Fowler Jr. High property. In response to a question from Mayor Nicoli, City Engineer Wooley advised they were trying to complete preliminary work so construction could be done in 1996. Reauthorization Study for Corps' Willamette Basin D:cjects - League of Oregon Cities - Assistant to the City Administrator Newton reviewed a memorandum distributed to City Council members (memorandum dated November 7, 1995, is on file with the Council packet material). After discussion, motion by Councilor Blunt, seconded by Councilor Hawiey, to advise the League of Oregon Cities that the City of Tigard is interested in participating in this program. Forum on Cooperative Urban Services (FOCUS) - A FOCUS meeting will be held on November 16, 1995 to discuss holding the line on the Urban Growth Boundary. Council discussed the effects of the Urban Growth Boundary and potential impacts of increased densities. Mayor Nicola re arenced the Tigard Triangle and problems the City is trying to resolve. He noted Metro has not been doing much to help with the Triangle and is concerned that Metro's organization Aso does not understand how the 2040 Plan is to be implemented. CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 14 jj~ Tualatin Expressway - Mayor Nicoli updated Council on meetings he has attended the last several months with Washington County representatives. He advised that options are being considered. It looks as if a private company will donate some resources to the Tualatin Expressway. He commented on his meetings with the Mayors of Sherwood and Tualatin. The Cities of Sherwood and Tualatin have approved a contribution between $250 to $300 to send Tom Brian to Washington, D.C. to gather support for the Expressway idea. Lotion by Councilor Hunt, seconded by Councilor Hawley, to authorize the City Administrator to spend up to $300 as a contribution to Tom Brian as a consultant to perform services as noted and report back to the City Council. During brief discussion, Councilor Scheckla advised he would like Tom Brian to attend a Council meeting and report on his findings. Motion was approved by unanimous vote of Council present. Motion was approved by unanimous vote of Council present. (Mayor Nicoli and Councilors Hawley, Hunt, *Rbliff, and Scheckla voted "yes.") *correction noted at 1/23/96 council meeting. Councilor Rohlf was not at the meeting at this time. Holiday Tree Lighting Ceremony - In response to an inquiry by Mayor Nicoli, City Administrator Monahan advised that new circuits and additional strings of lights will be placed on the tree for this year's Tree Lighting Celebration. Durham Signal - There was discussion on financing available for the construction of the Durham Signal. It is hoped the School District will contribute $25,000 and that traffic impact fees collected from the School District will be earmarked toward financing the signal. It was noted that conduit will be placed under the pavement as construction is done in anticipation of signal installation. 14. ADJOURNMENT: 11:04 p.m. Attest Catherine Wheatley, City Recorder or, City of Tigar Date: ccm1114.95 CITY COUNCIL MEETING MINUTES - NOVEMBER 14, 1995 - PAGE 15 R e c I I v U®MMUNiTY NEWSPAPERS, INC. Legal ~)V 2 7 199' P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8345 BEAVERTON. OREGON 97075 ;ITY OF TIGAkf> Legal Notice Advertising *City of Tigard ® ❑ Tearsheet Notice 13125 SW Hall Blvd. ' ®Tigard,Oregon 97223-8199 ° ❑ Duplicate Affidavit •1IVr °Accountt~ Payable-Terry AFFIDAVIT OF PUBLICATION STATE OF OREGON, ) COUNTY OF WASHINGTON, )as' I.- Judith Koehler being first duly sworn, depose and say that I am the Advertising ' Director, or his principal clerk, of theTigard-Tualatin Times a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Ti Qard in the aforesaid county and state; that the City Council Meeting a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for OMP, successive and consecutive in the following issues: November 9.1995 Subscribed and sworn to b re me this 9: h day of November, l OFFICIAL SCAL ROSRJ BURGESS NOTARY PUBLIC - ORCGON COMMISSION N0. 024552 'r Notary P is for Oregon htY COMMIS ION EXPIRES MAY 10, 1997 My Commission Expires: AFFIDAVIT - Tlie:to tlov~Cuig truing hi hligtttc are published br.yodt i3fbrd4i 0d. Full agendas-inay bI6'bbtatned from the City Recdr6i, 13125 S W .Az _ Boulevard, Tim, 9,1-agon-97223; or by calling 6394171. CITY COUNCIL BUSINESS MEETING Novembe04, 1995 TIGARD CITY HALL- TOWN HALL. 13125 S.W. HALL BOULEVARD, TIGARD,'OREGON Study. Meeting (Red Rock Creek'Conference Room) (6:30 P.M.) ® Executive Session: The Tigard City Council may go into Execu= Live Session under the provisions of ORS 192.660 (1) (d), (e), (h) & (i) to discuss labor relations; real property transactions, current and ending litigation issues and the performancz evaluation of a, public employee. e Agenda Review Business Meeting (Town Hall) (7:30 P.M.) o Consider Parking Restrictions'on Commercial Street effim • Update and Recommendations: 130th/Winte-lake Bridge Cunnec- tion s Board and Committee Rule Amendments (Term Limits and Ap- plication & Review i?rocess for appointment) • Public Hearing (Quasi-Judicial): Appeal of Subdivision (,SUB) 95-0004/Planned Development Review (PDR) 95-0005/Sensitive Lands Review (SLR) 95-0007 - Hillshire Waods Phase IIOSie' 'a Pacific DEVELOPMENT (Continued from September 26; 1995) . Staff recommendation will be to continue to December 19, 1995. • Public Hearing - Annexation-- ZCA 95-0005 Williams; Loca- tion: The south side of S.W. Walnut Street between S.'W.116th and S.W. 121st Avenues. • Consider Final Order - Dolan (Quasi-Judicial) Site Devetop- .ment Review (SDR) 91-0005/Variance (VAR) 91-0010 (Set over from October 24, 1995) • Public Hearing (Legislative) - Parks Systems Development Char- ges (SDCs) and Methodology for Calculation of the SDCs. (Set over from October 24, 1995) . , • Public Hearing Consideration of Offering Property for Sale Lo- cated on the corner cf 99NV and 72ND Avenue formerly known as the American Legion Property and Setting a Minimum Price • Review Departmental Service Standards (Set over from the 10/10/95 Council meeting) Local Contract Review Board Meeting TT8345 "Publish November 9,' 1995. COMMUNITY NEWSPAPERS, INC. Leaal P.O. BOX 370 PHONE (503) 684-0360 NoilCe TT 8 3 4 7 BEAVERTON, OREGON 97075 Legal Notice Afttirtising OCity of Tigard 11 Tearshoet Notice 131.25 SW Hall i3lvd. OTigard,Oregon 97223-8199 0 Duplicate Affidavit OAccounts Payable-Terry AFFIDAVIT OF PUBLICATION 0- STATE OF OREGON, COUNTY OF WASHINGTON, )ss' 1, Jiidii-h Koehler being first duly sworn, depose and say that I am the Advertising Ash Director, or his principal clerk, of theTigard-Tu ;qt--in T~rnes qP a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Tigard in the said county a d state; that the afore n SAle Surplus Property a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for ONE. -successive and "L 7 consecutive in the following issues: November 9,1995 Subscribed and sworn to f re me this9th day of N-rembe OFFiCIAL SEAL ROBIN A. BURGESS A~l et'~ NOTARY P'USLIC 0ArGON Notary&lic for Oregon COW~I$SiON NO. 02,15:52 MMISIS!ON EXPIR11 MAI 16,1991 My Commission Expi.res: AFFIDAVIT L$LIC HEARING The Tigard: City' Council will hold a public hearing on the proposed sale o `surplus,ppzzoo~serty'ori.Tuesday, November 14, 1995, at the Council meet- ing which begins at 7:30 P.M., at Tigard City Hall, 13125 S.V. Halt Blvd. The parcel being proposed for sale is 12,250 sq.. feet located at the southeast corner of the intersection of 72nd Avenue and Pacific High wag. The purpose'of the hearing is.to receive input from citizens on whether the sale of the prpperty is in the public interest. M347 = Publish Novenibor.9, 1995. COMMUNITY NEWSPAPERS, INC. Legal ?'EC E IV E U P.O. BOX 370 PHONE (503) 684-0360 Notice TT 8 3 4 0 BEAVERTON. OREGON 97075 8 1995 Legal Notice Advertising OffTIGARD 0 . 0 C Tigard 0 0 Tearsheet Notice V, 13125 SW Hall Blvd. *Tigard,oregon 97223-8199 0 0 Dupficate Affidavit Nt OAccounts Payable-Terry 0 AFFIDAVIT OF PUBLICATION noi 11 STATE OF OREGON, COUNTY OF WASHINGTON, )ss' 0:0 i,__JudL:h Koebler being first duly sworn, depose and say that I am the Advertising Director, or his principal clerk, of theTigard -Tun 1 a t- in T mes a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Tiaard in the aforesaid county and state; that t6e Heva-ings, ZrA c)9-0()Or% william_q Annex a printed copy of which is hereto annexed, was published in the entire issue of said newspaper for ONE -successive and consecutive in the following issues: November 2,1995 J _kLI tM Subscribed and sworn to fore me this9nd q-7 of Nomember 0!:FICIAL SEAL Y9 - ROB( N A. BURGESS 6Z44 ~7_ NOTARY PUBLIC - OREGON Notary P lic f6r Oregon COMMISSION NO. 024552 My COMMISSION EXPIRES MAY 16,1997 My Commission Expires: AFFIDAVIT by tW' ict-;, coift& ih m ty ~ on N-"v m Ixt 14,1995 at 7:30 PM.1 at thi 71*d Ciik.Ceraa. -'Town Hall, 13125 S.W. Hall Boulevard, Tigard. Oregon 97223. Both public oral and written testimony is invited ~ Ile public hearing onthis matterwill be conducted iii accordance witli ihe rules ofthapter- 18,32 of the Tigard Municipal, Code and any,rules"and procedures of the City Council. Failure to raise an issue in person or by letter at some Point prior to the close of the heanin + t ~7 en the reques. or failure 16 provide smements or evidence sufficien to rtlin. fdrd the decisionmaker an oppo ity to respond to the issue prior to the close of the hearig on. the request~ precludes an appeal to the Land Use Board'. of Appeals based on that issue.,Further information is available at City Hall and may be obtained from the Community Development Direc.!! t1jf,~r_Ci1y_Recorder- at t.he-same locati.on, or by calling (503) 639-4171. PUBLIC HEARINGS: IbMATIOM, A request to annex. bhe parcel ofj -52 derds into the city and change the zoninj from Whshhigton.C6uniy R-'S'to.Citydf Tigard R-4.5. LOCA- TION The south side'of S.W Walnut Street between S.W. 116th and S.W. 12 Ist Avenues. APPLIC"LE REVIEW CRITERI& The-relevant review criteria m' this case are C omp&.heasive Plan policies 2.11. 1, cifii6r. involvement; 10.1.1, service delivery c4pcity, 10.1.2, boundary criteria; and 10.1.3, z(ining,dd§ignation.,,Cotnmunity Development Cod,~Cha 18.136, annexition requirements; ard 18.138, lana classification aoftan- ers I I lexed territory.-ZONE: Prescii Washington County R-5. :g !1:1T! TtS340 - Publish N0vcmbcr?,,~--_W CM OF Y[GARD, OREGON AIMAVIT OF POSTING In the Matter of the Proposed STATE OF OREGON County of Washington ss. City of Tigard 1, APA begin first duly sworn, on oath, - AMU depose ani4dy: That I posted in the following public and conspicuous places, a copy of Ordinance Number (s). ti s. -as , qs--a I gs -z-i , q s -a% -tr gs -aai which were adopted at the 6ouncil Meeting dated q copy(s) of said ordinance(s) being hereto attache ' d and by reference made a part hereof, on the 9L dayof % &*,Nh~ 19 CLS6 1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Library, 13125 SW Hall Blvd., Tigard, Oregon 3. Tigard Water Department, 8777 SW Burnham, Tigard, Oregon Subp'cribed and sworn to before me this _c:~I day of WQk,,-~ 19-V_. Amt. C 0 FFICIAL SEAL Notary P6blic for Oregon L FA JO ANN HAYES MYCOW18810 XpIr M .5 1 ~t '0 :NOTARY PUBLIC-OREGON _ My ')5 '999 COMMISS 0.042148 My Commission Expires: MY 0 ISSION EX P:q[ z-, y,)S. 999 Oadm\JoNaffpost.doc CITY OF TIGARD, OREGON ORDINANCE NO. 95- P5 AN ORDINANCE AMENDING T.M.C. 10.28.130 BY ADDING A PORTION OF S.W. COMMERCIAL STREET WHERE PARKING IS PROHIBITED. WHEREAS, the southwest side of S.W. Commercial Street at the Transit Center has been designed to serve as a bus stop area as a part of the Transit Center; and, WHEREAS, to function as designed, parking must be pichibited along the Transit Center frontage. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: TMC 10.28.130, designating the portions of public streets where parking is prohibited at all times, is hereby amended by adding the following: 11(89) Along the southwest side of SW Commercial Street beginning at a point 250 feet southeast of the southeast curb of Main Street and continuing to a point 510 feet southeast of the southeast curb of Main Street." SECTION 2: This ordinance shall be effective 30 days af ter its passage by the Council, signature by the Mayor, and 9ft posting by the City Recorder. VW PASSED: By yM,^&44-4vMcR-&0 vote of all Council members present after being read by number and title only, this day of 19 9 5 . -1 10 da--therine Wheatley, City Recorder APPROVED: By Tigard City Council this day of 1995. i Nicoll", Mayer Approved as to form: City AttornqKZ 7- rate ORDINANCE No. 95- Page I CITY OF TIGARD, OREGON ORDINANCE NO. 95-~-_OXO Ash AN ORDINANCE AMENDING TMC 2.08.020 AND ESTABLISHING TERM LIMITS FOR MEMBERS OF.THE PLANNING COMMISSION WHEREAS, there are currently no term limits for service on the Planning Commission; and WHEREAS, term limits would offer an opportunity for more citizens to serve on the Planning Commission; and WHEREAS, term limits would be consistent with requirements for service on City Council and the Library Board; and WHEREAS, TMC 2.08-020 defines the length of appointments to the Planning Commission. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1:TMC 2.08.020 is amended as follows. Language to be added is underlined. 2.08.020 Appointment-Membership The City Planning Commission shall consist of nine members, not more than two of whom may be nonresidents of the city, to be appointed by the council to serve a term of four years. No person appointed after January 1, 1996 may serve more than two full consecutive terms on the Planning Commission, notwithstanding _Qrior appointment to an unexpired term. Commission members shall receive no compensation but- shall be reimbursed for duly authorized expenses. (Ord. 92-35 §2 (Exh. A) (part), 1992). SECTION 2:This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. ORDINANCE No. 95- Page 1 PASSED: By unftrATftetts vote of all Council members present af ter being read by number and title only, this day of 1995. Catherine Wheatley, City Akcorder APPROVED: By Tigard City Council this day of 1995. ji~~ oli, 14ayor Approved as to form: City Attorney ZL Date ORDINANCE No. 95-.Z>U Page 2 -Ro 54- CITY OF TIGARD, OREGON ORDINANCE NO. 95-,Q7 AN'ORDINANCE ADOPTING FINDINGS AND CONCLUSIONS TO APPROVE A ZONE CHANGE AND DECLARING AN EFFECTIVE DATE (ZCA 95-0005). WHEREAS, the Tigard City Council held a public hearing on November 14, 1995, to consider a zoning designation for one parcel of land located' along the south side of SW Walnut Street between SW 116th and SW 121st avenues; and WHEREAS, on November 14, 1995, the Tigard City Council approved a resolution forwarding the proposed annexation to the Portland Metropolitan Area Local Government Boundary Commission; and WHEREAS, the zoning district designation recommended by the planning staff as set forth in the attached staff report and in Section 1 below is that which most closely approximates the Washington County land use designation while implementing the city's existing Comprehensive Plan designation of Low Density Residential. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: Upon annexation, the affected property shall be designated as follows: Tax Map, Lot Number Current ZoniM New Zoning 2SI 3BD, lot 301 Wash. Co. R-5 Tigard R-4.5 SECTION 2: This ordinance shall be effective 30 days af ter its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By u4A-tv MZU-4--, vote of all Council memberp present afte being read by number and title only, this 1144-4A day of 10 jv~~, -atbprTine Wheatley; City P16corder APPROVED: By Tigard City Council- 1 s ay 1995. ~Oles Nicoll, Mp~y(or Approved as to form: City AtLorne/ Date ORDINANCE No. Page I PED s4- CITY OF TIGARD ORDINANCE NO.'75-V9 AN ORDINANCE AMENDING TITLE 3 OF THE TIGARD MUNICIPAL CODE BY REPEALING CHAPTERS 3.16 AND 3.20 AND AMENDING CHAPTER 3.24. WHEREAS, Chapters 3.16 and 3.20 are outdated and unnecessary; and WHEREAS, the Tigard City Council finds that one chapter is sufficient to cover all system development charges; now, therefore: THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1: Chapter 3.20, Streets System Development Charges-Traffic Control and Chapter 3.40, Development Charges, Storm Drainage, are hereby repealed. Section 2: Section 3.24.010 of the Tigard Municipal Code is amended to read as follows: 3.24.010 Pu1pose. This chapter is intended to provide authorization for system development charges for capital improvements pursuant to Oregon Revised Statutes 223.297 through 223.314 for the purpose of creating a source of funds to pay for the installation, construction and extension of capital improvements. These charges shall be collected at the time of the development of properties which increase the use of capital improvements and generate the need for those facilities. Section 3: The definition for "Capital Improvements" in Section 3.24.030 of the Tigard Municipal Code is amended to read as follows: 3.24.030 Definitions. As used in this chapter: "Capital Improvements" means facilities or assets used for: (1) Water supply, treatment and distribution; (2) Sewage and wastewater collection, transmission, treatment and disposal; (3) Drainage and flood-control; (4) Transportation; or (5) Parks and recreation. qW Ordinance No. Page 1 Section 4: Section 3.24.040(a) of the Tigard Municipal Code is amended to read as follows: 3.24.040 Svstem development charge imposed-Method for establishment iLrgated. (a) Unless otherwise exempted by the provisions of this chapter or other local or state law, a systems development charge is imposed upon all development within the city, upon the act of making a connection to the city water or sewer system within the city, upon all development outside the boundary of the city that connects to or otherwise uses the sewer or water facilities of the city, and whenever the city council has authorized an intergovernmental agreement which permits the city to impose a parks system development charge outside the city limits. Section 5: Section 3.24.090(a) of the Tigard Municipal Code is amended to read as follows: 3.24.090 Collection of charge. (a) The systems development charge is payable upon issuance of: (1) A building permit; (2) A development permit for development not requiring the issuance of a building permit; (3) A permit to connect to the water system; or (4) A permit to connect to the sewer system. PASSED: By _UrIMmOUS vote of all Council members present after being read by number and title only, this day of 1994. ea,thefihe Wheatley, City Record6r APPROVED: This day oC.~' 1995. J" icoXIi, Mayor Approved as.to form: City Attorney Date Aab, IP Ordinance No. Page 2 CITY OF TIGARD, OREGON ORDINANCE NO. 95-1;~R AN ORDINANCE APPROVING AMENDMENTS TO THE TIGARD COMPREHENSIVE PLAN RESOURCE AND POLICY VOLUMES BY CHANGING THE PARK CLASSIFICATION SYSTEM FROM ELEVEN TO FIVES CATEGORIES AND CHANGING THE OVERALL PARK SERVICE STANDARD FROM 10.00 ACRES PER THOUSAND TO 7.56 PER THOUSAND POPULATION. WHEREAS, the Park System Classification section of the Tigard Comprehensive Plan Resource Document was adopted in 1983 and includes eleven different categories of parks and an "overall desirable park standard" of 10 acres per 1000 population. WHEREAS, as part of a city park system development charge (SDC) study conducted in 1994, a private consulting firm physically inspected all existing park sites in the city and developed an updated classification system. WHEREAS, the new classification system includes fewer categories than the old system. tam WHEREAS, the new study also computed park standards for the City based on existing park acreage and population. WHEREAS, these standards differ from the "ideal" standards listed the Comprehensive Plan Resource Document. WHEREAS, the existing park acreage figures indicated in the SDC study differ from those included in the findin-s section of the Park Standards Section of the Tigard Comprehensive Plan, Findings, 0 Policies, and Implementation Strategies, Volume 11. WHEREAS, the Oregon Systems Development Act sets forth specific conditions for levying system development charges by local jurisdictions. WHEREAS, in order to implement a revised parks SDC on new development in compliance with this act, the City must reconcile the differences between the park system classifications and acreage standards used in the comprehensive plan and those used in the park SDC study. WHEREAS, the Planning Commission at its October 9, 1995, meeting unanimously recommended approval of the proposed amendments. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The proposal is consistent will all relevant criteria as noted below. The relevant approval in this case are Statewide Planning Goals 1, 8, and 12 and Tigard Comprehensive Plan Policies 2.1.1 and 3.6.1. ORDINANCE No. 95-DCI Page 1 The proposal is consistent with the applicable Statewide Planning Goals based on the following go findings: p progr i The pro osa I is con s i st~ AN& 1 Goal 1, Citizen Involvement, is met because the City has an adopted citizen involvement Commisslo rograrn which includes review of comprehensive plan revisions. In addition, the Planning Commissio , n and City Council have reviewed this proposal in public hearings for which the public was properly notified. 2. Goal 5, Open Spaces, Scenic and Historical Areas, and Natural Resources, is met because the new classification system includes natural, cultural, and historic areas as components of the park system and determines standards for the amount of land needed to maintain the current ratio of park space to population as development occurs. 3. Goal 8, Recreational Needs, is met because the new classification system will allow the city to meet the legal conditions for new system development charges and thereby to better provide for future demand by new citizens for recreational, facilities, and opportunities. The proposal is consistent with the City's acknowledged Comprehensive Plan based on the following findings: 1 . Policy 1.1.1 a., requiring consistency with the Statewide PlanningGoals, is satisfied because the proposed amendments to the Comprehensive Plan will not affect compliance of the City's acknowledged Plan with the Statewide Planning Goals. 2. Policy2.1.1, requiringan ongoingcitizen involvement program, is satisfied because a public notice has been published including the date, time, and place of the hearing. 3. Policy 3.6.1, setting priorities for the development of park sites, is satisfied because the new classification system does not change the priorities established for park development. SECTION 2: The City Council hereby amends the Comprehensive Plan Resource and Policy Documents by: 1 . Changing the park classification system from eleven to five categories and changing the park system service standard form 10.00 acres per thousand population to 7.56 per thousand population as shown in Exhibit A. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By Unvilyno" vote of all Council members present after being read by number and title only, this day of.JVW rniu&, 1995, ORDINANCE No. 95--A Page 2 Catherine Wheatley, City Recorder APPROVED: By Tigard City Council this LLI'-day of 9 95~. 95 -7~ J&Nicoli, Mayor Approved as to form: a eyZ City Attorney Date DR/cpa October 11, 1995 ORDINAN CE No. 95- -Z~ Page 3 MEN-- j2h EXHIBIT A Tigar_ Comprehensive Plan, Resource Document, Volume 1, Natural Features and 0 en S ace 17T ation and Open Space, pp. 44-52 A. PARK SYSTEM CLASSIFICATION a. MiRl Pal-lea b. - Neighberheedo- Pai-les e. Gemmunity Pai~l dim- TmaaFge Uwban Par4e& e. Reglemal: Par-lee 2. Gis-g3egilligi Ar--- 4Lre-~4m;F;l Q-r-~~ -may be a. seenle Pathway& b. 13andiseaped Arreas e. Natur-al Preserv-&& Ar-4_-n-ted Siteg 4. Geeelal Use Are a. Play -and Ball- Field& b. Geu-r-ts (tennis, basleetball) e. Ranges (rifle, bew and aaFr-ew-)- 4. Swimming Peels e. T- I- a I Is f . Sper-tals Gemplem (twe er- fnei-e ef the abe;__1 C-- FO # 6. 111ster--e sites 7. Aetlyit!t g-Ont-g-g- B. PARK STA?%7q9ARP& The andd-eeices peLc 9:999 pepialatlef., flgiiaFes are set -at an average des-i-able level fer eaeh leempenent. The everall de-s~ble- level set by these stan de lip 19 aeLaes jaer 1999 peeple w Et ei; Ar~ . . ~e . 14~ealf~~ e_~_ it V -3 LvaaFle - ~-4~ --ay--t-36 ~-7Z is SRI WIN fit vw-exf-~-- . . . IN :7. WATBR Pu"ese: Te emeek*vage aeeess te and use ef watenvays. Sites may excist as ladivieluals er as ef a multi: use arlez. P Faellitle- ` etivitles AppLcepl-clate tases weidid be swimmI.R.-I beating R~ --i F4 Iq 4 P g . r-j:9hj: ng aeeess shall ineltide tL-ails and trash i-eee taeles, If appveprlate. impL-evefnents shall Iiielude deeks, afts, parleing and tr-ash reeepteeles. T=eeatlep.: Dependent eFt available i-eseuieees. a. SPSGIA13 USG ARGA& Purpese Te previdled --i-eas and faellitless aetivitlea Usually L-eEftta:ra:n 9 p e e 1 a 1 t 1 e 9 (e.g. , eetirts and Playflelds). These speel-a" "Jitles geneL-ally Festi-let etheL- uses en the safne sitae. They ean be applied individually er in eemplemes inearperat ng twe e3!7 mere ef the uses in this eategei- anel shetild be ee L-ideted at a jqaL-IE site. Faeilities,lAetivitles - Depends en the eppei-ttinity being, previded Fei- eem"emes, r-estaFeeffis and t~ash reeeptaeles -sh-all be jai-evieled. Z- Fer playflelds, ballfields and gelf eettaFses, irrigatlen and ti-ash :eeeelptaeles shall be p-revided. Faeilities sueh as L-Ifle L-anges ai-e net likely te b_ within the eemmunity; hewever, pregi-ams smia-m-a-l-Ad be pi-e-vided te use faeillties elseimerre. Parking shall be pL-evidled. Bleaehers and lighting sheuld be pi-&Adeel when alaprepi-late. Size: -Depend an faeility being paFevided and whe4=-hei- It is a eemplem eLa slRgle faeliity. Geurts and fields shall be rregialatlen size fer ifttended.-u-s-ee- Berendq en aetivity and eempleae er single) and the type ef parle is leeated 9. C-UTMT-UPIAIM FAGiT=iTiBs Puicpese: Tre pi-e-vide a plaee in the eeFmtiR±ty fei- ferfaal ei- Infei-Enal p"k. gaehering that will allew fei- inereased etiltul-al Gultural faeilitles may inelude plaeas, malls, Small jqaLAES, fe'antains, epen ai:r-,Ii:nElee_r- taheataeL-s, and a 1 airry and fneeting hall eemplem. T-i-ash -reeep-aeles and beRehes shall be pr-evided. FeE landseapodt ai-eas-IaFr-lgatien shall be pravided. T=ai-ger- faellities shall- p36evide eff sti-eet paaFking. 0000 ~1- 41 9. The eLceeuvse Pavlez sae GG-a-mi-mer Greele; and, 4. The water-eetirse that fe]cilews 1=-hr-ettqh the Genesis, Pathfitider aEea te SW WalRet Gtr-eet. The areas 11sted abeve, as path.. ys, alse pi-evide emeelle eppeictunity feE pasai:ve rree36eatlen and tzravel. Beeattse this system will beReflt finaneing ef its aeefaisitleR and Elevelepment sheuld eefae frefft all rresi: dent lag: i9iFeigei-ties an the Trigar-El P-1-annIREF AlFea . The faaster park plan whieh the Gity will de-velep dui-lng address the finaneing aspee#=s ef the pedestrlan,lbieyele pathway Proposed Amendments are as Follows: 1. Classifications 1. Neicrhborhood Parks: Commercial, Jack, Woodard (Neighborhood Parks are a combination playground and open play areas designed for non-organized recreation activities. They are small in size (less than 7 acres) and serve a radius of approximately one half mile. They usually are developed but may also be an area of natural quality for outdoor recreation, such as walking, viewing, sitting, picnicking. These type of parks may be any combination of active and passive spaces depending upon site suitability and community need. The intent of this park type is to serve a neighborhood within easy walking or bicycling distances. Because their intention is to serve a local neighborhood, facilities offered should discourage extensive use by visitors from outside the area. 2. Communitv Parks: Cook, Summerlake A community park is primarily oriented towards active and group recreation activities. In general, they are designed for organized sports and group events. These types of parks serve a much larger area (1-2 miles) and offer more facilities than a traditional neighborhood park. They usually are developed but may also be an area of natural quality for outdoor recreation, such as walking, viewing, sitting, picnicking. These type of parks may any combination of active and passive spaces depending upon site suitability and community need. They usually exceed 20 acres in size and because of high use, setbacks or the use of natural open space should be used to separate the active areas from adjoining homes. In cases where a neighborhood park is not serving the area, a community park can also serve this function. 3. Sipecial Use Areas: Liberty, Main, Ye Old Windmill Special use areas are public recreation lands that are single purpose in nature and include a wide range of activities and facilities. Facilities that fall into this classification include special landscaped areas, a sports field complex, site of a recreation center, etc. This is often a catch-all category to place park facilities that do not meet any other definition. 4. Linear Parks: Englewood, Fanno Creek Linear parks are developed or partially developed parks that are elongated and follow linear features such as power lines, old railroad right of ways, creek corridors, etc. The key difference between this type of park and natural open space is that linear parks contain some maintained areas. Facilities usually contain picnic areas, paved trail systems, open maintained grass areas, et--. In some cases, this type of park can become highly developed and appear similar to a neighborhood or community park. 5. Greenways: Greenways in Tigard are defined as areas that are left in an undeveloped state and where public use is limited. Greenways usually include ravines, wetlands, wildlife habitats or areas that contain a unique plant species. Most often these are areas are subject to flooding or are environmentally sensitive to public use. Afflh At most, facilities consist of trails and interpretive facilities. Unlike linear parks, in general,greenway development is limited to trails and interpretive facili!:ies. Ticrard Comprehensive Plan, Findings, Policies & Implementation Strategies, Volume II 3. Natural Features and-Open Sipace, 3.5 Parks Recreation and 01pen S~)ace, 3.6 Park Standards, ~)ip. 17-19 3.6 PARK STANDARDS Findincrs GuaFrently, theL-e are 128.89 aeres ef Gity pat-le, land in Tigard amd 97.99 aeres ef dedieated green*oay. 4 Proposed Amendments are as Follows: (0 Currently, there are 128.90 acres of City park land in Tigard, 113.98 acres of dedicated greenway, and 1.71 miles of greenway trails.] WAWA= Tigard's basic service level for parks is 4.01 acres for parks, 3.55 acres for greenway, and 0.05 miles for paved trail per thousand population.] DR/sdc.cpa October 11, 1995 AM AGENDA ITEM NO. 2 VISITOR'S AGENDA - PAGE 2 DATE: November 14,1995 (Limited to 2 minutes or less, please) Oblease sign on the appropriate sheet for,listed agenda Items. The Council w'lshes to hear from you on other issues not on the agenda, but asks that you first try to resolve your concerns through staff. Pleaze contact the City Administrator pal.ar to the start of the meeting. Thank you. STAFF NAME, ADDRESS ex PHONE TOPIC CONTACTED ~3-ft c, 1'~ Po L a N 5 A P~ 146MO,), btte-CN ' I K*('ri cf C 7ZI, ~ A . I V /9 IUAIP ILI v- AA1-?'141A-1S PRO 0 "7 No //Cf-7,0 c I r-C gw~ 4: ogin 3 visitors.sht MEN Mln-~ -AGEEMIDA 1111FEIVAI ""%F. X. - VISITORS AGENDA MATE: Mover-A-ber 14. 1995 (Limited to 2 minutes or less, pkease) Please sign on the appropriate sheet for listed agenda Items. The Council wishes to hear from you on other Issues not on the agenda, but asks that you flrst try to resolve your concerns through staff. Please contact the City Administrator prior to the start of the meeting. Thank you. STAFF NAME, ADDRESS ex PHONE TOPIC CONTACTED Itors.sht 1 M Depending on the number of person wishing to testify, the Chair of the Council may limit the amount of e each person has to speak. We ask you to limit your oral comments to 3 - 5 kninutes. The Chair may *UMr,ther limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AGENDA UEM NO. 9 DATE: November 14, 1995 PUBI IC BEARING (QUAS14MICUL) - ANNEXATION - ZCA 9-"M WILLIAMS A request to arnex one parcel of 1.52 acres into the city and change the zoning from Washington County R-5 to City of Tigard R-4.5. Location: The south side of S.W. Walnut Street between S.W. 116th and S.W. 121st Avenues. Applicable Review Criteria: The relevant review criteria in this case are Comprehensive Plan policies 2.1.1, citizen involvement; 10.1.1, service delivery capacity; 10.1.2, boundary criteria; and 10.1.3, zoning designation. Community Developmetit Code chapters 18.136, annexation requirements; and 18.138 land classification of annexed territory. Zone: Presently Washington County R-5. PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS AGENDA HEM NO. 9 a'' PLE ASE PRDIT Proponent - (Speaking In Favor) Opponent - (Speaking Against) re Name, Address and Phone No. Mam-e, Address an on 'D. -C 'Jiii M V, 14, w v Name, Address and 7y No. _e, ress and Phone No. Name, Address and Phone No. Name, Address --n-d Phone No. Name, Xddress and Phone No. Name, Address and Phone No. Name, Address and Phone No. I-N-- e,- Address and Phone No. Name, Address and Phone No. Name, Wress and Phone No. -Wime,-A-ildnress and Ph-on-e-lq-o. Name, Address and Phone No. Name, Address and-Phone No. Name, Address and Phone No. Name, Address and Phone No. Name, Address and Phone No. IIII IjIlrji: Masi + - f., *16^ 016 Depending on the number of person wishing t-, teaff.j, -..--;r of the lcmwnc~-fl may limit+ 'the annount of me each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may q1urther limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AGENDA ITEM NO. 10 DATE: November 14, 1995 PUBLIC HEARING (LEGISLATIVE) - PARKS SYSTEMS DEVELOPMENT CHARGE S (SDC's) AND METHODOLOGY FOR CALCULATION OF TEE SI)Cs. (Set over from October 24, 1995) P. To consider changes to the City's Park Systems Development Charges ik'SDC's) and to the methodology pertaining to the calculation of these SDCs. Both public oral and written testimony is invited. A copy of the full 40-page SDC study is available upon request. Ank PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS Ash -AGENDA rrEM NO. 10 0 PLEASE PREWr Proponent - (SpeWdng In Favor) Opponent - (SpeaMng Against) Te, A am N~r - PddRan Fr, ress and Phone No, C~, V(( Name, Address and Phone No. Name, Address and Phone No. Name, Address and gone No. Name, Address and Phone No. e, ress an Name, Address and Phone No. ame, res. and Phone No. F Name, Address and Phone No. Name, Address and Phone No. Name, Address and Phone No. Name, Address and Hone No. Name, Address and Hone Mo. anR FRone No. Name, Address and Phone No. d Phone No. F Name, Address and Phone No. Name, Address and Phone No. III:!!; III! jj~!IOIIJI I!;!!! IT Depending on the number of person wishing to testify, the Chair of the Council may lirrAt the amount of e each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may quft-her limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AGENDA rM#A NO. 11 DATE: November 14, 1995 PUBLIC HEARING - CONSIDERATION OF OFFERING PROPERTY FOR SALE LOCATED ON THE CORNER OF 99W AND 72ND AVENUE FORMERLY KNOWN AS THE AMERICAN LEGION PROPERTY AND SETTING A RE94EMIUM PRICE PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS Ed AGENDA ITEM NO. 11 dm PLEASE PREW WProponent - (Speaking In Favor)' Opponent - (SpeaUng Against) --~--Rwamum- A d d r ess d P h n e N o. Name, Address and Phone No. NsLme, Address d Phone No. Name, Address and Phone No. L-- F Name, Address and None No. Name, Address and Phone No. Name, Address and Phone No. and Phone No. 1 4 F Name, Address and Phone No. Name, Address and Phone No. -Name, Address and Phone No. Name. Address and Fhone No. rWa-m-e,-,C =ress and Phone No. Fame, s ana Phone No. 'I res ame, Address and Phone No. Name, Address and Phone No. Name, Address and Phone No. Name, Address and gone No. Council Agenda Item MEMORANDUM CITY OF TIGARD, OREGON TO: Honorable Mayor and City Council FROM: Bill Monahan, City Administrator DATE: November 3, 1995 SUBJECT: COUNCIL CALENDAR, November, 1995 - January, 1996 Regtdarly scheduled Council meetuqp are marked with an astenisk If generally OK, we can proceed and make specific adjustments in the Monthly Council Calendars. November 10 Fri Veteran's Day Holiday - City Offices Closed *14 Tues Council Meeting - (6:30 p.m.) Study Session Business Meeting *21 Tues Council Workshop Meeting - (6:30 p.m.) 23 Thurs- 24 Fri Thanksgiving Holidays - City Offices Closed *28 Toes Meeting canceled December 5 Tues 4TATIVE! Special Meeting (6:30 p.m.) Tigard Triangle Council Training Session *12 Tues Council Meeting - (6:30 p.m.) Study Session Business Meeting *19 Tues Council Meeting - (6:30 p.m.) Study Session Business Meeting 25 Mon Christmas Holiday - City Offices Closed *26 Tues Meeting canceled Januarv 1 Mon New Years Holiday - City Offices Closed *9 Tues Council Meeting - (6:30 p.m.) Study Session Business Meeting - STATE OF THE CITY RECEPnON 15 Mon Martin Luther King Jr. Day Holiday - City Offices Closed *16 Tues Council Workshop Meeting - (6:30 p.m.) *23 Tues Council Meeting - (6:30 p.m.) Study Session Business Meeting 30 Tues TE 4TATIVE! Special Meeting (6:30 p.m.) City Facility Space Needs fAlogiMcathy\cccal Council Calendar - Page 2 Agenda hem No. Mesting of I I AM Updated 11/06/95 TENTATIVE COUNCIL AGENDAS Date: Naveaftr 14, 1995 Type: Business (TV) Stan Irme: 6:30 p.m. Study Meeting 7:30 p.m. Business Meadna Study Session: > Executive Session > Agenda Review CAmsent Agenda: 3.1 Appruve City Council Minutes: Octobw 10 and 17, 1993 3.2 Receive and File: CalandarfIrent- Agendas 3.3 Authodm Sale of Bonds - Dartmouth LID - Resolution No. 95-- 3.4 Approve Wetlands Pl=ming Grant Agreement 3.5 Approve Budget Adjustment, Wetlands Planning Grant-Res. No. 95-- 3.6 Initiate Vacation Proceedings for I 0-foot Wide Public Utility Easement Located, Lot 9, Benchview Estates Subdivision - Res. No. 95-_ 3.7 Dedicate Right of Way Requh-ed for 72nd Avenue f~om the Cky-owned "American Legion" Property and Authorim the City Administrator to laft~ Sign a Warranty Deed - Resolution No. 93- Business MeeCmg: 4. CONSIDER PARKING RESTIUCTIONS ON COMMERCIAL STREET 5. UPDATEIRECOMMENDATIONS: 1301IN/WINTERIAKE, BRIDGE 6. BOARD AND COMMITTEE RULE AMENDMENTS: 7. PUBLIC HEAR11MG (QUASI-IUDICIAL): APPEAL OF SUBDI'VISION HILLSHIRE WOODS PHASE IUSIERRA PACIFIC DEVELOPMENT (Continued from September 26, 1995) S. CONSIDERATION OF FINAL ORDER - DOLAN (Set aver from 10/24/93 9. PUBLIC HEAMNG - ANNEXATION - ZCA 95-0005 WILLIAMS 10. PUBLIC HEARING (LEGISLATIVE) - PARKS SYSTEMS DEVELOPMENT CHARGES (SDCs) AND METHODOLOGY FOR CALCULATION OF THE SDCs. (Set over from Oct-a-ber 24, 1995) 11. PUBLIC HEARMG-OFFER PROPERTY FOR SALE-CORNER OF 99W/72ND AVENUE FORMERLY KNOWN AS THE AMERICAN LEGION PROPERTY 12. REVIEW DEPARTMENTAL SERVICE STANDARDS (Set over from the 10/10/95 Council meeting) Packet Items Due to Administrator 11 /2, 5 p.m. I MEMd (Note: items u-..,J--9kcd a---admated with the Counciffs Statemwt of Priorities or are scheduled to follow-up a Council matter or requesQ Date: blaue-mber 21, 1995 TVP--.- Workshop CMo TV) St3ft Time: 6:30 p.m. WorIkshop, Meeting Topics: > Crr communications > 2040 Undate (]hn H.) > Solid Waste Policy Discussion (Condoued ftom August 15, 1995) (Wwy-ne, Los-wen) (Notte: Schedide immediately after C1-1 Communications) (2 HOURS - 7-9 PM) > Purchasing Rules Update (Wayne > Discussion: Regional Water Supply Plan; Subregional Plan Pa&et Items Due to Adnninistrator 1119, 5 p.m. HEETING CANCELED (Note: Items undedined am assodated with the Council's Statement of MoMes or am s&eduled to foftw-up a CouncH matteir or request.) Date: Havember 28, 1995 TAw: Business (TV) Rail= Rve-- un-le-fined are ass"lated with the Council's Statement of mama " N a Priorities or are scheduled to follow-up a Council matter or request.) Date: December 12, 1995 Type: Business (7V) Start rune: 6:30 p.m. Study Meeting 7:30 p.m. Business Meeting Study Session: > Executive session > Agenda Review Consent Agenda: > Approve Council minutes > Receive ax File: Council Calendar, Tent. Agendas > Approve CAmccil Compensation Resolution for changes on 1/1/96 Business meeting: > Water Raw Study (Wayne) > CLassification and Compensation Study Recommendations (Sandy) > Public Hearing. Greenspaces (Jim H.) > Public Hearing - Fessler Annexation (Ray V.) > Consider Ordinance: Vehide Towing (Ron) > Consider Ordinance: Noise Ordinance Amendment (Ron) > Consider Recommendation on Regional Water Supply Plan (Ed) > Neighborhood Mediation Discussion (Biff) 10 eeting with Budget Committee) - *-Amdk RepeFt 4Wwjr.e) Delete Wayne may schedule a separate Budget Committee Meeting or send a memo to the Budget Committee about the Audit Report. Then, after the first of the year, Wayne will follow up 0 at the first Budget Committee meeting. Pa&et Itents Due to Administrator 11/30, 5 p.m. (Nate: Items' underlined are assodated mrith the Council's Statement of Pflorities or am scheduled to follow-up a Council matter or request.) Daft: December 19, 1995 Type: Busimess Meeting (No TV) Start Tune: 6:30 p.m. Study Session: > Agenda Review CAmsent Agenda: > Approve Council uslautes > Phone System Upgrade (Wayne) > Resolution - Coundl Compensation (Wayne) > Executive Session Business Meeting: > Crr communications > 2040 Update (Jim H) > Publik Hearing (Continued) HillshireWoods (Seteverftom 11/14/93) > Pubric Hearing - Easement Vacation - Lot 9 - Benchview Euates > Comprehensive PlanAmendment-CPA 95-03 Briar Development (Ray) > Purchasing Rules Update Ordinance (Wayne) > Utility Billing Delinquent Collection Packet Itents Due to Administrator 12/7, 5 p.m. MEETING CANCELED (Note: Items anderiined are associated with the CounciPs Statement of Priorities or an scheduled to follow-up a Council matter or request.) Date: December 26, 1995 Type: Business (TV) w (Note: Items undedined are associated with the Council's Statement of Fflorides or are scheduled to follow-up a Coundl matter or nquest.) Date: January 9, 1996 Type: Business (IV) Start Time: 6:30 p.m. Study Meeting 7:30 p.m. Business Meeting Study Session: > Agenda Review Consent Acenda: > Approve Council nfinutes Business Meeting: > Speclul Awards - Presentations > State of the City - May" Hicofl > Executive Summary - City Adminfistrator Monahan Reception to follow meeting... MMS PENDMG - DATES TO BE SCHEDULED rw Annexation Compmhensive Me-& CJaanges (Jhn) 0 Iransportation Comprebendve Min Chan (Jim) 0 Water Rate Siudy Update (Wayne) 0 Rehobursement District Ordinance Amendment (Rmdy) 0 Surface Water Quality Trwwaent Facilities - Staff Report Informadon Reeuested bV Council on September 1995 (Randy) 0 OPEU CAmtract Negodations - approval of new contract (Sandy) a CAmmunity Development Code Amendments - BWering Ohn) 0 Planning Fees (Jim) 0 Dartamuth LID Fiancing Hearing (Randy, Wayne) a Items to be scheduled after City Vision Statement process is completed by Council: Half Strea Imp n.wement Policy (Rilindy) f:Mog1nXcathyXtentagen.95 qP A02ENDA ITEM# 3. ForAgendact 11114Z95 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Issuance of Bond Anticq=* n We's for Dartmouth LIQ. PREPARED BY: Wayne DEPT HEAD OjLv)~/CITY ADMIN OK-b-J&t"" IE THE COMOIL Shall the City Council authorize the issuance of Bond Anticipation mtes to refinance the 10-94 notes maturing January 1, 1996 for the Dartmouth LID. STAFF RECOMMENDATION Staff recommends the issuance be authorized. INFORMATION SUMMARY In January 1992, the City issued notes to fund constftiction of the Dartmouth LID. The 1992 notes were paid from the issuance of notes in 1994 because the project was not complete. The 1994 Notes mature on January 1, 1996. It does not appear that the final hearing spreading the assessments will occur prior to the maturity date of the notes. We have therefore initiated the process to issue new notes prior to January 1, 1996. The proceeds of the new notes will be used to redeem the 1994 notes upon their maturity. The remaining proceeds will be used to pay interest on the notes and for the costs of right of way and any other costs of the LID until the final hearing is held. &I costs associated with the issuance of the notes will be included in the final assessments to the property owners including continuing interest an the borrowed funds. The attached resolution was prepared by our Bond Attorney and gives staff the necessary authority to carry out the financing transaction. 017H R ALTERNATIVES CONSIDEBED None FISCAL NOTES All costs will be included in the final assessment. SM AGENDA ITEM # ForAgendaof 1111,(1q5 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUEAGENDA TITLE -Wetlands Planning Grant Agreement PREPARED BY: D. Roberts DEPT HEAD OK A&AV CITY ADMIN OK - ISSUE BEFORE THE COUNCIL f~ To enter ipto an agreement accepting Division of State Lands grant funds for wetland planning work. STAFF RECOMMENDATION Authorize the mayor to sign the agreement and adopt the attached resolution appropriating funds. INFORMATION SUMMARY A11h, Vp he Division of State Lands has awarded a grant of $12,000 to provide funding for the development of a wetlands Goal 5 Economic, Social, Environmental, Energy (ESEE) analysis and planning program. The ESEE work will include the development of a framework and methodology, the determination of impact areas, a conflicting use analysis, an ESEE consequences analysis, and a report and recommendations. Last year the city was awarded grant funds to update Tigard's existing inventory of wetland areas based on current DSL inventory standards and to conduct a wetland function and value assessment. The new grant will allow the city to complete the remaining requirements of Goal 5. OTHER ALTERNATIVES CONSIDERED Do not authorize the mayor to sign the agreement and pay entirely for the study out of City funds. FISCAL NOTES The amount awarded is $12,000. The grant requires a 25% local match. This will be met through in-kind contributions, such as staff work needed to complete the Goal 5 process. DR/Wetsum October 30, 1995 AGENDA ITEM # For Agenda of Noy 14. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Budget Adjustment for Wetlands 21anning Grant PREPARED BY: Wayne DEPT HEAD OK CITY ADMIN OK kA4)4- ISSUE BEFORE THE COUNCI Shall the Council approve a budget adjustment for the Division of State Lands Wetlands Planning Grant. STAFF RECOMMENDATIO Staff recommends approval of the budget adjustment. I ORMATION SUMMAR The City has been awarded a grant of $12, 000 to carry out a goal 5 wetlands planning program. The City's share of the cost of the program will be in the ,A%Eorn. of staff time amounting to a value of $9,500. mr This resolution appropriates the grant amount of $12, 000 recognizes the revenue from the grant for budget purposes. OTHER ALTERNATIVES CONSIDERED If the grant agreement is approved, the budget adjustment should also be approved. FISCAL NOTES Increases general fund revenue by $12, 000 and Increases appropriations for Long Range Planning by $12,000. AGENDA ITEM # ForAgendaof lijjqI95 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Initiation of Vacation Proceedings for a 10 foot wide public utility easement located on lot #9 in Benchview Estates subdivision PREPARED BY: Will1am DAndrea DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council initiate vacation proceedings for a 10 foot wide public utility easement located on lot #9, in Benchview Estates subdivision. STAFF RECOMMENDATION It is recommended that Council initiate vacation proceedings by adopting the attached resolution. INFORMATION SUMMARY In the City vacation process of streets, easements, and other public dedicated areas, the City Council begins the ,m-rocess by passing a resolution to schedule a public hearing to consider such requests. am NW Brian Savage, the petitioner, is requesting that the City Council initiate vacation proceedings for a 10 foot wide public utility easement located on lot #9 (Exhibit A), in Benchview Estates subdivision. Five foot public utility easements were provided along all the side lot lines with the recording of Benchview Estates (SUB 89-0005) subdivision plat. This is a normal platting practice in case an easement is needed in the future. A lot line adjustment was approved (MIS 95-0016) to adjust the property lines between lots #9 and #10. While this adjustment relocated the property lines, a recorded easement cannot be adjusted or removed. This easement is no longer necessary. Lot #10 is already served by utilities. Lot #9 will be provided by services elsewhere on the property. The applicant has requested this vacation as it is the only means of removing the easement. The existing easement is now located such that it interferes with the petitioners preferred location for a single family residence. Appropriate agencies shall be contacted for comments. Attachments: Exhibit A - (site plan); Exhibit B - (legal description); Exhibit C - (vicinity map); Exhibit D - (pre-lot line adjustment site plan) OTHER ALTERNATIVES CONSIDERED Take no action at this time. FISCAL NOTES All fees have been paid by the applicant. 5EINil"111, 1P AGENDA ITEM # 3.-7 For Agenda of 111)q1C?5 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE -Dedication of ri ht of wav for 72nd Avenue at 99W. PREPARED BY: G Alfson DEPT HEAD OK CITY ADMIN OK tl~ ISSUE BEFORE THE COUNCIL Shall the Council dedicate right of way required for 72nd Avenue from the City owned 'American Legion' property. STAFF RECOMMENDATION Approve the dedication and authorize the City Administrator to sign the document. INFORMATION SUMMARY The American Legion property was acquired in order to construct the 72nd enue/99W intersection project. The project has been constructed and a rtion of the property is now occupied by the 72nd Avenue pavement and sidewalk. A legal description and map has been prepared dedicating this portion of the property as right of way. This action will transfer the status of the portion of property from a City owned tax lot to public ownership. The remaining property is proposed to be offered for sale as surplus property. The attached Resolution declares the Council's desire to dedicate right of way for 72nd Avenue and authorizes the City Administrator to sign the dedication. OTHER ALTERNATIVES CONSIDERED FISCAL NOTES No fiscal requirement. qp/72-99row.ss AGENDA ITEM # ILI 0 For Agenda of -November 14, 1.995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Parking restriction on Commercial Street PREPARED BY: R. Wooley DEPT HEAD OK AAM;V__~ CITY ADMIN OK ISSUE BEFORE THE COUNCIL Parking restriction on Commercial Street. STAFF RECOMMENDATION Approval of the attached ordinance prohibiting parking on SW Commercial Street in front of the Tigard Transit Center. INFORMATION SUMMARY We have received a request from Tri-Met that "no parking" signs be posted along the frontage of the Transit Center on Commercial Street. The Transit enter frontage was designed to serve as a bus stop area as part of the 46 ransit Center. Tri-Met indicates that recently there has been some problem with cars being parked in the bus area. The attached ordinance will add the Transit Center frontage to the areas where parking is prohibited at all times and allow the posting of "no parking" signs as requested by Tri-Met. The ordinance applies only to the bus area at the Transit Center. Existing parking will remain on all other areas of Commercial Street. OTHER ALTERNATIVES CONSIDERED FISCAL NOTES Cost of approximately $100 for signing. MEIN" AGENDA ITEM # 5 For Agenda of November 14, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE 130th/Winterlake Street Connection Recommendations from task force and neighborhood meetincrs. PREPARED BY: R. Wooley DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Review of recommendations from the 130th/Winterlake Task Force and the October neighborhood meeting. STAFF RECOMMENDATION 1. Direct the Engineering Department to proceed with final design of the 130th/Winterlake bridge connection in accordance with the revised plan approved by the Task Force. 0. Amend the FY 1995-96 Streets Capital Improvement Program by deleting the existing $367,021 TIF reserve and allocating the $367,021 to improvement of SW 130th Avenue between Scholls Ferry Road and Hawks Beard Street, and direct the Engineering Department to proceed with design of the 130th improvements. 3. Direct that the plans for 130th Avenue include a traffic island and signing to prevent auto traffic from entering Hawks Beard Street eastbound on the east side of 130th Avenue, with landscaping plan to be coordinated with the Summerlake Homeowners Association and with the understanding that maintenance of the landscaping will. become the responsibility of the Summerlake Homeowners Association. 4. Direct staff to work with the residents of Eschman Way to determine the configuration of a traffic barrier as recommended by the Task Force. S. Direct staff to meet with the residents of 130th Avenue between Hawks Beard Street and Summer Creek to review alternatives for traffic islands and landscaping as recommended by the Task Force. 6. Authorize the Engineering Department to advertise for construction bids on the 130th/Winterlake bridge connection and- the improvements to 130th A-venue between Scholls Ferry Road and Hawks Beard Street; provided, advertisement for bids shall not, occur until an opportunity has been provided for the public to review and comment on the final construction plans. INFORMATION SUMMARY %task Force- In July, the Council authorized the formation of a task force to review the proposea 130th/Winterlake connection and attempt to reach consensus on issues related to the proposed project. On August 15th, the task force reported back to the Council with a number of recommendations. (See Attachment A).' Council asked the Engineering Department to review the task force recommendations. On October 2nd, Engineering staff met with the task force to discuss the various recommendations. Based on that discussion, the task force revised some of its recommendations. Attachment B (the meeting notes from the October 2nd meeting) shows the revised recommendations. The task force and the Engineering staff are in agreement on these revised recommendations. Primary features of the revised recommendations are as follows. Use of a revised design that narrows the bridge approaches to save an existing large fir tree while allowing construction of sidewalks on both sides of the street. The narrowed approaches will be the same width as the bridge. Attachment C shows the revised design. 0 Improvement of 130th between Scholls Ferry Road and Hawks Beard Street at the same time that the 130th/Winterlake connection is constructed. Aft IF Installation of traffic islands to prevent eastbound traffic from entering Hawks Beard Street east of 130th and to prevent southbound traffic from entering Eschman Way south of Hawks Beard, with details of the islands to be coordinated with the neighborhoods during final design. * Installation of islands or landscaping on 130th south of Hawks Beard to encourage lower speeds and to give visual impression of entry into a residential neighborhood, with details to be worked out with the neighborhood during final design. * Various landscaping and screening issues to be coordinated with residents during final design. The task force agreed that traffic issues related to 128th Avenue should be discussed with the 128th neighborhood in a separate meeting. That meeting has been scheduled for November 8th. The task force 'was also concerned about existing signing at 135th and Brittany directing traffic to Summerlake Park via Brittany Drive. The task force recommended that the signing be removed at this time. The signing would be moved to 135th and Hawks Beard when the extension of Hawks Beard to 135th is completed. Staff intends to comply with this recommendation unless there is Council objection. AML Neighborhood Meeting.:- Aft W n October 18th, a neighborhood meeting was held at City Hall to discuss the proposed project. Notice of the meeting appeared in the October Citvacape and notice was mailed to persons on the project mailing list. At the meeting, the revised project design was presented as recommended by the Task Force. Citizens at the meeting added four recommendations: • Include the area west of 130th and north of the new bridge in the areas to be considered for landscaping and screening. • Verify that the design provides adequate sight distance for the existing driveways along Winterlake immediately south of the new bridge. • Hold a separate meeting with property owners on 130th to decide the design of islands and landscaping on 130th. • Consider a 4-way stop and crosswalks at the 130th/Hawks Beard intersection. Staff proposes to include the first three recommendations in the final design process. Staff feels that the extra traffic controls at 130th and Hawks Beard will not be warranted if 130th is improved as recommended by the Task Force. The improvements will provide adequate sight distance and other traffic controls. 0- owever, this decision can be reviewed during final design. If necessary, stop signs and crosswalks can be easily added after completion of construction. In addition, staff renewed a previous commitment to provide an opportunity for citizens to review the final construction drawings prior to bidding. This will provide an opportunity for review of those items which we have agreed to resolve as a part of final design. Funding: Funding for the 130th/Winterlake connection is included in the existing capital improvement program. The recommendations of the task force do not revise the project cost estimate. The capital improvement program (CIP) does not currently include any funding for the improvements to 130th Avenue between Hawks Beard and Scholls Ferry. However, the CIP does include a TIF reserve with an amount adequate for funding of the 130th project. Council can, by motion, authorize the use of the TIF reserve for the 130th project. Construction schedule: The intentioi~l is to construct the 130th/Winterlake connection during the summer of 1996. To meet this schedule, final design needs to proceed soon nd there is a need to advertise for bids immediately upon completion of inal design and public review. MW To minimize delays, staff is requesting that Council now authorize the staff Ask- Emic, advertise for bids. Actual advertisement will not occur until the final 'Wesign and review process is completed in the spring. This will only authorize advertisement. Award of a construction contract will require separate Council action after bids are opened. OTHER ALTERNATIVES CONSIDERED Council may accept or reject any of the recommendations ' A simple mo~ion is adequate for approval; a formal resolution is not required. FISCAL NOTES Project funding is proposed to be from Traffic Impact Fee funds in the current CIP budget. rw/130-rep.nov ATTACHMENT A MEMORANDUM CITY OF TIGARD, OREGON TO: Honorable Mayor and Members of Council FROM: 130th Task Force Members DATE: August 8, 1995 SUBJECT: Recommendations to the City Council INTRODUCTION: The 130th Task Force was formed to see if representative members of the opposing groups could reach' consensus on any of the issues surrounding the bridge to be built at 130th. Our objective was to convert, as much as possible, a "lose-win" situation to a "win-win" situation. The Task Force met weekly over a five week period. We lost one member to a job transfer; the remainder of our members stuck together through the entire process. (It is important to note that the word "consensus" as used herein means unanimous agreement.) JP Discussion began with the premise that the City Council had made a final decision to build the bridge in fiscal 195-96, and that this decision would stand unless the group developed a strong justification and consensus for a viable alternative. It was agreed that the neighborhoods southerly of Summerlake Park needed improved emergency vehicle access and shorter, more direct driving routes for area residents. It was further agreed that proposed developments north of Hawks Beard would undoubtedly impact traffic flow negatively. A consensus of an alternative other than bridge construction did not develop. In fact, most members agreed that no viable alternatives exist. Likewise, a consensus was not achieved supporting.bridge construction. However, there is a general acceptance that the bridge will be built during the current fiscal year. Accompanying this acceptance is a conviction that its construction will bring many undesirable impacts to the surrounding neighborhoods north and westerly of Summerlake park.. There was a strong consensus that these expected impacts should be mitigated. Accordingly, when the bridge is built, the group recommends the improvements listed below be imnlemented as soon as practicable. The task force process included listing concerns which identified expected negative impacts of the connection. The group was remarkably consistent in identifying anticipated problems. These concerns are presented below to broaden Councils, understanding of the task force deliberations process. CONCERNS: • Safety - traffic, speeding children - sidewalks, crosswalks bicycles • increased traffic • Park atmosphere • Cars parked on street (not room for on both sides) • Let's no'-- spread the problem • Short driveways • Small lots • Winding and curvy street • Traffic from Bull Mtn. • Emergency vehicle response time 0 Wetlands • Liveability Potential solutions of identified concerns and possible alternatives to deal with the impacts of bridge construction were then evaluated. Many of the solutions were unanimously approved and are listed below. Finally, the task force compared its list of recommendations to the list of concerns to determine the progress of the deliberations. It is believed that the recommendations listed below will mitigate identif I ied impacts northerly of the bridge. Completion of 130th to Scholls Ferry Road this fiscal year to coincide with the bridge construction will protect the Summer Lake Drive neighborhood from excessive traffic. RECOMMENDATIONS: 0 Hawks Beard at the east intersection of 130th be closed or right (north) turn only be allowed. 0 Eschman be closed on the south side of Hawks Beard with planted median or mound. 0 A stop sign be placed on 128th at the intersection with 129th and the path. 0 Speed humps be installed on 128th if the residents consent. 0 Traffic lanes be delineated on the curve on 128th. 0 The entire length of 130th should be posted for 25 mph. 0 130th north of Hawks Beard be constructed to Scholls Ferry to handle minor collector traffic when the bridge is constructed. a Hawks Beard be constructed from 130th to 135th to handle minor collector traffic with new development. Sign directing traffic to Summerlake Park be moved from 135th and Brittany to 135th and Morning Hill Drive. Sign directing traffic to Summerlake Park be added at the intersection of Morning Hill Drive and Shore. * 130th south of Hawks Beard retain a residential character; narrow by adding tree lawns; post "slow children" signs; post "no trucks" sign. Plant vegetation to delineate between the residential and commercial; install decorative islands to restrict cars turning into driveways and provide for a safe U-turn. * Use planted earth berms on the east side of 130th north of Hawks Beard to screen the residences. 0 The Bridge: - narrower than 301. - headlight screening, lighting at road level, minimal lighting (hooding). - check alignment to protect woodlands. - landscape to frame bridge (include boulders) - plant trees larger than 101 tall, as large as practical. - move sidewalk on the east side of the bridge to foot bridge. Construct an 8' sidewalk on the west side of the bridge. ATTACHMENT B NOTES FROM 10-2-95 TASK FORCE MEETING 1,30th TASK FORCE RECOMMENDATIONS Hawks Beard at the east intersection of 130th be closed or right (north) turn only be allowed. After discussion with the Engineering department, the Task Force recommends partial closure: a landscaped island on the south side of Hawks Beard, east of 130th. Concerns about the design of the island will be addressed with the neighborhood during the design phase of the project. The island will be maintained by the Summerlake Homeowners Association. A "No Right Turn" sign will be posted on SW 130th; other signs will be reviewed with the neighborhood during design. The island will be built in conjunction with the construction of SW 130th north of Hawks Beard. a Eschman be closed on the south side of Hawks Beard with planted median or mound. After discussion with the Engineering department, the Task Force recommends an island on the south side of Hawks Beard at Eschman. The Task Force prefers the island be landscaped to provide neighborhood continuity. The island will be designed to discourage turning south on to Eschman. * A stop sign be placed on 128th at the intersection with 129th and the path. * Traffic lanes be delineated on the curve on 128th. After discussion with the Engineering department, the Task Force recommends a neighborhood meeting be held to discuss these issues along with other safety measures such as no parking. 0 Speed humps be installed on 128th if the residents consent. The Task Force proposes that this recommendation be incorporated into the 1996 city's CIP funding cycle. 0 The entire length of 130th should be posted for 25 mph. The Engineering department agreed to post the speed south of Hawks Beard and will apply to the Department of Transportation to have the speed posted at 25 mph north of Hawks Beard before the road is built. 0 130th north of Hawks Beard be constructed to Scholls Ferry to handle minor collector traffic with new development. The Engineering department concurs with this recommendation. 0 Hawks Beard be constructed from :L30th to 135th with new development. The Engineering department concurs. a Sign directing traffic to Summerlake Park be' moved from 135th and Brittany to 135th and Morning Hill Drive. Sign directing traf f ic to Summerlake Park be added at the intersection of Morning Hill Drive and Shore. Ach, Af ter discussion with the Engineering department, the Task Force recommends that the sign at 135th and Brittany be removed, and a sign be placed at 135th and Hawks Beard when the street is built. 130th south of Hawks Beard retain a residential character; narrow by adding tree lawns; post "slow children" signs; post "no trucks" sign. Plant vegetation to delineate between the residential and commercial; install decorative islands to restrict cars turning into driveways and provide for a safe U- turn. The Engineering department concurs with the "No trucks" signs. Engineering commented that 11 slow children" signs are obsolete. After discussion with engineering, the Task Force recommends that three options for islands be presented at the meeting on October 18. a Use planted earth berms on the east side of 130th north of Hawks B eard to screen the residences. After discussion with the Engineering department, the Task Force agreed to drop this recommendation. 4D The Bridge: narrower than 301 Headlight screening, lighting at road level, minimal lighting (hooding). check alignment to protect wetlands. landscape to frame bridge (include boulders).' plant trees larger than 101 tall, as large as practical. move sidewalk on the east side of the bridge to foot bridge. Construct an 81, sidewalk on the west side of the bridge. After discussion with Engineering, -Lhere was consensus on the following: - one street light will be placed, probably on the south side of the bridge. It will be hooded so that light is directed on the road. Alternative light and pole designs will be considered. - headlight screening will be considered at the design stage. - Trees taller than 10, will be planted. What and where will be considered at the design stage. - the alignment is located to have the least impact on the wetlands. - landscaping to frame the bridge will be addressed at the design stage. - the Task Force supports the new sidewalk design proposed by the Engineering department. 130TH AVENUE WINTERLAKE BRIDGE towv W.It wP.,*sklm &OP wwl wov V~i-r To,9' ExIstbv wilto" rep Of cw RIW 13&.rH A VENUE RIW SUMMER LAKE: PLAN OBEC Ca-dft Efip~- MAP AGENDA ITEM # For Agenda of November 14, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Board and Committee Term Limits PREPARED BY: Liz Newton DEPT HEAD OK W T-- . CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council approve term limits for the Planning Commission and Budget Committee? STAFF RECOMMENDATION 1. Adopt the attached resolution establishing term limits for the Budget Committee. 2. Adopt the attached ordinance establishing term limits for the Planning Commission. INFORMATION SUMMARY At the October 17 meeting, Council discussed establishing term limits for the Planning Commission and Budget Committee. Staff was directed to submit the attached resolution and ordinance for formal adoption. OTHER ALTERNATIVES CONSIDERED FISCAL NOTES AURL E.. AGENDA ITEM # For Agenda of October 17, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Formalize the application and review process for appointment to Boards and Committees PREPARED BY: _Liz Newton DEPT HEAD OK~ CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council formalize the application and interview process for appointment to Boards and Committees? STAFF RECOMMENDATION Adopt the proposed resolution establishing a procedure for filling vacancies on the Budget Committee, the Library Board and the Planning Commission. Ank INFORMATION SUMMARY Wt the October 17, 1995 City Council meeting, councilors discussed the process proposed in the attached resolution for appointing citizens to the Budget Committee, the Library Board, and the Planning Commission. After the discussion, Council directed staff to investigate the City's Charter regarding the Mayor's authority to make appointments and revise the resolution accordingly. Staff has reviewed a recent interpretation from the City Attorney's office regarding appointments (copy attached) and revised the -resolution. Briefly, the Charter grants the Mayor the authority to appoint fellow Councilors to internal committees which have been formed by Council rule. However, committees which are created by an ordinance or a resolution of the-Council, where prospective appointees are from the community, are not covered by the Charter. OTHER ALTERNATIVES CONSIDERED 1. Delay action at this time. 2. Adopt the attached resolution. FISCAL NOTES o change. r ODONNELL RHMIS ET HL 503-2243-2944 Dec 5.94 11:02 NO.OU`J F.U O'DONNELL RAMI5 CREW CORRIGAN & BACHRACH ATMPJIZY6 AT LAW 1737 N.W. Hoyt Stmtt Pardand, a tvn 97209 ' EIMIONB: (609) 2224402 FAX: (60) 219.2944 DATE: December b, 1994 TO: William A. Monahan, City Administrator ~ Cathy Wheatley, City Recorder FROM; Pamela U. Beery, City Attorney's Office~ & RE: Interpretation of Charter Section 20 Ieaue: Section 20 of the Charter estates that, "the mayor shall appoint the committees provided by the rules of the Council." gWAtlon: which committees would fall under the directive of Charter Section 20? ASk aAnaga: We believe Charter Section 20 should be interpreted to give the mayor the authority to appoint follow councilmembers to internal committees which have been formed by Council rule. A review of the rules adopted by the Council indicates that there arc currently no committees provided for by rule. We also contacted Sandra Arp, Staff Attorney for City/County Insurance Services, concerning the meaning of Section 20. Me. Arp was involved in the drafting of the League of Oregon Cities Model Charter on which Section 20 is barred. Mo. Arp confirmed thet historically this provision has been interpreted as we suggest. In terms of committees which are created by an ordinance or a resolution of the Council, where prospective appointees are from the community, appointments should be made as provided in the ordinance or resolution which orea-ed the committee. Also, committees which originate from outside of the City do not fall under Section 20 of the Charter as they are not committees formed by the Council. It is up to the Council to determine how appointments to these "extra-territorial" committees are made. From the information provided in your memo, it seems that the council has consistently used either council motion or consensus to appoint members to outside committees. This proceee is appropriate. ODONNELL RHMIS ET HL 503-243-2944 Dec 5,94 11:02 NO.UO9 F.U3 O'DONNI:LL RAMIS CREW CORRIOAN b BACHRACH Memo re: Interpretation of Charter Section 20. December 9, 1994 Page 2 C ng1gaian: The authority given to the Mayor by Section 20 of the Charter is limited. Section 20 authorizes the Mayor to appoint follow councilmembers to internal committees formed by rules of the council. All other appointments should be made as provided by the ordinance or resolution which formed the committee; or by some other process agreed upon by the Council. If you have any questions regarding this interpretation of your Charter, please call. pJbUeh\M34Vhenee.me2 I AGENDA ITEM # For Agenda of November 14. 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE CONTINUATION OF APPEAL OF PDR 95-0005 SUB 95-0004 SLR 95-0007 (HILLSHIRE WOODS II). PREPARED BY: Roberts DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council continue the public hearing on the appeal of the Planning Commission decision to approve the Hillshire Woods II Subdivision? STAFF RECOMMENDATION It is recommended that the City Council continue the Public Hearing concerning this appeal tentatively to the December 19th meeting. INFORMATION SUMMARY On September 26, 1995, the public hearing to review an appeal filed by neighbors Mr. and Mrs. Barrett concerning the proposed Hillshire Woods II Subdivision was continued. During the hearing, the appellant presented additional evidence which the City Council requested be reviewed. Ash, Wince that meeting, the City has continued with the review process for prioritizing properties to be purchased for preservation as open space through the Metro Greenspaces Bond Measure. Because the subject property is considered to be one of the higher priority properties under review, both the property owner and the appellant have requested that the appeal on the public hearing be continued to December 19th. The December 19th meeting is the next scheduled business meeting after the December 12th review of the Greenspaces property selection review. Both the property owner and the appellant have been informed that no decision may be reached at the December 12th meeting due to the level of community interest in this selection process. Both also understand and have agreed to a further continuance where necessary. OTHER ALTERNATI~, S CONSIDERED 1. Continue the meeting to a date sooner than December 19th and complete the public hearing. FISCAL NOTES No direct fiscal impacts. AMik r,` 9 AI~I~ E1 C3,1T1MElaING Il C. RECEIdED PLANNING PLANNING A DEVELOPMENT SERVICES A SURVEYING NOV d 61995 November 2, 1995 Mr. Mary Roberts City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 RE: Hillshire Woods II Job No. 223-011 FM I Dear Mark: i I Pursuant to our conversation this revised letter is to confirm our agreement to postpone the scheduled November appeal hearing on the above referenced project. It is our understanding that this hearing has beer, tentatively re-scheduled for December 19th and, that subsequent to this meeting, the Council will meet on December 12th to review Sierra Pacific's offer to sell said property to the city. i Please let us know if this schedule changes so we can plan accordingly. Sincerely, I ALPHA ENGINEERING, INC. i Mark Ferris Project Manager cc: Ed Freeman AdUL i:U23-011\wp\hi11shicc.rev ` PLAZA W SUITE 230,L 96W SW OAKA PORTLAND, OR 97223 A 503-452-8003 A FAX 503-452-8043 GREGORY Lu TJE A1111) ASSOCIATES, P.C WMVED PLANNING Affonm7s at Law 40 LhWob, Center Tower ® 61995 10260 SW Gseexbwg Road NOif Poitdan4 Oregon 97223-5514 TEL (503) 293-8347 Fax: (503) 293-3559 i ' November 2, 1995 BY TELEFAX 684-7297 AND FIRST CLASS MAIL Mr. Mark Roberts City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Re: Consent to Postpone Hillshire Woods II Appeal Hearing; PDR 95-0005, SUB 95-0004, SLR 95-0007 Dear Mark: On behalf of my clients, Gordon & Melissa Barrett, please consider this letter to constitute written approval by the appellants of the postponement of the ::caring scheduled before the City Council to a future date. I understand that the Council meets next on December 19, 1995. Due to the busy holiday season, I would request that this matter be heard after the first of the year. As we have discussed, we are hopeful that the subject site will be acquired by the City and preserved as a greenspace. Such an end result would be a win/win/win situation as the property owner would get fair compensation for its land and build good will with the community, the City would acquire a wonderful parcel to supplement its natural resource areas, and my clients could avoid further conflicts with the City over this issue. Equally as important to all Farties would be the elimination of further time and resources being used in a largely unproductive fashion. I look forward to working with the City and the property owner to accomplish these mutually advantageous objectives. Ve trul yo rs, Gr o Lutje cc: Gordon & Melissa Barrett J AGENDA ITEM # 9 For Agenda of II P4 117f CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Consideration of Final Order - Site Development Review - SDR) 91-0005/Variance VAR 91-0010 - Dolan/Mendez PREPARED BY: A-tto'wAtY DEPT HEAD OK bt1P1V%-- CITY ADMIN OK C•«-1 ISSUE BEFORE THE COUNCIL Consideration of the Final Order subsequent to the City Council's motion on August 29, 1995, to approve the application with conditions. STAFF RECOMMENDATION Approve the attached resolution. INFORMATION SUMMARY Council discussed proposed findings briefly on October 24, 1995 and requested amendments. Legal staff incorporated those changes in Exhibit A which ccompanies the proposed resolution. W Attached please find: • An outline summary of the findings from G. Frank Hammond, of O'Donnell, Ramis, Crew, Corrigan & Bachrach ® Proposed resolution with Exhibit A attached (Revised Council Final Order in SDR 91-005/(VAR) 91-0010 OTHER ALTERNATIVES CONSIDERED 1. Amend the findings. 2. Deny the application. FISCAL NOTES n/a O'DONNET ]L RAMS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 NW Hoyt Street Portland, Oregon 97209 TELEPHONE: (503) 222-4402 FACSIMILE: (503) 243-2944 To: William A. Monahan (By Facsimile) CC: Timothy V. Ramis From: G. Frank Hammond Date: November 2, 1995 Subject: Outline Summary of the Findings As you requested, I have attached a two page outline summarizing the findings in Dolan. Please telephone me if you believe any revisions are needed. 'T'hank you for your consideration. c~a~uawNwwowari-w.~wen i OUTLINE SUMMARY OF FINDINGS Case No. (SDR) 91-0051(VAR) 91-0010 City Attorney's Office November 2, 1995, I This case was remanded to determine only whether Tigard could satisfy the new test of development conditions created by the Court in Dolan v City of Dgard (the "rough proportionality test") II. Tigard showed a relationship between the requirements in Remand Condition One and the impacts of Applicant's project which satisfied the new test A. The Court only required a showing of rough proportionality B. Tigard met its burden to justify the floodplain easement 1. Project will increase runoff 2. Tigard justified public ownership--similar to justifications for public ownership of the sanitary sewer 3. The additional runoff will have an impact of at least $1,600 based on the testimony of Applicant's own representatives 4. The floodplain easement is worth only $1, 300 5. The easement will reduce drainage problems and mitigate for the impact 6. Therefore, Tigard justified the easement C. Tigard met its burden to justify the easement for the bicycle/pedestrian way 1. Applicant admitted to 206 additional trips having a cost of $17,000 2. Mr. Larson showed that the impact would likely exceed $30,000 3. Either way, the easement satisfies the test because it is worth only $2,500 4. Tigard showed with a highly sophisticated study that the path would mitigate for traffic impacts a. Larson testified that this segment of the path was essential to mitigating for traffic impacts--other testimony supported that conclusion 1 5. Therefore, Tigard justified the easement III. Applicant made lots of other arguments under the CDC, the WTIF, state law, and other constitutional provisions A. All but one of those arguments were not legally before Council because Applicant either made them in earlier hearings and lost or because Applicant could have made them in earlier hearings but did not do so B. Tigard showed a nexus between Remand Condition One and its legitimate interests in flood and drainage management and in reducing traffic congestion (the "nexus test") 1. The Supreme Court held that Tigard had satisfied this test 2. Tigard presented evidence showing that it satisfied this test C. Tigard did have authority under the CDC to impose Remand Condition One. None of Applicant's arguments in that regard had any merit D. Remand Condition One would not violate the WTIF because Council did not apply the WTIF. It only used the methodology supporting the V7TJF as guidance for making the quantification under the rough proportionality test E. Re,ataiiu wiiuiuvii VldG Luu 11VL V1014LG JLO LG 1O11u LIJG IRVY F. By imposing Remand Condition One, Council will not be violating equal protection 1. Applicant had waived this argument 2. Applicant did not prove an equal protection violation 3. Evidence in the record showed that the city treats like owners equally 4. Any distinctions Tigard has drawn had a rational basis; therefore, no equal protection claim existed G. The remand proceedings did not deprive Applicant of due process 1. Council decided the case based on facts in the record and each Council Member found that he or she could decide the case fairly 2. Applicant was the one who introduced facts concerning the Circuit Court case into the land use record. Thus she had no grounds to complain that the matter came up during the hearing IV. CONCLUSION.• Tigard satisfied all of the requirements for imposing Remand Condition One CAGM)OLAW DOINWOL. WPD 2 EXHIBIT A (DEVISED) TO CITY COUNCIL OF THE CITY OF TIGARD FINAL ODDER IN (SIT) 91-005/(VAIN) 91-0010 TABLE OF CONTENTS I. GENERAL MATTERS 1 A. Overview & Approach to Findings 1 B. Evidence Admitted Into the Record 4 C. Adoption of Staff Reports 4 II. BACKGROUND ......................................................5 A. Basic Facts 5 B. Procedural Posture ...............................................5 III. ANALYSIS ..........................................................8 A. Introduction ....................................................8 B. Remand Condition One Passes the Nexus Test 9 1. The Supreme Court Found in. Dolan II That Tigard Had Satisfied the Nexus Test Council Did ISTot Need to Revisit That Issue 9 a. The Court Upheld Tigard's Decision Concerning Original Condition One Under the Nexus Test 9 b. Because of the Court's Holding, Council Could Find That Remand Condition One Satisfied the Nexus Test Without Reapplying That Test 11 2. Although Unnecessary to Its Decision, Council Found that Tigard Had Satisfied the Nexus Test 12 a. Tigard Could Have Denied the Permit Without Effecting an Unconstitutional Taking 13 (1) Denial of the Permit Would Have Served Legitimate State Interests 13 (2) Denial of the Application Would Not Have Deprived the Property of Economically Viable Uses 14 (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application 14 b. Remand Condition One Advances the Same Legitimate State Interests Affected by Applicant's Project 15 (1) The Nexus Test Required That Tigard Show a Relation- ship Between the Impact of Applicant's Development and a Solution Mitigating That Impact 15 (2) A Nexus Existed Between Remand Condition One and the Drainage and Traffic Impacts of Applicant's Project . 17 (3) Remand Condition One is Not a Gimmick or Ruse 17 (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One 18 (5) The Bicycle/Pedestrian Way is Meant to Reduce Auto Traffic, Not Just Provide Recreational Opportunities 21 C. Remand Condition One Satisfies the New Rough Proportionality Test from Dolan II 24 1. Requirements of the Rough Proportionality Test 24 2. The Required Flood Plain Easement Satisfies the Rough Proportionality Test ...................................................31 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts 31 EXI-1IF3IT A (REVISED) TO FINAL ORDER Page - ii b. Tigard Established a Reasonable Correspondence Between the Impacts of the Development and the Purposes It. Offered in Support of Remand Condition One 38 (1) Tigard Fixed the Deficiency the Court Identified 38 • (2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited Public Easement for Enhancement and Maintenance of the Floodplain and Creek Channel ................................39 (3) Remand Condition One Does Not Call on Applicant to Provide "Excess Capacity" 41 C. Tigard Showed that the Floodplain Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development 46 d. Tigard Showed That the Floodplain Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development 47 3. The Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test 48 a. Tigard, Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts 48 b. Tigard Established a Reasonable Correspondence Between the Impacts of the Development and the Purposes It Offered in Support of Remand Condition One 56 C. Tigard Showed That the Bicycle/Pedestrian Pathway Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development 57 d. Tigard Showed That the Bicycle/Pedestrian Pathway Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development 61 EXHIBIT A (REVISED) TO FINAL ORDER Page - iii D. Most of Applicant's Other Arguments in Opposition to Remand Condition One Were Not Properly Before Council In This Remand Proceeding 65 E. A Condition Requiring Dedication of Easements for Flood Control and Alleviation of Traffic Impacts is Appropriate Under Tigard's Land Use Regulations ..67 1. Tigard's Land Use Regulations Required Council to Impose Remand Condition One or to Deny the Application 67 2. -Iipplicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded ........................................70 a. Applicant Received Adequate Notice of Tigard's Interpretation of Certain Land Use Regulations 70 b. Council Found That Approval Would Allow Applicant to Site Any General Retail Use on the Property 71 C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One 73 (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One 74 (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval 74 (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council Could Consider in Structuring Remand Condition One 77 (4) Remand Condition One Did Not Violate the CDC By Calling for Placement of the Pathway Outside of the Floodplain 78 (5) Role of the Parks Plan 79 EXHIBIT A (REVISED) TO FINAL ORDER Page - iv (6) Remand Condition One Is Consistent With Comprehen- sive Plan Policy 8.1.3 80 (7) Remand Condition One Does Not Violate Implemen- tation Strategies 2 and 5 80 F. Remand Condition One and Council's Rationale for That Condition Do Not Violate the WTIF 81 G. Remand Condition One and the Council's Rational for That Condition Do Not Violate State Land Use Statutes 81 H. Remand Condition One and the Council's Rational for That Condition Do Not Offend Article I, Section 20 of the Constitution of the State of Oregon or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States 85 1. Applicant Did Not Show That Remand Condition One Violated Article I, Section 20 86 2. Applicant Did Not Show That Remand Condition One Violated the Equal Protection Clause 88 I. The Procedure Used in Adopting Remand Condition One Did Not Offend the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States 93 IV. CONCLUSION ......................................................93 Appendix One - Evidence in Record A Appendix Two: Equal Protection Analysis of Cases Cited by Applicant a EXHIBIT A (REVISED) TO FINAL ORDER Page - v EXHIBIT A (REVISED) TO CITY COUNCIL OF THE CITY OF TIGARD FINAL ORDER IN (SDR) 91-005/(VAR) 91-0010 I. GENERAL MATTERS A. OvERvIEw & APPROACH TO FINDiNGs This Exhibit A sets out the findings supporting the Final Order in (SDR) 91-005/(VAR) 91- 0010 (the "Final Order"), which the City of Tigard ("Tigard") issued through its City Council ("Council") in response to the decision of the United States Supreme Court in Dolan v. City of Tigard, _U.S. , 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). Because of the long history of this case and the nature of the proceedings on remand, these fmdings begin with a review of the events leading to the Final Order as they influenced the approach Council took to making its decision. On September 17, 1991, Council approved the application of Florence and John Dolan' for site development review of a substantial expansion of retail uses on their property in downtown Tigard (the "September `91 Approval"). CR 01018.2 Council imposed several conditions of approval, including one requiring Applicant to dedicate property in and near a floodplain to allow drainage improvements and constriction of a bicycle/pedestrian way ("Original Condition One").3 Applicant appealed either Original Condition One or its similar 1989 predecessor in two LUBA appeals and one appeal to the courts, culminating with a decision from the United States Supreme Court. See Dolan v. City of Tigard, 114 S. Ct. 2309. In her appeals, Applicant challenged ' Mr. Dolan died while he and Mrs. Dolan were appealing aspects of the City's conditional approval. This Exhibit A will refer only to Mrs. Dolan, designating her as "Applicant." 2 In this Exhibit A, references to the record generated in the remand proceedings are prefixed with the code "CR" followed by the page number in the current record at which the supporting materials can be found. 3 Original Condition One provided as follows: The applicant shall dedicate to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] (i.e., all portions of the property below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary. The building shall be designed so as not to intrude into the greenway area. CR 01043-44. Original Condition One solely because through that condition, Tigard had allegedly taken her property without paying just compensation, in violation of the Takings Clause in the Fifth Amendment to the Constitution of the United States a and Article I, Section 18 of the Constitution of the State of Oregon.' See Dolan v. City of 27gard, 20 Or. LUBA 411 (1991) [hereinafter cited as Dolan I]; Dolan v. City of Tigard, 22 Or. LUBA 617 (1992). Although LUBA and the Oregon courts rejected Applicant's challenge, the United States Supreme Court applied its rough proportionality test, newly minted in the Court's Dolan opinion, to hold that Tigard had not justified Original Condition One adequately. The Court found that although the September `91 Approval satisfied the essential nexus requirement of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), see Dolan, 114 S. Ct. at 2318-18, Tigard had not made a sufficient, "individualized determination that [Original Condition One was] related both in nature and extent to the impact of the proposed development." Id. at 2319-20. The Court remanded the case for further proceedings, allowing Tigard to make the required findings. Id. at 2322. On June 27, 1995, July 18, 1995, and August 29, 1995, Council conducted hearings to comply with the Court's decision (the "Remand Hearings"). Applicant then made arguments under the Court's new test; but she also made arguments not raised in her appeals, challenging Tigard's authority to impose exactions like those in Original Condition One. Those arguments were based on statutes, Washington County's Traffic Impact Fee (the "VJTIF"), Tigard's Comprehensive Plan a The Takings Clause in the Fifth Amendment to the Constitution of the United States provides: "[Mor shall private property be taken for public use, without just compensation." It applies to the actions of state and local governments by virtue of the Fourteenth Amendment to the Constitution of the United States. See Dolan v. City of Tigard, _ U.S. 114 S. Ct. 2309, 2316, 129 L. Ed. 2d 304 (1994), citing Chicago, B. & O.R. Co. v. Chicago, 166 U.S. 226,239 (1897); Dept. of Transportation v. Hewett Professional Group, 321 Or 118,131 n.7, _ P.2d _ (1995); Dodd v. Hood River County, 317 Or. 172, 181 n.11; 855 P.2d 608 (1993) (dictum). 5 Article I, Section 18 of the Constitution of the State of Oregon provides: Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use. EXHIBIT A (REVISED) TO FINAL ORDER Page - 2 (the "Comprehensive Plan"), Tigard's Community Development Code ("CDC"), Article I, Section 20 of the Constitution of the State of Oregon and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. In making its decision, Council found that it should first consider procedural and substantive aspects of the Court's new test. Applying that test to the specific facts here, Council concluded that exactions like those imposed in Original Condition One would not result in an unconstitutional taking. Council also addressed Applicant's other arguments. Most of those arguments were not before Council in this narrow remand proceeding, however; Council nevertheless considered the substantive merits of each argument, finding none to be valid. was:u to, se..leap exp., 'but xtnctt:,n~r.ts Thus, after undertaking its analysis and for the reasons detailed below, Council decided to impose a condition of approval similar to Original Condition One. The condition replacing Original Condition One provides as follows: The applicant shall dedicate by easement to the City all portions of the site that fall within the existing 100-year floodplain of Fanno Creek (i.e., all portions of the property below elevation 150.0) (the "Drainage Area") and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary (the `Bike/Pedestrian Path Area") (the Drainage Area and the Bike/Pedestfian Path Area shall be collectively referred to as the "Easement Area"). The easement required by this Condition shall allow the City to undertake only the following uses in the Easement Area: A. The easement will allow the City access to the Drainage Area only for the purpose of conducting or constructing flood and drainage controls, repairs and improvements for the purposes of reducing or preventing flooding and erosion and for improving drainage within the City. The easement will not allow the general public to access the Drainage Area. AMIN& EDIT A (REVISED) TO FINAL ORDER Page - 3 B. The easement will allow the City access to the Bike/Pedestrian Path Area for the purpose of constructing and maintaining a bicycle and pedestrian path and to use as necessary for activities allowed in the Drainage Area. The easement will allow the general public access to the Bike/Pedestrian Area only for the purpose of walking and using unmotorized forms of transportation such as bicycles. The building shall be designed so as not to intrude into the Easement Area. Applicant may build a fence to exclude the general public from the Drainage Area and from access to the rear of the proposed building. (hereinafter referred to as "Remand Condition One.") B. EvIDENcE ADNffrrm INTO THE RECORD In this remand proceeding, Council held two hearings at which it received written and oral evidence. Council also held a third hearing to allow representatives of Applicant and Tigard's staff ("Staff') to answer questions. In addition, Council accepted evidence and testimony during the periods between hearings, and it left the record open 29 days after the July 18, 1995, hearing for submission of evidence and arguments. Appendix One to these Findings lists evidence received and admitted by Council during these remand proceedings. Council also admitted into evidence and actually had before it the complete record of Tigard's earlier consideration of the applications of May 1989 and March 1991, the record of proceedings in the two LUBA cases, and the record of proceedings throughout Applicant's appeal to the courts. It was Council's intent to admit into evidence all materials and testimony that were actually before it for consideration in this matter. C. ADOPTION OF STAFF REPORTS Staff submitted reports dated June 20, 1995, July 11, 1995, August 2, 1995, and August 16, 1995, to Council for its consideration. Council adopted those reports as findings supporting its decision, incorporating them into this Exhibit A by this reference, excepting any portion of such a report which contradicted or was inconsistent with the findings set out herein. EXHIBIT A (REVISED) TO FINAL ORDER Page - 4 II. BACKGROUND . A. BAsic FACTS Applicant and her son own 1.67 acres of property (the "Property") fronting on Main Street in downtown Tigard.* See CR 00311 (ownership); CR 01022 (size); Dolan v. City of Tigard, 22 Or. LUBA at 618 (relationship to downtown). Fanno Creek runs along the southwest property line, and the Property is improved with a 9,700 square foot building and a partially paved parking lot. CR 01022. A -Boy Supply Co., Inc. ("A Boy"), "an Oregon corporation doing business as a plumbing, electrical and related building retail supply business" is leasing the building on the Property as a store. CR 00311. A -Boy operates several such stores in the Portland Metropolitan Area. See CR 00757, et seq. (advertisements for several A-Boy stores). Tigard's zoning maps designate the Property CBD, Central Business District, subject to the Action Area Overlay, AA, Zone. CBD zoning allows for many land uses. Examples include retail sales, civic uses, meeting halls, offices, restaurants, motels and high density residential developments (40 units per acre). CDC § 18.66.030. The Action Area Overlay Zoning District, CDC Chapter 18.86, applies in areas of intensive land uses. CDC § 18.86.010. Its requirements ensure that projected public facility needs, pursuant to CDC Chapter 18.64, are addressed during redevelopment. CDC § 18.86.040.A. B. PROCEDURAL POSTURE On May 5, 1989, Applicant and her late husband filed an application for site development review. In paragraph 2 of the application, they described their project as being for "replacement of existing sales facility with a larger building." Dolan I, Record at 250. Applicant and her husband signed the application and were the sole applicants. A-Boy was not a party. Id at 251. Construction of the new 17,600 square foot buiidi:?v was only part of Applicant's plans for the Property. She expected to completely pave the gravel portion of her parking lot, tear down the 9,600 square foot existing building, and to develop later a "Phase II" retail building on the site. The Application did not, however, include a request that Tigard approve the Phase II building. EXHIBIT A (REVISED) TO FINAL ORDER Page - 5 Section 18.120.020 of the CDC required Applicant to file the Application for the first phase of her development. That section requires "site development review" when a person plans to undertake a "major modification" of an "existing development." Applicant has always agreed that her proposed redevelopment of the improvements on the Property was a "major modification" sufficient to trigger site development review. Tigard's Planning Commission ("Commission") issued a decision approving the Application. That approval was subject to 15 conditions. Among those conditions was the precursor to Original Condition One. As drafted by Commission, that condition required Applicant to dedicate the flood plain and an area for the bicycle/pedestrian way, but it also included a requirement that Applicant build the bicycle/pedestrian way and provide a survey of the flood plain. Applicant appealed Commission's decision to Council, assigning error to, among other things, the dedication and construction requirements. Council approved the Application subject to 15 conditions, adopting most of Commission's requirements. With regard to the precursor of Original Condition One, however, Council removed the requirements that Applicant build the bicycle/pedestrian way and provide a survey. Council also allowed Applicant to count the area of the flood plain and bicyclelpedestrian way towards the CDC's requirement that fifteen percent of the site be landscaped.' Applicant, who had objected to the precursor of Original Condition One solely on the ground that it was a taking in violation of the federal and state prohibitions on takings without just compensation, appealed Council's decision to LUBA. In that appeal, Applicant challenged Original Condition One, and she based that challenge solely on her allegation that the condition effected an unconstitutional taking. See Dolan I, 20 Or LUBA 411. LUBA, however, found that Applicant's takings claim was not ripe because she had not applied for a variance that would allow her to avoid the requirements in Original Condition One. Id. at 425-26. G In the September `91 Decision, Council also allowed Applicant to count the areas covered by the floodplain and pathway dedications towards the landscaping requirement. CR 01035. EXHIBIT A (REVISED) TO FINAL ORDER Page - 6 Rather than appeal LUBA's decision in Dolan I, Applicant filed a new application seeking a variance to avoid the requirements of Original Condition One as imposed in Council's earlier decision. In that application, Applicant described the purpose of the project as follows: "[t]he construction of a 17,600 square foot building having a general retail sales facility." CR 00754. Applicant and her husband signed the application and were the sole applicants. A-Boy was not a party. Id The application set out the following justification for the variance: The variance requested by the applicant should be allowed as the conditions and dedications required by the City of Tigard violate the applicant's rights under the Oregon and United States Constitutions. Specifically, the City's demhnd for dedication constitute [sic: constitutes] an unlawful taking and violation of the Oregon Constitution, Article 1 [sic: 1], Section 18 and the Fifth Amendment to the United States Constitution. The proposed variance will not materially be detrimental to the purposes of the title nor conflict with the policy of the comprehensive plan as no park exists at this time nor does the City have sufficient funding in which to create a park that the bicycle/pedestrian path is theoretically going to be used to access. There are special circumstances that exist which are peculiar to the lot in that the building which the applicant proposes to construct cannot be erected without invading the City's proposed bicycle/pedestrian path if the land is dedicated. This hardship is not self-imposed but rather imposed by the City's dedication and the variance requested is the minimum variance which would alleviate the hardship to the applicant. Brief for Responded, United States Supreme Court No. 93-518, Appendix E at E-4, quoting "Statement of Justification for Variance." In its September `91 Approval, Council rejected Applicant's request for a variance. The September `91 Approval therefore reimposed Original. Condition One. CR 01043-44. EXHIBIT A (REVISED) TO FINAL ORDER Page - 7 Applicant appealed the September `91 Approval to LUBA, and, after LUBA upheld Council's decision, to the Oregon appellate courts and, ultimately, to the United States Supreme Court. Dolan v City of Tigard, 22 Or. LUBA 617, aff'd, 113 Or. App. 162, 832 P.2d 853 (1992), aff'd, 317 Or. 110, 854 P.2d 437 (1993), rev'd & remanded, _ U.S. 114 S. Ct. 2309, order on remand, 319 Or. 567, 877 P.2d 1201 (1994) (per curiam) [hereinafter cited as Dolan II]. The findings in this Exhibit A respond to the new constitutional test the United States Supreme Court promulgated in Dolan II, as provided for ul that Court's remand decision. Dolan II, 114 S. Ct. at 2322. III. ANALYSIS A. INTRODUCTION In these proceedings, Council was presented with a narrow remand issue based on a test applied for the first time by the United States Supreme Court in Dolan II. There, the Court found that while Original Condition One had the requisite nexus with Tigard's legitimate interests in preventing flooding, securing adequate storm water drainage, and reducing traffic congestion, as required by Nollan, Tigard had not shown a rough proportionality between the condition and the impacts of Applicant's development. Because the Court remanded the case solely on that issue, giving Tigard an opportunity to make findings in compliance with the new test, Council found that the only issue properly before it was whether Tigard could satisfy the rough proportionality test. Applicant nevertheless argued on remand that several other issues were before Council. She claimed that Council had to decide whether Tigard had proven a nexus between the state.interests proffered in support of Remand Condition One, the impacts of her development, and the required easement dedication. Applicant also advanced several arguments based on provisions of law other than the federal Takings Clause. Because Applicant advanced several alternative theories in opposition to Remand Condition One, Council considered the merits of her theories. Council nevertheless continued to believe that only the narrow issue remanded by the Supreme Court was before it. In making these findings, Council first analyzed whether it had to reapply the nexus test and, assuming that the test had to be reapplied, whether Tigard continued to satisfy that test. Council. then considered the issue remanded from the Supreme Court, and finally decided the availability and merits of Applicant's other EXHIBIT A (REVISED) TO FINAL ORDER Page - 8 arguments. After making this analysis, Council concluded that it should impose Remand Condition ldnl~ One. B. REMAND CONDITION ONE PASSES THE NEXUS TEST 1. The Supreme Court Found in Dolan II That Tigard Had Satisfied the Nexus Test - Council Did Not Need to Revisit That Issue Original Condition One and Remand Condition One call for similar exactions, except that Remand Condition One clarifies that Tigard is not requiring Applicant to make the floodplain area available for recreational purposes and that Tigard does not intend to acquire fee title.' Because the conditions are so alike, the Supreme Court's decision that Original Condition One satisfied the nexus test equally applies to Remand Condition One. Indeed, the Court's holding on that point was not legally subject to reconsideration here. a. The Court Upheld Tigard's Recision Concerning Original Condition One Under the Nexus Test InNollcnz v California Coastal Commission, 483 U. S. 825 (1987), source of the nexus test, the plaintiffs owned a small beach-front house situated between the beach and a coastal road. They decided to expand the size of the house greatly, which they could not do without a permit from the Commission. When the Commission granted the permit, it required as a condition of approval that r the plaintiffs give it an easement allowing the public lateral access on the adjoining beach, which the plaintiffs' owned. In support of the condition, the Commission argued that the larger house would block views of the beach from the coastal road. The Commission said that giving the public lateral access along the beach would mitigate for the loss of the view. In rejecting the Commission's justification, the Court created the nexus test, which Applicant said Council must reapply here. The Court found that requiring an easement without compensation or other justification would have been an unconstitutional taking. Id at 841-42. To avoid such a 7 Remand Condition One also provides that Applicant can fence the floodplain area to prevent the public from accessing that area. Such a provision was not included in Original Condition One. Council felt it appropriate to insert such a provision because of Applicant's concerns about security expressed during the remand hearings. EXHMIT A (REVISED) TO FINAL ORDER Page - 9 11 A result, the Court required the Commission to show that the condition had a -CA--us to legitimate state interests affected by the larger house. Id at 837. If, for example, the Commission had required the plaintiffs to dedicate part of their property as a view point from the road to the beach, the condition would have passed the Court's scrutiny. Id at 836. The Court found, however, that the requirement of an easement allowing people to walk along the beach had no relationship to protecting the view from the road. Because the exaction did not advance the state interest offered as justification, the Court held that the Takings Clause forbade the Commission from imposing the condition. Id. at 837. In Dolan II, the Court found that Original Condition One passed the nexus test. Tigard argued that the city's legitimate interests in preventing flooding and reducing traffic congestion justified the condition. The Court agreed, finding that Original Condition One was quits different from the condition invalidated in Nollan. [In Nollan,] [w]e agreed that the Coastal Commission's concern with protecting visual access to the ocean constituted a legitimate public interest.... We resolved, however, that the Coastal Commission's regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollan's beachfront lot.... The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry No such gimmicks are associated with the permit conditions imposed by the city in this case. Dolan II, 114 S. Ct. At 2317 (emphasis added). According to the Court in Dolan II, the interests Tigard advanced in support of Original Condition One did have a sufficient nexus to the impacts of Applicant's project. It seems obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, EXHIBIT A (REVISED) TO FINAL ORDER Page - 10 1111 Mill thereby expanding the impervious surface on the property and increasing the amount of stormw.,~ter run-off into Fanno Creek. The same may be said for the city's attempt to reduce traffic congestion by providing for alternative means of transportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers Id at 2318 (emphasis added). After deciding that Original Condition One passed the nexus test, the Court in Dolan H reached the issue it had left open in Nollan. That issue concerned the required degree of relationship between the condition, the interests justifying the condition, and the impacts of the development. The Court held that Tigard was required to show rough proportionality between the condition and the impacts of the development. Because it found that Tigard had not made such a showing, the Court remanded the case to allow the city to make findings satisfying the new test. Hence, the only issue before Council was whether Tigard satisfied the new rough proportionality test in these remand proceedings. b. )Because of the Court's Holding. Council Could Find That Viand Condition One Satisfied the Nexus 'l'est Without Reapplying That Test On remand, "parties may not raise old, resolved issues again." Beck v. Tillamook, 313 Or. 148, 153, 831 P.2d 678 (1992). Old issues include those which the local government and appellate bodies have actually resolved and those which "could have been, but were not, raised in the first appeal." Louisiana Pacific v. Umatilla County, 28 Or. LUBA 1086, 1090 (1994). Here, Applicant argued throughout the appeal of Original Condition One that the floodplain and pathway dedications did not meet the nexus test. In that argument, she raised all of the challenges she has raised on remand, including contentions that the dedication did not have a nexus with the drainage impacts of her project and that the pathway was only for recreation. Every EXHIBIT A (REVISED) TO FINAL ORDER Page - 11 s appellate body to consider her argument, including the Supreme Court of the United States, found that it was mistaken. Each body held that Tigard had satisfied the nexus test. Applicant claimed to Council that the Court's decision on the nexus test was not binding because Remand Condition One differed in some respects from Original Condition One. However, as pertains to the nexus test, Council found that no significant differences existed. Indeed, the only change of any account in that regard was that Remand Condition One clarified that the floodplain dedication was not meant to further recreation. Because the issues concerning the nexus test were resolved in the previous appeal, they were not before Council on remand. 2. Although unnecessary to Its Decision, Council Found that Tigard Had ,Satisfied the Nexus Test Although Council found that the Supreme Court's decision prevented reconsideration of the nexus test, Applicant asserted that minor differences between Remand Condition One and Original Condition One made this decision subject to that test. Accordingly, Council found that it should reapply the nexus test on the chance that LUBA or the courts would agree with Applicant. As detailed above, the nexus test, if applicable to this decision, required Tigard to show that Remand Condition One advanced the same legitimate state interests affected by Applicant's development. With regard to traffic, for example, Tigard was required to dhow that the easement dedication for the bicyclelpedestrian way had a nexus with mitigating the increases in traffic that the larger store would cause. Besides establishing a nexus between the interests impacted by the development and the state interests supporting the condition, some dictum in Nollan and Dolan II implied--but did not hold-- that Tigard was required to show that the supporting interests would have justified denial of the Application. If such a rule did apply, Tigard was required to show that denial of the permit would advance legitimate state interests and would not deprive the property of all economically viable uses. See Agins a City of Tiburon, 447 U.S. 255, 260 (1980) (stating test for finding regulatory takings).' s In Section ME. 1, infra, this Exhibit A sets out Council's grounds for finding that Tigard's local land use regulations would have allowed it to deny the Application. AWL EXHIBIT A (REVISED) TO FINAL ORDER Page - 12 Council did not decide whether such a showing was mandatory, however, because it found that Tigard had satisfied even the strictest version of the nexus test. Council therefore applied the nexus test with the assumption that Tigard was required to show that it could deny the Application without effecting an unconstitutional taking. In applying the nexus test, Council was not concerned with the proportionality of the relationship between the easement dedications and the impacts from the development. Council's reasoning on that issue--the rough proportionality test--is set out below. Here, Council addressed only whether the type of relationship the Court required in Nollan was present. a. Tigard Could Have Denied the Permit Without Effecting an Unconstitutional Taking (1) Denial of the Permit Would Have Served Legitimate State Interests The Court has "not elaborated on the standards for determining what constJ'.utes a `legitimate state interest," but it has made clear "tbat a broad range of governmental purposes and regulations" satisfy the test. Nollan v. California Coastal Commission, 483 U.S. at 834-35; see, e.g., Agins, 447 U.S. 260 (scenic zoning); Penn Central Transportation Co. v. Mew York City, 438 U.S. 104 (1978) (landmark preservation); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning). In Dolan II the Court held that Tigard's interest in managing the floodplain and drainage system and in mitigating traffic congestion were legitimate state interests. Dolan II, 114 S. Ct. at 2317-18. Tigard proffered those same interests in support of Remand Condition One, and they would have supported denial of the Application. Applicant, through her representatives, freely admitted that her project would have drainage and traffic impacts. As detailed in Section III.C, infra, those impacts would be significant. Had Council denied the permit, the impacts of the project on Tigard's drainage and street systems would never occur. Therefore, denial of the Application would have advanced Tigard's legitimate state OEM interests in preventing flooding, managing drainage, and mitigating traffic impacts. Agkk EXHIBIT A (REVISED) TO FINAL ORDER Page - 13 (2) Denial of the Application Would Not Have Deprived the Property of lconomically Viable Uses If Council had denied the Application, its decision would not have deprived the Property of economically viable uses. Evidence in the record showed that Applicant is currently leasing a store on the property to A -Boy. CR 01421. This use or a similar use would have remained if Council had denied &,e Application. Therefore, denial of the Application would not have deprived the property of economically viable uses. As the Court held in Dolan H, "There can be no argument that the permit conditions would deprive [Applicant] `economically beneficial us[e]' of her property as she currently operates a retail store on the lot. [Applicant] assuredly is able to derive some economic use from her property." Dolan II, 114 S. Ct. at 2316 n.6 (emphasis added). (3) Applicant, Through Her Attorney, Admitted That Tigard Could Deny the Application In summary, Council could have denied the Application to advance the legitimate state interests of flood and drainage control and traffic mitigation. Indeed, Applicant's attorney, Mr. Smith, admitted that Tigard had the authority to deny the Application in the following colloquy during oral argument before the Supreme Court of the United States: QUESTION Mr. Smith, are you going to comment on the question whether the city would have been within its rights to deny the building permit entirely? MR. SMITH Yes, Your Honor. And we would agree that the City would have been within its authority to deny the permit outright. However, that - that of course might raise a different takings question that's outside the realm of dedications and municipal exactions, and not only that, that no, Your Honor, we are not. QUESTION: We we take the case on the assumption that the City could have denied it? Aftk EXHIBIT A (REVISED) TO FINAL ORDER Page - 14 MR. SMITH: Yes, Your Honor, that is correct. All CR 00823 (emphasis added). b. Remand Condition One Advances the Same Legitimate State Interests Affected by Applicant's Proiect (1) The Nexus Test Required That Tigard Show a Relationship Between the Impact of Applicant's Development and a Solution Mitigating That Impact Council found, as did the Court in Dolan II, that the existence of an impact on legitimate interests plus a regulatory solution directed toward mitigating the impact were sufficient to satisfy the nexus test. See Dolan II, 114 S. Ct. at 2318. Council was concerned, however, that this holding not be misinterpreted. The distinction which the Court has drawn between the nexus test and the new Yes Woulddertal Yes Yes Yes Would the development servethatlntarest would the condnlon Isthe condition roughly Impact a legitimate aide and not deny the owner of serve same purpose as ~~In nature 6 interest? an economically viable that impacted by the proportional use? (Perhaps not development? required.) No No No No The condition Is permissible # The condition Is Impermissible Figure 1 Nollan/Dolan Decision Process E)MMIT A (REVISED) TO FINAL ORDER Page - 15 Ism rough proportionality test is somewhat artificial. The nexus test requires a showing that the proposed condition will address a development's impacts on legitimate state interests, but it doesmot require a finding that the proposed condition is proportional to those impacts. Instead, it leaves that requirement up to the next step in the analysis, the rough proportionality test, which this Exhibit A. applies below. Thus the nexus test concerns itself with an either/or proposition. A condition survives scrutiny under the nexus test so long as it advances a legitimate state interest which the development impacts to any degree. It is the rough proportionality test of Dolan II which examines whether a condition passing the nexus test is sufficiently tailored to survive scrutiny under the federal Takings Clause. The resulting decision process is set out in Figure 1 and is the process Council used here. A comparison of the Nollan decision with the decision in Dolan 11 confirmed the accuracy of Council's holding. In Nollan, the Court did not reach any issue concerning the required degree of relationship between the impact of the development and the nature and extent of a condition purporting to mitigate that impact. The Nollan Court held that no such inquiry was necessary because in that case the facts showed that there was no nexus between the development's impacts and the challenged condition. Nollan, 483 I.T.S. at 838-39. In Dolan II, by way of comparison, the Court found that Original Condition One satisfied the nexus test applied in Nollan because it was reasonable to believe that the condition would mitigate for the project's impacts on the floodplain and Ash, Tigard's traffic system. Dolan 11, 114 S. Ct. at 2318. After making that finding, however, the Court in Dolan II found that Tigard had not satisfied the rough proportionality test, showing that the Court believed the two tests to be analytically distinct. See Dolan II, 114 S. Ct. at 2318 The second part of our analysis requires us to determine whether the degree of exactions demanded by the city's permit conditions bear the required relationship to the projected impacts of petitioner's proposed development.") (emphasis added).' v In Dolan 11, the Court explained its reasoning process as follows: In evaluating petitioner's claim, we must first determine whether the `essential nexus' exists between tile `legitimate state interest' and the permit condition exacted by the city.... If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard.... Here, however, we must decide this question. Dolan 11, 114 S. Ct. at 2316. EXHIBIT A (REVISED) TO FINAL ORDER Page - 16 (2) A Nexus Existed Between,Remand Condition One and the Drainage acid Trafc Impacts of Apiprlicant's Froject Applicant admitted that her project would increase the amount of storm water running into Fanno Creek and the number of automobile trips that would be on the city's streets. See, e.g., CR 00104 ("The issue is not whether the Dolans are generating stormwater from their site, they are."); CR 00146 ("The expansion of the Tigard A-Boy store will add 206 trips per day to the surrounding street system."). Evidence in the record showed that Remand Condition One would mitigate for these increases, thereby advancing Tigard's legitimate interests, which also would have supported denial of the Application, in managing flooding and drainage and mitigating traffic impacts.'o Therefore, the condition satisfied the nexus test by advancing the same legitimate state interests that Applicant's project impacted and which would have supported denial of the Application. (3) Remand Condition One is Not a Gimmick or Ruse Applicant made several arguments that Tigard had not shown a sufficient nexus to pass the test. She began those arguments by claiming that Remand Condition One was "trickery" or a "ruse" to justify acquisition of the floodplain for recreational purposes. According to Applicant, the bicycle/pedestrian way will draw the general public to her property and will induce those people to go into the floodplain in violation of the easements called for in Remand Condition One. Council found that Applicant's accusation that Remand Condition One was a trick or ruse was not well taken. The Supreme Court of the United States rejected a similar accusation in Dolan H, finding that Tigard's decision to impose Original Condition One involved "[njo such gimmicks." Dolan H, 114 S. Ct. At 2317 (emphasis added). Further, Council reviewed several slides, which showed the steepness of Fanno Creek's banks on the Property. CR 01553. They showed that the creek's banks are very steep, which will deter persons who use the path from going into the floodplain. Moreover, Remand Condition One would not eliminate the ability of Applicant to exclude the general public from the floodplain area. Under Remand Condition One, Applicant would remain entitled to all of the remedies, such as an action for trespass, that she currently had to exclude others 'o Council's detailed analysis the evidence showing that Remand Condition One would mitigate for the impacts of Applicant's project appears infra at 46, 58. This Exhibit A incorporates that analysis in support of Council's finding that Remand Condition One satisfied the nexus test by this reference. EXHIBIT A (REVISED) TO FINAL ORDER Page - 17 from the floodplain. The condition also provides that Applicant can fence off the floodplain so that ffim the public is not lured into a belief that they can freely access the area. (4) Tigard Justified the Limited Public Floodplain Access in Remand Condition One Applicant aso argued that Remand Condition One failed the nexus test because, according to her, Tigard had failed to justify ownership by the public of an easement allowing limited access to the floodplain. According to Applicant's lawyer, Tigard could just as well rely on private landowners to maintain the floodplain in a piecemeal fashion. Evidence in the record refuted her lawyer's assertions, however. Mr. McGuire, an expert drainage engineer (CR 00085), testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan, provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flows. Required maintenance items include debris, removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing. CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential: Efficient and cost-effective maintenance of drainageways requires that the City have the physical and legal ability to access the drainageway. High labor costs typically dictate the use of large mechanical equipment. Adequate access for this equipment reduces the time required for maintenance work and its cost. Emergency maintenance or repair to the drainageway is also accomplished quicker with proper access. Fanno Creek serves to remove storm water from upstream areas much the same as a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic benefits, the two function in similar capacities. Sanitary sewers also require periodic maintenance to function as intended. Where sewers are located out of public rights- of-way, easements are provided to allow municipal access for maintenance. Maintenance of public sewers is a traditional agency function. Providing maintenance on a larger scale allows purchase of specialized equipment and trained labor. Because EXHIBIT A (REVISED) TO FINAL ORDER Page - 18 the drainageway functions as a complete channel, the proper maintenance of the entire channel by a single agency is important. It is not practical to rely on individual property owners to adequately maintain a large system like the Fanno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain should not have come as any surprise to Applicant. The National Floodplain Managers Association submitted a brief on precisely this point to the United States Supreme Court as a friend of the Court. That brief was placed in the record of the remand proceedings. In its brief, the Association explained precisely the rationale advanced by Mr. McGuire. According to the Floodplain Managers Association, the most efficient flood management system requires that channels remain unblocked and be capable of receiving the fuLl water flowing into a portion of a channel from upstream. The alternative would be large flows feeding water into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated. Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). Notwithstanding the strong evidence supporting public ownership, Applicant's lawyer claimed that the Comprehensive Plan said that Tigard had adequate regulations to administer the floodplait without acquiring floodplain easements. However, the lawyer seriously misunderstood the Comprehensive Plan. EXIIBIT A (REVISED) TO FINAL ORDER Page - 19 Section 3.2 of the Comprehensive plan sets out some of Tigard's approaches to floodplam Aft management." Part of that section, which Applicant's lawyer used to make his argument, states that "[t]he City of Tigard currently has ordinances, policies and standards within the Tigard Community Development Code which provide adequate controls for development within floodplain areas." In taking this section out of context, Applicant's lawyer claimed that it showed thai public access to the floodplain was unnecessary. However, in context that is isot what the section says. The regulations which led Tigard to find that its floodplain controls were adequate anticipate, among other things, that Tigard will require dedication of easements, such as that imposed here, to allow Tigard access to the floodplain. For example, Policy 3.2.4 provides that "[t]he City shall require the dedication of all undeveloped land within the 100-year floodplain.." Although because of Dolan II, Tigard cannot apply Policy 3.2.4 without first conducting a nexus/rough proportionality review, the policy shows that Tigard evaluated the adequacy of its floodplain regulations based on an understanding that they included dedications of floodplain easements. Thus, the language on which Applicant's attorney relied does not show that Tigard found its regulations to be adequate without the need for public ownership. Another portion of the Comprehensive Plan supports this conclusion. The Comprehensive Plan at Volume I, page 193, provides that Tigard should implement the recommendations of the Ask Master Drainage Plan. The Master Drainage Plan calls for the dedication of floodplain easements to prevent floodplain development and to allow maintenance of the floodplain and creek channel. Master Drainage Plan at 9-1. The CDC carries out these provisions by requiring dedication of easements where necessary to address drainage problems in accord with the Master Drainage Plan. See CDC §18.164.100; see also CDC §18.120.180.A.8 ("Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require dedication of sufficient open land area."); CDC 18.120.18.A..15 ("All drainage plans shall be designed in accordance with the criteria in the adopted 1981 master drainage plan [sic]."). Applicant also argued that no essential nexus existed with the floodplain easement because, she asserted through her lawyer, Tigard has no policy calling for maintenance of the floodplain and creek channel. That assertion is untrue. The Master Drainage Plan, which is part of the Comprehensive Plan, calls for major channel improvements near Applicant's property and for ii Chapter 7 the Comprehensive Plan also sets out floodplain policies. EXHIBIT A (REVISED) TO FINAL ORDER Page - 20 maintenance of the flood plain and creek channel. See, e.g., Master Drainage Plan at 7-11, 7-2-7-4. Furthermore, the Master Drainage Plan recognized that improvements would occur over many years because of funding and other limitations. See, e.g., Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area. Fiscal and political constraints, however, will dictate the need for phasing the various strategies."). Tigard has undertaken improvements and maintenance required in the Master Drainage Plan. For example, as Applicant's lawyer testified, Tigard replaced the Main Street Bridge, one of the improvements called for in the Master Drainage Plan. See, e.g., CR 00104 (noting replacement of the Main Street bridge). Evidence in the record also showed that Tigard has exercised its maintenance responsibilities under the Master Drainage Plan. 'CR 00095. Finally, Applicant's claim that Tigard has the right under general municipal law to go on property during emergencies to clear the creek channel misses the point. The Master Drainage Plan calls for improvements and maintenance to prevent emergencies. (5) The Bicycle/Pedestrian Way is Meant to Reduce Auto Traffic, Not Just Provide Recreational Opportunities Applicant argued that the bicycle/pedestrian way could not satisfy the nexus test because Tigard's planning documents said that its purpose was recreational. She reasoned that the trips which her project will generate will be for shopping and commercial purposes. Therefore, according to Applicant, a nexus did not exist between her impact--more shopping and commercial trips--and the bicycle/pedestrian way. Applicant's argument was not well taken, however, because Tigard's planning documents and expert testimony showed that the bicycle/pedestrian way was intended to and will serve shopping and commercial trips, mitigating the traffic impacts of the project. To make her argument, Applicant introduced selective quotations from Tigard's planning documents to give the mis-impression that the city intended that the bicycle/pedestrian way serve only recreational trips. However, when Council put all of the relevant provisions together, it found that Tigard intended the bicycle/pedestrian way to serve a wide variety of trips, including those for shopping and commercial purposes. Tigard's Park and Pathway Plans showed the multiple purposes that the bicycle/pedestrian way would serve. Applicant, for example, criticized the bicycle/pedestrian way because it would run EXHIBIT A (REVISED) TO FINAL ORDER Page - 21 into Fanno Creek Park, claiming that connection proved the pathway to be solely for recreational Aft purDOSes. The Park Plan directly -e neri thia :.^feren~e. T^.ste»d 't est»tr,7;shed th»t +lke --t- meant to act as a hub," drawing people to use the path for both recreational and commercial purposes. Besides helping to meet the recreational needs of the community, and preserving important natural areas, the implementation of the [Park and Pathway] Master Plans will work to support commercial and residential development in the City. The development of Famio Park will directly complement anticipated improvements to the City Center. The outdoor recreational opportunities offered in the park will attract area residents to the Main Street area and increase their exposure to this commercial center. Further, the park improvements will provide an attractive setting for the commercial area, making it a more pleasant experience for shoppers and the commercial clients. CR 01522. Fanno Park, to which the pathway runs, "is designed to be intensively used and programmed for a variety of recreational, civic, and commercial functions.... This site is seen as an important part of developing the Main Street and City Center area into an important focus for the citizens of Tigard and surrounding areas." Id. Similarly, the Pathway Plan included among its criteria 12 Tigard made its intent that the park act as a hub for alternative mode trips clear in the Park Plan, as follows: Access to the site [Faro Creek Park] can be made at various points throughout the park. The principle locations are found at the end of Ash Street, at Hall Boulevard, from the Civic Center and Senior Center, and from the residential areas south of the park. Pathways and bridges through the developed area of the park provide safe and convenient access between the Senior Center, the Civic Center, residents from the Chelsea subdivision, and other visitors to the park. As more pathways and bridges are completed, neighborhood residents and park visitors will have better access to the park and the downtown commercial area As the greenway pedestrian/bicycle pathways are completed, Faro Creek Park will serve as an important connection and provide access to the downtown area for residents both north and south along Faro Creek. CR 01395. This part of the Park Plan responds to Applicant's claim that the path avoids major development area. From its review of the maps in the record Council found that this path does use the park as a hub, connecting it to outlaying areas and to the downtown. By running through the park, the path will provide an attractive route to the downtown not provided by other bicycle/pedestrian links. The path thus does not limit access "like a freeway," as Applicant's lawyer mistakenly claimed. EXHIBIT A (REVISED) TO FINAL ORDER Page - 22 : AM in establishing paths that they would serve major shopping areas, CR 01406, and, contrary to %Wff ApjJliu"uu's R1JJ81L1V11J, 1r1t%llid8d drJYViatvWai Tigard, VVIU 11 Llus VaL1 W'Yll 581 V8, as a major generator of such trips. CR 01407. Expert testimony also established that the bicycle/pedestrian way would reduce trips. Although analyzed in more detail below, Mr. Larson, an expert traffic engineer, testified that Tigard's pathway system :would result in a nine percent reduction in automobile trips. CR 00781. He also testified that the segment ofthe pathway running through the Property was essential to obtaining that reduction: In order to achieve the, the, pedestrian environment factor such that traffic by pedestrian and bicycles can reach a 14 to 15% of total trips, we need to complete critical elements of the project. And in particular the pathway system is missing this one last link, just downstream from the Main Street bridge. Completing that pathway system is critical to reaching the pedestrian environment that, that will allow 85% of all trips 15% of all trips to be accomplished by pedestrian or bike travel. 7-18-95 Tr. at 16.. Council's review of Oversized Exhibits 69, 70, 71, and 79 confirmed this conclusion. Those exhibits mapped out all of the pathways intended under the Bicycle Pathway Plan. The maps showed that Tigard is developing an interconnected system and that this pathway is an integral part of the system to provide access to downtown from outlying areas. Based on this evidence and the statements in the Master Pathway Plan and the Parks Plan, Council found that a nexus did exist between the traffic impacts of Applicant's project and the bicyclelpedestrian way called for in Remand Condition One. Before closing its consideration of the nexus test, Council addressed one additional argument of Applicant having to do with the bicycle/pedestrian way. She argued that the pathway had to be for recreation because it would be located along the floodplain and not next to a city street. Her inference that the location of the pathway implies that it would be solely for recreation was mistaken. A bicycle/pedestrian way located away from auto traffic would provide a greater margin of safety than would an on-street path. "The interaction between pedestrians and vehicles places pedestrians EXHIBIT A (REVISED) TO FINAL ORDER Page - 23 at a distinct disadvantage. One obvious result is the annual pedestrian accident toll of more than one- quarter of a million casualties including 10,000 deaths." CR 01326. "In the absence of separated pedestrian and automobile facilities, pedestrian casualties rise.... [I]n the absence of sidewalks and pathways, the risk of pedestrian accidents increases by 72 percent." CR 01339; see also CR 01328 ("The pedestrian function extends to bicycling pathways as well. Bicycle riding in many American towns and cities, like walking, is neither enjoyable nor safe because of the dominance of the automobile."). The Master Pathway and Parks Plans recognized these dangers and called for off- street facilities. CR 01406,01395. Moreover, witnesses testified that walking and bicycle riding in Tigard was dangerous and that they would be more likely to walk or use their bikes for shopping and other commercial purposes if the path called for in Remand Condition One was built. CR 00468, 00467, 00465. For these reasons, "[t]he idea that separate facilities are needed to accommodate vehicles and walking is several thousand years old." CR 01328. Tigard did establish the required nexus. C. REMAND CONDITION ONE SATISFIES THE NEW ROUGH PROPORTIONALITY TEST FRoM DOLANII 1. Requirements of the Rough Proportionality Test Aft In Dolan II, the Court required the city to show that the condition also passed the new rough proportionality test. Before reviewing evidence on that issue, Council decided what that test required of Tigard. In Dolan II, the Court granted review "to resolve a question left open by [its] decision in Nollan of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development." Dolan H, 114 S. Ct. at 2312. The Court found this question to be germane because, unlike the Commission in Nollan, Tigard had satisfied the nexus test. Id at 2316. "Since state courts ha[d] been dealing with this question a good deal longer than" the Court, it "turned to representative decisions made by them for guidance" in formulating its test. Id at 2318. From its review of state cases, the Court gleaned three different approaches. First, it identified a group of cases "where very generalized statements as to the necessary connection EXHIBIT A (REVISED) TO FINAL ORDER Page - 24 7~ between the required dedication and the proposed development seem[ed"] to suffice." Id. The Court found this standard to be "too lax to adequately protect [Applicant's] right to just compensation if her property [was] taken for a public purpose." Id. The Court next considered a group of cases where state courts had "require[d] a very exacting correspondence, described as the `specifi[c] and uniquely attributable test."' Id, quoting Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N.E.2d 799, 802 (1961). "Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes "a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police power regulations." Dolan II, 114 S. Ct. at 2318, quoting Pioneer Trust & Savings Bank, 176 N.E.2d at 802. But the Court held that the specific and uniquely attributable test did not apply, stating bluntly that it did "not think the Federal Constitution requires such exacting scratiny given the nature of the interests involved." Dolan 11, 114 S. Ct. at 2318-19. After rejecting the lenient test of some states and the exacting test of others, the Court found a third category of cases where the state courts had taken a middle course, applying a "reasonable relationship test." Id at 2319. The Court quoted with approval the following description of that test: "The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking the property simply because at that particular moment the landowner is asking the city for some license or permit." Id quoting Simpson v. North Place, 206 Neb. 240, 292 N.W.2d 297, 301 (1980) (emphasis added). Although the Court referred to the reasonable relationship test with approval, it did "not adopt it as such." Dolan 11, 114 S. Ct. at 2319. It did not do so "partly because the term `reasonable Ash, EXHIBIT A (REVISED) TO FINAL ORDER Page - 25 relationship' seems confusingly similar to the term `rational basis' which describes the minimal level of scrutiny under the equal protection clause of the Fourteenth Amendment." Id (emphasis added). The Court did not describe its other reasons for not adopting the reasonable relationship test, but its use of the word "partly" in describing its justification for not to adopting that test implies that such reasons did exist. Considering the Court's favorable attitude towards the reasonable relationship test, Council believed it most logical to think that the test the Court ultimately chose was a new form of that test refined to address federal concerns. Thus, instead of adopting the reasonable relatioris up test per se, the Court minted a new formulation to be applied after a local government had shown the nexus required by Nollan: We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Id. (emphasis added). The Court offered no list of factors that must be proven to satisfy the test. Adff& Nor did it set out black letter rules governing the required degree of relationship, merely saying that the test required only rough proportionality and not a precise mathematical calculation. The Court's factual analysis, however, went a way towards filling in these blanks. Original Condition One required Applicant to dedicate an easement to the floodplain, which might have allowed public access for recreation. Nevertheless, the Court found that the floodplain dedication satisfied the nexus requirement. Dolan If, 114 S. Ct. at 2318. However, in applying the rough proportionality test, the Court decided that the findings supporting the floodplain dedication did "not show the required reasonable relationship." Id at 2321 (emphasis added). The Court reasoned that although Tigard had shown adequate grounds to forbid development of the floodplain, it had not justified public ownership. The Court was concerned that Original Condition One allowed the public access to the floodplain for recreation because Tigard had not shown that Applicant's project would affect that interest. Id at 2320-21. EXH113IT A (REVISED) TO FINAL ORDER Page - 26 At first blush, the Court's ruling appears to be only an application of the nexus test. At least Justice Souter thought so. Dolan II, 114 S. Ct. at 2330 (Souter, J., dissenting). But the Court emphasized that it was creating a two-step process and that the floodplain dedication had satisfied the first step. Dolan II, 114 S. Ct. at 2318. Council therefore realized that it must find and adopt the explanation of the rough proportionality test fully honoring the approach required by the Court. To that end, Council first observed that to pass the nexus test Tigard needed only to satisfy an either/or proposition. Either Remand Condition One advanced a legitimate state interest to some extent or it did not do so. Because Council found that Remand Condition One did advance such an interest, it, like the Court with regard to Original Condition One, found that Remand Condition One passed the nexus test. See, supra, at 9. However, unlike the nexus test, Council found that the rough proportionality test required proof that Remand Condition One reasonably related to impacts from Applicant's project as a function of their nature and extent. See Dolan If, 114 S. Ct. at 2321 (finding that Tigard had failed to "show the required reasonable relationship between the floodplain easement and the petitioner's proposed new building.") (emphasis added). The Court's application of the test of Dolan II exemplified how it governs evaluation of an exaction as a function of its nature and extent, clarifying that the analysis is not limited to an either/or proposition. Instead, the holding in Dolan H shows that a condition's purpose must roughly correspond to the interests impacted by the Alk development. Thus, the Court found that although Original Condition One satisfied the nexus test by advancing the legitimate state interest of flood and drainage management, the city had not shown that its purposes for acquiring a public greenway roughly corresponded to the drainage impacts of the project. Accordingly, the Court held that the condition had passed the nexus test but that the city's findings were insufficient to show rough proportionality. The Court's analysis of Tigard's justification of the bicycle/pedestrian pathway was also illuminating. There, the Court found that Applicant's project would seriously affect Tigard's street system. Dolan II, 114 S. Ct. at 2321. The Court also found that pedestrian and bicycle ways often help reduce traffic congestion. Id at 2318. Nevertheless, the Court held that Tigard had not "met its t No a^]+ of a nn+-+;n + the wdditi^::a lwmber ~{'w hiela and hin.rn~a +.v n,7 l will of LLV111V1A0&A"-rM 4hat 1 n W.YW. / Lllps gene a+ed by [Applicant's] development reasonably relate to the city's requirement for a dedication of the pedestrian bicycle pathway easement." Icy at 2321 (emphasis added). The reasons the Court gave for this conclusion illustrate another facet of the rough proportionality test. AMA EXHIBIT A (REVISED) TO FINAL ORDER Page - 27 In its findings, Tigard had justified the pathway easement by saying that the path "could offset some of the traffic demand and lessen the increase in traffic congestion." Id. at 2321-22 (emphasis added). The Court held that the city's use of the word "could" was too equivocal, adopting the suggestion in the dissenting opinion of Oregon Justice Peterson that Tigard be required to show that the path "`would"' or "`would be likely to"' offset traffic demand. Id at 2322, quoting Dolan II, 317 Or. at 127 (Peterson J., dissenting). In imposing this requirement, though, the Court emphasized that "[n]o precise mathematical calculation is required." Dolan II, 114 S. Ct. at 2322 (emphasis added). Under the rough proportionality test, "the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated." Id (emphasis added). Based on its review of the steps taken by the Court, Council found that the new tesi placed the following obligations on the city: ► Tigard was required to make an individualized evaluation of the impacts from Applicant's development. ► Tigard was required to establish a reasonable correspondence between the impacts of the development and the purposes offered in support of the easement dedications. ► Tigard was required to make some showing that the proposed easement dedications would or would be likely to mitigate for the impacts offered in justification for the condition. And, ► Tigard was required to show that the extent of the exaction was roughly proportional to the expected impacts of the project. EXHIBIT A (REVISED) TO FINAL ORDER Page - 28 In considering these requirements, ILLUSTRATION OF ROUGH PROPORTIONALITY Council found that the Court Legend expressly rejected any demand for Range of Roughly Proportional Exactions specific or exact proportionality ® Exaction Clearly Less Than Impacts between the exactions and the project's impacts. Indeed, the 5 Court's approval of the reasonable relationship test, which it found to be a middle ground between exacting and permissive scrutiny, showed that it intended to allow for a range of possible outcomes that a city could adopt in any given case. Figure 2 illustrates this concept as a Nature8 Extent of Impacts discrete band of outcomes Figure 2: Graph illustrating rough proportionality concept allowable under the Court's decision. Council found confirmation of its interpretation in the Court's explanation of the competing interests which must be weighed in deciding exaction cases. In Dolan II, the Court began by noting that cases such as the present raise two competing constitutional principles. On one hand, the Court found it obvious that if Tigard had simply demanded the easements from Applicant, the Takings Clause would have required the city to pay her just compensation. Dolan 11, 114 S. Ct. at 2316. On the other hand, the Court has historically granted local governments broad discretion in zoning cases. Id. Here, the Court held that the quasi-judicial nature of the decision and the fact that Tigard was proposing, to acquire an interest in the Property, tipped the balance against giving the city's decision the full deference usually accorded by courts to local zoning legislation. Id Indeed, it was for this reason that the Court imposed the burden on Tigard to show that the exactions passed the rough proportionality test. Id at 2320 n.8. Although the Court selected a rule granting less deference than usual to Tigard's decision, it still recognized a zone of discretion based on the authority of local governments to regulate land use, illustrated in Figure 2 by the gray-shaded band, in which the city, not the courts, would be charged All EXHIBIT A (REVISED) TO F124AL ORDER Page - 29 with deciding whether particular exactions were justified. This is what led the Court to describe its choice of tests as a requirement of only "rough proportionality," id, at 2319, and to reject the specifically and uniquely attributable test, saying, "[w]e do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved" Id. at 2318-19 (emphasis added)." Council was not sure whether Applicant disagreed with this understanding of the governing legal rule.l4 Applicant appeared at some points to be arguing for a standard similar to the specific and uniquely attributable test. She claimed, for example, that the dedication must relate "directly" to the impacts and that "[t]he [city's] analysis must show how it relates to the size, scale, and effect of the Dolan property and its uses." Although these statements are not necessarily inconsistent with Council's understanding of Dolan II, to the extent Applicant meant to suggest that a very exacting test should apply here, she was mistaken. The Court expressly rejected such an approach. As with most abstract legal tests, the rough proportionality test draws real meaning from its application to specific facts. Therefore, rather than further debate Applicant's legal arguments in the abstract, Council chose to address them in its analysis of the evidence. Thus, after gaining an understanding of the Court's new test, Council moved on to decide whether Remand Condition One fell into the permissible range of exactions, considering the circumstances presented here. 13 A zone of discretion is also appropriate because "there never has been (and probably never will be) an ultimate criterion by which to distinguish clearly between regulation and taking, the tests (in corollary fashion) are lacking in standards that are precise, easy to apply, and productive of uniform results." J.C. Vance, Exaction of Right of Way by Exercise of Police Power, in R.D. Netherton, Ed., 2 SELECTED STUDIES IN HIGHWAY LAw 936-N227, at 936-N227 (1988). 14 Applicant has not consistently advocated a single approach to the takings question. Her lawyers have, however, made statements that imply she agrees with the formulation of the test set out here. In her Supreme Court Brief, for example, her counsel said the following, which appears to be in accord with Council's understanding of the rough proportionality test: If the city had, by a study, determined how much storm water entered Fanno Creek, and specifically how much more runoff would be caused by the Dolans' new store, it might have been able to constitutionally justify the dedication for the storm drain and greenway.... If it had, by a study, determined the number of additional pedestrians, bicyclists, and automobiles the new store would generate, and how those numbers compared to the existing traffic loads on city streets, sidewalks, and bike paths, it might have been able to justify the pedestrian and bike path dedication. CR 00734. EXHIBIT A (REVISED) TO FINAL ORDER Page - 30 2. The Required Food Plain Easement Satisfies the Rough Proportionality Test a. Tigard Through an Indkidualized Evaluation Showed That Applicant's Project Would Have Significant Impacts Applicant proposed to almost double the size of her store and to pave a now gravel parking lot. She thus planned to increase substantially the amount of impervious surface on the Property. "It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm-water flow from [Applicant's] property." Dolan II, 114 S Ct at 2320. Indeed, Mr. McGuire, an expert drainage engineer, CR 00085, calculated that the project would increase the runoff from the site during a 25-year storm event from 1.32 cubic feet per second ("cfs") to 1.91 cfs, an increase of 0.59 cfs. CR 00847. Applicant's own engineer, Mr. Harris, testified that the runoff from the project would be even higher, anticipating an increase of 0.91 cfs. CR 01531. Council therefore found that the project would increase runoff to Fanno Creek from the Property. Tigard used several methods to estimate the significance of the increase in runoff, including a method recommended by Applicant's attorney. In his testimony to Council on June 27, 1995, Mr. Aahk Smith, one of the lawyers for Applicant," argued that Council was legally required to use the methodology in the city's Master Drainage Plan to calculate impacts from the development. Mr. Smith not only argued that the city must use the Drainage Plan, but in the following testimony he also recommended it to Council as the best way to find the impact of increased runoff from the site: Similarly let me turn to the, to the master drainage plan. I've also asserted to you that the master drainage plan which was part of your Comprehensive Plan provides a methodology to you for computing how the proportionate share of cost for storm drainage improvements should be calculated. And at some point in time, the City spent what, what appeared to be a substantial sum of money to hire CH2M Hill to do an excellent master drainage plan. One that I commended with, with favor is Mr. Smith was also lead counsel for Applicant before the Supreme Court of the United States in Dolan H. JOkk EXHIBIT A (REVISED) TO FINAL ORDER Page - 31 to the Supreme Court [of the United States] in oral argument as, as being a model of how one could calculate impacts on storm water runoff: 6-27-95 Tr. at 27 (emphasis added). In response to Mr. Smith's recommendation:, Mr. McGuire undertook the calculation called for in the Master Drainage Plan. Using the increase in runoff calculated by Applicant's drainage engineer, Mr. Harris, Mr. McGuire found that "[i]f the Dolan site were to contribute toward the Fanno Creek improvements based on the impact of their proposed additional impervious area, the coSi would be approximately $1,603." CR 00779. Because Mr. McGuire's calculation was based on the testimony of Mr. Smith and Mr. Harris, witnesses for Applicant, Council found it to be highly credible and concluded that the project would result in impacts on Tigard's drainage system of at least16 $1,603. Council did not rely solely on calculations under the Master Drainage Plan in its effort to fix the likely drainage impacts of Applicant's development. It also considered two alternative approaches. In one such approach, Mr. McGuire calculated the impact of increased runoff from the Property using a methodology originally developed to support system development charges of the Unified Sewerage Agency ("USA") for storm water drainage. See USA R&O 93-33 and exhibits, at CR 00626. Council reviewed the USA ordinance establishing the charges and the underlying methodology developed by Brown & Caldwell, a firm with expert experience in this field. CR 00680. System development charges such as those imposed by USA must be based on actual impacts and be proportional with such impacts, see ORS 223.297, et seq. and, as indicated in the following quotation from the Brown & Caldwell study, the USA ordinance was established based on a fair allocation of costs: 16 Council inferred that as representatives of Applicant, Mr. Smith and Mr. Hams would take a conservative approach to estimating impacts. Therefore, it concluded that their approach represented a conservative estimate of the probable impacts from the development. EXHIBIT A (REVISED) TO FINAL ORDER Page - 32 The purpose of the analysis was to determine a typical range of costs for storm water facilities. These facilities are designed to reduce peak flood discharge increases associated with urban development. The intent of this study was to develop cost estimates which could be used in establishing a system development charge. CR 00682. Therefore, Council found the Brown & Caldwell study and the USA charges to be highly credible indicators of costs associated with increased runoff. The USA system development charge is $280 per equivalent service unit ("ESU"). CR 00654." Of that amount, $180 is allocable to water quality impacts and $100 is allocable to water quantity impacts. CR 00654. Using the Brown & Caldwell Report, Mr. McGuire found that the total quantity impact for storm water was $563 per ESU for the 25 year storm and $1033 per ESU for the 100 year storm. CR Range of Impacts 00097. Mr. McGuire further testified that Drainage Plan & USA Methodologies it was appropriate to subtract the $100 system development charge from these 5000 total impacts to determine the otherwise 4000 3000 ANA unmitigated impact of new development _ 0 2000 on Tigard's drainage system. Id. 1000 Therefore, because Mr. McGuire o determined that Applicant's project would Drainage Plan USA (25 Yr.) USA (100 Yr.) cause runoff equal to 4.36 ESU, he Method testified that it would have unmitigated impacts impacts of $2019 for the 25 year storm and $4,068 for the 100 year storm. CR. Figure 3: Extent of Likely Impacts 00097-98. Besides estimating the impacts of Applicant's project under the Master Drainage Plan and the USA ordinance, Staff presented evidence of the costs which would be associated with mitigating for 17 Under the USA resolution and order, a single ESU is equal to the amount of surface water runoff that would be generated by a single family residence. CR 00633. AM, EXHIBIT A (REVISED) TO FINAL ORDER Page - 33 the increased runoff. Mr. McGuire testified that three options existed for mitigating for the increase in storm water without acquiring the easement called for in Remand Condition One. They were retention, detention, and in-stream detention. Mr. McGuire estimated the cost for each solution, respectively, to be $6,800, $8,500 and $2,500. CR 00848. Council found that the alternative methodologies substantiated Mr. McGuire's testimony under the Master Drainage Plan. They showed that the $1,600 prediction derived from that plan was probably conservative, and that the project would generate at least that much of an impact, if not significantly more. Applicant objected to Tigard's use of methodologies other than that called for in the Master Drainage Plan to estimate the impacts of her development. She argued, for example, that Tigard's land use regulations required the city to use the Master Drainage Plan. Council, however, did not interpret its regulations to place such a requirement on Tigard. The methodology in the Master Drainage Plan, which is part of Tigard's Comprehensive Plan, was set out as a recommendation. Master Drainage Plan at 8-10. Nothing in the Master Drainage Plan or other portions of the land use regulations created a binding rule requiring use of the Master Drainage Plan as the sole means of estimating drainage impacts from development. Furthermore, Tigard did determine the impacts from Applicant's project using the methodology in the Master Drainage Plan. That methodology showed that the project would cause an impact of at least $1,600 on the drainage system. Council relied on the other methodologies proposed by staff to verify the accuracy of that number. Applicant also argued that Council was bound to use only the methodology in the Master Drainage Plan because it had applied that plan in Dolan IT Her argument is irrelevant because Council did use the Master Drainage Plan. Furthermore, although issues decided or which could have been decided in Dolan II were not before Council, Council properly considered evidence and arguments concerning new issues arising from the Court's remand decision. In Dolan II, the Court placed a new responsibility on Tigard to quantify its findings; therefore, Council could consider new evidence and argument addressed to that instruction. The USA regulations, Brown & Caldwell Study, and Mr. McGuire's testimony all concerned new issues raised in the Court's opinion. Council, therefore, properly considered that evidence. EXHIBIT A (REVISED) TO FINAL ORDER Page - 34 Applicant relied on testimony from Mr. Harris to claim that the predicted increase in storni water runoff would be insignificant. Although Mr. Harris found that the project would increase runoff from the site, he argued that the increase of flow in the creek would amount only to the thickness of five sheets of paper. CR 01532. Mr. McGuire responded to this argument by showing that even such an increase, if not mitigated, would be significant because of the cumulative effect of the runoff. If Tigard did not require developments to mitigate for even small increases in stream flow, according to Mr. McGuire, eventually the cumulative impact of the developments would break the drainage system. To demonstrate his point, Mr. McGuire used the Master Drainage Plan to formulate how much runoff development has or will add to the system. He estimated that, without mitigation, all of the development would lead to an increase in the stream equal to 11,908 sheets of paper, a stack four feet high. CR 00778. "Clearly, 11,908 sheets of paper is significant and is the result of considering only residential development in Tigard. Adding commercial and industrial sites, with their higher impervious areas, plus basin area outside of Tigard, would further increase impacts." Id. In response to Mr. McGuire's testimony concerning cumulative impacts, Mr. Shonkwiler, one of Applicant's attorneys, argued that some of Tigard is outside the Fanno Creek basin. He then concluded that Mr. McGuire's analysis was in error. He also made the point that the areas of Tigard outside the Fanno Creek basin include some of the more undeveloped areas, and, thus, represent areas of higher expected growth and, he asserted, runoff. Council rejected Mr. Shonkwiler's criticism for several reasons. Not least among those reasons was Council's realization that Mr. Shonkwiler had missed the point. Mr. Mc Guire's testimony established that all increases in runoff have a cumulative effect if not mitigated. Even if his estimate of an increase in the stream level of four feet was inaccurate, Mr. McGuire's testimony established that all increases in runoff have a significant impact on the system. This, in turn, showed that all such increases result in a cost to the City by using up capacity. Based on the testimony of Mr. McGuire and others, Council found that here that cost was at least $1,600. Council found, moreover, that Mr. McGuire's analysis was conservative: If he had included all land in the Fanno Creek basin, the result would have been even more dramatic. Mr. Shonkwiler overlooked that while some of Tigard is outside the Fanno Creek basin, parts of Beaverton, Portland, EXHIBIT A (REVISED) TO FINAL ORDER Page - 35 Lake Oswego, Durham, Washington County, and Multnomah County are all in the basin and were not included in Mr. McGuire's analysis. These all add up to significantly more area than that part of Tigard outside of the basin. See Comprehensive Plan at I-192 ("The major drainage problem in Tigard is the storm water runoff throughout the area. This problem results from the increase in impervious land surfaces that can alter the quantity and quality of runoff from the land."); Comprehensive Plan at U-13 ("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 area, as well as inside Tigard's Planning Area."); see also CR 01530 (testimony of Harris) (Fanno Creek "is the major drainage way for the City of Tigard; in fact, the extent of the City approximates the watershed ofFanno Creek."); CR 01530 (testimony of Harris) ("At the Main Street bridge, Fanno Creek drains a watershed of 25.1 square miles, equivalent to 16,064 acres."). Considering these factors, Mr. McGuire's was a conservative analysis that accurately described the cumulative effects of runoff in the drainage basin. A full accounting of the entire drainage basin area, topography, and past and potential development would more than offset for the small area of Tigard outside of the Fanno Creek basin. Mr. Shonkwiler also criticized Mr. McGuire by claiming that there had been no rise in the floodplain since the Master Drainage Plan was adopted, as Mr. McGuire's calculations would have predicted. Council found no evidence in the record to support that position. Figure 5.2 of the Master Drainage Plan showed the 100-year flood profile as it existed when the report was written and the future 100-year flood profile. As expected, the future profile was higher than the existing, indicating a rise in flood elevation resulting from development and increased flow rates. The Master Drainage Plan thus recognized the impact of development on existing flood plains. Future urbanization within the Fanno Creek basin will significantly increase flooding problems. The Master Drainage Plan considered a 20-year planning period that ends in the year 2000. Development in the Fanno Creek basin has occurred at least to the level anticipated by the Plan. Also we are now nearing the year 2000. To state, as did Mr. Shonkwiler, that there has been no rise in the floodplain elevation ignores the Master Drainage Plan, basic hydrology and hydraulics, as well as common sense. AOL EXHIBIT A (REVISED) TO FINAL ORDER Page - 36 Mr. Shonkwiler also criticized Mr. McGuire's analysis because it did not distinguish between residential and commercial development. He asserted that "commercial and industrial properties are approximately three times higher in storm water runoff than residential." Again, this statement did not support Applicant. She proposed to develop her site as a commercial property, and it would generate runoff accordingly. The impact of development of this site would thus be "approximately three times higher" than a similar residential development. Based on the foregoing analysis, Council found that Applicant's project would generate additional runoff that would, by any reasonable measure, have a significant impact of at least $1,600 on Tigard's drainage system. Applicant's attorney tried to avoid this conclusion by arguing that Tigard's calculation of the impacts was not sufficiently specific to satisfy the rough proportionality test. Unsatisfied with the city's analysis of the drainage impacts, Mr. Shonkwiler claimed that Tigard had failed to prove rough proportionality. The nut of his argument appeared to be the following paragraph: The issue is not whether the Dolans are generating storm water from their site, they are. The City has made no attempt to calculate or proportionately assign storm water costs to properties both up and down stream. The issue is whether the cost assessed by the City is proportionate with the overall cost for storm water management. Here, it is not and the Dolans are being required to pay or contribute more than their fair share. Although it was not entirely clear what approach Mr. Shonkwiler would have found acceptable, his contention did merit a response. In contending that Council had to assign proportionate values to each property up and down Fanno Creek, Mr. Shonkwiler was saying that the Council must for each property make an exact analysis of impacts and proportionality. However, that was not the test selected by the United States Supreme Court. The Court held that the City had to show only rough proportionality between the impact of the project and the exaction. EXHIBIT A (REVISED) TO FINAL ORDER Page - 37 Mr. Shonkwiler tacitly acknowledged this point by saying that "[t]he issue is whether the cost assessed by the city is proportionate with the overall cost for storm water management." (Emphasis added.) However, Council found that Tigard had shown through several methodologies the proportionate impact of the development on the total system: • In response to Mr. Smith's argument that the City was required to use the Drainage Plan methodology and that that methodology would satisfy the rough proportionality requirement, the City showed that the impact of the project would be at least $1,603.18 • Tigard showed that by using USA's drainage system development charge methodology the impact would be calculated at $4,068 (for the 100 year flood). • The value of the exaction is far less than the public would pay to provide onsite detention or retention, or in-stream detention. Through all of these methods one result stood clear: the probable impacts of the development were equal to at least $1,600. b. Tigard Established a Reasonable Correspondence Betty en h Impacts of the Development and the Purposes It Offered in Support of Remand Condition One (1) Tigard Fixed the Deficiency the Court Identified In its Dolan II decision, the Court found that Tigard had not shown a reasonable relationship between the drainage impacts of Applicant's project and its requirement that she dedicate the is Applicant's reaction to the city's calculations under the Master Drainage Plan showed a lack of sincerity in her repeated claims of willingness to bear the cost of development. At the first hearing, Mr. Smith, one of Applicant's attorneys, commended the plan as the correct approach to calculating impacts. Indeed, he said that the City was required to use that method. However, once Applicant discovered that the method did not give rise to a favorable result, Applicant's attorneys abandoned the plan and began criticizing Tigard on other grounds. EXHIBIT A (REVISED) TO FINAL ORDER Page - 38 floodplain area to the public. What seemed to especially bother the Court was its perception that Original Condition One would allow the public to use the floodplain for recreational purposes. Because Tigard had not shown that the project would impact its legitimate interest in providing recreational opportunities, the Court held that the city had not established the requisite relationship between impacts and purposes. Dolan H, 114 S. Ct. at 2320-21. Responding to the Court's decision, Remand Condition One expressly provides that Tigard is acquiring the floodplain easement only to further its legitimate interests in managing flood and drainage problems. Remand Condition One expressly disavows any intent that the floodplain be used for recreational purposes. Furthermore, the condition allows Applicant to fence off the floodplain to make clear to the general public that it is not open for their use. Thus, Council found that Tigard had corrected the problem the Court perceived in Original Condition One and, therefore, satisfied this element of the rough proportionality test. (2) Tigard Showed a Reasonable Correspondence Between the Impacts of Applicant's Development and the Requirement of a Limited ]Public Easement for Enhancement and Maintenance of the Floodplain and Creek Channel Notwithstanding Tigard's correction of the problem identified by the Court, Applicant's attorneys co,:, .hued to argue that it had not shown a sufficient correspondence between the purpose of the easement and the need for an easement allowing Tigard's agents access to the floodplain. Council found, however, that Tigard had justified the easement. Mr. McGuire, an expert drainage engineer (CR 00085), testified that public ownership of an easement in the floodplain was essential. Mr. McGuire noted that Tigard's Master Drainage Plan, part of the Comprehensive Plan; provides that "`Natural drainageways require regular maintenance to be efficient hydraulic conduits for flood flours. Required maintenance items include debris removal, mulching, seeding, erosion control, vegetation clearing and sediment clearing."' CR 00778. To undertake the required maintenance, Mr. McGuire testified, a public easement is essential. EXHIBIT A (REVISED) TO FINAL ORDER Page - 39 Efficient and cost-effective maintenance of drainageways requires that the City have Ask the physical and legal ability to access the drainageway. -High labor costs typically dictate the use of large mechanical equipment. Adequate access for this equipment reduces the time required for maintenance work and its cost. Emergency maintenance or repair to the drainageway is also accomplished quicker with proper access. Fanno Creek serves to remove storm water from upstream areas much the same as a sanitary sewer does with waste water. While Fanno Creek may offer aesthetic benefits, the two function in similar capacities. Sanitary sewers also require periodic maintenance to fianction as intended. Where sewers are located out of public rights- of-way, easements are provided to allow municipal access for maintenance. Maintenance of public sewers is a traditional agency function. Providing maintenance on a larger scale allows purchase of specialized equipment and trained labor. Because the drainageway functions as a complete channel, the proper maintenance of the entire channel by a single agency is important. It is not practical to rely on individual property owners to adsquat ;ly maintain a large system like the Fanno Creek drainage. Uncoordinated maintenance by individual owners would not be effective. Afft CR 00778 (emphasis added). Tigard's justification for acquiring a public easement to maintain the floodplain was also confirmed by the National Floodplain Managers Association. In its brief to the Court, the Association explained that, the most efficient flood management system requires that channels remain unblocked and be capable of receiving the full water flowing into a portion of a channel from upstream. The alternative would be large flows feeding water into more constricted areas so that the system could actually increase flood problems. Flood management systems can only work if the flow discharge and conveyance systems on each property are intelligently integrated, AUL EXHIBIT A (REVISED) TO FINAL ORDER Page - 40 Iiiiiiiii 1111111 ill ~Iilllgill III III Not only is comprehensive flood management more efficient, it is also more accurate and more fair. A comprehensive analysis permits a greater dedication of technical resources and allows a cumulative analysis of how potential development can impact overall flooding levels. A comprehensive plan reduces the likelihood that individual decisions will be capricious and impose burdens unfairly. CR 01300-01 (emphasis added). (3) Remand Condition One Does Not C211 on Applicant to Provide "Excess Capacity" Applicant argued to Council that Remand Condition One was improper because it would require her to provide more capacity than necessary to handle the increase in runoff from her site. For example, her lawyer said the following in one of his submissions to Council: The projected improvements in the CI-12M Hill plan adopted by the City and partially implemented to date, ultimately result in greater capacity of the floodwater flows through the Fanno Creek basin. This, in turn, creates greater capacity or a lowering of the 100 year floodplain at the Dolan site. The City refuses and utterly fails to calculate a credit to the Dolan storm water generation allocated for a shared basis in this excess capacity. Council found Applicant's argument to be meaningless and factually incorrect. The argument is meaningless for the following reasons, supplied to Council by the National Floodplain Manager's Association, which it adopted as findings: [Applicant] seems to suggest that there must be a quantitative equality between the amount of runoff water generated by a development and the amount of water that would be controlled by the channel improvement. But that is a physically meaningless comparison. EXHIBIT A (REVISED) TO FINAL ORDER Page - 41 aim The purpose of a channel improvement is not to store water but to convey it rapidly downstream and out of the problem area. It will convey floodwaters from a wide variety of sources, and the amount of conveyance will therefore be far greater than the amount of runoff from any ene site. But that does not represent a huge contribution by each individual channel area improved because the utility of a channel improvement at any one point depends on the utility of the adjacent channel. There is little value, and generally a problem, in conveying water more rapidly through one portion of a stream if the downstream portion lacks the same conveyance capacity because that would simply mean more flooding at the point of bottleneck. Any one channel area ony makes a small but necessary contribution to the utility of the channel as a whole. There is no obvious way to compare the improved utility of any portion of a channel with the amount of increased runoff from one particular site. CR 01299 (emphasis added). This reasoning was consistent with the opinion of Mr. Berry, the city's utility engineer, who testified as foLows: "I do not agree with the applicant's characterization of this effect [building out the improvements called for in the Master Drainage Plan] as `creating surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(a) and 7.2.1(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters." CR 00056; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area."). The Flood Plain Managers Association and Mr. Berry are experts in the field. Council found them to be much more qualified than Applicant's lawyer to opine on this issue. Therefore, Council found that the drainage improvements called for in the Master Drainage Plan did not cause Applicant to make a disproportionate contribution to Tigard's drainage system. Council also found Applicant's argument concerning excess capacity to have no basis in fact. Her lawyer, Mr. Shonkwiler, claimed that improvements less than all of those called for in the Drainage Plan had resulted in adequate capacity by partially achieving the goals of the Master Drainage Plan. He then asserted that the impact of Applicant's development would be so slight as to not justify any additional improvements. Council found him to be mistaken. AOL EXHIBIT A (REVISED) TO FINAL ORDER Page - 42 =mild Mr. Shonkwiler reasoned that the improvements have been sufficient to provide a capacity sufficient to maintain the floodplain at 150 feet of elevation at Applicant's site. This argument was based on the assumption that 150 feet of elevation was an acceptable level of service for the drainage system. That assumption, however, was badly misplaced. The Master Drainage Plan identified flood problems under the conditions existing at the time of the study. Indeed, Applicant's own drainage expert, Mr. Harris testified that "Master Drainage Plan, part 6.2.1 deals with extensive improvements proposed for the channel close to the Main Street Bridge. These improvements were proposed in July 1981, almost seven years before the Dolan site improvement plan was prepared, demonstrating that the problems of flooding on Fanno Creek are quite independent of any activities proposed by Mr. Dolan." CR 01532. When Tigard adopted the Master Drainage Plan the creek's floodplain was at 150 feet. In essence, the plan identified a deficiency in the existing drainage system. It proposed steps to correct that deficiency and steps to prevent new development from negating the City's efforts to reach a better standard of service. This observation means that the improvements which have occurred to date have not created "excess capacity." Instead, they have been directed toward curing existing problems, providing an increased margin of safety and to mitigating the effects of new development. Council thus found that Applicant must be required to mitigate for the additional drainage impact her project will have on the Aft system. Cf. CR 00155 (Amicus Brief of Flood Plain Managers Association) ("All of those who support risky behavior, either directly or indirectly, must share in floodplain management and in the costs of reducing that risk. The federal government can lead by example; but state and local governments must manage their own floodplains. Individual citizens must adjust their actions to the risk they face and bear a greater share of the economic costs."). In a twist on her excess capacity argument, Applicant contended that Tigard's recent replacement of the Main Street Bridge provided so much additional capacity in the creek channel that she should not have to mitigate for her own impacts. Again, Council found Applicant's argument to be meaningless and factually incorrect. Straying far outside his field of expertise, Applicant's lawyer argued, without, so far as Council could tell, any expert assistance, that construction of the bridge solved any drainage problem her project might create. Mr. Berry, an expert engineer, responded to Mr. Shonkwiler by explaining that the Master Drainage Plan could not be used to estimate the effect of any given improvement. EXHIBIT A (REVISED) TO FINAL ORDER Page - 43 Instead, its predictions were reliable only if all of its recommended improvements were completed. CR 00055, 00056, 00057, 00464; see also Master Drainage Plan at 9-1 ("Only the full implementation of the recommended plan will provide relief from the 100-year flood throughout the Tigard area."). Furthermore, Mr. Berry testified that merely changing the bridge structure, without making channel improvements on the Property would not mitigate for additional runoff. CR 00055, 00056, 00057, 00464. Although Mr. Shonkwiler claimed that the cure of a drainage problem was the sum of its pacts, that claim only illustrated his ignorance of hydraulics. As Mr. Berry explained, the creek functions much like a coronary artery. The goal is to have water run swiftly throughout its entire reach. Fixing a blockage at the Main Street bridge, without making the major channel improvements called for on the Property would only shift the flood back upstream. CR 00055. Mr. Berry established that many of the channel improvements were not done along with the bridge. According to Mr. Berry, moreover, the bridge was not the primary cause of flooding. Instead, channel constrictions--some of which must have been due to the fill placed on the Dolan property"-were the primary culprits. As explained by Mr. Berry, these channel restrictions are the reason why simply replacing the bridge did not cure flooding problems in the city. Furthermore, as Mr. Berry testified, to achieve a reduction in the floodplain both structural--e.g., channel improvements--and nonstructural improvements--e.g., regular and coordinated maintenance--are essential. Mr. Shonkwiler claimed that because most of the storm water runoff in Fanno Creek is upstream of the Main Street bridge, replacement of that bridge is alone enough to create adequate capacity for the Dolan project were completed. As Mr. Berry testified, the report cannot be used to extrapolate other results. The Master Drainage Plan does not say that replacing the bridge would alone solve the City's flooding problems. The Plan does not say that making only a few of the other suggested improvements would solve the problem. Instead, the Plan predicted a 1.5 foot reduction in the floodplain if all of the improvements were completed. Its reasoning cannot be extrapolated to some other, partial solution. 19 See CR 00093 (report of Hams-McMonagle Associates, Inc. concluding that previous owner of the Property put fill in the floodplain). EXHIBIT A (REVISED) TO FINAL ORDER Page - 44 Applicant, through Mr. Shonkwiler, also argued that the city had erred in not considering water quality facilities in computing the runoff effects of her development. However, Council found that Tigard had taken the correct approach. In opposition to the testimony of Applicant's 'lawyer, the Council received expert testimony as to the effectiveness of water quality facilities from Mr. & ty, a qualified professional engineer. Mr. Berry found that water quality facilities do not provide any retention benefit in a 25 year or larger storm because they are not designed to operate in those circumstances. CR 00058, 00464. Furthermore, Mr. Berry testified that CH2M Hill did consider such facilities when it prepared the Master Drainage Plan, but did not find them to provide any benefits relating to severe flooding: CR 00058. Although Mr. Shonkwiler criticized Mr. Bevy's testimony, Mr. Shonkwiler was not an expert in the field and he presented no evidence to support his layman's arguments. For example, Mr. Shonkwiler claimed that upstream water quality facilities had resulted in a 10 percent reduction in runoff. However, Council could not identify any evidence supporting that claim, and Mr. Berry's August 1 memorandum noted that the Master Drainage Plan did not indicate any such mitigation in runoff attributable to such facilities. Assuming for the sake of argument that Mr. Shonkwiler was correct that upstream water quality facilities offer some small benefit in detaining storm runoff, the argument was still not helpful to Applicant. The same development that is required to provide water quality facilities can also be expected to add impervious areas, decreasing the time required for runoff to concentrate. Furthermore, storm sewers may be built both on site and off site, that will further speed discharge of runoff to Fanno Creek. Even if the water quality facilities provide some detention value, the reduced time of concentration on site and through the developed conveyance system will deliver water to Fanno Creek in greater volume and at higher peak rates following development. Hence, developments use up far more drainage capacity than the limited amount they might supply in water quality facilities. Water quality facilities, even if they work to retain some storm water, also do not eliminate the cost imposed on. the city by Applicant's development. Council found the following testimony of EXHIBIT A (REVISED) TO FINAL ORDER Page - 45 Mr. McGuire to be persuasive on this point and adopted it as findings in support of Remand Condition One: If it is assumed that all new development located upstream from the Dolan site were to detain runoff to existing levels, then it could be concluded that the peak flow rates would not increase at the Dolan site. Runoff from the Dolan site (not detained) could be added to Fanno Creek and the resulting downstream peaks not increased to those predicted by the Drainage Master Plan. While the downstream peak flows would be less in this scenario, the Dolan site would still produce an increase in peak flows and impact to flood levels. The cost to mitigate the impacts would be less with the upstream detention; however, the assessment area paying for mitigations [sic] would be smaller (if upstream sites were to provide detention, they should not be assessed for impacts caused by downstream sites). In this case, impacts to the Dolan site would be similar to those occurring without the assumption of upstream detention. CR 00780. Based on the preceding evidence and analysis, Council found that Tigard had shown a reasonable correspondence between the interests it advanced in support of Remand Condition One and the probable impacts of Applicant's development. C. Tigard Showed that the Floodplain Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of Applicant's Development Council found that Tigard showed that Remand Condition One would facilitate mitigation for the significant impacts that the development would cause. The Master Drainage Plan found that making major channel improvements at the Property would, when combined with other system improvements, help mitigate for increased runoff. Furthermore, Applicant did not argue that dedication of the floodplain area would not help mitigate for drainage problems. Instead, she agreed that the projects in the plan would create additional capacity, but argued that the plan would result EX [BIT A (REMISED) TO FINAL ORDER Page - 46 IBM in excess capacity. Although her argument about excess capacity was not correct, she apparently agreed that the channel improvements called for in the plan would or likely would result in improved drainage. d. Tigard Showed That the Floodplain Easement in Remand Condition One Was Roughly Proportional in Extent to the Impacts of Applicant's Development As explained above, Council found that Applicant's project would impose costs on Tigard of at least $1,600. It found those impacts to be proportional in extent to the value of the easement called for in Remand Condition One. Council received conflicting testimony concerning the value of the floodplain easement. Staff presented an appraisal done by Palmer, Groth & Pietka, Inc., a firm of professional appraisers, which concluded that the floodplain easement likely had no value, or at most was worth $1,300. CR 00912. Applicant, however, submitted an affidavit from her son claiming that the floodplain and bicycle easements together had a value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $1,300 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards and according to standard procedures. The appraisers, for example, based their valuation on comparable properties, which were shown in the record. Applicant's son, on the other hand, did not detail his qualifications to appraise the property as opposed to making an educated guess about its value and he did not provide comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law suit with the city for inverse condemnation. For purposes of that suit, it was in his personal interest to maximize the value of the floodplain property. Accordingly, he was undoubtedly biased toward overestimating the value of the floodplain property, in which he has an ownership interest. This observation was borne out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to be without credibility in this regard, while it found the valuation of the appraisers to have been conducted in an objective, independent manner. EXHIBIT A (REVISED) TO FINAL ORDER Page - 47 MEN= Because the floodplain easement had Proportionality a value; of only $1,300,20 Easement Value vs. Impact while Applicant's project \~l1\1l1\1\1\ l would have drainage N-N S; N~iN NN impacts of at least $1,600, Council found Remand Condition One to be proportional to the exaction. Figure 4 visually illustrates this conclusion. Impact of Development Value of Easement Figure 4: Visual Illustration of Proportionality 3. The Required Bike/Pedestrian Path Easement Satisfies the Rough Proportionality Test a. Tigard. Through an Individualized Evaluation, Showed That Applicant's Project Would Have Significant Impacts Applicant acknowledged that her project would increase the number of car trips on the city's street system. CR 00146 ("The expansion of the Tigard A-Boy store will add 206 trips per day to the surrounding street system."). Applicant disagreed only about the number of new trips, arguing that Staff's projection was an overstatement. Council thus had to choose between conflicting evidence, but began its analysis with a recognition that the project would have a significant traffic impact whichever evidence it accepted. 2 indeed, C+~unetP found this amount io averse she v&lue ti the Basemen : because the dertsicm altowed Mant aaaarcenang to cati it tfle easem nt iiro}~mrly toward t ie tancLses~ping ret~ulreinent; ihecity alto~ved Appticsnt to *eve10 zaoCe cal hit ntara vatuaNc and ablaupiI W.prnperty W?: outtl ce qu~ t, A3?I?1 r t tc?uttt.ba~eb.00 equt ed tq dtirtxfel#1et,pet:o~thate.valualepert3 toladsctxn EXHIBIT A (REVISED) TO FINAL ORDER Page - 48 Council began by noting that in the September `91 Approval it found that, for purposes of estimating the WTIF, the project would generate an additional 419.29 trips per day. CR 01026. Because the WTIF did not contain a trip generation number for general retail, the use for which Applicant applied, Council had relied on the traffic generating characteristics of hardware and paint stores. CR 01026. Council included this trip generation figure and reasoning in the September `91 Approval. Applicant did not appeal Council's finding. Moreover, the Supreme Court of the United States relied on the finding to conclude that traffic impacts from the development were likely. Dolan 11, 114 S. Ct. at 2321 n.9. Because Applicant could have presented evidence of actual trip generation at the earlier hearing and did not do so, and because she did not appeal Council's finding, the issue of trip generation from the project was decided in the earlier proceedings. Council's finding that the project would generate an additional 419.29 trips is an old, decided issue and was not subject to further review. See, supra, at 11. Notwithstanding this finding, Council felt it should make new findings on evidence concerning trip counts in case LUBA or the courts held that evidence to have been properly before it on remand. Hence, the following discussion of trip generation assumes for the sake of argument only that the question of trip counts was actually before Council for decision. In approaching this issue, Council found that the project would generate at least as many trips as Applicant said it would. Applicant submitted evidence from Mr. Woelk, a traffic engineer, which purported to state the number of trips a plumbing and electrical store could be expected to generate. Mr. Woelk concluded from his study that the new building proposed for the Property, if it was occupied by an A-Boy store, would generate an additional 206 automobile trips per day. CR 00146. Therefore, Council found that approval of the application would result in an increase of at least 206 trips per day on the city's street system. Council next considered evidence showing that the actual trip generation from the project was likely to be much higher than Mr. Woelk predicted. Tigard retained David Larson, an expert traffic engineer, CR 00085, to determine the likely impacts of Applicant's project. Mr. Larson found that the proposed development was properly characterized as a Hardware/Paint Store for purposes of predicting trip generation. Based on that Aft EXHIBIT A (REVISED) TO FINAL ORDER Page'- 49 conclusion, Mr. Larson used the ITEMwmal, a respected industry source, to predict that Applicant's project would result in an additional 404.17 trips per day. CR 00931. Mr. Woelk admitted that Mr. Larson's projection was in accord with accepted engineering practices and was the method he would normally select to make predictions regarding trip generation. 6-27-95 Tr. at 22 ("The methodology that your traffic engineer used would be the same methodology that I would use in an evaluation such as this. Everything that Mr. Larson has done is within the realm of practice."); id. at 24 ("The City's methodology is consistent with what is done in the traffic engineering field."). Mr. Woelk, however, disagreed with Mr. Larson's prediction here. He argued that the ITEMwmal used only four studies in projecting trips that a hardware/paint store was likely to generate. 6-27-95 Tr. at 24. He said that under those circumstances, and pursuant to the WTIF, Council should rely on the predictions in his study, which were generated from a sample of A-Boy stores. See, e.g., 6-27-95 Tr. at 20. Council found for several reasons that it should reject Mr. Woelk's argument and rely on the trip generation figure provided by Mr. Larson. Applicant applied for site development review approval for general retail uses. Although Applicant said that A -Boy would occupy the larger store, A-Boy was not a party to this application. A-Boy was merely the current lessee of the existing store. Furthermore, as landlords Applicant and her son could rent the new store to another tenant. Mr. Woelk's study is only valid, if at all, as to A- Boy stores. Although Mr. Woelk claimed that his study showed trips expected from a plumbing and electrical store, he obtained his data only from A-Boy stores. Therefore, Council believed it more correct to say that Mr. Woelk's study is relevant only to estimating trip generation from A-Boy stores. Plumbing and electrical stores operated by other companies conceivably could generate more ITE ALLOWED USES DAILY TRIP RATE/1000 SF 816 Hardware and Paint 51.29 A-Boy (ATEP) 26.45 814 Specialty Retail 40.67 912 Walk-in Bank 140.61 Figure 5: Potential uses EXHIBIT A (REVISED) TO FINAL ORDER Page - 50 IN! ~I or less trips than a typical A-Boy. Mr. Larson testified that given the range of uses available to Applicant upon receiving approval of a general retail use, Council should consider the trip generation rates of a variety of possible uses in predicting the impacts of the projects. CR 00083.21 Figure 5 sets out some of those uses and their relative trip generating characteristics. Mr. Larson concluded, and Council accepted his opinion, that given the range of possible uses for the development and the limitatibns in Mr. Woelk's study,22 Council should expeci the development to generate 404 additional trips. Council also found the designation "Hardware/Paint Store" appropriate, even for an A-Boy store. Evidence in the record showed that other A-Boy stores sold hardware and held themselves out to the public as hardware/paint stores. See CR 00048, 00049. Applicant submitfc.d much evidence saying that A-Boy needed to expand the Tigard store to meet competition, presumably by expanding its product line. E.g. CR 00128. Although her son testified that the Tigard A-Boy would not sell hardware and paint, Council did not find him to be credible. His testimony was self-serving and appeared to be contradicted by pleadings filed in the Circuit Court action he and Applicant have brought against the city. Id Furthermore, his testimony was not credible because other stores in the A-Boy chain, which Applicant apparently represented to Mr. Woelk to be only plumbing and electrical stores, actually sell hardware and paint. CR 00781; CR 00773; CR 00771; CR 00757; see also, e.g., CR 00765 (advertisement for A-Boy beginning with banner caption "LARGE PAINT 21 Mr. Larson testified on this point as follows: The Dolan traffic study for an A-Boy plumbing supply store addresses only one of the uses applied for and approved. The correct way to assess impacts to the transportation system for the property under this zone is to examine the uses that can be made without further hearings. Our testimony of July 18, 1995, with an accompanying table of range of possible uses, clearly demonstrates that the outright permitted use of this property and resulting impacts are significantly higher than the A-Boy proposal. This is the correct methodology, because it does not ignore the impacts that can occur under the permitted uses as the ATEP report does. CR 00083. 22 In addition to the other flaws in his study, Mr. Woelk apparently misunderstood the test applicable here. He "agreed[] there are many multitudes of uses that could be done in a general retail area. But we're talking about a specific use." 7-18-95 Tr. at 24. However, Council's task was not to evaluate a single use. Instead, it had to predict the likely impacts of the project based on all of the uses open to Applicant. EXHIBIT A (REVISED) TO FINAL ORDER Page - 51 MOM gem DEPARTMENT").23 Council can only assume that the Tigard A-Boy store will eventually follow suit, especially considering that A-Boy considers its Barbur Boulevard store, which sells a wide range of home improvement items, to be its "flagship" store. CR 00773. In addition, evidence in the record showed that Applicant had sought the flexibility inherent in approval of a general retail use.. In paragraph 2, Proposal Summary, of the application, the following was typed in as a summary of the project: "The construction of a 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not A-Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLICANT(S) SHALL CERTIFY THAT: C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such AM& statements are false. The applicant has read the entire contents of the application, including the policies and criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate 23 Council found much of Mr. Woelk's testimony that Council should consider A-Boy to be only a plumbing and electrical business to be questionable because he did not seem to know the product line sold in such stores. On June 26, 1995, for example, he testified that it was his opinion that the ITE classification "hardware/paint store" did "not represent the A-Boy Plumbing Stores since A-Boy plumbing stores [sic] do not sell paint nor what could be considered as `Hardware. CR 01360. However, later he had to admit that several A-Boy stores did sell such items, saying, "[a]s I testified in my original presentation on June 27, 1995, I randomly picked four of the A-Boy Stores to survey. At that time I did not know that these stores were also part of the ACE Hardware system. Only this week did I become aware that they were in part hardware stores." CR 00145. Because the nature of the stores was so basic to Mr. Woelk's testimony, his lack of care in that regard discredited much of the rest of his testimony by implying that his other conclusions were reached with a similar lack of care. EXHIBIT A (REVISED) TO FINAL ORDER Page - 52 and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses. Mr. Shonkwiler argued that Council should not consider a range of uses because the city would have an opportunity to impose new conditions if A-Boy did not or ceased to occupy the building. Council did not accept this claim because the CDC would not require a review of conditions under those circumstances. See, infra, at 76. Mr. Shonkwiler invited Counci',,to condition approval on a requirement that the building be used only by A-Boy and only for the sale of plumbing and electrical supplies. Council found his suggestions to be unworkable. Almost constant inspection would be required to know whether the A-Boy was selling something other than plumbing and electrical supplies. Tigard lacks the resources to undertake such an aggressive enforcement responsibility. Furthermore, enforcement of the condition would be rife with disputes. The distinction between electrical and plumbing supplies and those carried by a hardware store is far from clear. For example, screws can be both "hardware" and electrical or plumbing components. See, e.g., CR 00756 ("In a visit to the [Tigard A-Boy] store on Monday, June 26, 1995, I observed items for sale at the store which ranged in size from assorted nuts, bolts and screws, light bulbs, faucet handles, phone jacks, tubes of bath caulk and light switches to larger items such as toilets, sinks and bathtubs. Additionally, I observed a person purchase a roll of duct tape."). In addition, A -Boy, a legal entity apart from Applicant will be running the store. A- Boy has stated that it plans to expand the line of goods sold in the store to "meet competition" (CR 00128), and it identified the Barbur Boulevard store as its flagship (CR 00773). Therefore, it likely would try to expand the types of goods it was selling in the store, and the inspection condition would require continual monitoring of an entity that was not a party to this application. Council, therefore, declined Mr. Shonkwiler's invitation. EXHIBIT A (REVISED) TO FINAL ORDER Page - 53 Whatever the result of Applicant's proposal, be it 404 trips, added Trips 206 trips, or something in between, Range of Predicted Trip Increases Tigard established that the development would have a significant 500 impact. Although Council found the 400 404 trips to be more credible, that S 300 r finding was not essential to its Zoo ,''%!}!%,',,'i decision. Any number in the range 100 between 206 and 404 was sufficient to " 0 satisfy the first requirement of the Minimum Expected Likely Increase rough proportionality test. Increase in Auto Trips Both Staff and Applicant Figure 6: Range of Traffic Impacts submitted evidence and made arguments over how to quantify the cost of additional trips from the development, but Council did not believe it essential to quantify the cost of the additional trips. Because Dolan II required proof only of the impacts from the development, which the Court said did not need to be mathematically certain, Council's finding that the development would cause at least 206 additional trips, with the probability that it would cause 404, was sufficient to satisfy the test. Council concluded that it should nevertheless make findings going beyond the strict requirements of Dolan II to ensure that in imposing Remand Condition One, Tigard had fully honored the decision of the United States Supreme Court. Mr. Larson provided Council with a report setting out a methodology for deciding the cost of the additional trips based on his review of the infrastructure costs used to set the WTIF. Council found based on its review of the WTIF" and Mr. Larson's testimony, that Washington County had set the WTIF based on a proportional allocation of all infrastructure needed to support traffic growth in Washington County, including Tigard, through the year 2005. CR 00931 This allowed Mr. Larson to determine the total cost of building infrastructure in Tigard and Washington County as a whole. Mr. Larson then determined that the WTIF would cover only 32 percent of Tigard's projected costs for building transportation infrastructure to accommodate growth. Id. He testified that it was thus Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 54 appropriate for Council to find that approval of the application would result in unmitigated impacts of $33,496.22. CR 00931-32. Applicant's attorney, Mr. Shonkwiler, argued that the approach taken by Mr. Larson was invalid. He claimed that the projects supporting development of the WTIF were somehow controversial and that it was therefore inappropriate to use them as a basis for estimating the cost of development. He further argued that the WTIF somehow forbade Council from using the facts supporting the WTIF methodology as a basis for judging the impacts of Applicant's development. Council rejected Mr. Shonkwiler's arguments for several reasons. As an initial matter, nowhere did the WTIF forbid using its supporting data as a basis for judging the costs of infrastructure. Based on its review of the WTIF methodology and Mir. Larson's testimony, Council found that the data supporting the WTIF were intended to be a proportional allocation of infrastructure costs which provided the best and most fair basis on which to judge cost impacts. Furthermore, Mr. Shonkwiler was not an expert on traffic impacts. He was just a lawyer. Mr. Larson, on the other hand, whose testimony Council chose to accept, was an experienced traffic engineer. Mr. Larson testified that the WTIF methodology was the best possible basis on which to base Council's cost projections. Perhaps more telling in this regard was the testimony of Mr. Woelk. Mr. Woelk, like Mr. Larson, is an experienced traffic engineer. As a representative of Applicant, Council would have expected him to criticize Mr. Larson's work wherever possible. Indeed, Council noted that Mr. Woelk did disagree with Mr. Larson on several points. In his testimony concerning cost projections, however, Mr. Woelk agreed with and supported Mr. Larson's selection of methodology. 6-27-95 Tr. at 22, 24; see also CR 01362 ("Tigard used the correct methodology in their analysis"). Mr. Woelk's only disagreement with Mr. Larson concerned whether the project would generate fewer trips than Mr. Larson predicted. 6-27-95 Tr. at 24. Council found that Mr. Larson used the correct methodology in predicting the cost impacts of Applicant's development. Using Mr. Larson's trip generation figures, the methodology yielded a cost impact of $33,496.22 in otherwise unmitigated costs. CR 00931-32. Although Council found Mr. Larson's trip generation figures to be more appropriate than those of Mr. Woelk, it noted that Mr. Woelk estimated that the project could be expected to have an unmitigated impact of around EXHIBIT A (REVISED) TO FINAL ORDER Page - 55 $17,000. 6-27-95 Tr. at 23 ("The actual, based upon the actual trip generation rates, you can see that Adh all of that comes down to an actual unmitigated impact of $17,000."); accord CR 01361 Either way, Council found that the impact would be significant. b. 'l'izard Established a Reasonable Correspondence Between the Impgcts of the Develonment and the Purposes It Offered in Support of Remand Condition One In Dolan 11, the Court held that Tigard had not established a reasonable relationship between the need for public access to the floodplain and the drainage impacts of Applicant's proposed development. Dolan 11, 114 S. Ct. at 2321. It did not find the same deficiency as to the easement requiring the bicyclelpedestrian way. Instead, it found that the city had not shown that the pathway would or would be likely to mitigate for the traffic impacts of the expansion. The Court thus held that as to the pathway Tigard had established the reasonable correspondence required by this element of the rough proportionality test. Council therefore found that this element of the test was not an issue on remand. See, supra, at 11. Council nevertheless chose to make factual findings on the question. The Court held that the city had not justified public access to the floodplain because it had shown no justification for a public easement to the floodplain and because of a concern that the easement was intended to support wholly recreational uses. Remand Condition One corrected for those problems with regard to the floodplain, and it did not present similar concerns with regard to the pathway. Tigard's land use regulations establish several purposes for the pathway, including support of bicycling and walking for commercial and shopping purposes. See, supra at 21. Although Mr. Shonkwiler argued that the pathway was purely for recreational purposes, those arguments were refuted above. Furthermore, as detailed below, Council found that the pathway would mitigate for car trips occurring for commercial and shopping purposes. Therefore, Council found the easement to have a reasonable correspondence between the increase in traffic caused by Applicant's store and the purpose of mitigating for those trips. EXHIBIT A (REVISED) TO FINAL ORDER Page - 56 Applicant made one additional argument that might have been addressed to this element of the rough proportionality test. She argued that the city had not shown that the pathway would mitigate for trips that would otherwise have come by car to the A-Boy store. Council found that Tigard did not bear such a burden. In Dolan II, the Court recognized that traffic is fungible. For example, if Applicant's project generated a trip from her store but the pathway removed a commercial trip otherwise destined for downtown, no net increase in trips would have occurred. Thus, so long as the pathway removes trips from the road system, it would create capacity for new trips generated by Applicant's project and prevent increased traffic congestion. Council held this to be a sufficient correspondence to satisfy the Court's new test. Cf. CR 01347 ("Even when an argument can be made that a particular commercial tenant has no use for bicycle traffic this relationship is reasonable since tenants come and go but commercial activity per se is dependent on all forms of traffic."). C. Ti_ rd Showed That the Bicycle/Pedestrian Pathway Easement Called for in Remand Condition One Would or Would Be Likely to Mitigate for the Impacts of ADDlicant's Development In Dolan II, the Court identified only one deficiency in Tigard's findings concerning the pathway. There, Tigard had found that the pathway "could" offset some of the traffic demand created by the development. The Court held that finding to be too equivocal, adopting the suggestion of Oregon Justice Peterson that Tigard be required to show that the easement "would" or "would be likely to" mitigate for the project's traffic impacts. "No precise mathematical calculation is required," however. Dolan II, 114 S. Ct. at 2321. Responding to the Court's instructions, Tigard arranged for Mr. Larson to evaluate the importance of this segment of pathway. Mr. Larson used a recent study, 4A The Pedestrian Environment, 1993 ("LUTRAQ"), by Parson Brinkerhoff Quade & Douglas, Inc., in cooperation with Cambridge Systematics, Inc. and Calthorpe Associates, all recognized experts in this field, which carefully analyzed the effect of; among other things, pedestrian and bicycle ways on automobile trips in the Portland Metropolitan area. CR 01072. As Mr. Larson explained, LUTRAQ established a set of factors which together resulted in a value referred to in LUTRAQ as the Pedestrian Environment Factor ("PEF"). CR 00932. Based on application of the LUTRAQ factors to Tigard, Mr. Larson found that the area in the vicinity of the Property currently has a PEF of 4-6. Id. EXHIBIT A (REVISED) TO FINAL ORDER Page - 57 LUTRAQ used sophisticated statistical analysis to show that PEF strongly correlates to trips. For example, LUTRAQ found that in.areas with PEF 4-6 about 94 percent of the trips were by car. In areas with PEF 9-10, LUTRAQ found that about 86.7 percent of trips were by car. Based on its current PEF of 4-6, Mr. Larson testified that LUTRAQ would predict that only four to six percent of the trips in the vicinity of the Property currently are made by bicycle or walking. Mr. Woelk's report verified the accuracy of this prediction, and increased the credibility of the methodology, by showing that about five percent of the trips to the Tigard A-Boy occurred on foot. CR 01361. Mr. Larson testified that by increasing the PEF in downtown Tigard, the city could expect to replace car trips with trips by bicycle or by foot. Testimony from several Tigard residents confirmed the likelihood of this occurring. CR 00468; CR 00467; CR 00465. Mr. Larson said that he had undertaken a careful analysis of existing and planned bicycle and pedestrian ways in the city. He found that the city could expect to achieve a PEF of 9-10, and an additional nine percent reduction in car trips, by building the planned pathway system. CR 00932. He further testified that completion of the pathway link on the Property was "essential" to obtaining that reduction. CR 00781. Michael A. Replogle submitted evidence confirming Mr. Larson's testimony. Mr. Replogle was highly qualified to address the issue before Council, being co-director of the Transportation Project of the Environmental Defense Fund with outstanding credentials in planning and engineering. CR 01133. Mr. Replogle testified that he was familiar with Tigard and the Portland metropolitan area . He reviewed the specifics of the current case with staff from METRO, Tigard and other planners. Based on that review he testified that "the proposed dedications will certainly offset a portion of the traffic and associated air quality impacts generated by the Dolan's [new] facility." Id. Mr. Replogle continued by saying that LUTRAQ showed "that increasing pedestnan/bicycle friendliness (and the corresponding PEF) in suburban areas like Tigard can reduce Vehicle Miles of Travel by motor vehicles by as much as 10 percent. However, such an increase will not be possible without creation of significant new pedestrian/bicycle facilities, including the trail that requires dedication of a portion of Dolan's property." CR 01137. Considering this testimony, Council found that the Fanno Creek pathway would or would be likely to mitigate for the new car trips that Applicant's project will generate. Although not required EXHIBIT A (REVISED) TO FINAL ORDER Page - 58 ADA to specifically quantify that reduction, Council found that the pathway would or would be likely to mitigate for at least nine percent of those new trips.24 Not surprisingly, Applicant did not agree with Mr. Larson's conclusions. She did not, however, take issue with the basic methodology underlying LUTRAQ, perhaps because her expert, Mr. Woelk, testified that Mr. Larson had made appropriate use of the study. Instead, Applicant argued that the path was unnecessary or that the city did not consider all relevant. factors in making its analysis. Council did not agree with these arguments for several reasons. The city demonstrated with Mr. Lrson's testimony that the path was necessary to achieve the trip reduction predicted in LUTRAQ. Mr. Larson also testified that the planned location for the path is reasonable and necessary, rebutting Mr. Dolan's claims in his affidavit." Finally, LUTRAQ 24 Applicant introduced the results of some informal surveys taken at the Tigard A-Boy to argue that the path would result in zero pedestrian/bicycle replacement. Council found the evidence from Mr. Larson, Mr. Replogle and the citizens who testified in person to be more persuasive than Applicant's unscientific survey. Indeed, even Mr. Woelk admitted that current pedestrian ways provide five percent of the store's business. 25 Applicant raised several arguments that alternative locations were available for the path. However, Council found that the proposed pathway route was the only suitable one for the reasons provided by Mr. Larson, as follows: It was suggested at the July 18, 1995, hearing that the pathway could be routed through the parking lot for the A-Boy facility. The following reasons make this alternative unfeasible: 1. The pathway along the creek is the more direct route to Main Street. To route through the A-Boy parking lot would require angle points to be constructed in the pathway. 2. The parking lot pathway would be in conflict with the vehicles maneuvering in and out of parking spaces, in an area where neither vehicles, bikes, nor pedestrians would expect conflicts. 3. The pathway along the creek is a more clearly defined public space. 4. The pathway along the creek is the more attractive route, reinforcing pathway utility and LUTRAQ goals; it will attract more riders. 5. The pathway along the creek is the established standard, and therefore is consistent and clearly identifiable. EXHIBIT A (REVISED) TO FINAL ORDER Page - 59 was the only independent study presented to Council. Mr. Dolan's attempt to challenge the City's traffic analysis by alleging that the City failed to consider the effect of weather and other factors was mistaken because of the statistical method used in LUTRAQ. LUTRAQ found that PEF factors had independently significant effects on transportation mode decisions. Thus, other factors such as weather, while perhaps also relevant to such decisions, do not detract from LUTRAQ's predictions as to the results to be expected from pedestrian and bikeway improvements. LUTRAQ found that for planningpurposes local governments could expect the reductions in auto usage predicted by Mr. Larson's application of LUTRAQ in this case. Therefore, Council rejected Applicant's arguments. Applicant also argued that currently existing paths were sufficient to serve downtown. However, she was mistaken. As Mr. Larson testified, the Fanno Creek path is needed to achieve an adequate PER See, supra, at 58. hi addition, Applicant's argument concerning the adequacy of the existing system was founded primarily on Mr. Woelk's testimony that the Burnham Street pathway was adequate to serve downtown. However, Mr. Larson explained why that path was not a replacement for the Fanno Creek Pathway: In the July 18, 1995, hearing, Mr. Woelk indicated that the Burnham Street pathway is an acceptable alternative to completing the Fanno.Creek Pathway. First, the Burnham street and Fanno pathways are both indicated on the City's Pathway plan. Second, the Burnham street pathway, as a replacement to the Fanno pathway, would result in less direct access to Main Street from areas currently connected to the Fanno pathway. Significant out-of-direction travel world result, reducing the attractiveness of pedestrian/bicycle travel and therefore diminishing pathway effectiveness. Standing alone, the Burnham Street pathway is not an adequate alternative. CR 0083 (emphasis in original). Council found Mr. Larson's testimony to be persuasive and found that the Burnham Street pathway was not an -,;'equate substitute for the Fanno Creek pathway. Finally, Mr. Woelk argued that the city has not shown what effect this development will have on intersections in Tigard. He missed the point. Mr. Woelk had to agree that each new trip had a CR 00083. EX IIBIT A (REVISED) TO FINAL ORDER Page - 60 cumulative impact on the city's traffic system. See CR 00782 (showing that any increase in trips has a significant impact): see also 7-18-95 Tr. at 25 (testimony of Woelk: "I concur that when you incrementally add traffic, just like you incrementally add water, the cumulative is the result. We have no, we have no problem with that."). Each individual trip thus has a cost which it imposes on that system. Id. It is fair to impose that cost on the trip generator, whether or not it is that generator who breaks the system. Here, the city developed a reasonable bads for deciding the cost impact of Applicant's development. It also showed that the exaction's value is far less than that impact. d. Tigard Showed That the Bicycle/Pedestrian Pathway Easement in Remand Condition One Yjas Roughly Proportional in Extent to the Impacts of Applicant's Development To analyze this element of the test, Council first considered evidence establishing the value of the pathway easement. After finding that property to be worth $4,500, Council then considered whether that amount was roughly proportional to the traffic impacts expected from the development." Council received conflicting testimony concerning the value of the pathway easement. Staff presented an appraisal done by Palmer, Groth & Pietka, Inc., a firm of expert appraisers, which concluded that the easement was worth $4,500. CR 00776. Applicant, however, submitted an affidavit from her son claiming that the pathway and floodplain easements had a combined value of $84,000. Council was required to choose between these two evaluations before it could decide whether the value of the easement was proportional to the probable impacts of the project. Council found that it should adopt the $4,500 value provided by the independent appraisal firm. That appraisal was conducted according to professional standards in the appraisal field and according to standard procedures. In addition, the appraisers based their valuation on comparable properties, which were shown in the record. Applicant's son, on the other hand, did not supply 26 At the first of the Remand Hearings Staff suggested a modification to the bicycle/pedestrian way in Oversized Exhibit 18. That diagram showed a notch in the pathway to accommodate Applicant's building as originally proposed. Council chose not to take Staffs suggestion for two reasons. First, Mr. Larson testified that the notched path would create significant safety concerns. CR 00082. Second, Council adopted the interpretation of unappealed Condition Three set out in the August 16, 1995, Staff Report. CR 00016. Under that interpretation Council could not allow the building to be placed in the notch. EXHIBIT A (REVISED) TO FINAL ORDER Page - 61 I comparable values. Furthermore, when he made his guess, Applicant's son was involved in a law suit with the city for inverse condemnation. For purposes ~f that suit, it was in his personal interest to maximize the value of the pathway property. Accordingly, he was undoubtedly biased toward overestimating the value of the property, in which he has an ownership interest. This observation was born out by the great disparity between his valuation and that of the independent appraisers. Put simply, Council found Applicant's son to be without credibility in this regard, while it found the valuation of the appraisers to have been conducted in an objective, independent manner. Applicant criticized the appraisal for not including severance damages, which she claimed would result because she would have to redesign her building to accommodate the proposed pathway. Council rejected her argument for several reasons. First, under Oregon law, severance damages are not available for the condemnation of bare land. Council found that this same rule should apply when the city requires an exaction that is otherwise constitutional. Second, the appraisers found the severance claim to be without merit. They testified that a buyer of the Property would not discount the price he or she was willing to pay because of the easement. CR 00776. Finally, unrebutted evidence in the record showed that the pathway would not prevent Applicant from building a structure of the same square footage while accommodating the pathway. Oversized Exhibit 72 is a set of diagrams Staff submitted showing possible alternative designs that would accommodate the pathway but fully carry out the purposes for this application.27 Therefore, Council found based on unrefuted evidence that the easement could not and would not result in severance damages. Council also rejected a related argument made in an affidavit submitted by Mr. Dolan. There, he argued that the location of the pathway would cause security concerns by transversing the rear of the proposed building. Staff, however, submitted testimony by independent appraisers saying that the location of the path would not cause security concerns sufficient to reduce the Property's value. CR 00776. Because, unlike Mr. Dolan, the appraisers did not have an ax to grind, Council believed 27 These exhibits also show that Applicant could have built the new building any time after the September `91 Approval. After that approval, she had the land use permit she needed to build on the building. As the exhibits show, she could have slightly modified her design to build precisely the same number of square feet of space any time after she received that approval. EXHIBIT A (REVISED) TO FINAL ORDER Page - 62 their testimony to be more credible and relied on it to find that the location of the pathway did not reduce the Property's value.21 After finding the pathway easement to be worth $4,500, Council next considered whether that amount was proportional to the traffic impacts from the development. In undertaking that analysis, Council noted that the Court did not promulgate black letter rules as to how specific a local government must be in making this analysis. However, the Court was clear that mathematical certainty was not required. Council compared the relatively small value of the easement dedication to the likely traffic impacts of the development. At the very least, the development will generate 206 additional trips per day. Council found that the cost imposed by that minimum number would be $17,000. The exaction was thus very much smaller than the project's impacts using the most conservative numbers available. Council thus found the easement to be roughly proportional to the project's impacts. This conclusion became especially obvious when Council Value Comparison considered the more likely result that the Value of Easement v. Cost of Impacts development would generate an 35000 ~ additional 404 trips per day, having an 30000 y yZi:i .44 .;YJ S, y e t . impact of about $33,496. Considenn g 25000 s•~a~ "~~~::s;...r:,:;?.;.: 20000- 15000- 10000- A : "`c?'`c ',;.'•:;,'v.`.; 5000 0 Dollars Larson ER Woelk Easement Figure 7: Value/Cost Comparison 28 In deference to Mr. Dolan's concerns Council modified Remand Condition One to allow Applicant to fence the easement areas off from other portions of her property. Alk EXHIBIT A (REVISED) TO FINAL ORDER Page - 63 that number, an easement worth $4,50029 appeared to be a very small burden to expect Applicant to bear." After concluding that the easement satisfied the Court's requirements, Council considered one final measure, not required by the Court in Dolan H. Using the methodology developed by Mr. Larson and his predictions concerning mitigation, Council determined the value of the mitigation the pathway would or would be likely to provide. Mr. Larson predicted and the Council found that the pathway would result in a nine percent reduction in automobile trips. Multiplying this amount by the predicted increase in trips from the development (404) and by the cost each trip would have imposed on the system, showed that the pathway would result in mitigation of $4,433.06. CR 00933. This 29 . d d ?sd t s azuota t::ca:a erg; i of a sem ►c ac a :W 04.00 lTOWN r~ppli eritt~stxssun s ip tarca totiva.... ? to#Y Cenp rcer lrnc2seapu# req~nr e t Byatlowi g pitGazG€t¢ east ytpvrard tatz capua~r 9turezn~stt,to atl V an todeveCQp ore.sfzer.vtuable anti bie.upiazsd.pteerty iut lEease7arent lpUgantavtd h>xye Eieea er~Ztr~d:co dyotg€te percent a fat mph?Yalulel?I?3` to lapdscaping:` 30 Requiring Applicant and others to bear the cost of automobile traffic generated by their developments is fair to the city's taxpayers and has strong support in basic policies. According to Dr. Nelson, an expert in planning practice and economics, automobile-dependent property, including downtowns and commercial areas devoid of pedestrian and bicyclist facilities, enjoy considerable autornobile subsidies proffered by society at-large [sic]. These subsidies are not paid by benefiting property. As such, society is entitled to have these subsidies compensated through a variety of public-serving planning decisions including dedications and improvements resulting in improved walking and bicycling activity. CR 01333. Dr. Nelson explained the consequences of not requiring developers to bear the actual costs of their developments as follows: By not having automobile users face up to these costs [generated by automobile use], the costs are borne by the public and the avoidance of such costs are internalized as benefits by private property. If these costs were accounted for, land use patterns would change to reflect the true cost of automobile use relative to alternative modes. Public agencies need to devise ways in which to offset this inefficient outcome. A logical method is to exact the provision of pedestrian and bicycle access ways from new development. Such an exaction would have at least three important positive outcomes. First, congestion, pollution, and other adverse effects of automobile-dependency are reduced. Second, private development is made somewhat more responsible for otherwise contributing to the adverse effects of automobile-dependency. Third, by improving access to property, property value improves. In this latter regard, commercial and residential property would likely see the largest gains in value attributable to the provision of pedestrian and bicycle ways, although all property value is likely to gain in some respect. CR 01344. EXHIBIT A (REVISED) TO FINAL ORDER Page - 64 number was proportional to the $4,500 value of the easement. Therefore, Council found the city to have met even the most demanding interpretation of the rough proportionality test. B. MOST OF APPLICANT'S OTHER ARGUMENTS IN OPPOSITION TO REMAND CONDITION ONE WERE NOT PROPERLY BEFORE COUNCIL IN THIS REMAND PROCEEDING When considering an application on remand, Council must determine the scope of issues which are subject to review. That discretion, however, is not without limits. Old issues or issues that could have been raised in earlier proceedings are not subject to reconsideration in a proceeding after remand. See, supra, at 11. This case had gone through four levels of appellate review before coming back to Council on remand. Hence, the questions before Council here were narrow. They were limited to the question whether Remand Condition One satisfied the rough proportionality test and any issues which were created by the Supreme Court's decision that could not have been raised in the earlier proceedings. Applicant made many arguments other than those concerning the Court's rough proportionality test. Most of those arguments, as shown in Table 1 were not subject to Allk reconsideration in these remand proceedings. TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's land use No. Applicant had ample opportunities regulations allowed Tigard to in the earlier proceeding to raise any impose a condition requiring the argument she would have liked dedication of floodplain and pathway concerning Tigard's authority to easements. impose a condition like Remand Condition One under its land use regulations. She chose not to make any such arguments. but focused only on her claims under the Takings Clause. EXHIBIT A (REVISED) TO FINAL ORDER Page - 65 Affik TABLE ONE STATUS OF "OTIIER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether Tigard's decision to impose No. Applicant had ample opportunities the exaction based on the trip in earlier proceedings to challenge generating characteristics of a the characterization of her hardware/paint store violated the development as a hardware/paint WTIF. store. She chose not to raise such challenges and therefore was precluded from doing so on remand. Whether Tigard's interpretation of No. Tigard made substantially the same its land use regulations violated state interpretations of its land use law. regulations in the earlier proceedings to impose Original Condition One. Applicant should have made her arguments about code interpretation then. Whether Tigard's decision violated No. Applicant's arguments under the the Equal Protection Clause of the Equal Protection Clause and Article Fourteenth Amendment to the I, § 20 in this remand proceeding Constitution of the United States and were entirely based on local land use Article I, § 20 of the Constitution of decisions made before or while her the State of Oregon. application was pending. Furthermore, she actualiy contended in the earlier proceedings that Original Condition One was unfair because Tigard treated upland land owners differently than Applicant. CR 00736 ("The fact that the city approves many applications that have similar effects and does not require property dedications was of no concern to the Oregon court.") No review body accepted that argument, and it is now decided and not available to Applicant on remand. EXHIBIT A (REVISED) TO FINAL ORDER Page - 66 TABLE ONE STATUS OF "OTHER" ARGUMENTS ON REMAND Issue Properly Before Council? Rationale Whether these remand proceedings. Yes. Technically Applicant's argument violated the Due Process Clause of under the Due Process Clause was the Fourteenth Amendment to the before Council, but only because she Constitution of the United States made the facts in her lawsuit against where Applicant introduced the fact the city part of the record. of a pending lawsuit against the city and her lawyer actively solicited a settlement discussion with Council during the remand hearings. Although Council was not required to address issues not properly before it, Council chose to make findings concerning those issues in case a review body disagreed with its understanding of the rules governing reconsideration of old issues on remand. However, Council's findings under the old issues were made for the sake of argument only. Council did not intend to waive any argument of Tigard that the issues were already decided and not subject to further decision and review. E. A CONDITION REQUIRING DEDICATION OF EASEMENTS FOR FLOOD CONTROL AND ALLEVIATION OF TRAFFIC IMPACTS IS APPROPRIATE UNDER TIGARD'S LAND USE REGULATIONS 1. Tigard's Land Use Regulations Required Council to I npose Remand Condition One or to Deny the Application Although the Supreme Court's opinion in Dolan II required Tigard to show that a condition requiring dedication of property satisfied certain constitutional requirements, that case did not alter the rule under the CDC that Applicant bore the burden of proving that she was entitled to approval of her application. CDC § 18.32.250.A.1. Applicant failed to show that the proposed development would, without Remand Condition One, meet the Tigard's approval criteria. EXHIBIT A (REVISED) TO FINAL ORDER Page - 67 i Applicant tried to satisfy the approval criteria governing flood control and transportation impacts by fling a variance request. See, supra, at 7 (quoting variance request). Petitioner's one- half page statement attempting to justify a variance did not, however, contain the information required concerning storm drainage and traffic impacts, including an analysis of the impact of the development on the city's storm drainage and traffic systems. CDC 18.32.050, 18.84, 18.120.090,.100, 18.164.030 and 18.164.100. For example, CDC § 18.164.100.A provided that a permit may be issued "only where adequate provisions for storm water and floodwater runoff have been made." The cited CDC sections when read together implemented the Comprehensive Plan requirement that development address storm drainage and traffic impacts. With regard to drainage, the Comprehensive Plan provided in relevant part as follows: The City shall require as a precondition to development that: a. the site development study be submitted for development in areas subject to poor drainage, ground instability or flooding which shows that the development is safe and will not create adverse off-site impacts; b. natural drainage ways be maintained unless submitted studies show that alternative drainage solutions can solve on-site drainage problems and will ensure no adverse ofd site impacts. C. the City shall require as a pre-condition to development that all drainage can be handled on-site or there is an alternative solution which will not increase the ofd site impact on the drainage system. Comprehensive Plan Policy 7.2.1. The Comprehensive Plan also explained that, [p]roper administration of the floodplain areas 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 making sound decisions. The burden is on the applicant to prove that a project will not adversely affect the environment or create undue future liabilities for the city. EXHIBIT A (REVISED) TO FINAL ORDER Page - 68 i Comprehensive Plan Policy 3.2 Floodplains, Findings, p. II-14. Tigard implemented these policies through the Sensitive Lands Chapter (CDC § 18.84) and Utilities Standards Requirements for Storm Drainage (CDC § 18.164.100). Similarly, the Comprehensive Plan addressed transportation facilities by requiring that infrastructure, be capable of serving_ the proposed development. Comp. Plan Policy 7.1.2(b)(1). This requirement implemented Statewide Planning Goal 11, "Public Facilities and Services," which mandated that urban development be supported by appropriate levels of public facilities and that cities plan for key facilities. Goal 11 defined "key facility" to include transportation. To address this requirement, the CDC required Applicant to submit a site plan detailing existing and proposed streets, ways and easements, including those on surrounding properties. CDC § 18.120.120.A.3. The exact nature of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application. CDC § 18.164.020.13 ("The City Engineer may recommend changes or supplements to the standard specifications consistent with the application of engineering principles." CDC 18.164.030, 18.164.070, 18.164.110. Tigard must condition developments that would "principally benefit" from bikeways identified on the adopted pedestrian/bikeway plan to include the cost of bikeway improvements. CDC § 18.164.110.B. Applicant completely failed to address these standards in the Application. She thus failed to meet her burden of proof. Applicant likewise failed to use her opportunity to prove facts justifying a variance. She did not produce evidence of the "possible negative or positive attributes of the proposal" or show that there had been changes or mistakes in the comprehensive plan or the zoning map as it related to the Application. CDC § 18.32.250.B. The submission of an incomplete application did not "negate the applicant's burden of proof." CDC § 18.32.050.G. Based on the lack of evidence concerning drainage and transportation impacts, Council could have denied the Application. CDC 18.32.250.A,.E, 18.10.010,18.16.010.B. Indeed, Applicant's attorney admitted to the Supreme Court of the United States that the city could have done so. See, supra, at 14. Instead of denying the application, however, Tigard processed it using information in the record. Based on the impacts of the proposed development, see m1pra at 31, 48, Remand EXHIBIT A (REVISED) TO FINAL ORDER Page - 69 r . Condition One, which requires dedication of easements for flood control, drainage management, and alleviation of traffic impacts, was necessary to address the requirements of the CDC and to allow Council to issue an approval. See CDC § 18.32.250.E.1.a (conditions of approval authorized where "necessary to carry out provisions of the Tigard comprehensive plan."); CDC § 18.32.250.E.2 (authorizing the City to require property dedications as conditions of approval). 2. Applicant's Arguments Under Tigard's Land Use Regulations Were Not Well-Founded Applicant, through her attorneys, made a series of arguments under Tigard's land use regulations. She claimed that those regulations did not allow Council to impose Remand Condition One. Although, as set out supra at 65, Applicant had lost the opportunity to raise such arguments, Council nevertheless considered them. After analyzing Applicant's arguments, Staffs response, and the relevant regulations, Council found none of Applicant's arguments to have merit. Council reached this finding based on the reasoning set out below. a. Applicant Received Adequate Notice of Tigard's Interpretation of Certain Land Use Regulations A=k Applicant claimed that Tigard had not provided her with adequate notice of several interpretations Staff proposed for various local land use regulations. However, Council found her argument not to be well taken because she had adequate notice of those interpretations and a sufficient opportunity to respond. Staff did not propose and Council did not adopt any unreasonable interpretations of Tigard's land use regulations. Under Oregon law, Council had primary responsibility for making interpretations of the city's land use regulations which applied to the Application. So long as those provisions could reasonably be identified as applicable, parties were expected to discern their potential significance. Moreover, this process, in which Staff published its report a full week before the initial hearing and Council allowed one continuance and an opportunity for the submission of additional evidence and argument after the close of oral testimony provided ample opportunity for Applicant to contest any of the interpretations proposed by Staff and adopted by Council. EXHIBIT A (REVISED) TO FINAL ORDER Page - 70 b. Council Found ~'lYat Ammon] Would Allow Applicant to Site Any General )Retail Use on the Pro rt_v Applicant's lawyer argued that Council would violate the city's land use regulations if it applied traffic counts for a "general retail use" in evaluating the likely impacts of the project. He claimed that Council should find that any approval would be limited to the A-Boy and that A-Boy's use would be limited to selling "bulky merchandise." He further claimed that Applicant sought approval for a "general retail facility" only because that designation was required by Staff at the pre- application conference. Council did not accept this argument, but held that under the local land use regulations Council was required to consider all possible uses for the site allowed under the Application. Although Applicant's lawyer suggested that Staff had somehow required Applicant to request approval for a general retail sales facility when all she wanted was a plumbing store, evidence in the record showed otherwise. A-Boy is the company that would use the new store for selling plumbing and electrical supplies. It is a legal entity distinct from Applicant, yet was not a party to the Application. Instead, it was at the time of these proceedings a tenant of Applicant. Accordingly, an approval would not limit the tenant to an A-Boy. Indeed, under the Constitution of the United States and the Constitution of Oregon, Tigard could not condition Applicant to rent solely to A-Boy because such a condition would impair the obligation of contract existing between herself and A-Boy under the lease. U.S. CONST. ART. I, § 10 ("No state shall... pass any law impairing the obligation of contracts ORE. CONST. ART. I, § 21 ("No ...law impairing the obligation of contracts shall ever be passed Other evidence in the record showed that Applicant had sought the flexibility inherent in approval of a general retail use. In paragraph 2, Proposal Summary, of the Application, the following is typed in as a summary of the project: "The construction of a 17,600 square foot building having a general retail sales facility." John and Florence Dolan signed the application, not A-Boy, a separate legal entity. Before their signatures, the following appeared: THE APPLICANT(S) SHALL CERTIFY THAT: EXHIBIT A (REVISED) TO FINAL ORDER Page- 71 C. All of the above statements [including the project description set out above] and the statements in the plot plan, attachments, and exhibits transmitted herewith, are true; and the applicants so acknowledge that any permit issued, based on this application, may be revoked if it is found that any such statements are false. The alJp ti°bcuijE. w„c a..ca .........°^w red the P"*'....r contents of the application, including the policies and e criteria, and understands the requirements for approving or denying the application. CR 00754. Thus, if anything was inaccurate about the request, Applicant and her husband were on notice to correct the project description. However, they represented to the city that it was accurate and true. The objective evidence from the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses. Assuming that Applicant did intend to limit herself to a plumbing and electrical store, however, Council still could not agree with her argument. In the Original Decision, Council found CDC Chapter 18.66, CBD: Central Business District, to be an approval standard. Applicant did not appeal that interpretation. That chapter required Applicant to prove that the use proposed in the Application was permitted in the zone. To allow such proof, Applicant was not free to design a description of her proposed use not specified as allowed in the CDC. Instead, the CDC required Applicant to state which of the permitted uses listed in the CDC she proposed for the Property. Here, the Application selected such a listing. It said that Applicant planned to tear down the existing 9,700 square foot building and to replace it with a "17,600 square foot building having a general retail sales facility." The requirement of CDC Chapter 18.66 led to the following finding, which Applicant did not appeal: The applicant intends to construct a new and larger structure suited for general retail sales use. Such a use is permitted outright in the CBD (Central Business District) zone. Therefore, the intended use is acceptable for this site. Applicant thus bound herself to conduct only general retail sales in the building, but not to operate only a plumbing and electrical store. EXHIBIT A (REVISED) TO FINAL ORDER Page - 72 Applicant's claim that somehow Staff persuaded her to apply for more than she wanted was factually incorrect for another reason. The Application explained that the project would allow "replacement of [the] existing sales facility with a larger facility." Indeed, the record showed that Applicant had sought the flexibility inherent in approval of a general retail use. See, supra, at 71. The objective evidence for the time when the application was made shows that Applicant intended to receive a broad approval that could support many different retail uses.31 Applicant also tried to claim that the Original Decision, by granting a parking variance based on a "bulky merchandise" exception, limited use of the site to the A-Boy operation. Council found no merit in that argument. Council allowed the parking variance as an accommodation to Applicant, but it did not limit her use to bulky merchandise. Instead, Council found that A-Boy would most likely be a tenant of the new building, at least at first. During that period, Council found that it could allow Applicant to build three fewer parking spaces than the CDC otherwise would have required. However, Council also found that it would have opportunities to require additional parking on the site when Applicant built the Phase II building. That parking, Council believed, would provide sufficient assurance that adequate parking existed on the site, whatever use ultimately came to occupy the building. Because Council saw an opportunity to require additional parking in the long-run and because it did not limit the uses to which Applicant could put the new building, its grant of a parking variance was irrelevant to the question whether the CDC required Council to limit its impacts evaluation solely to those likely from an A-Boy store. C. Comprehensive Plan Policy 7.1.2(b)(1) and Related Land Use Regulations Supported Imposition of Remand Condition One As set out in Section IH.E.1, supra, Council found that Remand Condition One was necessary partly because under Comprehensive Plan Policy 7.1.2(b)(1) and related regulations, Tigard cannot grant approval in site development review unless it finds affected transportation facilities to be 31 Applicant criticized Council's consideration of all uses allowed under general retail sales by arguing that it would result in speculative planning for only worst case situations. Council disagreed with that critique for tivo reasons. First as explained supra at 63, Tigard satisfied the rough proportionality test even when using Mr. Woelk's calculations, which were specific to A-Boy. Second, Council's determination that it should consider a range of uses was limited only to those which could be classified as being "general retail." EXHIBIT A (REVISED) TO FINAL ORDER Page - 73 capable of serving the proposed development. Applicant raised three challenges under this policy and related regulations which Council addressed in the following findings. (1) Tigard Had Authority Under Its Land Use Regulations to Impose Remand Condition One Applicant argued that Tigard did not have authority to impose Remand Condition One However, as Applicant's attorney told the Supreme Court of the United States, Tigard did have authority to deny the Application. Plan Policy 7.1.2(b)(1), which required provision of adequate transportation facilities, was one source of Tigard's authority to refuse approval. Because Tigard had authority to deny the Application pursuant to the Comprehensive Plan, it also had authority to condition its approval. CDC §18.32.250.E.1.a., authorized Council to condition approval of the Application because such a condition was "necessary to [c]arry out provisions of the Tigard comprehensive plan." Furthermore, CDC §18.32.250.E.2 allowed Council to require Applicant to dedicate an easement. See also CDC § 18.164.020.B (exact character of the street, sidewalk and bikeway improvements required of each development depends on the facts of the specific application). Aft (2) Comprehensive Plan Policy 7.1.2 Did Not Limit the Scope of Possible Uses Which Council Could Consider When Fashioning Conditions of Approval Applicant argued that under Comprehensive Plan Policy 7.1.2, Council could impose only conditions based on the public facility impacts of the precise use proposed by Applicant. Applicant thus suggested that the city should micro-manage the phasing of developments. As Council understood the argument, it would, for example, require a new site development review when a candy store moved and was replaced by a book store. Or, Council supposed, Applicant's reasoning would require a new review even where a book store specializing in history was replaced with a store selling murder mysteries. Surely, thought Council, this approach was too intrusive and unworkable to be required by the Comprehensive Plan and CDC. Council's review of the relevant land use regulations confirmed this reaction. Council rejected Applicant's crimped and unworkable approach for two reasons. EXHIBIT A (REVISED) TO FINAL ORDER Page - 74 First, Tigard's land use regulations did not require the city to play big brother over the affairs of property owners, searching out all deviations in use or tenancy. Instead, they provided for review of developments in phases only where applications propose a formal phasing plan calling for such a review. Implementing Strategy 4 of Policy 7.1.2 addressed the provision of public facilities to phased development as follows: "(b) [the CDC] shall allow for the phasing of services if a development proposal indicates such phasing." (Emphasis added.)" From this provision it was apparent that Tigard's land use regulations allow approvals for developments based on phasing of public facilities only where the application sets out a formal phasing plan. Furthermore, Council found that the CDC does not envision such a phasing plan to be based on the ebb and flow of new uses but on the development of new improvements on property to which the plan attaches. Council found this to be a sensible approach, because a phasing plan would allow the city to conduct enforcement activities according to a rational plan and with the consent of property owners. As explained later in Strategy 4, The intent of these policies is to develop a mechanism for orderly and logical development and expansion of services to promote an efficient use of land and thus an efficient growth pattern. This mechanism will basically be concerned with: Planning for public facilities in advance of need in a manner which will implement land use policy. This shall help direct the urban expansion and growth. (Emphasis added.) Council found that Strategy 4 explained the intent underlying the Comprehensive Plan concerning the timing of public facilities. Council held that it established that the Comprehensive Plan did not require Council to require only those public facilities which address only immediate needs generated by precise uses, but required Council to consider public facility needs in light of the entire range of future uses which an approval would allow. 32 Council noted that this principle was applicable here. Applicant plans to develop a second phase on the Property, which will include another retail store. However, in this review Council did not consider the impacts of that second proposed store. EXHIBIT A (REVISED) TO FINAL ORDER Page - 75 i No= Council also rejected Applicant's suggestion that the city micro-manage uses because it was unworkable. Council found that Tigard had no way of learning of changes in use so that it could enforce Applicant's suggested approach. Applicant argued through her attorney, Mr. Shonkwiler, that because any change in use of the building would require a new site development review process, Council would have an opportunity to impose.new conditions if A-Boy did not use the new store. He thus concluded that Council should have considered only the traffic impacts of an A-Boy store in evaluating traffic impacts. Council, however, found Mr. Shonkwiler's interpretation of the CDC to be incorrect. CDC § 18.120.020 provides in relevant part that "[s]ite development review shall be applicable to all new developments and major modification of existing developments, as provided in Section § 18.120.070 . (Emphasis added.) Before considering the elements in CDC § 18.120.070 that distinguish a major from a minor modification, the City must select an interpretation of the word "modification." Only when an applicant suggests a modification is it necessary to decide whether that modification is major or minor. The CDC does not define the word "modification"; therefore, the City must give it its common, dictionary meaning. Yee CDC § 18.26.010. Webster's New Collegiate Dictionary gives "modification" the following relevant definition: "mod-i-#i-ca-tion 3 a : the making of a limited change in something...." To apply this definition it is necessary to decide the "something' to which a change will trigger design review. Council found three "somethings" to be possible. First, a change in the use of a building might trigger the review. Second, a cosmetic change in a building might be a trigger. Or, third, a change in the placement of structures on a site might be the trigger. CDC § 18.120.010, which sets out the purpose for design review, provided the basis for choosing between these alternatives. CDC § 18.120.010 emphasizes that the purpose of site development review is to serve the public interest in the proper placement and orientation of buildings and other structures. It focuses on the importance of good site planning and the preservation of environmental amenities. This focus shows that site development review is triggered only when an applicant proposes to place a new structure on a site or to change the footprint of an existing structure. It is not triggered by a mere EXH03IT A (REVISED) TO FINAL ORDER Page - 76 change in outright allowed use, by remodeling the interior of a building, or by cosmetic changes to the exterior of a building, none of which implicate the purposes of site development review. Because a simple change in use will not trigger site development review, Tigard's only meaningful opportunity to evaluate the impacts of development is during site development review triggered by a modification to improvements or when a party proposes a conditional use. Council thus concluded that it must, therefore, consider all potential uses of Applicant's project to properly gauge the Application's likely impacts on the city's infrastructure. (3) Comprehensive Plan Policy 7.1.2 and Related Regulations Did Not Limit the Evidence Which Council Could Consider in Structuring Remand Condition One Applicant's attorney claimed that Plan Policy 7.1.2 or other portions of Tigard's land use regulations required Council to use traffic counts specific to A-Boy stores because of requirements established in the WTIF. However, nothing in Policy 7.1.2 or any other part of Tigard's land use regulations limited the evidence which Council could consider in that regard. The only limit on the evidence Council could consider was the general requirement that the evidence be relevant and reliable. Council found the WTIF to be an assessment imposed under county ordinance, being completely separate from the City's Comprehensive Plan and Community Development Code. Therefore, nothing in Tigard's Plan or the CDC refers to the WTIF, much less makes it the exclusive method of traffic impact analysis in the city. In fact, the WTIF is imposed by the County (Washington County Code (WCC) § 3.17.040(A)), in an amount set by the county (WCC § 3.17.050), through a process entirely separate and apart from this Site Development Review, and which may be appealed only to the county. CR 00102. Furthermore, nothing in the WTIF or in Tigard's land use regulations limits Council's authority to impose exactions to address transportation facility impacts. To the contrary, the WTIF recognized that it was merely "one component of a multifaceted program." Washington County Ordinance 379, Section 2. As City Attorney Tim Ramis testified, Tigard replaced its own systems EXHIBIT A (REVISED) TO FINAL ORDER Page - 77 LM development charge for roads with an exaction approach to mitigating impacts at the request of the development industry. 7-18-95 Tr., at 5. (4) Remand Condition One Did Not Violate the CDC By Calling for Placement of the Pathway Outside of the Floodplain Applicant argued that Remand Condition One violated CDC § 18.120.180. A.8 by requiring the pathway to be located outside of the floodplain. That section provided as follows: Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrianibicycle plan. Applicant argued that this section required the pathway to be located within the floodplain, to the exclusion of any other location. Council found Section 18.120.020 to be ambiguous. It allowed dedication requirements which included land within and adjacent to the floodplain, including . property at a "suitable elevation for construction of the pathway within the floodplain Compounding this ambiguity was the section's requirement that the dedications be in accord with the adopted pathway plan, which shows the pathway on the Property to be outside the floodplain. Thus, the section does not adequately explain what is required when, as here, there is no elevation within the floodplain which is suitable for construction due to steep slopes of a pathway segment called for in the Pathway Plan. CR 01553 (slides showing steep slopes).33 33 Council found that the bicycle/pedestrian way could not be located in the floodplain because, besides existing steep banks, the channel improvements called for in the Master Drainage Plan called for relocation and Stabilization of the bank. CR 01025. "The Engineering Division has stated that the proposed structure should be at least 10 feet away from the relocated outer bank in order to accommodate an eight foot wide pathway and the planned reconshuction of the storm drainage channel along the floodplain." CR 01043 (from the September `91 Decision). EXHIBIT A (REVISED) TO FINAL ORDER Page - 78 Considering this ambiguity, Council found that it should interpret the section as requiring the pathway to be placed immediately adjacent to the floodplain. Council found this interpretation to be supported in that the section designates as "greenway" all dedications which consist of land either within or adjoining the floodplain, thus including both the floodplain and pathway dedications. Further, Council found its interpretation to be consistent with the Pathway Plan, a part of the Comprehensive Plan, which called for the Fanno Creek pathway to be adjacent to the floodplain. Indeed, this section nowhere mandates placement of the path in the floodplain. It only says that the city should require a land dedication when possible that includes space in the floodplain for the path. Further, it does not set the location of the path. It relies on the pathway plan to do that. Thus, Applicant's argument that Remand Condition One would violate this section is simply wrong. (5) Role of the Parks Plan Applicant asserted that Comprehensive Plan Policies 3.5.3, 3.5.4, 3.6.2, 3.2.4 and Implementing Strategy 4 required Council to apply the City's Parks Plan to require Applicant to allow public access to the floodplain for recreational purposes. Applicant then claimed that because the city could not constitutionally impose such a requirement, it could not impose any easement condition on Applicant. Council, however, did not believe itself to be in such a Catch-22. The Court did not hold that the Parks Plan was per se unconstitutional. Instead, it held that before Tigard could implement that plan the Constitution required that it make certain findings. Under the Supremacy Clause," Tigard's local land use regulations must be interpreted consistently with supervening federal law. Therefore, Council interpreted the Parks Plan's dedication provisions to be subject to findings as required in Dolan H. Because Council had never intended that the floodplain easement would serve as a part-., it decided as a matter of policy that it did not need to secure a recreational easement to the floodplain to carry out the intent of the Parks Plan. Accordingly, in deference to federal law, it did not attempt to justify a recreational easement under Dolan H. 34 The Supremacy Clause of Article Vl of the Constitution of the United States provides as follows: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. F.,XHIBIT A (REVISED) TO FINAL ORDER Page - 79 (6) Remand Condition One Is Consistent With Comprehensive Plan Policy 8.1.3 Applicant argued that Remand Condition One would result in an exaction in excess of allowed WTIF fees, thus illegally modifying "Plan Policies 8.1, 8.1.3 and Implementation Strategies 2 and 5.s31 Council rejected this argument because it was not sufficiently developed to allow a response. Policy 8.1.3 set forth various preconditions to development for the provision of transportation facilities. Applicant did not specify which provision of this policy was "reinterpreted" by Staff or Council. Council noted that no portion of this policy, or any other provision of the Comprehensive Plan, limited the city's ability to seek offset of development impacts in excess of the WTIF. Indeed the Comprehensive Plan did not incorporate or even refer to the WTIF, so the criteria requiring Applicant and the city to mitigate transportation impacts existed apart from any consideration of the WTIF. (7) Remand Condition One Does Not Violate Implementation Strategies 2 and 5 Implementation Strategy 2 of the Comprehensive Plan required the city to develop and implement a capital improvements plan containing certain listed elements. Applicant argued that Council would violate this strategy if it imposed Remand Condition One. However, her argument lacked merit because it was not sufficiently specific to allow a response. Applicant did not explain how Remand Condition One would violate this strategy. Neither Council nor Staff had cited it as an approval criterion, and neither believed it was relevant here. Implementation Strategy 5 required land developers to dedicate necessary rights-of-way and construct necessary street improvements when such improvements did not already exist. While Applicant's attorney did not explain why he cited to this strategy in submissions to Council, he evidently felt that Strategy 5 set an exclusive form of exaction for offsetting transportation impacts. Council rejected this narrow view, finding the implementing strategy to be only part of the Comprehensive Plan's overall effort to ensure the adequacy of public facilities. 35 In fact, there is no Plan Policy 8.1. EXHIBIT A (REVISED) TO FINAL ORDER Page - 80 F. REMAND CONDITION ONE AND COUNCIL'S RATIONALE FOR THAT CONDITION DO NOT VIOLATE THE WTIF Applicant argued that by imposing Remand Condition One, Council would be violating the WTIF by classifying the proposed larger building as a Hardware/Paint store for purposes of the TTE trip generation study, rather than allowing Applicant to elect to make the determination based on actual trip generation numbers. Her argument is completely meritless because Council did not apply the WTTF in this proceeding, having only estimated the WTTF fee in the `91 Decision. CR 01026. Applicant will have the opportunity to propose actual trip counts later, when she applies for building permits. CR 00934. Council did not apply the WTIF. Rather, Council relied on the facts which the County used in establishing the WTIF as substantial evidence of the cost associated with the traffic the proposed development will generate. It was reasonable for the Council to rely on the trip generation figures set in the WT1F. See, supra, at 54. G. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION Do NOT VIOLATE STATE LAND USE STATUTES Applicant's attorney argued at various points in the remand process that the City was violating statutory rules regarding what standards and criteria apply to this application. ► "[T]he City's required placement of the pathway outside the floodplain is an attempt to impose land use restrictions that were not adopted at the time of the application acceptance. This is in violation of ORS 227.178(3) and the requirements for clear and objective standards under ORS Chapters 227 and 197." Shonkwiler, June 27, 1995 memorandum, at 5. "The City has attempted to impose an assessment for traffic impacts in excess of its legislatively adopted WTIF fee (Traffic Impact Fee) requirements.... [T]he City has no comprehensive plan nor code provision specifically authorizing the imposition of this excess assessment upon property owners. Imposition of land use requirements that are not in conformance with clear and objective standards and have not been EXHIBIT A (REVISED) TO FINAL ORDER Page - 81 adopted prior to the City's acceptance of the application is in violation of the provisions of ORS Chapter 197 ' and ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 6-7. ► "[T]he comprehensive plan requires implementation of the City's Parks Plan. The City's proposed easement restriction for the fioodplain to preclude the public is in violation of these City mandatory provisions. The City cannot change these provisions without seeking a comprehensive plan and zoning ordinance text amendment reviewable during a separate public hearing and by LCDC. This did not occur before the 1991 application was accepted: The City's legal choices now include imposing the requirements or finding them invalid pursuant to the U.S. Supreme Court decision. ORS 227.178." Shonkwiler, June 27, 1995 memorandum, at 8. ► "The City's standards for approval of all other applications in 1991 did not require imposition of these dedications. Thus, the City is precluded from asserting an unwritten special standard just for floodplain abutting properties. ORS 227.178(3)." Shonkwiler, August 16, 1995 memorandum, at 3. ► "[T]he approval standards the City was using in 1991 establishes that the City calculated WTIF fees during the approval hearings and included them in the approval order. . . . ORS 227.178(3) requires their application during this remand." Shonkwiler, August 16, 1995 memorandum, at 8. ► "The City stair has asserted a new policy not found in the Code or comprehensive plan. Particularly, it was a policy that was not in place in 1991 when the application was approved. Therefore, ORS 227.178 precludes its application in this proceeding. The proposed new policy would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone.... [T]he City has adopted no regulations setting clear and objective standards for the imposition of these new requirements. This conflicts with ,both ORS Chapters 227 and 197." Shonkwiler, August 16, 1995 memorandum, at 9-10. Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 82 These arguments are based on two statutory requirements. ORS 227.178(3) requires that: If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under ORS 197.251, approval or denial of the application shall be based upon the standards and criteria that were applicable at the time the application was first submitted. The application became complete in 1991. Moreover, the city's comprehensive plan and land use regulations were acknowledged then. Therefore, the statute requires that the city's approval or denial of the application be based on the standards and criteria applicable when Applicant submitted the application. Applicant's arguments, without specific citation to authority, regarding a statutory requirement of clear and objective standards are a bit confusing, as no statute requires that the city's applicable land use regulations be "clear and objective," per se. It is most likely that Applicant intended to argue here that the city was failing to stick to the requirements of ORS 227.173 (1), which requires that: Approval or denial of a discretionary permit application shall be based on standards and criteria, which shall be set forth in the development ordinance and which shall relate approval or denial of a discretionary permit application to the development ordinance and to the comprehensive plan for the area in which the development would occur and to the development ordinance and comprehensive plan for the city as a whole. InBCTPartnership v. City of Portland, 130 Or. App. 271, 881 P.2d 176 (1994), the court clarified that standards and criteria applicable to a land use application need not detail how they might apply in any circumstance. That is left for the interpretive function of local decision makers. Id., at 276. "[I]f an ordinance contains provisions that can reasonably be interpreted and explained as embodying the standards and criteria applicable to the particular decision, it is specific enough to satisfy ORS 227.173." Id Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 83 Applicant's first and third arguments pertain to Council's interpretations of code and plan provisions. Specifically, Applicant is arguing that in interpreting the referenced provisions--CDC 18.120.180.A.8 and 18.86.040.A- Lb. and the Parks Plan--the City is imposing regulations that were not in effect at the time the application was completed. Applicant misapprehends the interpretive function of local governments. Interpretation of an ordinance provision does not constitute adoption of a "new" standard or criterion for purposes of ORS 227.178(3). The interpretive authority of a local govermnent is triggered whenever a local ordinance provision "is capable of more than one tenable interpretation." Weeks v. City of Tillamook, 117 Or. App. 449; 454, 844 P.2d 914 (1.992). Moreover, this interpretive function is not discretionary, but is a responsibility of local governing bodies. Id. Applicant can point to no case that holds that in carrying out this function, local governments are adopting new standards for purposes of ORS 227.178(3). Applicant's second argument pertains to Council's authority to impose Remand Condition One. Specifically, Applicant claims that no standard existed on the date of submission of the application which would authorize imposition of an assessment besides the WTIF, and that, pursuant to the same statutory provisions just discussed, the City has no standard upon which to base such an assessment. As discussed supra at 81, the dedication requirements of Condition One do not impose an assessment beyond the WTIF. The County imposes the WTIF, in an amount set by the County. Contrary to Applicant's contention, the 1991 order specifically states that Council is not imposing the WTIF as part of this approval. Instead, CDC § 18.32.250.E authorizes Remand Condition One, which was adopted and applicable as of the date of submission of this application and, therefore, is not a new standard. Applicant's fourth argument is that the fact that other application approvals have not included the same sort of dedication condition shows that Council is applying an "unwritten standard" to this application. Again, the standard under which Council has imposed Remand Condition One, CDC § 18.32.250.E, is not new for purposes of this statute. Applicant's fifth argument is similar to the second. She claims that calculation of the expected WTIF assessment in the September `91 Approval required application of the WTIF during this remand process. Again, Applicant misreads the decision. Council did not impose the WTIF then AML EXHIBIT A (REVISED) TO FINAL ORDER Page - 84 because the WTIF was not a criterion applicable under the plan or code. Indeed, the WTIF ordinance itself states that the tax is not due until "the issuance of a building permit by the city." WCC § 3.17.060.A. Applicant's sixth argument is that the City is here applying a new standard that "would require each development to plan for and participate in providing public facilities to serve the entire range of uses allowed by the applicable zone." Under Plan Policy 7.1.2 each applicant provide transportation infrastructure capable of serving the proposed development. As discussed supra at 71, Council found that this application sought approval of "general retail use" of the property, and was approved as such. Council further found that Plan Policy 7.1.2 did not limit the scope of potential uses of the Property which Council could consider when fashioning an appropriate condition of this development's approval, and therefore requires each applicant to provide transportation facilities based on this range. Because, Applicant did not dispute that Plan Policy 7.1.2 was applicable to the application when submitted, the policy referred to in the above quotation is not a new standard for purposes of the statute. H. REMAND CONDITION ONE AND THE COUNCIL'S RATIONAL FOR THAT CONDITION DO NOT OFFEND ARTICLE I, SECTION 20 OF THE CONSTITUTION OF THE STATE OF OREGON OR THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES Applicant argued that Tigard had singled her out for disparate treatment from other property owners,36 attacking Remand Condition One under Article I, Section 20, the Privileges and Immunities Clause of the Constitution of Oregon,37 and the Equal Protection Clause of the Fourteenth 36 Although she claimed that this argument also supported her claim that Remand Condition One was a taking, Council did not agree. The tests of Nollan and Dolan II were the sole legal grounds for her taking claim. Because Tigard satisfied the requirements of those tests, Remand Condition One did not violate the Takings Clause. However, if Applicant's arguments concerning alleged discrimination do provide an independent basis for a claim under the Takings Clause, Council intended that the findings in this section also be considered findings in response to that claim. 37 Article I, § 20 of the Oregon Constitution provides as follows: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Aft EXHIBIT A (REVISED) TO FINAL ORDER Page - 85 Amendment to the Constitution of the United States.38 Although Applicant did not distinguish Aft between her federal and state equal protection theories, different legal tests apply under the different constitutional provisions. Article I, Section 20 bars the state from conferring a privilege or an immunity on one class of persons while excluding other classes or individuals based on immutable characteristics, such as race, for invidious reasons, or through arbitrary rules. The Equal Protection Clause, in contrast, forbids the state from discriminating against a particular class unless, in the case of economic regulations, the state has a rational basis for drawing such a distinction.39 1. Applicant Did Not Show That Remand Condition One Violated Article I, Section 20 The law under Article I, Section 20 is currently uncertain, see Ag West Supply v. Hall, 126 Or. App. 475, 478, 869 P.2d 383 (1994); however, the courts have made a sufficient number of decisions under the section to derive an outline of the approach to such a case. To prove that Remand Condition One violated Article I, Section 20, Applicant was required to shove that it denied her of a "constitutionally recognized privilege or immunity." D. Schuman, The Right to "Equal Privileges and Immunities": A State's Version of "Equal Protection, " 13 VT. L. REV. 221, 244 (1988). Assuming she made such a showing, Article I, Section 20 established three categories of classification, each creating a separate requirement. Those categories are cases in which the challenger is in a "true class," cases in which the challenger is in a "pseudo-class," and cases where the challenger is not a member of a class, but is considered to be an "individual." Id. Applicant did not identify the constitutionally recognized privilege or immunity of which Remand Condition One allegedly deprived her. Thus, she did not articulate her argument sufficiently to allow a specific response, and she did not meet her burden to identify and prove that Remand 38 The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States provides as follows: "No State shall deny to any person within its jurisdiction the equal protection of the laws." 39 Under the Equal Protection Clause, where, as here, a person challenges regulations not drawing distinctions based on a suspect category--e.g., race, or, to a lesser degree, sex--that person bears the burden to prove that the government had no rational basis for the distinctions. EXHIBIT A (REVISED) TO FINAL ORDER Page - 86 Bill Condition One deprived her of such a privilege or immunity. Therefore, Council found that her Ash argument under Article I, Section 20 had failed." Assuming, however, that Applicant did have some basis for claiming that Remand Condition One deprived her of some constitutionally recognized privilege.or immunity, Applicant did not explain the basis for her allegations. She did not, for example, say whether she was proceeding as part of a true class, a pseudo class, or as an individual. Thus, her argument was not sufficiently developed to allow a specific response, and she failed to meet her burden of proof. Although Applicant's claim under Article I, Section 20 failed because of a lack of proof, Council considered, for the sake of argument, how such a claim might be structured. The first step in structuring such a claim would be to decide Applicant's status. "[A] `true class' is one than is created not by the law itself, but is based on antecedent personal or social characteristics or societal status." Ag West Supply, 126 Or. App. at 480. Race, sex, and nationality are examples of true classes. D. Schuman, supra, 13 VT. L. REV. at 232. Here, Applicant did not claim that Remand Condition One was based on any such factors. Therefore, Applicant was not a member of a true class. Applicant argued that the city through its decision created two classes of persons. One class owning property next to the creek and the other, favored class being those who owned upland property. Thus, the classification system she attacked was created by the city's land use regulations and its land use decisions. Furthermore, she was free to bring herself within the "favored class" by purchasing upland property. Thus, she claimed to be a member of a pseudo-class. See Hale v. Port of Portland, 308 Or. 508, 515-15, 783 P.2d 506 (1989). However, such a class is entitled to no protection under Article I, Section 20, see idd, at 516, or is entitled to protection only from government decisions which lack a rational basis, see Ag West Supply, 126 Or. App. at 480 & n.3. Either she had no claim under Article I, Section 20 or that claim failed because, as shown below, Remand Condition One has a rational basis. See, infra, at 89. ao In addition, as detailed below, the city has not discriminated between upland and riparian owners in any meaningful way. See, infra, at 90. EXHIBIT A (REVISED) TO FINAL ORDER Page - 87 Applicant also appeared to believe that she was denied a privilege or immunity as an individual which Tigard grants to other citizens. Under those circumstances, Applicant was required to show that Tigard applied the law in an arbitrary or haphazard manner. D. Schuman, supra, 13 VT. L. REV. at 245. As shown below, however, Tigard did not apply its land use laws in such a manner, but imposed similar conditions in similar cases. See, infra, at 89. Therefore, her claim under Article I, Section 20 failed. 2. Applicant DidNot Show That Remand Condition One Violated the Equal Protection Clause The Supreme Court of the United States has established three levels of review to be applied when a regulation is challenged under the Equal Protection Clause, referred to as "strict scrutiny," "intermediate review," and "rational basis," respectively. Strict scrutiny applies where the state discriminates against a clasp based on race, religion, legitimacy or, possibly, some other immutable characteristic ("suspect classifications"). The Court applies intermediate review when a law draws distinctions similar to those triggering strict scrutiny, such as sex ("intermediate classifications"). Finally, the rational basis test applies to classifications not based on suspect or intermediate classifications. That final set of classifications includes any created by Remand Condition One, Aft because Applicant has not shown--and cannot show--that the city is requiring Remand Condition One based on a classification such as race or sex. Under the Equal Protection Clause, Council could find Remand Condition One to be valid if the city "could rationally have decided" the measure adopted might achieve 3 legitimate objective. Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 466 (1981) (emphasis in original); see also Medford Assembly of God v. City of Medford, 72 Or. App. 333, 339, 695 P.2d 1379 (1984) ("selective enforcement of an ordinance violates equal protection `only if there is no rational basis to justify the selective enforcement"') (quoting City of Eugene v. Crooks, 55 Or. App. 351, 354, 637 P.2d 1350 (1981), rev. denied 292 Or. 772 (1982)); Wagner v. Marion County, 15 Or. LUBA 260, 272 (1985) ("[U]nequal application of the law is not by itself a constitutional violation. The complaining party must establish intentional or purposeful discrimination, i.e., that the has been singled out based :on an unjustifiable standard such as race, religion, or other arbitrary classification. Unless such suspect classes are involved, the equal protection clause is violated only if there is no rational basis to justify the selective application of the ordinance."). Applicant apparently believed EXHIBIT A (REVISED) TO FINAL ORDER Page - 88 that Remand Condition One offended this standard for two reasons. First, she claimed that upland owners were not required to make similar dedications for flood and drainage control. Second, she claimed that other Tigard developers had not been required to make similar dedications for transvortation infrastructure. However, her claims were without any foundation. In an attempt to establish her equal protection claims, Applicant submitted several cases decided by the city around the time of the September `91 Approval. She argued that the city had imposed different drainage and traffic dedications in those cases, proving, she claimed, that the city had improperly discriminated against her. Council had to admit to some confusion about this argument and to what Applicant expected from the city. In making her takings argument, Applicant emphasized that the Takings Clause required Council to make an individualized determination whether the impacts of her project justified the exactions called for in Remand Condition One. Not surprisingly, such an approach leads to somewhat different conditions in different cases. However, in making her equal protection argument, Applicant criticized the city for allowing such differences to exist. Applying her wooden equal protection approach--requiring all cases to be treated identically--would lead to the absurd result that any decision satisfying the Takings Clause would be a violation of the Equal Protection Clause and vice versa. Council did not believe the law to require such a result. Instead, Council found that differences arising because of factual distinctions between cases were rationally based because such results were necessary to meet the requirements of the Takings Clause, a legitimate government objective. Therefore, the premise underlying Applicant's equal protection argument failed and along with it, her entire argument. Although Applicant's equal protection claims were wholly invalid because of her faulty premise, Council nevertheless reviewed the specific cases she introduced in support of her claim. Each of those cases involved an upland property owner, and in each the city did impose conditions differing in specifics from Remand Condition One. However, those differences were not sufficient to establish a claim. ` Interestingly, Applicant omitted from her submission the case decided by the city most closely resembling the present. SDR 89-21, George Morland Plumbing, involved site development review for a plumbing business also bordering Fanno Creek. The city required dedication of the floodplain AlUk EXHIBIT A (REVISED) TO FINAL ORDER Page 7 89 and a bike path area, it required the developer to build the path, and it also required a half-street improvement, which included storm drainage improvements. CR 00746. Thus, based on almost identical facts, Tigard imposed exactions very similar to those in Remand Condition One. If anything, they were more extensive. To escape the fact that Tigard has treated similarly situated land owners similarly, Applicant in her later submissions claimed that Tigard created two classes of landowners: Plumbing stores next to the creek and upland developments. She alleged that Tigard discriminated between these two classes by putting more significant drainage and traffic requirements on developments next to the creek than were imposed on upstream land owners. With regard to drainage, Applicant's claim was meritless because any distinctions drawn in the cases had a rational basis. As a general matter, the city had a rational basis to treat riparian owners differently than those in the upland areas, as explained by the Floodplain Managers Association: "Developments near the floodplain have unique impacts that differentiate them from upland developments. They result in "increased exposure to flooding caused by development near the existing 100 year floodplain, which, absent structural improvements to the flood channel, would be exposed to flooding in the future." CR 01295. [Applicant's] claim that the easement dedication condition does not relate to impacts of [Applicant's] development requires that [the city] ignore the distinction between property in or adjacent to floodplains and property that itself is at no risk of flooding. The floodplain easement dedication was designed to address the increased property damage likely to result from [Applicant's] expanded development in a floodprone area. To address that problem, Tigard undertook in large part at public expense to improve the flood carrying capacity of the original 100 year channel. Although [Applicant] and other floodplain landowners were required to donate the property, the City picked up the substantial expense of the channelization work itself. CR 01298. In addition to this general justification, Council's investigation of the facts of each case submitted by Applicant showed that dedications for drainage and traffic were required. Although AM& EXHBIT A (REVISED) TO FINAL ORDER Page - 90 different in kind from those required here, the dedications were proportional in magnitude. For Ask example, in several of the cases the city required dedication and construction of half-street improvements. Such improvements mitigate for traffic impacts and also contribute to the city's drainage system. See, infra, note 42.41 Moreover, they are much more expensive than the dedications called for in Remand Condition One.42 Council's reasoning and justification for the 41 Council found that it was not proper to impose a requirement for a half-street improvement here for the following reasons, which it first described in the September `91 Approval: A 1986 engineering study of the condition of S. W. Main Street recommends that the pavement be completely reconstructed and that the storm drainage system be replaced. It appears to be impractical to perform the proposed reconstruction of Main Street in a piecemeal fashion on a lot- by-lot basis; instead, the reconstruction needs to occur in larger segments beginning at Fanno Creek Bridge and working uphill. Therefore, we do not propose that any reconstruction of Main Street be required as a condition of approval of this development proposal. CR 01024 (citing recommendations of City Engineering Division). This observation rebuts Applicant's argument that Council should not compare the half-street dedications called for in other cases and the floodplain and pathway easements called for in Remand Condition One. She claimed that the comparison would be invalid because such improvements had already been installed next to the Property. However, the record did not show that she had paid for those improvements, they were not required as part of this decision, and their cost would have been equal to or greater than the easements required of her. See, infi o, note 42. Furthermore, the city decided that restoration of the improvements on Main Street should not be done by exactions. Tigard will pay for any such improvements. Thus, AIM Council found the street and drainage improvements called for in the other cases to be similar or greater in magnitude than the exactions called for in Remand Condition One. 42 The following testimony from Mr. Berry supported this conclusion: In addition, I do not agree with the applicant's characterization of this effect as'creating surplus capacity.' The intent of Comprehensive Plan Policies 7.1.2(a) and 7.2.1(c) is to provide a complete drainage system by requiring each applicant to provide a portion of the system with adequate capacity to convey the upstream flood waters. This is most commonly accomplished by dedicating additional right-of-way along street frontages and installing drains. Therefore, development throughout the City is required to provide adequate facilities for the conveyance of drainage. The condition proposed in this case is no different. The applicant is simply being asked to dedicate an easement for a drainageway which is open and not part of a half-street improvement. Similar requirements are imposed by the City's Master Plan on developments that include open channels such as drainageways and creeks: 'structural and non-structural programs necessary to reduce damages to the 100-year flood to an acceptable level.' EXHIBIT A (REVISED) TO FINAL ORDER Page - 91 conditions in each case is set out in tabular form in Appendix Two to this Exhibit A. Because Applicant was not required to make dedications and improvements more extensive those required in her example cases, no violation of equal protection occurred.. The city had a rational basis for distinguishing the exactions from those imposed here based on the facility needs and geographical location of the developments. Cf. Seto a Tri-County Metropolitan Transp. Dist. of Oregon, 311 Or. 456, 466-67, 814 P.2d 1060 (1991) (upholding classifications based on geographic location where they had a rational basis). Applicant's final argument concerning equal protection was an allegation that she had been discriminated against because Council approached this remand proceeding with a more thorough review than in earlier cases. She cited, for example, the use Council made of the WTIF and argued that such a use had never been made before. Council, frankly, found her argument to be incredible and almost frivolous. The United States Supreme Court had never imposed the rough proportionality requirement before it made its decision in this case. Furthermore, earlier cases decided by the Oregon courts indicated that the process Tigard used in making the September `91 Approval, which was like the process used in Applicant's example cases, did satisfy the Takings Clause. Thus, it is not surprising that Council applied a different and more involved approach to these remand proceedings than the city had taken in earlier cases. Council could not accept Applicant's claim that the procedure she demanded in the United States Supreme Court violated the Equal Protection Clause merely because her's was the first case to which that procedure applied. Since full street improvements along applicant's Main Street frontage, including drainage, were previously installed, additional improvements and Rem dedication are not now being required. Had the applicant been required to provide these improvements, the drainage components (curbs and drains) would cost anywhere from $10,000 to $20,000. CR 00056; see also CR 00084 ("The cost for half street improvements is approximately $150 to $200 per lineal foot of street frontage.") EXHIBIT A (REVISED) TO FINAL ORDER Page - 92 I. THE PROCEDURE USED IN ADOPTING REMAND CONDITION ONE DID NOT OFFEND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AmzNDMENT TO THE CONSTITUTION OF THE UNITED STATES Applicant asserted that Council could not give Applicant a fair hearing because Applicant had sued the city in Circuit Court. However, it was Applicant who introduced facts concerning the Circuit Court case in this matter, and it was Applicant's attorney who solicited a settlement discussion with Council during the Remand Hearings. Furthermore, it was Applicant who initiated the Circuit Court case. The upshot of the bias claim would be to disqualify Council from exercising its land use authority whenever an applicant brought an action against the city. For these reasons, any claim that discussion of the lawsuit in these proceedings indicates bias is without merit. In addition, each member of Council considered whether he or she could render a fair decision in this matter in light of Applicant's law suit. Each found that he or she could and would separate the two matters when making this decision. Council thus found that these remand proceedings did not deny due process to Applicant. IV. CONCLUSION Council found that Tigard had presented evidence satisfying the rough proportionality test of Dolan IL It therefore found it appropriate to impose Remand Condition One to mitigate for the flood, drainage, and traffic impacts of Applicant's project. Although most of the other arguments raised by Applicant were not before Council, Council nevertheless considered their merits. It found them to have none. Thus Council entered its Final Order imposing Remand Condition One. C:\GFH\DOLAN\FINDINGS\FINDMAST. WPD EXHIBIT A (REVISED) TO FINAL ORDER Page - 93 Appendix One - Evidence in Record Item o. Description I Council Agenda Item Summary, Agenda Item dated CR 1-5 10/10/95 2 Continuation of Public Hearing (8/29/95) ® Council Agenda Item Summary, Agenda Item 6 CR 6 dated 8/29/95 (Exhibit 82) b Letter to City Council from John Shonkwiler re CR 7 Request to Strike Exhibits dated 8/26/95 (Exhibit 83)CR 7 0 Letter to William Monahan from Timothy Ramis re CR 8-9 Request to Strike Exhibits dated 8/21/95 (Exhibit 84) Supplemental Staff Report dated 8/16/95 CR 10-19 (Exhibit 85) ® Applicant's 8/16/95 Memorandum (Exhibit 86) CR 20-39 ® Supplemental Staff Report dated 8/2/95 CR 40-102 w/exhibits 1-11 (Exhibit 87 ) ® Applicant's 8/2/95 Memorandum (Exhibit 88) CR 103-121 ® Affidavit of Dan Dolan received 8/2/95 (Exhibit 89) CR 122-144 Memorandum from Dick Woelk to John Shonkwiler CR 145-147 dated 8/1/95 (Exhibit 90) Memorandum from Cathy Wheatley to file re CR 151-150 6/27/95 and 7/18/95 Transcripts (Exhibit 91) 3 Continuation of Public Hearing (7/18/95) EXHIBIT A (_REVISED) TO FINAL ORDER Page - A Item No. .Descdptio a e o. Council Agenda Item Summary, Agenda Item 5 CR 151-152 dated 7/18/95 (Exhibit 40) ® Draft transcript of 6/27/95 public hearing CR 153-201 (Exhibit 41) ® Copies of slides presented by the City Attorney at CR 202-216 6/27/95 public hearing (Exhibit 42) 4 Letter to City Council from John Shonkwiler dated CR 217-237 7/9/95 w/exhibit (Exhibit 43) ® Letter to John Shonkwiler from Richard Woelk CR 238-256 dated 6/27/95 w/attachments (Exhibit 44) ® Letter to City Council from John LeCavalier, CR 257-267 President of Friends of Fanno Creek, dated 6/29/95 w/"From Rooftop to River" article and "Courts Reject Wetlands Takings" article (Exhibit 45) ASOL ® Memorandum of Dolan/A-boy Inc. w/exhibits A-L CR 268-434 submitted 6/27/95 (Exhibit 46) ® Memorandum from Cathy Wheatley to Bill CR 435-436 Monahan re past Council and Planning Commission meetings dated 7/10/95 (Exhibit 47) ® Supplemental Staff Report dated 7/11/95 CR 437-454 (Exhibit 48) ® Memorandum to City Council from Timothy Ramis CR 455-462 dated 7/13/95 (Exhibit 49) ® Letter to City Council from Loreta Pickerell, Vice CR 463 President of STOP, dated 7/18/95 (Exhibit 50) ® Memo to Tim Ramis from Greg Berry dated CR 464 7/18/95 (Exhibit 51) EXHIBIT A (REVISED) TO FINAL ORDER Page - B Item o. Description F Letter to City Council from Brian Martin dated CR 465 7/18/95 (Exhibit 52) ® Letter to City Council from Marti McCausland CR 466 dated 7/18/95 (Exhibit 53) ® Letter to City Council from Jeff Paine (Exhibit 54) CR 467 Letter to City Council from Dan Velasquez dated CR 468 7/17/95 (Exhibit 55), ® List of exhibits submitted by Timothy Ramis for CR 469 7/18/95 continued hearing w/notes by James Coleman 4 Unified Sewerage Agency Resolution and Order CR 470-625 No. 91-47 (Exhibit 56) Unified Sewerage Agency Resolution and Order CR 626-678 No. 93-33 (Exhibit 57) 4 Unified Sewerage Agency - Water Quality and CR 679-715 Detention Facilities System Development Charge \ Improvement FEI Cost Analysis dated 6/5/91 (Exhibit 58) 4 US Supreme Court Brief for petitioner in Dolan v. CR 716-745 City of Tigard (Exhibit 59) 4 Notice of decision Site Development Review, CR 746-753 SIR 89-21, George Morland Plumbing (Exhibit 60) 4 Site Development Review Application (SDR 91- CR 754-755 0005), Joseph Mendez, applicant (Exhibit 61) ® Memorandum to file from Dick Bewersdorff dated CR 756 6/26/95 (Exhibit 62) EXHIBIT A (REVISED) TO FINAL ORDER Page - C ffm Item o. Description a e o 4 A-Boy Stores advertisements from the Hillsboro CR 757-769 Argus and Oregonian newspapers (Exhibit 63) ® A-Boy Stores Yellow Pages advertisement CR 770-771 (]Exhibit 64) ® Memorandum from Jay Featherston to Frank CR 772-775 Hammond dated 7/5/95 (Exhibit 65) ® Memorandum from Rick Walker and David Pietka CR 776 to Pamela Beery dated 7/10/95 (Exhibit 66) ® List of maps retained by the City until time of oral CR 777 argument under OAR 661-10-025(2) (Exhibits 67- 75 and 79) ® Memorandum to File from Tim McGuire dated CR 778-780 7/17/95 (Exhibit 76) ® Memorandum to file from Dave Larson dated CR 781-783 7/17/95 (Exhibit 77) ® Copies of slides presented by Tim Ramis at 7/18/95 CR 784-798 hearing (slides have been retained by City until time of oral argument under OAR 661-10-025(2)) (Exhibit 78) 4 Testimony of Charles Swindells on behalf of 1000 CR 799-800 Friends of Oregon dated 7/18/95 (Exhibit 80) ® Letter to City Council from John Shonkwiler dated CR 801-805 7/18/95 w/three color photos (Exhibit 81) 4 Public Hearing - Remand of Conditions Related to Dolan/A-Boy - SDR 91-0005/Var 91-0010 (6/27/95) ® Council Agenda Item Summary, Agenda Item 5, CR 806 dated 6/27/95 (Exhibit 1) EXHIBIT A (REVISED) TO FINAL ORDER Page - D Item No. Description a e No. ® Memorandum to City Council and City CR 807 Administrator from Pamela Beery dated 6/20/95 (Exhibit 2) 4 Staff Report to City Council from Planning CR 808-820 Department dated 6/20/95 (Exhibit 3) Exhibit list for 6/20/95 staff report (Exhibit 4) CR 821 Partial transcript of US Supreme Court Case CR 822-823 (Exhibit 3, staff report) (Exhibit 5) 4 US Supreme Court Opinion, Dolan v. City of CR 824-839 Tigard (Exhibit 4, staff report) (Exhibit 6) 0 Notice of Public Hearing for 4/25/95 remand CR 840-841 hearing (Exhibit 5, staff report) (Exhibit 7) ® Applicant's Request for Continuance dated 4/17/95 CR 842-844 and 5/10/95 (Exhibit 6 staff report) (Exhibit 8) ® Amicus Brief: Association of State Floodplain CR 845-846 Managers, pages 12-13 (Exhibit 7, staff report) (Exhibit 9) Drainage Impact Study prepared by Tim McGuire CR 847-879 dated 6/20/95 (Exhibit 8, staff report) (Exhibit 10) ® Appraisal of Proposed Bike Path and Flood Control CR 880-926 Easements dated 5/3/95 (Exhibit 9, staff report) (Exhibit 11) "Private Provision of Public Pedestrian and Bicycle CR 927-930 Access Ways" article by Prof. Arthur Nelson, pages 11-13 (Exhibit 10, staff report) (Exhibit 12) 4 Transportation Impacts Study by David Larson CR 931-933 dated 6/16/95 (Exhibit 11, staff report) (Exhibit 13) EXHIBIT A (REVISED) TO FINAL ORDER Page - E Item No. Description Page No. ® 'Washington County Traffic Impact Fee Ordinance CR 934-982 w/related schedules and reports (Exhibit 12, staff report) (Exhibit 14) 6 Notice of Final Order and Resolution Adopting CR 983-1011 Final Order dated 9/17/91 (Exhibit 15) 4 Memorandum to Cathy Wheatley from Ty Wyman CR 1012-1014 dated 6/27/95 w/easement map (Exhibit 16) Site Plans - 8 sheets of plans (Exhibit 17) CR 1015 Large map of site illustrating easements (Exhibit 18) CR 1016 Hamm ® List of exhibits submitted by Timothy Ramis for CR 1017 6/27/95 hearing w/notes by Pamela Beery ® Notice of Final Order and Resolution Adopting CR 1018-1046 Final Order dated 9/17/91 (Exhibit 19) d► Memorandum to Cathy Wheatley from Ty Wyman CR 1047-1049 dated 6/27/95 w/easement map (Exhibit 20) ® Article by John Vance in Selected Studies in CR 1050-1071 Highway Law, Vol. 2 (Exhibit 21) ® LUTRAQ Study, "The Pedestrian Environment," CR 1072-1125 dated 12/93 (Exhibit 22) A National Flood Insurance Program Flood Insurance CR 1126-1127 Rate Map (1982) (Exhibit 23) ® Letter to Mayor Nicoli from Andrea Ferster, CR 1128-1162 General Counsel for the Rails to Trails conservancy, dated 6/26/95 (Exhibit 24) LUBA Record for Dolan v. City of Tigard, LUBA CR 1163 No. 90-029 (Exhibit 25) EXHIBIT A (REVISED) TO FINAL ORDER Page - F 0021 Ask dtent No Descdption Page No. 0* LUBA Record for Dolan v. City of Tigard, LUBA CR 1164 No. 91-161 (Exhibit 26) 0 Brief for respondent, Dolan v. City of Tigard, US CR 1165-1264 Supreme Court (Exhibit 27) 0 Copies of slides presented by Tim Ramis at 6/27/95 CR 1265-1279 hearing (slides have been retained by the City until time of oral argument under OAR 661-10-025(2)) (Exhibit 28) 0 Amicus Brief: Association of State Floodplain CR 1280-1301 Managers, Dolan v. City of Tigard, US Supreme Court (Exhibit 29) 0 Amicus Brief: Rails to Trails Conservancy, et al, CR 1302-1320 Dolan v. City of Tigard, US Supreme Court (Exhibit 30) 0 "Private Provision of Public Pedestrian and Bicycle CR 1321-1353 Access Ways," article by Prof. Arthur Nelson (Exhibit 31) 0* Tigard Comprehensive Plan w/Pedestrian/Bicycle CR 1354 Plan, Master Drainage Plan, Parks Master Plan, Parks Improvement Program, and Tigard Park Plan (Exhibit 32) A Letters to John Shonkwiler from Timothy Ramis CR 1355-1357 dated 4/19/91 and 4/20/95 (Exhibit 33) 0* Four traffic studies for Beaverton, Vancouver, CR 1358-1377 Hillsboro, and Tigard A-Boy Stores w/letter to John Shonkwiler from Richard Woelk dated 6/27/95 (Exhibit 34) ARk EXHIBIT A (REVISED) TO FINAL ORDER Page - G Item No. Description a e No. 4 Memorandum of Dolan/A-Boy, Inc., CR 1378-1542 w/exhibits A-L submitted 6/27/95 (Exhibit 35) + Letter to City Council from David Smith dated CR 1543-1546 6/27/95 (Exhibit 36) ® Memorandum to Cathy Wheatley from Ty Wyman CR 1547-1549 dated 6/27/95 (Exhibit 37) A Memorandum to file re Dolan telephone calls CR 1550 (Exhibit 38) ® "Sharing the Challenge: Floodplain Management CR 1551-1552 Into the 21st Century," Report Abstract dated 6/94 (Exhibit 39) A* Slides presented by Jim Hendryx at the 6/27/95 CR 1553 hearing *These items have been retained by the City until time of oral argument under OAR 661-10-025(2). C:\GFH\DOLAN\FINDINGS\FINDMAST. W PD EXHIBIT A (REVISED) TO FINAL ORDER Page - H Cave Applicant's Allegation Response SDR 91-0007 "The City approved the construction of a two [sic] Applicant incorrectly asserts that no MLP 91-0004 new industrial buildings totaling 112,960 sq. & dedication was required in SDR 91-0007. A sidewalk was required along the street frontage. The City required a sidewalk along the street No Dedications [sic] nor any street construction frontage. No similar dedication was required costs were required of the applicant . In addition, of Applicant. Instead, they were required to no traffic impact costs were assessed to SDR 91- dedicate the pathway. 0007 in excess of the required TIF fees." Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. SDR 91-0004 "The City approved the construction of a new Applicant ignores that the City did require a commercial buildings [sic] in the Central dedication of a street frontage and Business District in the Action Area overlay zone improvement. The City did not place such a (same as the Dolan property designations). requirement on Applicant. Instead, it Standard street frontage dedication and required dedication of the path. Although improvement were required. In addition, no different mitigation methods were required in traffic impact costs were assessed to SDR 91- the cases, the purpose of each dedication was 0004 in excess of -die required TIF fees. In deed to mitigate for traffic impacts. [sic], the actual trip generation of a same or similar use was specifically identified as Applicant's argument concerning imposition acceptable for calculating the T1F fees. There is of a fee in excess of the WTIF fee is a red no mention of a requirement for additional herring. Here, the City is not attempting to transportation costs related to an alleged 68% impose such a fee on Applicant. Instead, it is unreimbursed costs in excess of the required TIF using the `NTIF methodology to decide rough fee." (Emphasis in original.) proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. Applicant's argument concerning use of actual trip generation is misleading in that it implies the City is applying a different standard here. Until the Remand Hearings in this matter Applicant did not argue that the City should use actual trip counts in estimating the WTIF. hi the earlier decisions, the City used the ITEManual, a decision that was not appealed or disputed. Aft EXMIT A (REVISED) TO FINAL ORDER Page - b IEEE= Case Applicant's Allegation Response SDR 91-0011 "The City approved the construction of a new Applicant ignores that the City did require commercial building. A sidewalk was required dedication of half street improvements from the street frontage to the building being including sidewalks and curbs. The City did constructed. No additional transportation impact not place such a requirement on Applicant costs were assessed to the property other than the Instead, it required dedication of the path. street frontage dedication and improvements (as Although different mitigation methods were was already dedicated and improved at the required in the cases, the purpose of each Dolan' property). In addition, no traffic impact dedication was to mitigate for traffic impacts. costs were assessed to SDR 91-0011 in excess of the required TIF fees." The City also required the applicant to demonstrate "that storm drainage and runoff can be discharged into the existing drainageways without significantly impacting properties downstream." Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WT1F methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. SDR 91-0016 "The City approved this commercial use Applicant ignores that the City did require a (conversion from a lesser residential use) and only dedication of a street right-of-way. The City required the dedication of widening the street did not place such a requirement on frontage and bringing a sidewalk from the street Applicant. Instead, it required dedication of frontage to the building. Similarly, the City the path. Although different mitigation required the Dolans to bring the sidewalk from methods were required in the cases, the the street front age to their proposed building (the purpose of each dedication was to mitigate widening of the frontage street had already been for traffic impacts. accomplished). However, the City also required an additional transportation impact costs [sic] in Applicant's argument concerning imposition excess of TIF fees by requiring the Dolans to of a fee in excess of the WTIF fee is a red dedicate a pathway in the rear of the building. In herring. Here, the City is not attempting to addition, no traffic impact costs were assessed to impose such a fee on Applicant. Instead, it is SDR 91-0016 in excess of the required TIF fees." using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. EXHMIT A (REVISED) TO FINAL ORDER Page - c ~pjlmlijg Case Applicant's Allegation Response SDR 91-0017 "The Tigard Pedestrian/Bicycle Pathway Plan The City required dedication of right-of-way requires a pathway along Hall Boulevard and along Hall and Burnham streets. The City Burnham Street at this location. However, the found that no justification existed to exact City does not require both a pedestrian/bicycle additional water quantity facilities because. pathway and a frontage street sidewalk as was existing storm drains were adequate to required of the Dolans. In addition, no traffic handle runoff from the property. The City impact costs were assessed to this development in required the dedication of right of way as excess of the required TIF fees." adequate mitigation of traffic impacts, just as in this case it required dedication of the pathway as mitigation for traffic impacts. Here, Applicant was not required to dedicate right of way. The conditions require only that they repair damaged sidewalks and curbs. SDR 91-0019 "The City approved an expansion of an existing The City did require a dedication and commercial office building that would generate construction of a sidewalk. The City delayed additional traffic. The City only required the requirement of construction of the the construction of a sidewalk along the frontage of sidewalk to allow that work to be coordinated the property for pedestrian/bicycle traffic impacts. with similar construction required of In fact, the City allowed the landowner to delay neighboring developments. The City did not constructing any portion of the sidewalk until it place such a requirement on Applicant. was ready to develop the remainder of its Instead, it required dedication of the path. It property. In addition, no traffic impact costs were is worth noting that the City is not requiring AM& assessed to SDR 91-0019 in excess of the Applicant to build the pathway. Although required TIF fees." different mitigation methods were required in the cases, the purpose of each dedication was to mitigate for traffic impacts. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Coact It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. EXHIBIT A (REVISED) TO FINAL ORDER Page - d Case Applicant's Allegation Response SDR 91-0020 "Tile City approved this expansion of a The City had good reasons for not requiring commercial building that involved an additional transportation dedications in SDR 91-0020. 67,000 square feet in building size. Additional At the time of the expansion considered in traffic would be generated from this increased the application, the City had already size. the City noted that the applicant was a identified a need for street and transportation participant in a public facilities study for the area improvements in the area. As found in the and therefore did not require any additional decision, those improvementsmere needed transportation-related conditions of approval. No regardless of any increase in traffic that condition of approval was imposed to require the approval of the application would cause. applicant to participate in any public facilities, Furthermore, the City found that no including transportation facilities, that would be improvements proportional to the impacts of deemed necessary by the identified study. In the the expansion were possible. Therefore, addition, no traffic impact costs were assessed to the City found that it did not have any basis this development in excess of the required TIF justifiying the imposition of transportation fees." exactions on the facts of the specific case. It also noted that the applicant was committed to assiting with traffic improvements in the future. Applicant's argument concerning imposition of a fee in excess of the WTIF fee is a red herring. Here, the City is not attempting to impose such a fee on Applicant. Instead, it is using the WTIF methodology to decide rough proportionality in accordance with the requirements created by the Supreme Court. It did not apply such a methodology in its earlier cases because the existence of rough proportionality was not an issue. C:\GFH\DOLAN\FINDINGS\FlagDMAST. WPD EXHIBIT A (REVISED) TO FINAL ORDER Page - e AGENDA ITEM For Agenda of November 14, 1995 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Zone Change Annexation ZCA 95-0005 PREPARED BY: Ray Valone DEPT HEAD OK Adk CITY ADMIN OK ISSUE BEFORE THE COUNCIL Should the City Council forward to the Portland Metropolitan - Area Local Government Boundary Commission a request to initiate annexation of one parcel consisting of 1.52 acres located along the south side of SW Walnut Street between SW 116th and SW 121st avenues? STAFF RECOMMENDATION Adopt the attached resolution and ordinance to forward the annexation request to the Boundary Commission and to assign a zone designation to the property in conformance with the city comprehensive plan. INFORMATION SUMMARY he proposed annexation consists of territory comprised of one parcel of Wand, totaling 1.52 acres of land. The applicant requests annexation in order to be eligible for sanitary sewer service. Because the territory is located within Tigard's active planning area and has already been assigned a comprehensive plan designation of Low Density Residential, the City Council only need assign a Tigard zone designation to the property. Attached is a resolution initiating annexation and an ordinance to change the zone designation from Washington County R-5 to Tigard R-4.5. OTHER ALTERNATIVES CONSIDERED Deny the request. FISCAL NOTES Since the territory is within Tigard's active planning area, the city is responsible for the Boundary Commission application fee of $395. J')M 14 R V 11695 S.W. Walnut Tigard, Or.,97223 October 31, 19 5- r N 0 V C 3 1895 City of Tigard- J . City Recorder 13125 S.W. Hall Blvd. Tigard, Or., 97223 RE: Williams Annexation, File ZCA 95005 Dear Council Members: We own and occupy the property located at 11695 S.W. Walnut St. This property is involved in the subject annexation. Our deeded property includes land to the original centerline of Walnut street. We object to the annexation of any portion of our prop- erty into the city of Tigard. Sincerely, Aft Eugene P. Rogers Kathern J. Rogers cc: Richard Gaarde Raymond Cappoen Harry Urling Lena Williams AGENDA ITEM # For Agenda of = n49& roves 4-0 •,1)11glQS CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE SDC Amending Ordinance PREPARED BY: D. Roberts DEPT HEAD OK CITY ADMIN OK V~ ISSUE BEFORE THE COUNCIL Should the City adopt the attached ordinance which amends the TMC to (1) incorporate state legislative changes relative to the authority of local jurisdictions to impose system development charges (SDCs) and (2) replace the street SDC chapter of the TMC? STAFF RECOMMENDATION Adopt the attached ordinance which updates City SDC code provisions. ==a-_aa=ac~c~--=~= INFORMATION SUMMARY As outlined in the attached memo from Jim Coleman, revisions to the SDC chapter of the TMC are needed to comply with changes in state law and replacement of the street section of the existing ordinance is needed to allow the City to implement a street SDC, should the city decide impose one in the future. OTHER ALTERNATIVES CONSIDERED Do not adopt the amendments or replace the street SDC chapter. FISCAL NOTES The amendments will maintain the city's authority to apply SDCs to new development. DR/sdc.amed October 11, 1995 DATE: September 21, 1995 TO: Randy Wooley, City Engineer Duane Roberts, Community Development FROM: James M. Coleman, City Attorney's Office RE: SDC Amending Ordinance Enclosed is a proposed ordinance amending chapter 3.24 of the Tigard Municipal Code. This ordinance amends Chapter 3.24 to incorporate the 1993 legislative changes and it includes the authority and process for all system development charges authorized by state law. There were no necessary amendments due to the 1995 legislature. This ordinance also repeals and replaces chapter 3.20, Street SDC's. No street SDC fees are now being charged and the revisions to chapter 3.24 authorize a street SDC should the City decide to impose one. Because parks SDC's are currently being charged by the City, chapter 3.16, Parks SDC's, will not be repealed by this ordinance. Chapter 3.16 will be repealed at the time that the resolution adopting the new methodology and fees goes into effect. We apologize for the miscommunication in this ratter. We never received Mr. Wooley's comments and, therefore, assumed that the ordinance had been adopted. Please review the proposed ordinance and let me know of any changes or questions you may have. AGENDA ITEM # D, a For Agenda of IW24M5 sP,4- Ovpn -I-p I I~lLl CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE -Amend Comprehensive Plan Park Classification System and Service Standard PREPARED BY: D. Roberts DEPT HEAD OK )/I~ ,UCITY ADMIN OK ISSUE BEFORE.THE COUNCIL Should the City amend the park system classifications and acreage standards used in the Comprehensive Plan to make them consistent with those used in the park system development charge (SDC) study? STAFF RECOMMENDATION Adopt the attached ordinance which amends the comprehensive plan park system classifications and acreage standards. INFORMATION SUMMARY - Ss a precondition to revising the park SDC fee schedule, the City must reconcile the differences between the park system classifications and acreage standards used in the comprehensive plan and those used in the park SDC study. The purpose of the proposed amendments is to eliminate these differences by revising the comprehensive plan. The ordinance has been reviewed and approved by the City Attorney's office. OTHER ALTERNATIVES CONSIDERED Do not adopt the updated park system classifications and acreage standards. FISCAL NOTES The amendments are needed to meet state requirements for revising the city's existing park SDC fee schedule. DR/sdc.sum October 13, 1995 AGENDA ITEM # ALML For Agenda of I I i yJR5 S2A- vve►" 4q-vrn-, Q [t a (45 CITY OF TIGARD, OREGON ~}v r Ci rY!..P~}fr.4 COUNCIL AGENDA ITEM SUMMARY 5e_(-A r.+m ( O (F p ~G j c mew ISSUE/AGENDA TITLE Adopt Service Standards Proposed by City Departments d' PREPARED BY: C. Wheatley DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Shall the City of Tigard adopt draft Service Standard proposed by City Departments? STAFF RECOMMENDATION Staff recommends that the Council adopt the draft service standards for use in Fiscal Year 1995-96. INFORMATION SUMMARY The attached Service Standards have been prepared by City Departments in esponse to direction from Council. The City Council, during the adoption of ouncil goals for Fiscal Year 1995-96, directed that each department prepare service standards to be utilized as benchmarks for evaluation whether or not day-to-day functions are being carried out in a timely manner. If the standards are not attainable, City departments have the responsibility to bring the situation to the attention of the City Administrator for appropriate action. Action could include a request for additional temporary or permanent staffing to restore compliance with the standard. Service Standards will be reviewed annually as part of the City budget process. OTHER ALTERNATIVES CONSIDERED 1. Take no action to establish service standards. FISCAL NOTES No fiscal impact is anticipated unless service standards may not be attained due to staffing limits. If staffing becomes inadequate to handle the volume of work that is the responsibility of a department, a request for funding may be appropriate to provide for temporary or full-time staffing help. f:\login\cathy\svc1v1.sum AOL SERVICE STANDARDS Police Department (Dote: Information would take approximately 2 weeks to compile because of reliance on outside agencies to provide some of the statistics. The statistics will be compiled annually prior to formulating a proposal to the Budget Committee for the next fiscal year's budget.) Dally Services ® Emergency and non-emergency criminal calls for services: If the response time to emergencies exceed 6 minutes, or if the non-emergency response time exceeds 20 minutes as an average, that would trigger an internal review regarding our operations. ® Records report processing time: If the time for the processing period (from time a report is submitted to Records to the time it is fully processed) exceeds 3 working days, a review of process and procedure would be initiated daily. Long-Range Services ® Total Part I and Part II Crimes: If either of these categories increase greater than 4 percent from one reporting period to the next, staff would review operating procedures and policies. ® Total Calls for service: Monitor the accumulation of the criminal, non-criminal, civil and public assist calls that the Department responds to annually. If this figure increases more than 10 percent in a reporting time frame, we would review our operating policies and procedures. ® Reported Accidents: If, during any review time frame, the total number of reported accidents to the Department increase by 4 percent, the Department will review policies and internal operating procedures. ® Case Clearance Rate: Any decrease greater than 5 percent of the total case clearance would necessitate a review of investigative policies and procedures. Aft Page 1 SERVICE STANDARDS Librry: Daily Services ® Library materials will be checked in and reshelved for use by the public vAthin 24 hours of return. ® New materials will be received, cataloged, processed, and made shelf-ready within one week. ® The wait for customer service at the Reference Desk or Check-Out Desk will not exceed five minutes when these desks are fully staffed. ® The wait for access to the public library catalog computers and information workstations will not exceed five minutes. Lone-Range Services Aft, The Library will meet or exceed the Oregon Library Association's minimum service standards for libraries with a service populate of 45,000 in the following areas: Standard TPL Caffent Collection size 90,000 items 93,000 items Subscriptions 328 580 Hours of service 65/wk 651wk Staff 22 22.5 Public use area 14,000 sq. ft 9,912.5 sq. ft. (includes collection space, reading/study space, program area, meeting room, restrooms) Page 2 SERVICE STANDARDS Maintenance Services Department Daily Services ® Intergovernmental Water Eoard Agendas will be mailed to members at least one week in advance of each meeting. Members will have materials relating to agenda items no later than 48 hours before the meeting. ® Emergency situations (i.e., water break, windiwinter storm, storm water incident, sewer surcharges, etc.): Within normal working hours, City staff on site within 15 minutes of notification. After normal working hours, City staff on site within 45 minutes of notification. ® Respond to citizen inquiries within 24 hours. ® Read one-half of customer meters monthly. Weekly reads completed by 4 p.m. on Weds. for billing to process. , ® Customer-purchased water meters will be installed within seven working days of notification that site requirements are met. ® Water, sanitary sewer, and storm sewer lines will be located within 48 hours of notification. ® Park facilities (restrooms, trash pick-up, etc.) will be cleaned daily from June i through September 15. Long-Range Services ® Annually TV inspect/clean 15,000 lineal feet of sanitary sewer lines and 12,000 lineal feet of stormwater lines within the City to meet Unified Sewerage Agency standards. ® During FY 95-96, complete 17 miles of crack sealing on City streets. Page 3 T SERVICE STANDARDS Maintenance Services Department (continued): 0 Assist in designated community events in a manner that promotes good will between the City and community. ® Patch City streets an average of at least one day (24 person hours) per week on an annual basis (V O tons of asphalt). ` Page 4 SERVICE 3T community Development: Daily Services Building Department and Development Services Team (PS • Preliminary Plan Review by DST > Commercial and Residential - New 3.4 work days > Commercial and Residential - Tenant Improvement or Addition 2 - 2 112 work days ® Building Plan Review by Residential/Commercial Plans Examinegs) > Single Family 2 week average minimum > New/Additions Commercial Approximately 4 weeks for review and subsequent Plan Review Letter (large or complicated project applications may take approximately 6 weeks) > Commercial Alterations 1-3 weeps for a Plan Review Letter Note: Completion of the Plan Review process depends upon timelinesslaccuracy of applicant's response to the Plan Review Letter. staff turn-around on resubmittals varies from same day to 2 weeks, depending upon the complexity of the job and quality of the submittal. Page 5 lamb. SERVICE STANDARDS Community Development (Contfnuedy ® Post Plan Review by DST > Commercial and Residential - New 3 - 4 work days > Commercial and Residential - Tenant Improvement or Addition 2 - 2 112 workfng days Vote: Post Plan Review standards also depend upon applicant's compliance with all required conditions of approval for permits attached to land use cases. Daily Services ® Building Inspection by Inspectors > Inspection request received by 8 a.m. on the Inspection Request Line will be performed the same day. ® Phone Information Dissemination by DST > Based on the inquiry the caller's request will be handled on line. (Examples of this: map and tag lot number, question on process for building, engineering and planning, business tag inquiries, park raservation process, council agendas, etc.) > Inquiry requiring calculations, depending on customers' needs and select one of the following: 1. Provide reference materials (mail or fax) so customer can determine or 2. Return call with Information upon completion of calculations or 3. Make appointment with customer. > Inquiry requiring research (i.e., building plans for a finaled project, addressing for a new project): Return call upon completion of project research. (Exception: Sewer locates require customer to come to the front counter.) Page 6 Lift SERVICE STANDARDS Community Development (continued): > DST phone will be staffed from 8 a.m. to 5 p.m. and equipped with a VoiceMail box to handle overflow calls. Messages on VoiceMail will be handled according to a the Return Call Standard below. > Return Call Standard: ® Calls received between 8 a.m. and noon will be returned by 5 p.m. the same business day. ® Calls received between noon and 5 p.m. will be returned by noon the next business day. > Counter service: Maximum wait time is 20 minutes in times of extreme volume or limited coverage. Average wait is 2.9 minutes. If customer wait time exceeds 20 minutes, the DST on phone duty can be asked to provide temporary back up. In extreme cases, the Community Development or Engineering clerical staff may be called upon to assist. > Service time transaction general guidelines for completion: Permit Issuing 5 - 15 minutes Sewer Locates 30 - 45 minutes Building Plan Copies 20 - 30 minutes Land Use 15 - 30 minutes Current Planning (Time frames do not include call up or appeals. Time frames partially dependent on Hearing Body schedule and project complexity. ® Administrative Review - Director's Decisions Site Development Review 6-8 weeks Variance/Lot Line Adjustment 2-3 weeks Hearings Review Subdivision/Conditional Use 6-8 weeks Planning Commission (Zone Change) 6-8 weeks Planning Commission/City Council (Comprehensive Plan Amendment) 3-4 months Page 7 SERVICE STANDARDS Community Development (Continued): Lonr,-Range Services Advanced Planning 1995 Goals and Objectives: ® Comprehensive Planning: Work with city neighborhood groups to review and define City vision, maintain compliance with DLCD, Metro and Tigard goals; complete revisions of transportation, annexation; review land use; work with Metro on 2040 ® Special Projects: Significant trees; land-use review; urban design. ® Transportation: Complete transportation systems plan; 99W study; assist in development of Regional Transportation Plan. ® Growth Management: Develop Urban Services Agreements; annexation plan; school capacity study. ® Information: Maintain GIS data coverage for parcel, streets and zoning, and develop new coverage; implement ARC-view; complete Tigard Triangle study elements. Page 8 SERVICE STANDARDS Engineering: Daily Services Respond to all requests in the same day (even it is just to tell them the scheduled time for a more detailed response.) • Minimize citizen complaints (by anticipating concerns and providing adequate information.) ® Assure that standards are coordinated between departments. ® Provide appropriate information to keep the general public and impacted citizens informed about capital improvement program projects under construction. Long-Range Services Development Review: ® Assure that the product will be satisfactory for the neighborhood and a benefit to all citizens that will use the facility. • Provide consistency in requirements and guidelines; provide for continuity In enforcement. ® Assure a product that can be efficiently maintained by the City. Capital Improvement Program: ® Assure appropriate level of public input into the development and design of each project. Page 9 SERVICE STANDARDS Administration: Daily Services ® Council Support: > Council packets completed and distributed one week prior to Council meeting. • Council meeting room set-up (room configuration, sound system, alv equipment, refreshments, Council supplies) > Council follow-up (draft minutes, post ordinances, distribute documentation, write and mail letters) completed within 5 working days after Council meeting. ? Maintain tentative agendas; distribute revised versions on monthly basis. > Office support: Council mail distributed in timely manner. - Facsimile transmission or telephone notification if urgent. Mailings on Tuesday and Friday for routine correspondence Telephone message service for calls from public and officials. > Return phone calls same day as received. ® Community Involvement: > Produce Cityscape once a month, deadlines must be met to ensure printing and delivery on time and to provide notice of CIT meetings. Process takes approidmately 16 hours over a 2-week period and is top priority. > Issues generated by citizens or assigned by the City Administrator, often must be handled immediately. The length of time to resolve varies depending on issue (couple of minutes to several weeks). Leave un- scheduled time daily for flexibility to address issues as they come up. ® Human Resources: New job hires process, from point of request to advertisement release, to take no longer than 14 days. > New employees to receive complete orientation on information pertaining to salary, benefits, and City policies within 14 days of their employment start date. > Performance reviews will be checked for completeness and processed for payroll within 2 days of receipt from the Department. Page 10 SERVICE STANDARDS ® Risk Management: > Review, investigate and turn over to the appropriate insurer within 24 working hours of any claim received. > Open claim and restitution files reviewedtworked no less than monthly. > Insurance policies - review and purchase conducted annually Workers Comp - April 1 through June 30 All other lines of coverage - February 1 through April 30 > Safety Committee Coordination - meet monthly and ensure follow-up on Safety Committee recommendations > Chair monthly Solid Waste meetings with Haulers. > Respond to Solid Waste citizen complaints on a first come, first served basis. > Serve as the Washington County cities' representative on Metro's Solid Waste Advisory Committee (meetings once per month. > Coordinate review of Hauler's annual financial reports March through May > Return phone calls same day as received. > Correspondence within 5 working days from receipt. > Emergency Management Plan update to be completed by 411196. > Investigate ADA all complaints filed with the City and respond, with findings, no later than 30 days after filing on ADA-related issues. Page 11 SERVICE STI S Administration (con uedy ® Computer Services > Response time for computer problems or requests for sorvices can be achieved, 90 percent of the time, within two hours. > In 1995: train appropriate personnel in the use of Windows replace obsolete cabling and computers with contemporary equipment implement a remote access communications system to promote telecommuting implement a modern Network Management System Lonr-!tame Services ® Human Resources: > Schedule staff training (i.e., non-harassment workplace Lssues, supervisory techniques) 0 Risk Management: > Commercial Driver's License Drug/Alcohol Testing Policy will be in place by 12131/95 > Schedule staff (OR-OSHA Safety Codes; defensive driving, Red Cross, and other risk-related issues.) Page 12 S ICE ST S Fence Department: Daffy Services Office Services ® Information Services projects - 24 - 48 hour turn around. Priority based on order received. ® Room Reservation requests - immediate or same day response. • Switchboard phone response - first ring when phones not busy, third ring when phones are busy. Records © Records requests - Basic - one hour turn around 'Requests that take research - half day turn around New files entered into Clark's Index and filed - three times per week. ® Records destructions - yearly Court ® Counter assistance - immediate. Not more than five minutes during arraignments or when short staffed. Process minor traffic citations - approximately 600 per month Arraignment dates - within two weeks of original arraignment date Trials - date scheduled within three weeks of arraignment. Trial date within 60 days of arraignment. Over due payment notices sent once per month. Failure to appear suspension notices process weekly. Failuro to comply notices processed monthly. Ball refunded two times per month. Page 13 SERVICE STANDARDS Finance Dep ent (continued): AccountinWMance ® Deposit of receipts - following day. * Accounts payable checks issued - By Friday following deadline for submitting for payment. o Monthly financial reports - To City Administrator by 5th working day after month end. ® Audit Report issued by November 15. ® Business tax renewals issued each month. ® utility Bills issued within 4 days of meter reading. f:lloginlcathylsvclev Page 14 ,Arv/)d MEMORANDUM CITY OF TIGARD, OREGON TO: Honorable Mayor and Members of Council FROM: Liz Newton, Assistant to the City Administrator l421---- DATE: November 7, 1995 SUBJECT: Reauthorization Study for Corps' Willamette Basin Projects BACKGROUND Attached is a memo from the League of Oregon Cities that was sent to all municipalities in the Willamette River Basin. Briefly, the Corps has begun preliminary work on a feasibility study to determine if the water stored behind dams in the Willamette River Basin should be reallocated to different users, including municipalities and industry. In order for the Corps to proceed, $650,000 is needed to match federal funding. The Oregon Legislature has allocated $325,000. It is intended that the remaining $325,000 be split between municipalities and industry. Tigard's share could be at least $5000 if we choose to participate. The amount will be determined by the level of participation of the cities. I have conducted a survey of some of the surrounding jurisdictions. Their responses to the League's request is as follows: Beaverton: According to Mayor Drake, they will participate but he has made it clear to the League that this is not a "blank check" and does not guarantee future participation. Durham: According to Steve Feldman, they will not be participating. Lake Oswego: Staff recommends against participating. A copy of the staff's report to Council is attached. Sherwood: According to Larry Cole, they will participate. Tualatin: Staff will recommend to Council that they participate. Amhk Wilsonville: Staff will recommend to Council that they participate. =INA CONCLUSION This study is being funded over a two year period (195-196) The League recognizes that cities may not have funds available in their 195-196 budgets. If possible, the League would like commitments from cities for FY 196-197 budgets. Should the Council decide to fund the project and use money from the 195- 196 budget, staff will come back with a resolution to appropriate the funds. Should Council decide to participate using funds from the 196-'97 budget, staff should be directed to incorporate the request into the budget for consideration by the Budget Committee. The League requests a response by Friday, November 17. 1 Q, 1 OF O 6 IMMEDIATE ACTION REQUESTED O O Z October 11, 1995 TO: City Managers, Administrators, and Recorders 11wi- -im, together FROM: Roger Jordan, Chair, WaterAlVastewater Committee for lit cri~lc Joni T. Low, Sr. Staff Associate c)rc;;r»' SUBJECT: Reauthorization Study for Corps' Willamette Basin Projects c ennnnurities At the urging of the Water Resources Department, the League and the Special Districts (SDAO), the U.S. Army Corps of Engineers (Corps) has begun League or Oregon Cities Local Government preliminary work on a feasibility study to determine it the water stored behind Center its Willamette Basin dams should be reallocated to different users, including 1201 Court St. NE municipal and industrial uses. Congress requires a 50/50 cost-share for such Salem, OR 97301 studies, and the estimated non-federal cost share for this 4-year study is $1.4 P.O. 928 S R 97308 million. For 1995-97, $650,000 in non-federal funds is needed for the study. m. Box OR 9 Sale Sale (503) 588-6550 or The 1995 Legislature allocated $325,000 for this purpose, but an additional 1-800-452-0338 $325,000 is needed for the non-federal share by the end of November, Fax: (503) 399-4863 1995, in order for the Corps to proceed with the study. If the municipalities and others are not able to contribute the additional $325,000, federal funds OFFICERS budgeted for the feasibility study may be eliminated. The Corps estimates the PRE ENT rsen-Hill. CuuncAOr total cost of the feasibility study at $2.8 million. a .ante VICE-PRESIDENT Background ound Alice Schlenker. Mayor, lLake Oswego TREASURER Approximately 1.6 million acre feet of water is stored in 11 multipurpose Larry l Mayor Baker ker C,ry projects operated by the Corps Two additional projects are re-regulating PAST PRESIDENT dams. The federal legislation authorizing construction of the dams established Charles vars. loaner Mayor the Pnmary uses as flood control and irrigation. Eligible authorized users may car,anis Y DIRECTORS contract with the U.S. Bureau of Reclamation for delivery of that stored water. to EC o RsOn.Mayor Of approximately 1.6 million acre feet of stored water, only about 5% has been Caknage contracted for by irrigators. The remaining stored water is released by the rare N3.es. i,.`n'Tiss:Cner =xara Corps to maximize flood protection and for recreational purposes. While mike he'W. C.:vmanager municipal, industrial, water quality, fish and wildlife, and recreation are So::ngrn Crag lomm nieei.>.tavcr recognized uses of the stored water, no specific quantities of the water are Mlwauk.e authorized for these purposes. The Bureau of Reclamation cannot contract for S T alcP^eete•s.'.la,cr delivery of stored water with non-irrigation users unless Congress acts to P3::erscr. 3 C:,.:.lara_er authorize other primary uses. _ero Marlyn Schafer. hlayor Gc1o Beach Need for Reauthorization t G.ven VarCenBcsch. %tayor Cavan Since 1993, LOC and WRD have been working with local, state, and federal representatives and other interest groups on reauthorization of the 13 federal RcrarcC.Towrsera storage projects. Water uses and needs in the basin have changed dramatically, since the projects were originally authorized and constructed. To 0 date, projected irrigation development in the basin has not materialized at the rate previously envisioned, leaving considerable uncontracted water available =acre=a•=2r=3aer for other purposes. CORPS REAUTHORIZATION STUDY CONTRIBUTION SCHEDULE Population Amount Due* Under 500 $ 50.00 500 - 999 100.00 1,000 - 2,499 300.00 2,500 - 4,999 500.00 5,000 - 9,999 1,000.00 10,000 - 24,999 2,000.00 25,000 - 99,999 5,000.00 100,000 - 399,999 12,000.00 Over 400,000 25,000.00 * This amount may change, if all municipalities do not contribute towards this effort. s -y ; CITY OF LAKE OSWEGO COUNCIL REPORT TO: Douglas J. Schmitz, City Manager FROM: J. R. Baker, Public Works Director` PREPARED Bbl: Joel B. Komarek, F.E., Water Systems Engineer gig V_ SUBJECT: Willamette Basin Reauthorization Study-Cost Share Request DATE: October 25, 1995 Action The League of Oregon Cities (LOC) has requested that Lake Oswego contribute $5000.00 toward completion of the above referenced study. Staff recommends Council not authorize expenditure of funds budgeted for other purposes toward this study. Background The Corps of Engineers operates and maintains eleven flood control facilities within the Willamette Basin. Primary water rights are held by the Corps which allow impoundment of runoff from the Basin. Authorized uses of this stored water are for flood control, irrigation and power generation. The Bureau of Reclamation holds secondary permits for this stored water which allows the agency to market this water for authorized uses. Presently, about 5% of the stored water is under contract for irrigation purposes. Discussion During an initial scoping process, five goals for this study effort were identified. These goals are: 1. To authorize a full range of beneficial uses in addition to those uses currently authorized. 2. Develop an operational agreement for low flow years. 3. Identify appropriate institutional arrangements. 4. Redefine existing rule curves and reduce downstream erosion. 5. Identify Municipal and Industrial (111&I) demands and constraints. .1.8 3 NNW Council Report 10/25/95 Page 2 of 3 As stated earlier. Lake Oswego is being asked to contribute financial assistance for the completion of this work. There are several reasons why Council should consider not contributing financial assistance to this effort. These reasons include: A. Review of the draft feasibility scope of study (see attached OWRD Memorandum, dated 9/11/95), reveals a very broad scope. It is likely with the broad range of stakeholders within the Basin such a scope may be problematic in reaching consensus on the range of alternative system operation scenarios which are available. B. Task 2 of Study Goal 1 would update the base operation conditions of the Willamette system. It specifically requires the conduct of IFIM's, (Instream Flow Incremental Methodology) for the Middle Fork Willamette and South Santiam rivers. IFINI's are multiyear assessments of flow impacts to spawning, rearing and migrating habitat of indigenous fisheries for both anadromous and non-anadromous species. IFII is are typically conducted in three phases with the first phase devoted to identifying and bringing together stakeholders and special interests with the goal of reaching consensus on study objectives and analysis criteria. Again, these types of studies are broad in scope and the value of data generated from such studies has been questioned by some regulatory agencies. C. Task 5 of Study Goal 2 would investigate opportunities for augmenting storage within the Basin primarily on subbasins without existing Corps projects. In Staff's opinion, it is unclear why this task is included in a study whose stated goal is the evaluation of current operations of existing Corps storage facilities. According to the LOC, only 5% of approximately 1.6 million acre-feet is currently contracted for use. Assuming Congressional authorization for other uses could be obtained, the remaining 1.5 million acre-feet of storage would be available for other non-traditional uses. Given this, there seems little justification for this Task. D. Goal 5: Staff agrees with the need to authorize other uses for water currently stored behind Corps facilities for several reasons including: 1. Increased instream flows for fisheries needs. 2. Increased instream flows for pollution abatement. However, Staff does not agree that reallocation for M&I use is necessary or currently practical when viewed from a water demand or economic perspective for the following reasons: 1. Based upon analysis performed as part of the recently published Regional Water Supply Plan, the volume of water requested by the Special Districts Association of Oregon. (SDAO) was in excess of historical instream flows of the Willamette River net of existing and pending water rights and discretionary Corps releases. Based upon population forecasts developed by Metro for the 2040 Plan. water demands for the region through the year 2050 have been forecasted. Based upon these forecasts and assuming the region could agree to develop the Willamette.for drinking water supply. it is estimated that about 100 million gallons per day (307 ac-ft/day.) from this source would be required (ref. RWSP strategy 1.5). Over a years time this amounts to a little 184 Council Report 10/25/95 Page 3 of 3 more than 112,000 ac-ft., or about 40% of the 287,000 ac-ft. identified in the SDAO request. Assuming no reallocation for M&I use is authorized, loss of the Corps storage component (21,000 ac-ft.) of this total, is not likely to have significant impact to the region or individual jurisdictions. who may want to use this source for M&I purposes. 2. As you know, Lake Oswego currently holds a permit and has an application pending before the OWRD for rights to appropriate water from the Willamette River for municipal use. It is likely that if Lake Oswego and the City of Tigard formed a joint water supply entity, approximately 10 MGD of the Willamette River would have .to be developed to meet the water demands of the two Cities through the year 2050. Again, based upon analysis performed for the RWSP, even without any reallocation of stored water, Lake Oswego's existing and pending rights would not be in jeopardy. 3. Until the current pricing structure for M&I water is chanced there will not be sufficient economic incentive for the region to pursue contracting for this water. Alternatives 1. Authorize expenditure of $5,000.00 toward completion of the Reauthorization study. 2. Do not authorize expenditure of budgeted funds for the Reauthorization study. 3. Remove from the consent agenda and discuss. Conclusion Given the above discussion, it is staffs opinion that Lake Oswego would not receive $5,000.00 worth of benefit from its expenditure and that it is highly likely that given the broad scope and multiple interests in the Basin, the original estimated cost of the study will be insufficient to complete the scope of work as currently defined and that additional, future contributions will be required and requested. /kaa Attachment: Draft Feasibility Scope of Study for Willamette Basin Reauthorization Study. C0 NCR"T.FAN 18~