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City Council Packet - 04/14/1998 CITY OF TIGARD OREGON TIGARD CITY COUNCIL MEETING APRIL 14, 1998 COUNCIL MEETING WILL BE TELEVISED 02dm4o%ccPk".dx 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 r. Revised 4/10/98 :ff ~~YS'"'~:ki.%i:'fi,,:k;e",.::•,''{',..3brf%` sE'v;:;::'yA''..'''P?<rF.•.:?~fia+';•tiY,••.+ri.•.fi% v`l'{•'5,53:di!% f o:;y.y`;µ:Sy:.~:' ...cbu: ::.a'.• .w., ^<i>:,'•;Y'+ :>~:}tfi.,•%T,$,'i' k, tl.?i 51 \v.'.S. St:.nY': .jSW YC.Sy?:•i:ryyrZ',. [Pg. CITY OF TIGARD ••L'p f: ~ j n:M u +f:;f?~;kv:'!'~t!.v +.cE'd :::,:r.•:c:•:, i:::ut jw:li :<ry£f:,+x:z 'tv'f:•S¢:.:, r1►, p%y~►'(j1~\ '{:::..••.iyf.:•r.. ;~rii.;:;i{~..;;;!;vyti:; t'>':•~:,~I,.i.Mt.~C'+,M11.M.~i: .%i:'v ,G.k +.'t'ri ~t ! Sr<•+SSS;.L'+!SY•3$'?; v. F.}:if)/.;'l,/!'/,:!YS.r~'y:~ln. ~''1 'l4 S.h•j/n' :::;`.~~~1•',,..,.YM',•,t:.,••~„~:i~,~.•,'','i.,.,1~. ,.,.M,,'!~A:i3!%:!v.u'i.::cf!: ~:•l.!ip'Qv,;: !•lf•: :~r$ity :}S'//i}' . n:%:uv!':i:$)•ier ..i: .!`f."'r.:: r..:.£~' ~ ~~r.•~>rrrr'`'~• '.ictr ~ii>v<6%F,t:s' rii.E •t.2.:%4'f.+`xYnl:ur.'!!v...:%IIUU.r ' l PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. 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 Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 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 639-4171, Ext. 309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone numbers as listed above: 639-4171, x309 (voice) or 684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACKED AGENDA COUNCIL AGENDA -APRIL 14,1998- PAGE 1 . AGENDA TIGARD CITY COUNCIL BUSINESS MEETING APRIL 14, 1998 - 6:30 PM 6:30 PM • STUDY SESSION > EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), & (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 meeting may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not is close any information discussed during this session. > PUBLIC WORKS - DISCUSSION ON PARK STAFFING > PUBLIC OPINION SURVEY DISCUSSION AND REVIEW OF DRAFT 7:30 PM 1. BUSINESS MEETING 1.1 Call to Order - City Council & Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications/Liaison Reports 1.5 Call to Council and Staff for Non-Agenda Items 7:35 PM 2. VISITOR'S AGENDA (Two Minutes or Less, Please) 7:45 PM 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separats action. Motion to: 3.1 Approve City Council Meeting Minutes: March 10, 17, 24, 1998 3.2 Receive and File: a. Tentative Agenda b. Council Calendar C. Results of 1997 Aggregate Solid Waste ' Franchise Haulers Reports 3.3 Local Contract Review Board: Award Bid for Commercial Water Meters to Metron-Farnier, LLC. 3.4 Approve Finance Director's Recommendation for the Interest Rate of 6.05% to be applied to all Reimbursement Districts formed During the Year. Resolution No. 98- COUNCIL AGENDA -APRIL 14,1998- PAGE 2 3 , 3.5 Adopt the Trees 2000 Report - Resolution No. 98- 3.6 Approve Revised Design Budget for the 121st (Merestons) Dam Project • Consent Agenda - Items Removed for Separate Discussion: 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. 7:50 PM 4. DARTMOUTH LOCAL IMPROVEMENT DISTRICT PUBLIC HEARING (Continued from the Council Meeting of March 17, 1998) The Dartmouth Local Improvement District has reached the assessment stage. Tigard Municipal code Section 13.04.060 requires that a proposed assessment be prepared and presented to the City Council in a resolution. The resolution, upon approval by the City Council adopts the proposed assessment, directs that property owners be notified of the proposed assessments and that a public hearing be set to consider objections. Objections to the proposed assessments were to have been submitted to the City in writing by Thursday, March 12, 1998, at 5 p.m. in order to be conside.--ed at the public hearing. Written objections were to state specifically the grounds for objection. At the hearing, the Council directed that written rebuttal to the public testimony was to be submitted to City offices by 5 p.m. March 31, 1998. Comment on the rebuttal testimony was to be submitted to City offices by 5 p.m. April 7, 1998. Copies of written testimony received by 3/31 and the 417 dates were provided to the City Council. a. Continue Public Hearing Mayor Nicoli b. Staff Report: Finance Director/Legal Counsel C. Public Comment (If Council requests) d. Staff Recommendation e. Council Questions f. Close Public Hearing g. Council Deliberation h. Council Motion to Set Date to Consider Ordinance Adopting Assessment Amounts (Proposed Dates: April 28, 1998 or May 12, 1998). 9:50 PM 5. NON-AGENDA ITEMS COUNCIL AGENDA -APRIL 14,1998- PAGE 3 • 1 10:00 PM 6. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), & (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 meeting' may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not is close any information discussed during this session. 10:15 PM 7. ADJOURNMENT 0ADWCATH`1\CCA\98041 a. DOC COUNCIL AGENDA -APRIL 14,1998- PAGE 4 (Y Agenda Item No. TIGARD CITY COUNCIL Meeting of -E MEETING MINUTES - APRIL 14, 1998 • STUDY SESSION > Meeting was called to order at 6:30 p.m. by Mayor Jim Nicoli > Council Present: Mayor Jim Nicoli, Councilors Paul Hunt, Brian Moore, and Ken Scheckla. > Staff Present: City Manager Bill Monahan; Asst. to the City Manager Liz Newton; City Recorder Catherine Wheatley; Community Development Director Jim Hendryx; Public Works Director Ed Wegner; Risk Manager Loreen Mills; and Legal Counsel Jim Coleman > Executive Session The Tigard City Council went into Executive Session at 6:30 p.m. under the provisions of ORS 192.660 (1) (d), (e), & (h) to discuss labor relations, real property transactions, current and pending litigation issues. > Executive Session recessed to Study Session at 7:15 p.m. Councilor Scheckla expressed concerns about the hiring of the Utility 2 staff person. He suggested contracting the work out in the interim. He commented that the Council was told by staff that no additional maintenance was needed for several years on the greenspaces purchased on Bull Mountain and elsewhere. Councilor Hunt concurred. Ed Wegner, Public Works Director, explained that both staff arborists have left the City. Staff replaced one arborist with Jeff Munro, a good parks supervisor but not a forester, and have waited for two years with the other arborist position vacant. He stated that no Public Works staff member has ever said that the recently acquired parks required no maintenance. Bill Monahan, City Manager, commented that staff may have spoken to not developing a parks property immediately but staff did have to eliminate the potential liabilities at a park site. Mr. Wegner pointed out that with the Trees 2000 program, the trees planted 10 years ago coming to maturity, the future street trees plan, and the constant calls from citizens for advice on planting and maintaining trees, they needed a staff arborist to manage their urban forest program. He said that they have contracted this work out for two years but with that method they never caught up on the work. Councilor Scheckla asked for documentation on the equipment, salary, and benefits for this position. Mr. Wegner stated that that information was in the budget documentation. He commented that they have not asked for a new truck, and would try to use their existing equipment and vehicles. Councilor Scheckla said that he preferred to wait on this position to go through the budget process. He stated that he had no objections to the Utility 2 position. The Council agreed by consensus to move forward with hiring the Utility 2 position. Mr. Monahan said that they would get clarification from Public Works staff on what the Council was told regarding parks maintenance. Tigard City Council Meeting Minutes - April 14, 1998 - Page 1 > Executive Session reconvened at 7:24 p.m. > Executive Session adjourned to Study Session at 7:35 p.m. The Council discussed the letter that Mr. McAdams sent to the Mayor. The Mayor said that he would respond. Councilor Hunt agreed to attend the CDBG improvements "ribbon cutting" at the Senior Center on Friday, April 24. 1. BUSINESS MEETING 1.1 Cali to Order - City Council & Local Contract Review Board Mayor Nicoli called the business meeting to order at 7:45 p.m. Boy Scout Troop 419 led the City Council in the Pledge of Allegiance. Mayor Nicoli thanked the scouts and presented each scout with a City lapel pin. 1.3 Council Communications/Liaison Reports: None 1.4 Call to Council and Staff for Non-Agenda Items Mr. Monahan mentioned Duane Roberts' report on the purchase of greenspaces. Mayor Nicoli disclosed a potential conflict of interest with the City of Tigard. He explained that, unknown to him at the time, one of his clients rented equipment to the general contractor constructing the City water tank. He said that, as an engineer with his company, he had to perform an inspection on the site. He stated that he has performed one hour of service to the contractor and would probably provide one more. 2. VISITOR'S AGENDA Ron Bonne, Winterlake, presented his neighborhood's concerns with the speed bumps on SW 1281", contending that they could not safely drive over them at 25 mph. He spoke to considering the broader context of adjacent neighborhoods when installing speed bumps on any given street. He asked for staff to review the design to make the bumps less "dramatic." He said that he spoke to staff about this situation several months ago but nothing was done. He noted the concerns of police and emergency access vehicles regarding speed bumps. 3. CONSENT AGENDA (Councilor Moore temporarily left the room.) Councilor Hunt asked for further explanation on Item 3.3, why the highest priced water meters were selected. Mr. Wegner explained that staff devised a system to rate the prices, efficiency, and availability of the various models. Staff concluded that these meters paid for themselves by taking more accurate readings. Motion by Councilor Scheckla, seconded by Councilor Hunt, to adopt the Consent Agenda. Motion was approved by unanimous voice vote of Council present. (Mayor Nicoli, Councilors Hunt, and Scheckla voted "yes.") Tigard City Council Meeting Minutes - April 14, 1998 - Page 2 3.1 Approve City Council Meeting Minutes: March 10, 17, 24, 1998 3.2 Receive and File: a. Tentative Agenda b. Council Calendar c. Results of 1997 Aggregate Solid Waste Franchise Haulers Reports 3.3 Local Contract Review Board: Award Bid for Commercial Water Meters to Metron-Farnier, LLC. 3.4 Approve Finance Director's Recommendation for the Interest Rate of 6.05% to be applied to all Reimbursement Districts formed During the Year. Resolution No. 98- 22 3.5 Adopt the Trees 2000 Report - Resolution No. 98-23 3.6 Approve Revised Design Budget for the 121x` (Merestone) Dam Project > The Council considered No. 5, Non-Agenda Item, at this time. (Councilor Moore rejoined the Council meeting in progress.) 4. DARTHMOUTH LOCAL IMPROVEMENT DISTRICT PUBLIC HEARING (Continued for, the Council Meeting of March 17, 1998) The Dartmouth Local Improvement District has reached the assessment stage. Tigard Municipal Code Section 13.04.060 requires that a proposed assessment be prepared and presented to the City Council in a resolution. The resolution, upon approval by the City Council adopts the proposed assessment, directs that property owners be notified of the proposed assessments and that a public hearing be set to consider objections. a. Mayor Nicoli reconvened the public hearing. b. Staff Report Chuck Corrigan, City Attorney's Office, reviewed the recent history of this issue. He reported that Waremart and Costco both responded to the testimony received at the March 17 public hearing by the March 31 deadline and the Martins by the April 7 deadline. Tony Reghellis of Harper, Haugh, Reghellis, gave an oral report on his conclusions regarding the submissions received from the interested parties. Mr. Reghellis concurred that Mr. Van Dyk was correct in his March 12 memo in identifying that Costco land which lay outside the LID had been incorrectly included within Mr. Reghellis' analysis of the properties involved. Mr. Reghellis mentioned the Mayor's request to look at the costs differentially based on what was built. He referenced his discussion of different methods of assessment in his original written report, in which he identified three basic categories of improvements in the 1998 report: street drainage, water lines, and sanitary sewer. He said that less than one-fifth of the total cost was for water and sanitary with the bulk of the cost for right-of-way acquisition. He commented that he concluded that with the great imbalance in cost, he did not think that it was worth the effort to refine the methods of assessment for the relatively small portion which would not create much differential in assessment anyway. Mr. Reghellis held that the front foot method (referenced in the citation from the Adrienne Brockman text) was common for local streets and neighborhood street improvements. He stated that he did not see Dartmouth Road as a local street and therefore the front foot method was not Tigard City Council Meeting Minutes - April 14, 1998 - Page 3 applicable in this situation. Mr. Reghellis discussed the proximity or zone method. He said that while all the shallower lots had less acreage within the LID, on a unit price basis they paid more per square foot for the land, and thus the method overweighted on a square foot basis. He held that the 150 foot increments were short lengths. He conceded that the deeper parcels did have more costs to extend utilities but contended that that was just one cost among many. He stated that he did not consider that as an appropriate method to equalize some of the cost differentials. Mr. Reghellis questioned the zone method ratio of 3 to 2 to 1, asking why those numbers were used instead of something else. He said that the record contained no explanation for these apparently arbitrary numbers. He argued that once a method contained a significant element that seemed arbitrary, the method had a "hole" in it. Mr. Reghellis said that he re-evaluated the corner parcels issues on a corner by corner basis, concluding that some of the streets planned in 1984 would never be built. He argued that Dartmouth Street was needed to get the area going. He pointed out that the developed sites had to pay for half street improvements and he did not consider doing so a reason not to pay one's portion of the Dartmouth LID. He asked why Waremart should not be assessed for the corner on which they were located just because Costco was not on a corner, since both used Dartmouth proportionately. Mr. Reghellis explained the reason he included a trip generation method as a refinement in his basic net developable area method. He said that the two different zones - general commercial and office commercial - generated different volumes of traffic by their very nature. He held that it was difficult to assess the two zones on the same rate when they used the improvement to such different degrees. He pointed out that this refinement affected only four small parcels at the extreme end of the LID. Mr. Reghellis reviewed the wetlands issue. He observed that wetlands were no longer developable land in today's regulatory environment. He conceded that there were different types and sizes of wetlands but argued that no one ownership had a greater hardship than any other ownership because all the parcels had wetlands on them. He said that the wetlands requirements in the 1995 Martin development plan were not a greater burden than what had been required of Costco and Waremart. He stated that while the method should include detailed information on the wetland acreage on each parcel, getting very detailed on how to account for wetlands in the assessment was difficult. Mr. Reghellis reviewed how he erroneously concluded that all the land south of the Costco parking lot was wetlands, using the records available to him and sight observations. He pointed out that according to the Martin 1995 development plan, there was no access provided for the Costco lot. As it was common for cities to required access to developable parcels, he concluded that everything in that area was wetlands. He questioned whether or not the Costco lot was landlocked, and thus not developable or benefiting from Dartmouth. Mr. Reghellis explained that he thought that the method should look at the land in its original condition before any wetland mitigation. He pointed out that in mitigating for wetlands in one location, Waremart increased the amount of overall wetlands on their property. But choosing to encroach on a wetland and then having to mitigate that encroachment by expanding the wetlands should not reduce the amount of acreage included in the LID, even though the expanded wetlands area was not developable. Tigard City Council Meeting Minutes - April 14, 1998 - Page 4 Mr. Reghellis commented that having a certain percentage of through traffic on a significant street generated from outside the area was common. He held that, even so, the assessment still had to be 100% on those in the LID. Mr. Reghellis concurred that the classic definition of an LID - the cost is spread out in proportion to the benefit received - was intended for fairness. He disagreed that calculating out a variety of assessment methods for an LID and using the information to make adjustments was fairer than using one •nethod. He said that he concluded that the other methods did not have validity in this situation, and thus chose the net developable area method as the most appropriate for Dartmouth. He argued that using a variety of methods was a search for a preconceived result. He spoke to using a sound methodology and letting the numbers fall where they may. He said that he was not personally comfortable with making adjustments on behalf of one party and not another. Mr. Reghellis said that he has never taken out what people received for the right-of-way acquisition, as discussed by Mr. Van Dyk. He held that the value received for land acquisition should be separate from the benefit received from the LID. He disagreed with deducting expenses from the LID. He reiterated that the assessment should be based on a method regardless of who has paid what for what within the LID. c. Public Comment Mayor Nicoli opened the hearing up to public testimony. PROPONENTS > Robert Ball, attorney representing Waremart, identified three issues in this discussion: was the LID still valid, was the City legally obligated to adopt the R.A. Wright assessment formula or could they change it, and was the Harper Reghellis proposal fair. Mr. Ball said that it was the increased land acquisition costs which drove the escalating LID costs which Mr. Van Dyk has suggested made the LID invalid. He observed that they did not know the Martins' current position on this issue, and suggested getting clarification on whether the validity of the LID was still an issue. He said that they held that as long as a property owner had the right to remonstrance, pure increase of cost had no effect on the validity of the LID. He urged Council discussion of the issue with the City Attorney. Mr. Ball spoke to whether or not the City was legally committed to the R.A. Wright formula. He argued that the Martins were arguing both for a zone methodology of some kind and against the specific R.A. Wright formula. He held that Mr. Christensen testified that he was hired to correct the R.A. Wright formula because it was inherently flawed and should be modified in favor of the Martins. He said that either the R.A. Wright formula was still a good formula that applied in today's circumstances or it was a bad formula and should be disregarded because circumstances have changed. Mr. Ball cited an October 14, 1996 memo from the Martins arguing for the Christensen adjusted 84-18 formula which reduced their assessment from the R.A. Wright formula, and for a lineal frontage method which also reduced the Martins' assessment. He held that the Martins were now arguing for the R.A. Wright formula because is was less disadvantageous to them than the Harper Reghellis formula. He argued that the Martins have supported other formulas in addition Tigard City Council Meeting Minutes - April 14, 1998 - Page 5 to the R.A. Wright formula over the years. Mr. Ball stated that they did not believe that the City's adoption of the ordinance in 1988 included consideration of a methodology. He argued that all the City adopted at that time was the preliminary engineer's report (which indicated what improvements would be in the LID and estimated costs). The Council did not actively discuss the appropriate methodology during its deliberations. He pointed out that the ordinance contained no language referring to the methodology but neither did it exclude the R.A. Wright formula. He concurred with Mr. Van Dyk that in 1988 most people thought that the R.A. Wright formula was fair based on the probable development of the land as it was seen in 1988. Mr. Ball asked what the City has been doing all these years if they believed that they had adopted the R.A. Wright methodology in 1988. He questioned the negotiation process with the owners and the hiring of Harper Reghellis. He pointed out that even though Mr. Van Dyk wrote to Mr. Corrigan in August 1996 urging that the City had committed itself in 1988 to the R.A. Wright formula, in the past 20 months the City had never responded that that interpretation was correct. Mr. Ball argued that even if the City did adopt the formula in 1988, today the City was not bound to adhere to the formula. He said that the City had the discretion to change the formula as long as it did not change the scope of the LID. He noted that he and Mr. Van Dyk interpreted ORS 223.415 differently. He interpreted the phrase "respective to lots at the time of the original making of the local improvement" as meaning that the Council should determine the benefits to the properties at the time that the improvements were completed in 1994-95. He said that Mr. Van Dyk interpreted that phrase as referring to 1984, when the LID was made. Mr. Ball noted the Martins' argument that Waremart was unfairly looking beyond the boundaries of the LID in urging the Council to take into account activities or circumstances or physical conditions beyond the LID boundaries in making judgments about an appropriate formula. He agreed that the boundaries of the LID could not be changed but pointed out that if the LID were designed today, more properties would be within the boundaries because of the benefits received. He argued that the land assemblages (many of them outside the LID boundaries) have affected development of properties both inside and outside the LID and that the different than expected development pattern should be considered in looking at the benefits received from the LID. Mr. Ball urged the Council to take the advice of the City Attorney regarding their legal authority and how they should apply it. He said that the City has already employed an unbiased expert, and that they should follow his advice. > Gordon Davis, representing Waremart, addressed the wetlands and fairness issues. He said that he thought that the wetlands issue was becoming background noise for the proceedings, as Mr. Reghellis was correct - all four properties contained wetlands. He commented that Mr. Reghellis chose to try to account for the wetlands as opposed to his other choice of disregarding them because they would have a roughly equal effect on all the properties. Mr. Davis said that Mr. Reghellis had to try to account for the wetlands because the Costco property had a significantly higher amount of wetlands than the other properties. He conceded that Mr. Reghellis' calculations and assumptions about the wetlands were flawed. He suggested that Mr. Reghellis use the active state and federal wetlands permits held by Costco, Waremart, and the Martins as a guide for refining his calculations and as a basis for making assumptions Tigard City Council Meeting Minutes - April 14, 1998 - Page 6 about the Pollack property. He noted that Mr. Reghellis has elected to resurvey the raw wetlands - which they did not disagree with - but this other information was available also. He reiterated that he did not think that the wetlands issue deserved the attention that it has been given. Mr. Davis said that the Martins were arguing that it was not fair to change the rules of the game, and that the Harper Reghellis formula itself was not fair. He agreed that if things were the same as they had been in 1984 when Mr. Wright first created the formula, then it would not be fair to change the rules. He argued that the development that occurred in this area (due to the enlargement of the parcels to allow big box retail) was dramatically different from the strip malls expected by Mr. Wright, and therefore the game has changed. He held that this change in the expected development pattern made it unfair not to re-evaluate the appropriate methods of spreading the cost of the LID. Mr. Davis stated that the Council could change the rules, as demonstrated by Mr. Ball and the City Attorney. He argued that, given the changes in the world of Dartmouth Road from 1984 to 1998 and the questions raised about arbitrary features in the Wright formula, it was essential to change the rules in order to establish fairness and equability in an assessment formula. He noted Mr. Reghellis' evaluation of the various assessment methods. He said that Mr. Reghellis has recommended a method that was fair and equitable to each property owner. > Jeffrey Keeney, attorney representing Costco Wholesale Corporation, reiterated his client's support of the Harper-Reghellis formula. He said that Costco engaged SRI Shapiro to do a wetlands delineation of Tax Lot 200 (in response to the disagreement on the amount of wetlands). The survey found 4.95 acres of wetlands on Tax Lot 200. He concurred with Mr. Reghellis that the uplands on Tax Lot 200 was landlocked with no access, and therefore was not developable and should be excluded from the LID. OPPONENTS > Doug Van Dyk, attorney representing the Martins, held that there has not been an adequate answer to Councilor Rohlf s question at the last meeting on what was wrong with the Wright method. He argued that there was nothing wrong with it - it was a reasonable, credible and appropriate method. Mr. Van Dyk disagreed that the area developing differently than anticipated by Mr. Wright was relevant to the issue. He argued that the properties that developed differently lay outside the LID and did not have to pay assessments in any case. He mentioned that everyone recognized that the properties outside the LID did receive the benefits of accessibility and visibility from Dartmouth Road without having to pay for them. Mr. Van Dyk argued that the net developable assessment method supported by Waremart and Costco (in which only the portion in front of their building was assessed) amounted to a windfall for Waremart because they received more of a benefit from Dartmouth Road than that method assessed them. He held that the Martins also should be assessed only for the portion along the front of their property (in accordance with the zone method) instead of also being assessed for the back portion of their property because it was net developable area. He reiterated that this was a question of fairness, as Waremart clearly would have been included in the LID, had the large assemblage of properties existed at the time of the formation of the LID. Mr. Van Dyk said that one solution to this problem was Waremart consenting to be included in Tigard City Council Meeting Minutes - April 14, 1998 - Page 7 the LID, something he doubted would be proposed this evening. He cited a chart that showed how the assessments would be more fairly and evenly spread among the property owners if the areas outside the LID were included for purposes of assessment. Mr. Van Dyk addressed the issue of what was adopted in 1988. He said that the preliminary engineering report described the zone method of assessment, including that land beyond 450 feet would not be assessed. He mentioned that while the Martins did advocate correcting the Wright formula for the curvature of the road inequity, at no time did the Martins hold that the Wright methodology was fundamentally flawed or suggest abandoning the zone method of assessment. Mr. Van Dyk contended that the Council did adopt the final method of assessment in 1988 as part of the preliminary engineering report. He cited the meeting minutes in which the engineer testified that the ordinance did not change the method of assessment. He cited an Oregon Court of Appeals case in which the Court wrote "in adopting the engineer's report, which included an assessment formula, the City adopted the proposed assessment for properties within the district based on the status of the individual parcels at that time. Although the proposed assessments are subject to remonstrance, the City had the power to determine the factual basis of the proposed assessment at an earlier time than the dates that the assessment amounts are formally adopted." [Dames v. The City Council, 60 Or.App. 19, 152P.2d839,842 (1982), review denied, 294 Or. 391 (1983)] Mr. Van Dyk argued that in 1988 the Tigard City Council did determine the factual basis of the proposed assessments, as allowed by the court decision. He asked that the City stay with that 1988 decision as a matter of public policy which people could rely upon in planning their affairs based on government action. He contended that there was wisdom in the Council holding faith with its predecessors, especially with a decision that was fundamentally sound in balancing the equities and benefits in a subjective process. Mr. Van Dyk addressed the Reassessment Statute (ORS 223.415). He conceded that this was a reassessment situation, based upon the Court of Appeals direction. He argued that to interpret this statute as allowing (nine years after an LID was formed) wholesale changes to the terms as voted upon by the property owners at the time of the LID adoption was not a fair reading of the sentence "the reassessment shall be based at the time of the original making of the local improvement." He spoke to the importance of interpreting the phrase consistently with public policy and not changing the rules of the game. Mr. Van Dyk conceded that in 1984 it was unlikely that anything other than strip mall development would have been foreseen. However, he saw no reason to freeze frame the development in 1998 in balancing the considerations and equities. He pointed out that in 10 years these properties would have valuable pad developments that were close to the street. He mentioned the 50% rule that 50% of the buildings had to be at the street frontage. He argued that the zone method of weighting the frontage was fair and reasonable because of the money Waremart would make on those pads. Mr. Van Dyk agreed that the 3 to 2 to 1 ratio was subjective but held that it was not disproportionate. He explained that the first zone had the benefit of access, the second zone the benefit of visibility, and the third zone relatively little benefit from either access or visibility. Tigard City Council Meeting Minutes - April 14, 1998 - Page 8 He said that this was not a matter of science but of fairness, equity, and weighting things to achieve a balanced judgment and result. Mr. Van Dyk said that they accepted the Costco delineation of the wetlands on their property. He noted Mr. Keeney's contention that the uplands portion was undevelopable because it was landlocked. He mentioned that Costco refused to sell that land to the Martins for $1 million, leading to the conclusion that it was valuable land. He held that to suggest that Dartmouth did not benefit the uplands was a mistake. He stated that there were access easements through the wedge piece for Costco. He pointed out that with land valued at close to $100,000 per acre, the inclusion or exclusion of four acres could significantly shift the costs around. Mr. Van Dyk asked the Council to consider the perspective of the property owner. He pointed out that the Harper-Reghellis method shifted the assessment to $1.35 million for the Martins and to practically nothing for Waremart. > Jerry Palmer, Alpha Engineering, commented that Mr. Reghellis' corrected wetlands area did agree with his findings. He spoke to considering the wetlands as they were originally configured prior to mitigation for encroachment. He clarified that he did not hold that area alone was the correct methodology. He agreed that in the 1998 development pattern, Waremart property benefiting from the improvements was not assessed because it lay outside the LID boundaries. He spoke in support of weighting the areas within the boundaries to reflect the unequal depths to frontage of the different properties. He said that the assessment methodology should stay because the boundaries and parcels as assessed were still in the same configuration as in 1988. Mr. Palmer cited Mr. Davis' comment "the form of each development is a function of both the road frontage and the overall size, shape, and depth of the parcels." He held that Mr. Davis was recognizing the importance of size, shape, and depth as well as frontage, which was what the Wright methodology considered. Mr. Palmer argued that if they could change the assessments based on the differences between 1988 and 1998, then they might as well wait until 2008 to see what the benefit of the fully - developed LID was. He held that in running the issue forward in time, they would find that the rules changed. He cited the Triangle design standards requiring 50% building frontage and the Title 3 impact on the development of parcels with wetlands. He spoke to sticking with the 1988 methodology. Mr. Palmer expressed his concern about the 25% area adjustment for general commercial. He argued that to assess office commercial at 25 cents to the $1 assessment for general commercial was too great a differential based solely on trip generation. He pointed out that elements other than trip generation should be considered, such as the benefit of the road, the access, the emergency access, and utilities in the street. Mr. Palmer commented that fairness was difficult to pin down. He said that in his opinion, one needed to protect the parity that would result from assessments placed on parcels. He mentioned that his methods have been to evaluate the ratio of costs with each of the valid methodologies for each parcel. If the parity came in at the same percentages, then the methodologies were sound as compared to each other. If there was a disparity, then he weighted those factors between parity and the final assessment. He argued that the Wright methodology did this because it included both front foot and area. He commented that area weighted too heavily the wrong way, and did not take into parity the opportunity and benefit to the property. Tigard City Council Meeting Minutes - April 14, 1998 - Page 9 > Ed Christensen submitted into the record his April 10, 1998, memo to Mr. Van Dyk in response to the Mayor's questions regarding the differences between the Dartmouth LID as it was constructed and as it was originally outlined by Mr. Wright. He referenced an overlay showing the current development against an aerial photo of the area in 1984. He pointed out the differences, including the need to widen Dartmouth from three lanes to five lanes. Mr. Christensen reviewed the discussions during the construction of Dartmouth regarding raising the roadbed. He said that he pointed out that for every foot they raised the roadbed, the cost of the grading required for Ctib Foods would decrease by $60,000. He explained that he sought approval from the Martins to raise Dartmouth by four feet because of the ADA design difficulties with the lower road. He reported that the Martins investigated whether or not such a request would be detrimental to them, and finding that it was not, agreed to raising the road bed by four feet as a goodwill gesture. Mr. Christensen reiterated his contention that, with 40% of the background traffic at peak hours on Dartmouth coming from outside the immediate area and passing through, Dartmouth did benefit the region. He questioned whether assessing only parking lots (under the area method) was fair since parking lots did not generate traffic, and the developments would not have occurred as planned without Dartmouth. Mr. Christensen reviewed how the benefits of the storm drainage and sanitary sewer systems were spread in the Triangle along 72"d and Dartmouth. He pointed out that it was not cost effective to take access from Dartmouth for the backside of several properties, and therefore these properties found another way to access utilities. He mentioned that the Dartmouth water system was upsized, and noted which developments would take access from Dartmouth and which would find another way to serve the backside of their properties. He agreed with Mr. Palmer that once one got too far away from the street, it became too expensive to extend services. He cited Cub Foods taking access off 72nd Avenue through the back of their property as an example of this reality. Mr. Christensen explained how the Martin-Christensen formula resolved the difficulties with curvature in the Wright formula. He disagreed that by doing so they were saying that the Wright formula was flawed. Rather they were trying to bring greater exactness to the formula, given the advances in computer technology. He mentioned the adjustments for the 45s also. Mr. Christensen spoke to the value of the Costco property in light of the proposed Dartmouth flyover that would likely be located on their uplands. He said that the property had value which Costco would receive a benefit from. He confirmed that Costco did not consider the Martins' offer of $1 million for the four acres of uplands, reiterating that the land still had value to Costco. He argued that it also had value to Waremart who could switch out a portion of their property for a portion of the uplands (per a Corps of Engineers permit). Mr. Christensen said that they could not look at the development as it has occurred now because the benefit all went to the properties outside the Dartmouth LID. He held that to do anything other than to equitably use the zone method in the assessment of the properties would be very tragic. > Mayor Nicoli recessed the meeting at 9:40 p.m. for a break. > Mayor Nicoli reconvened the meeting at 9:50 p.m. Tigard City Council Meeting Minutes - April 14, 1998 - Page 10 Mr. Van Dyk held that the Martins were "good guys" who have tried to work this out. He cited a March 8, 1985 letter from Paul Simmons in which Mr. Simmons wrote that Gordon Martin had spent considerable time and effort on formulating a reasonable first approach on this matter which should be shared with all property owners to try to reach agreement on assessments. He mentioned that while the Martins have always supported mediation to try to work things out, they have not agreed that whatever came out of mediation was what would be recommended to the Council. Mr. Van Dyk pointed out that the Martins at one point thought that they did have agreement among the property owners but the issue regarding the inclusion of additional Dartmouth improvements derailed that agreement. He explained that Waremart had been under the erroneous impression that they had no obligation to participate in a second LID to improve the traffic flow. He cited a January 1, 1996, letter from Mr. Davis to that effect. He mentioned the non-remonstrance executed by Waremart with respect to Dartmouth that Mr. Davis was apparently unaware of. He reiterated that the Martins were not the bad guys, and have tried their best to reach a solution along with the other property owners. Mr. Van Dyk noted that the correction in the zone method for the 45 degree angles left the 45s in the method with some benefit to Waremart. Mr. Van Dyk mentioned that Mr. Cox has done over 40 LIDs. He quoted from Mr. Cox's earlier testimony the following: "the City owes the duty of consistency and fairness in all its actions. This is true especially in determining the amount and method of benefit to LIDs. The Harper Reghellis method of determining benefit was a radical departure from the 1984/1988 R.A. Wright adopted method. Such a departure should not now be considered." Mr. Van Dyk mentioned the Adrienne Brockman quote referenced by Mr. Reghellis. He pointed out that Ms. Brockman did not suggest that the front footage method was appropriate for residential streets. He said that Ms. Brockman wrote that this method worked well except when applied to irregularly shaped lots such as lots on a cul-de-sac street. He observed that the owners considered it appropriate that they pay for the extra lane on Dartmouth to the extent that it was on their side of the street. Tigard City Council Meeting Minutes - April 14, 1998 - Page 11 d. Staff Recommendation Mr. Corrigan recommended leaving the hearing open to allow staff time to complete the record and make their recommendation at the next meeting. During that time the City would receive any more information from the general public but the hearing would be closed for Council deliberations at the next meeting with no new information allowed at that time. Mr. Monahan recommended continuing the hearing to a date certain of May 12 for Council deliberations and a date certain of May 26 for the formal decision. The Council agreed by consensus to continue the hearing to May 12. > Mayor Nicoli recessed the meeting to Study Session at 10:01 p.m. 5. NON AGENDA ITEMS > Property purchase Duane Roberts, Associate Planner, reported that staff has negotiated with the property owner to purchase greenspace at $81,000 per acre. Motion by Councilor Hunt, seconded by Councilor Scheckla, to authorize the Mayor to sign the contract. Motion was approved by unanimous voice vote of Council present. (Mayor Nicoli, Councilors Hunt, and Scheckla voted "yes.") > The Council considered No. 4, Dartmouth Public Hearing at this time. 6. STUDY SESSION The Council discussed the community survey regarding support for a facilities bond. Councilor Hunt expressed concern that the questions were weighted towards the library and did not adequately solicit opinions on increasing facilities space in general or on support for an additional road bond measure in the future. He said that he did not think that the structure reflected the direction of the Council at last week's meeting. Liz Newton, Asst to the City Manager, suggested rephrasing Questions 5 and 6 to ask about the adequacy of facilities in general. Councilor Moore pointed out that most people were familiar with the library but not with City Hall or the police department. The Council and staff discussed how to rephrase the questions to garner the information they needed to get. Councilor Scheckla commented that most people would want to know what the price tag was. Ms. Newton explained that staff would include that information in the questions. Councilor Hunt spoke to informing the citizens that the facilities bond would not be implemented until the current road bond was retired. Mayor Nicoli cited the consultant's response that doing so would make no difference. Councilor Moore reiterated his interest in a question asking whether or not citizens would be in favor of an additional bond measure for street improvements on top of the facilities bond. The Council agreed that parks were not a concern in the second possible bond measure. Councilor Moore mentioned that he heard citizens complaining about traffic in the City, not building Tigard City Council Meeting Minutes - April 14, 1998 - Page 12 space. He noted the Council goal committing to street improvements, and expressed concern that they follow through on that commitment. Ms. Newton recapped the Council direction to focus on the adequacy of all the facilities, instead of on the library only, and to ask a follow-up question about support for a street bond in three to five years. She mentioned the dollar figures for questions 8a and 9a as $69 per year and $40.50 per year respectively for a 20 year bond. Mayor Nicoli suggested asking if voters had voted in the last two or three elections, and how often their household used the library. Councilor Moore commented that the consultant said that they used lists of registered voters who voted recently. Mr. Monahan said that staff would fax the redrafts of the questions to the Council for a response before the Friday Newsletter. In response to Council questions, Mr. Monahan reported that the police vehicle was totaled, and that all those involved were released from the hospital. Mayor Nicoli asked Councilor Hunt to attend the demonstration at Tuality Junior High tomorrow encouraging kids not to smoke. Mayor Nicoli reported that the meeting with the Housing Authority went well, with Tigard conveying its expectations. 7. ADJOURNMENT: 10:25 p.m. Attest: Catherine Wheatley, City Recorder or, City of Tigard Date: 5 ja % I:\ADM\CATHY\CCM\980414. DOC Tigard City Council Meeting Minutes - April 14, 1998 - Page 13 COMMUNITY NEWSPAPERS, INC. Legal P.O. BOX 370 PHONE (503) 664-0360 Notice TT 9 0 8 2 BEAVERTON. OREGON 97075 Legal Notice Advertising e City of Tigard • ❑ Tearsheet Notice 13125 SW Hall Blvd. °Tigard,Oregon 97223 • ❑ Duplicate Affidavit •Accounts Payable • AFFIDAVIT OF PUBLICATION STATE OF OREGON, ) COUNTY OF WASHINGTON, )ss. I, Kathy .-Snyder being first duly sworn, depose and say that I am the Advertising Director, or his principal clerk, of the Tigard-Tualatin Mmes a newspaper of general circulation as defined in ORS 193.010 and 193.020; published at Tigard in the aforesaid county and state; that the C'i t-y ro in i 1 R _yi w r1 ti ng 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: April 9,1998 T ~J~Jk.1 S~ ~ Subscribed and swor before me this 9th r1 nu n f April, 1998 6 OFFICIAL SEAL ROBIN A. BURGESS No Public for Oregon NOTARY PUBLIC-OREGON *COMMISSION NO. 062071 My Commission Expires: My COMMISSION EXPIRES MAY 16, 2001 AFFIDAVIT ~3. The following meeting highlights are published for your information. Full agendas may be obtained from the City Recorder, 13125 S.W. Hall Boulevard, Tigard, Oregon 97223, or by calling 639-4171. TIGARD CITY COUNCIL AND LOCAL CONTRACT REVIEW BOARD MEETING April 14, 1998 - 6:30 P.M. TIGARD CITY HALL - TOWN HALL 13125 SW HALL BOULEVARD, TIGARD, OREGON • Study Session: Review of Requests for Additional Parks Staff • Update on the Willamette Water Supply Agency • Continuation of Public Hearing: Dartmouth Local Improvement Dis- trict (7:30 p.m.) • Executive Session TT9082 - Publish April 9, 1998. . AGENDA ITEM NO. 2 - VISITOR'S AGENDA DATE : April 14, 1998 (Limited to 2 minutes or less, please) Please sign on the apprcpriate sheet for listed agenda items. The Council wishes to hear from you on other issues not on the agenda, but asks that you first try to resolve your concerns through staff. Please contact the City Manager prior to the start of the meeting. Thank you. STAFF CONTACTED p NAME, ADDRESS & PHONE TOPIC p'11 0 n 9) !5z ~J - 52~I -~Lr is \adm\jo\visitaht.doc e AGENDA ITEM NO. 2 - VISITOR'S AGENDA - PAGE 2 DATE: April 14, 1998 (Limited to 2 minutes or less, please) 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 first try to resolve your concerns through staff. Please contact the City Manager prior to the start of the meeting. Thank you. NAME, ADDRESS & PHONE TOPIC STAFF CONTACTED L i Aa dm\joWisitsht. doc f ~H •f Depending on the number of person wishing to testify, the Chair of the Council may limit the amount of time each person has to speak. We ask you to limit your oral comments to 3 - 5 minutes. The Chair may further limit time if necessary. Written comments are always appreciated by the Council to supplement oral testimony. AGENDA ITEM NO. 4 DATE: April 14, 1998 DARTMOUTH LOCAL IMPROVEMENT DISTRICT PUBLIC HEARING (Continued from the Council Meeting of March 17, 1998) PLEASE SIGN IN TO TESTIFY ON THE ATTACHED SHEETS AGENDA rMM NO. 4 PLEASE PRINT Proponent - (S akin In Favor) Opponent - (S Against) Name, 710 ress and Phone No. Name, Address and Phone No. $ f A L 44 to 30 1 N ,L 2 <6 2 Name, Address and Phonn~eS5No. Name, Address and Phone No. etTn, t. IT I &n 9 No., ~a 10 Name, A ess and Phone No. Name, Address and Phone No. ~ ILOO ne.Lr I o.~e skN S-l-h lz„~✓v, 2 ~oP~l'tZ►sD 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. 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. Name, Address and Phone No. Name, Address and Phone No. Proponent (Speaking in Favor) Opponent (SpeAkir Against) 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. 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. 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. Name, Address and Phone No. Name, Address and Phone No. Name, Address and Phone No. is \admVo\testify.doc S+wd 7 60, , M RECEIVED (71, I q ~ APR ? 199P April 14, 1998 Dear City Council Study Session: Tigard Times legal indicated "Requests for Additional Parks Staff". I'm unable to be present tonite so sending on this information for your evaluation. Cook Park has become a premier site for varied sports and agree more covered areas for picnics are in order to facilitate the bookings that are made yearly. I've seen Public Works cleaning up into the wee hours following one day's events. Charging these out-of-state Wa. -in state corp. costs for using the park would only be doing a responsible bookkeeping businesslike approach when they make arrangements with our City of Tigard Administration. Having a separate site for the arts with appropriate building and staging will encourage participation encorporating indoor- enclosed facility designed for Broadway Rose, Tigard High School drama and other arts groups who would be doing a production, seating would be essential. Arts require storage areas, wiring, dressing rooms, and would be an asset for those booking our Cook Park and also local residents who enjoy being near our Tualatin River - in an outdoor -indoor setting. Community bands have need for 50' of floor space to address the 40 or more musicians. Their instruments need care when not in use so a flooring is essential rather than out in a field. P arts bldg. addressing bands, plays, choirs, will be a compliment to Cook Park. Corp. inquiring about company picnics will definitely notice the amenities offered at Cook Park and be willing to pay for the use of these facilities. An arts bs e ltha' 1 p "~'e of*open air covered picnic structures will enhance the use of Cook Park and be a credit to our local residents, not only summer time but year mound, r Apr 10 98 11 r 4.'8a Adam Davis 503 220 0576 S P.2 Agenda Item No.,~Y1 Meeting of A4 44 Davis & Hibbitts, Inc. DRAFT Tigard Survey - April 1998 Interviewer Name: Survey: 1 2 3 Date: _ Survey Length: minutes INTRODUcriorq: Hello, my name is from Davis & Hibbius, Inc., an opinion research firm We are not selling xtything, We are conducting a survey for the City of Tigard. The survey won't take too long and 1 thitrk you will find it interesting You maybe assured of complete coeidentialiry. Your name will not be associated with your answers in any way. INTER Vttt WER: _ • Stress confidentiality - name not associated with answers. • Explain nanle drawn randomly and it is important to have their participation to keep study "scientific." • Questions won't be hard or difficult. Qt. What would you say is the biggest issue in Tigard that you feel your city government should do something about? (Open, probe for the one biggest issue.) DO Nar RECCUtD IN THIS SPACE DK/NR = 99 Q2. 1'd like to read you a list of services provided by city government. Using a 0 to 10 scale, where O represents very poor value, and 10 represents very good value for the tax dollars invested in them, please tell me where you would rate each service. You can use any number between 0 and 10, (Rotate) very poor very good DKINR a)Pulkxservices 00 01 02 03 04 05 06 07 08 09 10 99 b) Street repair and maintenance 00 01 02 03 04 05 06 07 08 09 10 99 c) Library services 00 01 02 03 04 05 06 07 08 09 10 99 d) City park and recreation serviccs 00 Ol 02 03 04 05 06 07 08 09 10 99 Q3. Let me read you that list again. After 1 do, please tell me which one service is most in need of additional tax dollars at this time. 1. police services 2. street repair and maintenance 3. library setvicz* 4. city park and recreation serviccs 9.DKNR Q4. Let me read you that list apin. Which one service is second most in need of additional tax dollars at this time, 1. police services 2. street repair and maintenance 3. library services 4. city park and recreation services 9. DK/NR k. Apr^ 10 98 11:48a Adam Davis 503 220 0576 p.3 Q5. Have you heard or read anything about plats for a new library in Tiprd? 1. yes 2, no 9. DK/NR Q6. Would you say that Tigard's public library is adequate for meeting the needs and demands of the eomnntnity? 1. yea 2. no 9. DK/NR Q. 7. There has been some consideration given recently to placing a measure on the ballot this fall related to city facilities. The measure could provide for additional space for library, police, and other city services to alleviate overcrowding and meet prowitig service level requirements. Let me rend you some specific elements of a possible measure. For each, please tell me if you would strongly approve, somewhat approve, somewhat disapprove, or strongly disapprove of that particular part of the measure. Keep in mind that to implement that part of the measure would mean a tax increase of some kind (notate) STRONGLY SOMEWHAT SOMEWHAT STRONGLY APPROVE APPROVE DISAPPROVE DISAPPROVE DK/NR a) Build a new library 1 2 3 4 5 b) Renovate the existing police building for planning and building services 1 2 3 4 5 c) Renovate the existing library to meet demands for other city servicxs 1 2 3 4 5 d) Build a new police building 1 2 3 4 5 Now, 1'd like to ask you about a specific ballot measure. SPLIT SAMPLE . s s a Ra. (SUBSAMPLE A) In November, you may be asked to vote on a nteasuce to ptechwe bonds for a new library and police building in Tigard and to remodel city buildings to alleviate overcrowding and meet grvwwg service demand levels for other city services. It is estimated that the total amount raised from the measure would be $17 million. and would cost the owvner of a SI50,000 home about $ _per year. As of today, would you vote roc ut against a measure like that? 1. for 2. against 9. DK/NR 8b. (If DK Q8a) Well, would you lean towards supporting or lean towania opposing a measure like that.) 1. lean support 2. lean oppose 9. MfNR 9a. (SUBSAMPLE B) In November, you may be asked to vote on a measure to pmts bonds for a new library in Tigard and to remodel city buildings to alleviate overcrowding and meet growing service demand levels for other cityservices. It is estimated that the total amount raised from the measure would be $10 million, and would cost the owner of a $150,000 home about per year. As of today, would you vote for or against a measure like that? 1. for 2. against 9. DK/NR Q9b. (1f DK Q9a) WcIL would yuu lean cowards supporting or lean towards opposing a measure like that? 1. lean support 2. least oppose 9. UKINR Apr 10 98 11148a Adam Davis 503 220 0576 p•4 Ql f). And now, a few questions for statistical ptoposes only. What is your age, please? 1.18-34 2.35-54 3.55+ 3. Reffus~: Q11. How !org have you liv d Tig:rd? t, a 10 year 2. 11-20 years 3. 2!+ Q12. Dc. you rst:t ar own your ho, c? rent 2.ovm 9. DKNR Q13. Do you have chil&c ; living in your hoes: hold that amend K-!2 public schools? 1. yes 2.110 Q!4. Uslt1: your best guess, how malty tines a month do you or anyone .in your household visit a library in the area? Q15. Do yo'-l read T:gz Ts - ty nexvslet•-r it's called 1. yes 2.110 9. DKINR 1-416. Gende: ;DO' NCrr ASK RECORD BY OBSERVATION,) 1.:nalc 2. remiate Well, it looks like that is all Ile questions A have for you. Thank you very mucks for your cooperation, and your time. M2y I have your frst name and confirm your phone number in caac my boss needs to verify my work? Respondent's tits. Name: Respondent's Phone Number (from sample)' _ e MEMORANDUM TO: Bill Monahan FROM: Ed Wegner RE: Staffing for 1998/99 - Grounds DATE: April 6, 1998 Attached are the budget requests and position justifications from John Roy, Property Manager and Jeff Munro, Park Supervisor for additional staffing for the Grounds Division for a Urban Forester position as well as a Utility Worker /l. These requested positions would fit into the Council goal of providing the tools and implementing programs that protect and enhance the community's aesthetic qualities balanced with development, such as the planting of 2000 trees by the year 2000. The approval of this recommendation would allow the department to provide expert care for the maintenance of all the existing trees in our parks, greenways, and street right-of- ways, as well as all the trees that we desire to plant by the year 2000 and those to be planted going into to the next century. The Utility WorkerH would also assist with the additional staffing needs to support growth and expansion at various City parks. Also included are the approvals and classification descriptions from Sandy Zodrow, Human Resources Director for both the Urban Forester and Utility Worker H positions. Staff would like Council to give direction on whether they support these positions that will be presented during the upcoming budget process. If so, staff would like authorization to advertise for these positions so that the Utility Work 11 position could be filled in June and the Urban Forester position filled in late August. If you have any questions, I would be glad to discuss those with you. kathy\parks\stffinem March 5, 1998 CITY OF TIGARD OREGON TO: Ed Wegner, Public Works Director FROM: Kim Huey, Sr. Human Resources Analyst RE: Request for New Position/New Classification - FY 1998-99 URBAN FORESTER I have received the information you submitted regarding the requested new position/new classification of Urban Forester for FY 1998-99. s Based on the duties and responsibilities as described and on the knowledge, skill and abilities required, I concur with the classification as requested. Attached you will find a draft classification description. If this position is approved in the budget process, I will finalize this description and send a copy to the Union as required under the current labor agreement. As this position is neither supervisory nor confidential, it is my opinion that it is appropriate for representation by OPEU and the final wage rate will be established through negotiation with the Union. As you know, creation of a new position requires review and approval by the City Manager and Budget Committee. This memo only serves to recommend the appropriate classification for the position as described. KMH Approved. Sandy Zodrow, u t)R esources Director cc. Wayne Lowry John Roy 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 Class No. City of Tigard V tan A"T CLASSIFICATION DESCRIPTION CLASS TITLE: URBAN FORESTER PURPOSE: To plan, develop, implement and maintain a comprehensive urban forestry program, to provide community education and support, and to perform a variety of technical tasks relative to assigned area of responsibility. SUPERVISION RECEIVED: Receives direction from assigned supervisory and management staff. SUPERVISION EXERCISED: Exercises technical and functional supervision over assigned maintenance staff. EXAMPLES OF PRINCIPAL DUTIES: Duties may include, but are not limited to the following: Develops and implements a tree maintenance and replacement program for all public property; creates inventory of trees along streets to determine maintenance and planting needs; identifies areas appropriate for tree planting and works with community volunteer groups to accomplish planting. Performs or oversees the performance of general maintenance of trees in city property including application of fertilizers, pesticides and other chemical treatments. Evaluates and corrects storm damage to trees; including falling, pruning, trimming, and chipping of trees and branches and overseeing cleanup in parks and streets. Develops and administers contracts with private providers of tree maintenance, stump removal and planting services; monitors construction and utility work near public trees. Reviews development plans for tree removal and mitigation plan recommendations; performs follow-up inspections of development compliance with mitigation plans. Provides technical assistance to other agencies and the general public regarding tree care and related issues; responds to public inquiries regarding city trees, determines appropriate action. Performs community outreach activities including preparing and distributing educational brochures, working with homeowners' associations on greenway maintenance and working with community volunteer groups. Performs related duties as assigned. KNOWLEDGE. SKILLS AND ABILITIES: Knowledge of current urban forestry and design principles and practices; knowledge of principles and practices of urban forestry management planning; knowledge of tree appraisal techniques; knowledge of principles and methods of community education; knowledge of relevant federal, state and local laws and regulations; knowledge of basic principles of budgeting and fiscal administration. Skill in using tools and equipment; skill in utilizing a computer. Ability to plan, develop and implement a comprehensive urban forestry program; ability to establish and meet program goals and objectives; ability to recruit, train and supervise volunteers; ability to develop and monitor a program budget; ability to communicate effectively orally and in writing; ability to establish and maintain cooperative working relationships with those contacted in the course of work. EXPERIENCE AND TRAINING: Any combination of experience and training which provides the required knowledge and abilities is qualifying. A typical way to obtain the required knowledge and abilities would be through college level training in urban forestry, forestry, arborculture, environmental science or a related field and experience in community/urban forestry programming. LICENSES AND CERTIFICATES: Possession of or ability to obtain a valid driver's license at time of appointment Possession of or ability to obtain Oregon Department of Agriculture Pesticide Applicator's license at time of appointment Possession of or ability to obtain Class A Commercial driver's license with tank endorsement at time of appointment. Current certification as Arborist by the International Society of Arboriculture at time of appointment. Representation: Adopted: HUMAN RESOURCES JAN 2 3 1998 MEMORANDUM CITY OF TIGA CITE' OF TIGARD, OREGON TO: Bill Monahan FROM: John Roy DATE: January 16, 1998 SUBJECT: Urban Forester Position Justification This request is to create the new position of Urban Forester on the Parks crew. We currently have within the City 125 acres of greenway and 150 acres of park land. On this acreage are thousands of trees that should be managed as a valuable resource to the community today and in the future rather than being left to their own devices to exist. This position would fit into the council goal of, "Provide tools and implement programs that protect and enhance the community's aesthetic qualities balanced with development, such as planting 2000 trees by the year 2000". This position would enable us to provide expert care for the maintenance of all the existing trees in our parks, greenways, and street right-of-ways, but also for all the trees that we desire to plant by the year 2000 and those to be planted going into the next century. The actual planting of trees is just a small fraction of the cost of managing trees. It is the keeping the tree alive and healthy for the next century that we must be prepared to finance. Trees are a valuable resource to be managed, not just left on their own to survive in today's urban environment. If you have the opportunity to review the Tigard 2000 Trees draft report I believe that you will see that my position is supported by the recommendations of Joe Percival, the Landscape Architect preparing the report. Within the last year we have had requests from two homeowner associations to take over greenways that they are currently responsible for. These requests were denied due to lack of adequately trained staff, staffing and funding available to take over the additional maintenance responsibilities. It is anticipated that in the future there will be other requests made as the homeowner associations become aware of the high costs of tree care. If you review the new position job description I think that you will see that this position would also be responsible for interacting with the public, i.e., educational brochures regarding the maintenance and care of street trees and general tree care, responding to questions regarding trees and development, and working to resolve issues that may arise related to trees. General maintenance of trees on city property would be a major responsibility of this position. This would include application of fertilizers, pesticides, and other chemical treatments as necessary. The falling, pruning, trimming and chipping of trees and branches due to winter wind and ice storms (of which we have had significant damage over the last couple of years). This is an important area of concern as it relates to our parks, greenways and pedestrian pathways because of the potential liability if a citizen, vehicle or house were hit by a falling tree or branch. Approximately $20,000.00 has been spent in the last 12-18 months for outside arborist care for trees reported by citizens and determined to be hazardous trees. This has been spent for no more than 25 to 30 trees at most. If we performed assessments of all city property I'm sure that the needed tree care costs would easily exceed $150,000.00. Identifying areas where trees could be planted and working with community volunteer groups for those plantings would be another area of responsibility. This would seem to be of interest to numerous groups in the community lately as we have another spring planting day at Englewood Park being planned by the Friends of Fanno Creek. I anticipate that a portion of this positions job responsibilities would be to review tree plans submitted . by developers for their developments. This position would look out for the best interest of the city and the community and not necessarily what is the best financial interest for the developer. I would also expect that this position would inspect the developments to ensure that the tree plans as approved are being followed. I have had discussions regarding this with Jim Hendryx and he concurs with this request. We will be meeting to look at the possibility of charging a fee for this service after 1 July 1998, to help fund this position. I would also be looking at some of the funding of the position to come from the tree mitigation fund, plan review fees (could be implemented after 1 July), gas tax revenue, CIF's, Sanitary and Storm Sewer Fund, Water Fund, URMD Fund, and of course, the general fund. February 13, 1998 CITY OF TIG D OREGON TO: Ed Wegner, Public Works Director FROM: Kim Huey, Sr. Human Resources Analyst RE: Request for New Position - FY 1998-99 - Utility Worker 2/Grounds I have received the information you submitted regarding the requested new position of Utility Worker 2/Grounds for FY 1998-99. This position is described at the journey level, and is scheduled to be assigned to Cook Park on a full-time basis. Based on the description of the duties and responsibilities of this position, I concur with the classification as requested. As you know, creation of a new position requires the review and approval of the City Manager and Budget Committee. This memo is simply to confirm the appropriate classification if this new position is authorized in the FY 1998-99 budget. KMH Approved. Sandy Zodrow, u n sources Director cc. Wayne Lowry John Roy Jeff Munro 13125 SW Hall Blvd., Tigard, OR 97223 (,%3)639-4171 TDD (503) 6842772 ,1 HUMAN RESOURCES JAN 2 3 1998 MEMORANDUM CITY OF TIG D CITY OF TIGARD, OREGON Cod" TO: John Roy, Property Manager h o~ FROM: Jeff Munro, Grounds Supervisor DATE: January 15, 1998 SUBJECT: IJiring of a New Utility Worker Il I would like to request the hiring of an additional Utility Worker H for the Grounds Division. The expansion of facilities at Cook Park necessitates the need to hire a new Utility Worker H and assign them to Cook Park on a full time basis. Park reservations have increased from 12, 000 users in 1993 to over 16,000 in 1997. With the addition of a gazebo and another shelter at the riverfront the projected number of users could easily reach 30,000 a year. With the increase in users comes an increase in maintenance of the park's facilities. In 1997 over 550 hours were spent gathering litter in Cook Park with over 600 hours spent on restroom and shelter maintenance. With the addition of more trash receptacles being placed in newly developed areas, and an additional restroom facility, these figures could together easily reach over 2,000 manhours a year. This figure above exceeds the equivalent of one full time employee. Weekly tasks such as mowing, landscape, trail and playground maintenance totaled nearly 800 hours in 1997. With the planned addition of more turf acreage to mow, more playgrounds, landscaping and trails to maintain, this figure of 800 manhours can be projected up to at least 1,600 manhours. Reservations for field users are nearing 3,000 participants per year from approximately 20 different organizations using both the ballfields and soccer fields. This number will increase by 50-100% with the addition of new sports fields at Cook Park. In turn a number of manhours spent a turf maintenance will increase to 300 hours a year. Over 600 hours were spent on special projects and vandalism repair at Cook Park in 1997. Two hundred and fifty hours were spent on Balloon Festival activities, with the rest of the time going to maintenance tasks such as vandalism repair, fence and drinking fountains repair, storm line installation, court maintenance, chipping of debris and storm clean up. With the growing popularity of the Balloon Festival activities as well as the increase in vandalism and other types of maintenance and repairs that will occur with expansion plans to Cook Park, an increase in hours in these areas will reach over 1,000 manhours within the next fiscal year. Even though the maintenance standards at Cook Park are at a high level, I still feel that there are maintenance tasks that we have not been able to get done due to lack of manpower. Tasks such as reconstruction of the sand volleyball courts and the addition of a drainline were not accomplished. Increased time on edging, pruning and trail maintenance should also be upgraded. These areas have been neglected since so many other activities have consumed all available manhours. With the increase in park land and open spaces we are acquiring throughout the City, it is getting difficult to have existing park staff members assigned to other areas and facilities neglect their own area of responsibility to constantly help out at Cook Park just to keep up with park usage. By the end of 1998, we will be asking our five existing park employees to maintain 280 acres of park land and open spaces at a high level of maintenance which equates to over 55 acres per man. Keep in mind that this acreage does not include City hall, Senior Center, Public Works and the Water Facility. All of these areas are highly visible areas and require a lot of maintenance. This acreage does include turf wetlands, greenways, sports fields, shelters, restrooms and approximately 7.5 miles of bike paths which will increase by more than 1,000 feet this year. The need for an additional Utility Worker H is evident and the timing -is important if we are to maintain our level of maintenance at its current standard. The addition of a staff member to the existing parks crew will allow us to maintain this standard throughout the City while making it possible to maintain Cook Park throughout the expansion process. kr1FryN3azks%LmVi&1ius MEMORANDUM CITY OF TIGARD, OREGON TO: Bill Monahan FROM: John Roy DATE: January 16, 1998 SUBJECT: Parks Utility Worker II Request Justification This position is tied to the request for the Urban Forester position. If the request for the Urban Forester position is denied then this request requires no consideration. This individual would work directly with or under the direction of the urban forester. This person may be required to be pruning trees that would not require the use of climbing gear, ladders, or aerial lift buckets and they would be working independently or they may be working with the urban forester who may be using climbing gear or an aerial lift bucket. They would be pruning and trimming trees for vision and sight clearance problems, height problems associated with sidewalks, bike/pedestrian paths, and roadways for clearance for pedestrians, bicyclists, and vehicular traffic. Falling, pruning, trimming related to winter wind and ice storms would also be a responsibility of this position. Assisting in the pruning, falling and removal or chipping of trees that are located in greenways that are hazardous trees with high target areas (houses or other private property likely to be damaged) would be another responsibility. Chemical treatment of trees is another area of responsibility that this person would be working in along with the Urban Forester. This position would also be involved with the planting of trees on public property. If as council has implied, this position could be a participant in the planting of street trees along street right of ways. The above mentioned activities cannot be performed by one individual alone due to the nature of the work, that being, often hazardous, and heavy manual labor. This work will often require tree climbing skills, operation of power equipment around utility lines, working in areas of light to heavy traffic, and working often under inclement weather conditions. OWN- five Agenda 6t9g_$usiness Tigard COUncil Tents Q5t2 0511919$ worksh°1P .Due 5114 gusineSSS study 5e~son 0511,11 Due. 511 b Ci At 040199-Bus►nesss Due. 4130 T'uiNn 0417,119 ~61o:►;sh09 Due, 4116 study ses9►on Du ato es 419 % study Session StreetTree'Pro 5tudy r~¢ssion es $illin ls► c o CUP c Consent Agenda CP wnrl hop Topics enda Council Goal U to Consent Ag Re IT iAS C to Consent Agenda Gins aces U Review File: Status of ReS.tOrd - Poll ;ve & 01i t. Rem°del pest n Standards Ming piscussion Cast_judicial gusiness M plan Changes) ccting Identif, cation of mcess) gusiness k Master Plan Significant Cxees ¢eting Rig.-Pal Plan Presenmt10nb Business NL p►,b, Fac. 'r P' ' min.) policing' Update: Nlanlev (20 Paula 62q 9.534 0rkshop 1op►cs B°ard Comn'u►uty roval of . School wash. St1 Council A ddress of conf►rm eeting _ Raz T'an p lions to A joint M hoof Dist.) public Com• Sumtuerlalce Issues 1100) Re it on R~ A Aesthetics - (Cv. ►n Ordinance plannin pu Dri~Mod Dicec- blic ther end►ueN - Onto Re lationSoto 3124 mt ) I•Iois~eOrd. P+n► 170) lion tcUonstfrom els to fs lntecprem 1 P ttel RulesDi ussion Oise o Commerce 1, prdinance ' Re Cham 1 Yark;n A parkin prohibitions ReC ~ lions Sw 66th Avenue & Sumtell ake Sw I,andma~ vane MEMORANDUM Agenda item No. Z2 t j a CITY OF TIGARD, OREGON Meeting i-1 1M Meeting of TO: Honorable Mayor and City Council FROM: Bill Monahan, City Manager DATE: February 2, 1998 SUBJECT: COUNCIL CALENDAR, March - May 1998 Regularly scheduled Council meetings are marked with an asterisk If generally OK, we can proceed and make specific adjustments in the Monthly Council Calendars. Anvil 7 Tues Joint Meeting - Planning Commission (6:30 p.m.) Community Development Code Revision Review * 14 Tues Council Meeting - (6:30 p.m.) Study Session - Business Meeting 16 Thurs Budget Committee Meeting - Tigard Water Building (6:30 p.m.) *21 Tues Council Workshop Meeting - (6:30 p.m.) 23 Thurs Volunteer Recognition Banquet (5:45 p.m.) Tigard High School - Commons Area 28 Tues Mayors' Prayer Breakfast - 7 a.m. - Greenwood Inn *28 Tues Council Meeting - (6:30 p.m.) Study Session - Business Meeting May 4 Mon Budget Committee Meeting - Tigard Water Building (6:30 p.m.) *12 Tues Council Meeting (6:30 p.m.) Study Session - Business Meeting * 19 Tues Council Workshop Meeting - (6:30 p.m.) 25 Mon Memorial Day - City Offices Closed * 26 Tues Council Meeting - (6:30 p.m.) Study Session - Business Meeting 28 Thurs Budget Committee Meeting - Tigard Water Building (6:30 p.m.) June *9 Tues Council Meeting (6:30 p.m.) Study Session - Business Meeting *16 Tues Council Workshop Meeting - (6:30 p.m.) * 23 Tues Council Meeting - (6:30 p.m.) Study Session - Business Meeting i Aad m\cathy\cound1\ccca1.doc 1 AGENDA ITEM # 3. C-, For Agenda of April, 14 1998 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Consent Agenda - Receive and File - Results of 1997 aggregate solid waste franchise haulers reports PREPARED BY: Wayne DEPT HEAD OK I~Z- CITY ADMIN OK I/ AA" -----------------ISSUE BEFORE THE COUNCIL Consideration of franchised haulers annual aggregate financial reports. STAFF RECOMMENDATION Receive and File - We recommend no adjustment be made in the rates at this time because the rate of return is within the council approved range. INFORMATION SUMMARY We have received the financial reports for 1997 from the three franchised garbage haulers. We have aggregated the reports and determined that the aggregate gross profit percentage was 8.17% for 1997. This falls within the 8% to 12% profit range for the haulers in the Council approved profit percentage policy. No rate adjustment appears to be needed for the upcoming year. ALTERNATIVES CONSIDERED None FISCAL NOTES Solid Waste rates will remain unchanged as a result of the review of Haulers 1997 annual reports. aggregate f 03/04/98 1992 1993 1994 1995 1996 1997 Drop Boxes Operating Revenue 1,230,542 1,309,249 1,548,569 1,529,431 1,931,297 2,083,047 Operating Costs 1,244,675 1,333,596 1,602,452 1,585,129 2,061,216 2,213,858 Net Income (14,133) (24,347) (53,883) (55,698) (129,919) (130,811) -1.15% -1.86% -3.48% -3.64% -6.73% -6.28% Drop Box Recycling Operating Revenue 0 0 47,912 43,348 32,254 0 Operating Costs 0 0 47,613 59,136 4,061 0 Net Income 0 0 299 (15,788) 28,193 0 0.00% 0.00% 0.62% -36.42% 87.41% #DIV/0! Total Drop Box Net Income _ (14,133) (24,347) (53,584) (71,486) (101,726) (130,811) -1.15% -1.86% -3.36% -4.55% -5.18% -6.28% Residential Cans Operating Revenue 1,364,323 1,486,082 1,623,219 1,940,689 2,046,903 2,047,792 Operating Costs 1,035,424 1,196,556 1,285,570 1,413,141 1,323,478 1,381,814 Net Income 328,899 289,526 337,649 527,548 723,425 665,978 24.11% 19.48% 20.80% 27.18% 35.34% 32.52% Residential Recycling Operating Revenue 29,156 46,854 113,101 190,941 38,612 99,102 Operating Costs 377,101 447,920 542,501 710,881 633,153 624,541 Net Income (347,945) (401,066) (429,400) (519,940) (594,541) (525,439) -1193.39% -855.99% -379.66% -272.30% -1539.78% -530.20% Yard Debris Operating Revenue 2,813 3,945 38,754 2,932 3,003 47,037 Operating Costs 6,035 8,746 193,788 372,953 336,095 367,014 Net Income (3,222) (4,801) (155,034) (370,021) (333,092) (3191977) -4.00 -12620.09% -11091.97% -680.27% Total Residential Net Income (22,268) (116,341) (246,785) (362,413) (204,208) (179,438) -1.60% -7.59% -14.21% -17.00% -9.79% -8.36% Multifamily Cans Operating Revenue 602,231 696,049 692,996 782,064 811,326 801,327 Operating Costs 342,421 381,871 454,890 459,094 554,051 517,686 Net Income 259,810 314,178 238,106 322,970 257,275 283,641 0 43.14% 45.14% 34.36% 41.30% 31.71% 35.40% Multifamily Recycling Operating Revenue 6,702 10,944 33,001 53,082 15,526 20,102 Operating Costs 73,395 79,036 81,722 67,716 68,737 72,880 Net Income (66,693) (68,092) (48,721) (14,634) (53,211) (52,778) -995.12% -622.19% -147.63% -27.57% -342.72% -262.55% Total Multifamily Net Income 193,117 246,086 189,385 308,336 204,064 230,863 31.71% 34.81% 26.09% 36.92% 24.68% 28.11% Commercial Containers Operating Revenue 1,821,499 1,851,488 1,951,458 2,085,617 2,265,270 2,391,901 Operating Costs 1,146,363 1,166,407 1,206,299 1,270,238 1,410,526 1,443,952 Net Income 675,136 685,081 745,159 815,379 854,744 947,949 37.06% 37.00% 38.18% 39.10% 37.73% 39.63% Ag§regate F 03/04/98 r 1992 1993 1994 1995 1996 1997 Commercial Recycling Operating Revenue 70,972 72,717 166,378 236,215 117,498 126,771 Operating Costs 204,379 225,247 254,154 300,123 343,081 385,705 Net Income (133,407) (152,530) (87,776) (63,908) (225,583) (258,934) -187.97% -209.76% -52.76% -27.06% -191.99% -204.25% Total Commercial Net Income 541,729 532,551 657,383 751,471 629,161 689,015 28.63% 27.68% 31.04% 32.37% 26.40% 27.36% Medical Waste Operating Revenue 998 17,491 24,951 12,393 7,665 1,627 Operating Costs 1,668 18,323 22,662 11,069 3,566 2 Net Income (670) (832) 2,289 1,324 4,099 1,625 -4.76% 9.17% 10.68% 53.48% 99.88% Consolidated Net Income 697,775 637,117 548,688 627,232 531,390 611,254 Other Revenue 6,191 35,916 20,235 8,257 57,745 12,074 Other Costs 102,474 83,652 91,900 (4,552) 0 0 Grand Total Net Income 601,492 589,381 477,023 640,041 589,135 623,328 Total Revenues 5,135,427 5,530,735 6,260,574 6,884,969 7,327,099 7,630,780 Profit Percentage 11.71% 10.66% 7.62% 9.30% 8.04% 8.17% AGENDA ITEM # 3 - FOR AGENDA OF April 14, 1998 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Award Bid for Commercial Water Meters PREPARED BY:_ M. Miller DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL Shall the Local Contract Review Board award the bid for the purchase of commercial water meters. STAFF RECOMMENDATION That the Local Contract Review Board award the bid to Metron-Farnier, LLC. INFORMATION SUMMARY Beginning in 1995, the Water Division started a small scale water meter replacement program that utilized new technology in water meter design. We initially tested single jet water meters as manufactured by Metron-Farnier because of their compact design, reported high accuracy, light weight and the ability to utilize a remote reading system. The program has seen some remarkable results in capturing additional water flow and we have been pleased with the performance of the meters. In December 1997, we went out to bid on 1 1/2 and larger water meters. We had several different water meter manufacturers bid on these meters. To effectively determine the best bid, we had to evaluate the water meters in three common areas: Price, minimum flow, and warranty for each size. This was necessary because we were evaluating compound, turbine, single jet and multi jet water meters. We then developed a point system that awarded points based on the above mentioned criteria with the maximum amount of points being 600. The results are: Metron-Farnier 424.12 Neptune (Schlumberger) 343.98 Precision 307.50 Badger 255.30 Sensus 254.43 We have checked with other cities and water districts that utilize the Metron-Farnier meters and the references have indicated average revenue increases of 17% with typical paybacks less than two years. Also the meters are backed by an industry leading full five year warranty. All the other meter manufacturer's warranty was one year. We propose to purchase the water meters on an as needed basis. The meter bid prices are good for one year after award. OTHER ALTERNATIVES CONSIDERED Continue to utilize existing meters that do not accurately measure low flows and subsidize the revenue loss through existing residential customers. Purchase compound meters which will measure a wide flow range initially, but are difficult to keep accurate and require extensive maintenance. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES The funding source for these meter replacements have been budgeted for in fiscal 1997-98. Budgeted amount is $835,890. If we purchased the total bid package of 50 - 1.5", 50 - 2", 7 - 3", 8 - 4", 3 - 6" and 2 - 8" water meters, the cost would be $108,555. It is estimated that the expected revenue recovery, if all 120 meters were installed, would be $63,856 the first year. The payback period is estimated at 1.7 years. uant Size Cost/Meter Total 50 1 1/2" $482 $24,100 50 2" $803 $40,150 7 3" $1,350 $9,450 8 4" $2,085 $16,680 3 6" $3,135 $9,405 2 8" $4,385 $8,770 Total Cost $108,555 i:kityMde\stcrtdot MEMORANDUM CITY OF TIGARD, OREGON TO: Ed Wegner, Public Works Director FROM: Mike Miller, Utility Manager DATE: April 1, 1998 SUBJECT: Metron Meter Change-out Proposal In December 1997, the Water Division went out to bid on 1 1/2-inch and larger water meters. We had several different water meter manufacturers bid on these meters. To effectively determine the best bid, we evaluated the water meters in three common areas: price, minimum flow, and warranty for each size of meter. This was necessary because we were evaluating compound, turbine, single jet and multi jet water meters. We then developed a point system that awarded points based on price, minimum flow and warranty. The results are: Metron-Farnier 424.12 Neptune (Schlumberger) 343.98 Precision 307.50 Badger 255.30 Sensus 254.43 Based on our evaluation of the meter submittals, I recommend that we expand the water meter replacement pilot program to encompass a larger selection of meter replacements utilizing the Metron meters. Background The Water Division began a pilot water meter replacement program utilizing a new meter on the market that has a compact design, reported high accuracy, light weight and the ability to utilize a remote reading system. The program centered around replacing malfunctioning 3-inch compound meters that were in vaults and expanded to include the replacement of malfunctioning 1 1/2-inch and 2-inch water meters. Replacement of the 3-inch and larger meters is very important to our operations, due to confined space issues in reading meters in large vaults. The Metron meter, unlike Sensus, Schlumberger, Badger or Hersey, is not confined to a propriety reading system. The Metron remote meter reading system is compatible with all existing reading systems including radio and telephone systems. This ability allows the flexibility of utilizing a wand attachment with our existing Itron Husky FS2 handhelds for reading the water meters. Metron Meter Bid Award 1 We currently have seven Metron water meters that we installed, either to replace malfunctioning meters or utilize remote meter reading system, that have one to three full years of history. Of the seven Metron meters one has recorded an increase in consumption of 50.35%; one at 20%; one at 14%; one at 12%; and one at 6.7%. Two of the Metron meters have recorded a decrease in consumption of 3%. These are solid comparisons due to the fact that the same companies have been operating at these facilities during the sample period. Performance/References from other cities Since we do not have many of the Metron meters in the ground ourselves, as replacement meters, it is difficult to analyze the performance of these meters within our Service Area. The nearest city with a large number of the Metron meters in the ground is Hillsboro. I had the opportunity to talk to Rob Masser, Finance Director at Hillsboro about their success and experience with the Metron meters. Here is an excerpt of our discussion. Currently Hillsboro has 84 Metron meters installed ranging from 2-inch to 8-inch in size. They have had a number of these meters in operation since 1993, and the meters have been tested annually for accuracy. All of the meters have tested within AWWA specifications. The meters are compact and light weight, making retrofits easy. Rob stated that "he loves" the meters and stated that the meters are very accurate. Rob stated that Metron-Farnier have been very responsive to all complaints. They have not experienced any problems with the meters except for moisture developing under the optical pick-up of the remotes. Metron has addressed this issue and developed a new seal between the optical pick-up and the register lens. Hillsboro has been keeping track of the meter data and is experiencing a 109% increase in consumption on these meters. Hillsboro believes the reason why they are picking up additional consumption is due to the meters ability to capture extremely low flows (1/4 gpm range) and that they are picking up the flows from the cross over zone in compound meters. The cross over zone in a compound meter is when the flow changes from the bypass (small meter) to main-line registration (large meter). Hillsboro also likes the Metron meters because there is no straight pipe requirement or the need for a strainer. A compound meter on the other hand requires a minimum of five pipe diameters of straight, unobstructed pipe upstream of the meter. This is increased to ten pipe diameters when a strainer is not used on compound meters. Of course deleting the strainer is not recommended. Since the Metron meter does not have a straight pipe requirement, and the meters are of a compact design, the meters require a lot less room for installation. I also contacted Dwayne Chisam, PE Utilities Manager with the City of Santa Maria, California. Mr. Chisam stated that in 1996, Santa Maria began an ambitious meter replacement program, replacing 217 water meters. The program was centered around replacing most of the larger meters 1 1/2-inch to 6-inch in size. He stated that the program contained some risks since the Metron meters were rather new to the US market. He also stated that Santa Maria was one of the first utilities in the Nation to use these meters on Metron Meter Bid Award 2 such a large scale. The goal of the program was to increase revenue without increasing water rates. The primary goal was to avoid future rate increases beyond 1997. Their program was very successful. Mr. Chisam faxed a graph that showed the positive impact that the meter program had on their Water Fund cash flow. In particular their graph shows the predicted income level, the income that their approved rate increases would generate, and the actual revenue to date. Santa Maria's meter program resulted in an increase of over 2 million dollars per year. This is well above the predicted 0.5 to 1 million dollars per year increase that was forecasted for the meter replacement program. After talking with Santa Maria, California, I contacted Mike Offie at the city of Del Ray Beach, Florida. Del Ray Beach has seen a tremendous increase in revenue since they installed the Metron meters. They have averaged a 60% increase on large meters with a minimum increase of 9%. Of the first fifty-two meters replaced, fifty of them were 3 and fl- inch in size. Two meters were 6-inch. The Metron meters replaced standard turbine and compound meters. As an experiment, Mr. Offie has a 1-inch Badger meter, the same meter that we use in our Service Area, inline with a Metron meter. The Metron meter has registered an additional 59,000 gallons during the last two years. Like Hillsboro and Santa Maria, Del Ray Beach is very impressed with the accuracy of the meters and the need for no maintenance. Metron's five year warranty is unheard of in the water meter industry. Most water meters have only a one year warranty period. City of Beaverton has stated that they are also impressed with the ability of the Metron meters to capture the low flows and the flows from the cross over zone from the compound meters. On the few that Beaverton has installed, payback has occurred within 9 months of installation. The city of Richland, Washington recently began a pilot project replacing older compound meters with Metron's. Richland's results of capturing additional water flow through the Metron meters have resulted in the purchase of an additional $50,000 worth of Metron meters to expand their project. The city of San Diego, California recently installed 170 Metron meters and has a $456,000 annual increase in water revenues. San Diego was so impressed that they are going ahead with a $2,000,000 meter change out program. After examining the revenue analysis reports from Hillsboro, San Diego, Santa Maria and bar charts from Clark Public Utilities, the results are impressive. The reports from Hillsboro, San Diego and Santa Maria all indicate that a few (10 from Hillsboro, 17 from San Diego and 22 from Santa Maria) meters actually lost revenue when compared with the existing meters. Some of these losses are attributed to change in ownership of properties, new tenants, or buildings being unoccupied for an extended period. Metron Meter Bid Award 3 This same type of theory holds true on some of the huge increases in registration. Some of the buildings were unoccupied prior to the installation of the Metron meters; the existing meter had malfunctioned; new tenants occupying the space are large water users, etc. However the common link between all the revenue analysis is the fact that 68% of the replacement Metron meters register a small to medium increase in consumption. This trend is consistent throughout all of the cities or agencies that have changed out more than forty meters. a Metron Meter Bid Award 4 A11198 Soo Results Metron Meter pilot Program CAW of Tigard, OR 1AOW 1 1 12000 'j i t 1 i 10000 ~ ! 9Pre~ ~ , W i U 1 u c L j V 1 ~ ti11 y1 AOW 1 1 20W Credence ~ SPtexer Systems 7Atany Cl propemes VI any Ct AP% Apts 6808563 Power Rents 6808553 Sn91-011, Meter Location 0 Tertace Nif1 Crest PIP = Iloilo 411198 City of Tigard, OR lot Program Percent Increase by Account matron meter P► 60 50 40 30 20 10 0 credence $pieker gystams TdfenY Ct Pm09~es THany Ct Apls paver Ants 8808583 -10 ~n9ig~y00d Rents 8808553 Hai crest -Terrace Meter I.ocauon ARts. AGENDA ITEM # 3 , ~1 FOR AGENDA OF April 14, 1998 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Interest Rate for Reimbursement district annual fee adjustment for 1997/98. PREPARED BY: Wayne DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL Shall the Tigard City Council approve the recommendation of the Finance Director for the interest rate for 1997/98 to be applied to all reimbursement districts formed during the year? STAFF RECOMMENDATION Staff recommends approval of the recommended rate included in the attached resolution. INFORMATION SUMMARY Tigard Municipal Code section 13.09.115 (2) requires the Finance Director to recommend an interest rate to be used in determining the annual fee adjustment for reimbursement districts. The Code states the Council shall consider the recommendation of the Finance Director and shall adopt an interest rate to be used in determining the annual fee adjustment. The rate adopted by the Council is then applied to all reimbursement districts formed during the fiscal year for which annual fee adjustments are approved. Because the life of a reimbursement district shall not extend beyond fifteen years, we recommend using the United States Treasury Bond rate for a fifteen year maturity. That rate is currently 6.05%. We therefore recommend that 6.05% be used for 1997/98 as specified in TMC 13.09.115 (2). OTHER ALTERNATIVES CONSIDERED Establish the rate using some other method. FISCAL NOTES Interest on the share of the improvements will only be realized by the City for City constructed projects, if and when, connections to the improvements are made by citizens. iAcitywid6sumdot AGENDA ITEM Jr FOR AGENDA OF ~-I 1 ~ct4 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Adopt the Tigard 2000 Trees Report PREPARED BY: Jeff Munro A,, DEPT HEAD OK 6~~CITY MGR OK ISSUE BEFORE THE COUNCIL Should the City Council adopt the proposal prepared by Percival and Associates as the guideline for the tree planting program for new and replacement trees within the City of Tigard. STAFF RECOMMENDATION Adopt the Percival and Associates Tigard 2000 Trees Report. INFORMATION SUMMARY The City Council members each received a copy of the Tigard 2000 Trees Report earlier this year. The report was discussed with Public Works Director Ed Wegner and the Consultant, Joe Percival. The attached resolution represents the formal adoption of this report. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY This goal was on the Council goal list prior to the implementation of the Visioning Program. One area addressed during the Visioning Program was for livability and aesthetics and the implementation of the recommendations of the report will contribute to both Council and Visioning Goals. FISCAL NOTES Tree Mitigation Funds are available for the replacement tree planting program. I:\ADM\CATHY\COU NC I L\TR E ESUM. DOC 3~ AGENDA ITEM # FOR AGENDA OF 4/14/98 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE 121 st Dam Prq.ject Design Fee Am ndment PREPARED BY: Duane Roberts DEPT HEAD OK CITY MGR OK ISSUE BEFORE. THE COUNCIL Should Council approve a revised design budget for the 121 st dam project (attached). STAFF RECOMMENDATION Approve the revised budget as submitted. INFORMATION SUMMARY In late 1997, Council authorized a design study for a dam and in-stream pond on Summer Creek at 121 st Avenue, as desired by neighborhood residents. Last month, after some of the regulatory agencies objected to an in-stream pond, staff returned to Council for direction as to how to proceed. Council directed staff and consultants to work with neighborhood residents on the design of an off-line or overflow pond or series of ponds, which incorporates the requirements of the state and federal regulatory agencies. At the meeting, staff advised that additional funds would be required. The consultant has submitted a revised budget based on the new scope of services. The additional amount requested is $10,000 for a total contract amount of $24,998. The topographical survey included in the revised contract is expected to cost approximately $3,500. This amount is included in the $10,000 additional fee proposed. Engineering Department has reviewed and determined the new budget is reasonable. OTHER ALTERNATIVES CONSIDERED Abandon the project. Scale back the project to restoring the historic stream channel. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY The project supports Urban and Public Services Goal No. 3, which calls for the preservation and enhancement of wetlands. FISCAL NOTES The original design budget for the project was $15,000. The proposed budget will revise this amount upward to $25,000. The proposed funding source for the in-line project would have been city General Funds. An off-line project may be eligible for Surface Water Management System Development (SWM) funds. Engineering will submit an application to USA to allow the city to use funds from the city's SWM account for the study and for the construction of the design improvements. i:kitywidel~wn.dot KCM - Estimate of Professional Services No.: 9880004 City of Tigard - Engineering Department Date : 4/7/98 Engineering Services for Summer Creek Dam Design Study Cost by Task Description Principal Project Profes- Techni- Cleri- Greenworks Foundation & Engineer sional cal cal KCM P.C. Eng. QA/QC Staff Staff Staff Inc. Task 1 Project Management 1,2 ZClk" 1.3 Quality Assurance QA/QC 1 $96 Subtotal Task 1 1 2 0 0 1 $305 $0 SO Task 2 Design Study d5 to it A] a g 4 1 Ci3 ~IOcI 216- 0 , D stm. 12g 2x f Satx~._ Subtotal Task 2 0 33 0 32 1 $4,607 $1,400 52,000 Task 3 Preliminary Design 3.1 Permit Application Preparation 2 1 $222 3.3 Design Drawing Preparation (90% Design) 6 12 $1,188 $1,500 3.4 Cost Estimate 2 1 $222 $200 Subtotal Task 3 0 11 0 16 0 $1,830 $3,000 $0 Task 4 Public Involvement Subtotal Task 4 0 8 0 2 0 $772 $600 $0 Total Hours 1 54 0 50 2 $7,668 $5,000 $2,000 Hourly Rate • $96 $83 $75 $60 $45 Subtotal $96 $4,482 $0 $3,000 $90 $7,668 $5,000 $2,000 Total Wages (Including Overhead & Professional Fee) $7,668 SubcorLSUltantCostincluding 10% marku : $7,000 Total Compensation $14,998 Hourly Rates are Average Hourly Rates and Subject to Periodic Change. Task Completed Task Partially Completed 6iii KCM GlPemeaeks Remaining Budget $2,000 $1,900 Additional Money to complete Task for new alternative. 2.6 50% Design Draioings $2,000 $1,000 3 3 Grading and Canscaping Plan $1,200 $1,000 4 1 Attend an Addtional Meeting' $450 $600 Expenses U0 ,$10 Total $3,800 $2,700 'fncludes Preparation Time Note: Tlus new design will require a topographic survey of the site Thomas Wright Inc. tvill look at the site today and get back rvifh a cost. They expect if fo lw approximatley $3,500. AGENDA ITEM # 44 For Agenda of Agril 14, 1998 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Dartmouth Local Improvement District hearing continued from March 17, 1998 PREPARED BY: Wavne DEPT HEAD OK CITY ADMIN OK ISSUE BEFORE THE COUNCIL Continuation of hearing on proposed assessments for the Dartmouth Local Improvement District. STAFF RECOMMENDATION Staff recommends that the Council receive additional written objections and rebuttals which were to be submitted by April 7, 1998 and take further testimony on such objections and rebuttals at the hearing on April 14, 1998. A future meeting will be set in which the Council may adopt, correct, modify or revise the proposed assessments. INFORMATION SUMMARY The hearing to discuss objections to the proposed assessments began on March 17, 1998 and was continued until April 14, 1998. A letter was sent or faxed to interested parties dated March 19, 1998 explaining that further written objections as set forth in the letter (attached)must be submitted by March 31. All such submittals were then made available to LID participants. Participants then had until April 7 to submit rebuttals to objections. The Council will be provided with all additional objections and rebuttals prior to the hearing on April 14. OTHER ALTERNATIVES CONSIDERED N/A FISCAL NOTES Total cost of project is $4,576,837.01. Proposed assessments approved by the Council in resolution 98-17 dated February 24, 1998 spread 100% of the cost to properties in the district. March 19, 1998 CITY OF TIG D OREGON To interested parties on Dartmouth LID Re: Continuance of Dartmouth LID Assessment Hearing At the March 17, 1998 Tigard City Council meeting, the City Council continued the public hearing on the Dartmouth LID to allow for the submission of additional written comments. The schedule agreed to by Council is as follows: 1. Written submittals responding to the following items will be accepted until 5:00 p.m. on Tuesday, March 31, 1998: (a) The Dartmouth LID assessment hearing materials submitted prior to the March 17 hearing on behalf of Gordon R. and Gordon S. Martin. These materials are available from our attorney, Chuck Corrigan, 222-4402. (b) Additional specific grounds for objection submitted by the Martins at the March 17 hearing. (c) The March 16, 1998 possible change to the Dartmouth LID assessment rule prepared by Tony Reghellis (in response to the Martin March 12 submittal). (c) Wetlands delineation information submitted at the hearing on behalf of the Martins. (d) City staffs oral report and public testimony presented to the City Council on March 17, 1998. 2. All written submittals received by 5:00 p.m. on March 31, 1998 will be made available to each of the LID participants who have been identified as being responsible for assessments. 3. The LID participants may submit written materials in reply only to those received by the City in response to Item 1 above. The deadline for submission of these materials is 5:00 p.m. on April 7, 1998. 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 Letter to interested Dartmouth LID participants March 19, 1998 Page Two 4. The City Council will re-open the public hearing on Tuesday, April 14, 1998. If you have any questions regarding these materials or the schedule, please contact Wayne Lowry, City of Tigard Finance Director. Sincerely, William A. Monahan City Manager WAM\jh attachments Distribution: Jeff Keeney, Attorney, 888 SW 5th Avenue, 1600 Pioneer Tower, Portland, OR 97204 Rob Ball, Attorney, Ball, Janik, Novack, 101 SW Main Street, Portland, OR 97204 Mr. Pollock - 1834 SW 58th Ave., No. 202, Portland, OR 97221 Gordon R. and Gordon S. Martin - Douglas V. Van Dyk, Tarlow, Jordan & Schrader, PO Box 230669, Portland, OR 97281 i:UdmUx1PIXi189&1.doc Additional Specific Grounds for Objection Submitted March 17, 1998 18. Object on the basis that, on March,-l6, 1998, one day in advance of the assessment hearing, the City delivered notice of assessments to property owners that proposed to increase the assessment on the Martin properties by approximately $245,000 and transfer or "shift" approximately $500,000 among all LID property owners. Such notice is improper under TMC § 13.04.060(c)(3). 19. Object on the basis that granting special benefits to the Costco and Waremart properties outside the LID in 1993 and 1994 resulted in a substantial change in the LID, voiding the original LID. 20. Object on the basis that granting special benefits, or rectifying problems caused by the Costco and Waremart properties outside the LID in 1993 and 1994 results in the LID assessment falling under the limitation on taxes of Article XI, Section 11 of the Oregon Constitution. Dated this 17`h day of March, 1998. Respectfully submitted, TARLOW, JORDAN & SCHRADER IS/ DOUGLAS V. VAN DYK Douglas V. Van Dyk Page 1 - Additional Specific Grounds for Objection '6-V9O55t"duc.doctriV011 ;vx•~~ \ r ,1 i .s t x~ t N y n i v a. Z ( WOO 400 of ~ ` i ~ ! d IR a OF w[-iL t Or UMANOS 'tN{nGC CNANNE~ 1 i~~e ! S► ; ^ 1 ~j EXCWDIN SORB{. 7,A ACRE e . tr; \ I COSTGOI~~^ IBA.a2S I / 1 I I 1 i ( wMw~ wa6~ ` wwwsww wfJ/ 4 / i now"s 1 1 \ ~ waw4~wwwwwwwwwww,..-_-1--q- •i1 i ~c, ti ~~1 / / X11 1 A\~~ P~Q 9 1F ~tit~st evo t ~ O~~ 1 WfA AND A 'A : 8.13 ~1E LID aOUNDARY m r ti Y (TDT )(w* -4N~ ~D) AFSA 3.89 Cfws ~jj MMIM fJ Oi o ~ I I f r, o © E WE I -AN 0 S 2, 78 I' DID p ID E (STING E-IEAN6AS, I© ,867 SF ` 6 ' ©pp 1 I f~ , a - 2,0 O ~ Y EXISTING WETL S G o 261 SF D wy°Im 1 f~ a IS TIN W - TL S 4 Q 1 O Y°M° • _ 0 13,63 SF ryoo «vp D ,D ° r.0 fD 4Y°N° U f e t ~ - -r - _ , ~ 9 ~ D I 1 1 nr" / - -JO „E 1 Q Q,M r - 6 SD PgRK I © I 0_ i le Q © © E~ ~ © ~ , / 23 I ~ it 1 9 ~ ro ~ ! ` rr ~ -r- - r7 _ _ r #^Q ~ I ONION 1 ~ I 1 , 1 , I 1 EX1STING ,ETLANDS I , 2,44 ACRD 1 ARSA: AUX 1~1 • 2.5'1 WT1,~rID AAA' I I ~ , ' TOTAL I ~ ' ACRES 1 t t r \\t_ 1 ~t 13 F I 1 e ~ - t 71 - - , O ~ d f'F? X90 - 1 gill S D-AR/FMAO- UT r $T4h E _ 1 x i / of CAL gin! n i I , l r i ~ 1 ) I rf tr I ' I : I, ~tS ACP ' nfrnt 4 -AM lk Nab' ITN 7.99 V !l]9v fSM'IT3POl.- --1.-_ E ` 1SIAC 1 p ,I 1 "LOT X(O Loa' 301 1 f r5+~k- a?L. x a s f ry,, z ~~1~ { / /-7 ( ` CJ fit. rt `ir qry' r'qf r~tt~ wFS; x 3# rs 5,~~1ax rtiT1 ur~.~f~~tir HAND DELIVERED A April 7, 1998 / 'yr~ k ~F ~5.~thira, ,y~3~,~~~7 1 City of Tigard a 13125 SW Hall Blvd • ® Tigard OR 97224 Re: Dartmouth LID Our File No. 44708/26799 IC~h~j Dear Mayor Nicoli & Council Members: This letter forwards to you materials which we submit in Reply to Waremart and Costco regarding the Dartmouth LID Assessments. M The materials include the following: ' , DtNtGL±~S~ b*itiltl;ti~C kr" k ~ v r 1. Martin's Reply to Waremart regarding Change to Dartmouth s.; LID Assessment Method. 2. Jerry M. Palmer, Dartmouth LID: Rebuttal to Robert Ball and Gordon Davis' Written Submissions. 3. Kent W. Cox & Associates - Letter dated April 6, 1998, to Mayor Nicoli & Council regarding response to letter from Robert S. Ball. 4. Supplemental Record of Exhibits. roBOxz~o6w. We hope you will have the opportunity to review these materials in advance of the PONIrLAMOREMOM hearing. so3sve~, SW98 maomu~fta. . so3s9s~m~u . . Thank you in advance for your consideration. Very truly yours, vandyk@gsla m TARL , JORD S H D R Dohg as V. an Dyk Enclosures cc w/enc: Gordon R. Martin Robert Ball, Esq. Charles R. Corrigan, Esq. Jcfl' Keeney, Esq. A Total QualitY Management Organi_ation 26799 046 DVD 11r.doclrls104107198-3j MARTINS' REPLY TO WAREMART REGARDING CHANGE TO DARTMOUTH LID ASSESSMENT METHOD Submitted on behalf of Gordon R. Martin and Gordon S. Martin April 7, 1998 Prepared by Douglas V. Van Dyk Tarlow Jordan & Schrader INTRODUCTION This memorandum replies to the information submitted on behalf of Waremart and Costco. Two things are most important: 1. The R.A. Wright formula was adopted (and Waremart apparently does not dispute that it relied on the formula when it purchased its property); and 2. The R.A. Wright formula is fair (even Waremart acknowledges it was fair when adopted. See Mr. Davis' letter at 3 and 4). This memorandum is limited to the analysis of these two issues. By separate letters, our experts respond to the other points raised. 1. ADOPTION OF THE ZONE METHOD A. Ordinance 88-08 Says "Adopted" It is essential to consider the plain and precise language of Ordinance 88-08. Waremart avoids any such discussion, but it is key, so we quote the relevant language again, with the language regarding "adoption" of the preliminary engineer's report in bold type: The title of Ordinance 88-08 is: AN ORDINANCE CURING DEFECTS IN THE PLANS FOR THE [LID], AMENDING ORDINANCE 84-17, ADOPTING FINAL PLANS AND SPECIFICATIONS AND A REVISED PRELIMINARY ENGINEER'S REPORT, AND ESTABLISHING A : INAL ASSESSMENT PROCEDURE. The body of Ordinance No. 88-08 states: NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1: Ordinance 84-17 (including Resolution No. 84-14, as adopted therein) is amended to delete that portion of the planned improvement not located within the legal boundaries of the LID... and is further amended to comply with the provisions of this ordinance, which shall be deemed to include the final plans and specifications and revised preliminary engineer's report approved and adopted herein. Page 1 16-99044dnim*..Jx1rA10410%98•JJ LM Section 4: The preliminary engineer's report as revised on March 21, 1988, is approved and adopted. Since it is evident that in fact the preliminary engineer's report (hereinafter "Engineer's Report") was adopted in 1988, the only remaining legal question for this Council is what, precisely, was included in the Engineer's Report? Although Waremart avoids discussing the precise language of the Engineer's Report, it is also critically important, so we present it here again for the Council's review: Land that is subject to assessment shall be divided into three zones controlled by distance from the right-of-way line of the proposed street improvement. Zone A will include all land that is from 0 to 150 feet from, the right of way line. Zone B will be all land from 150 feet to 300 feet, and Zone C will be all land between 300 and 450 feet from the proposed right of way. Land beyond 450 feet will not be assessed (You will find the 1988 version of the Engineer's Report at Tab 2, Exhibit 7). Note that the report uses the imperative "shall" rather than "may" when describing the division of the properties into three zones. The language of commitment, therefore, on the part of the City is altogether apparent. It means nothing that R.A. Wright "recommended" the report to Council. The Council adopted the recommendation! Indeed, Council routinely "adopts" recommendations of staff and makes them into law. It is interesting (and telling) that Waremart does not attempt to rebut that it relied on the zone method of assessment when it purchased its property along Dartmouth. Council will recall the following letter from the former City Engineer, Randy Wooley, to Supervalu/Waremart's architect, Planmark, sent in 1989 before Waremart purchased its interest: Page 2 :6-" 044 dW Fe#v do 1H&04/0 -1vJ1.a/ Bruce Kelly Planmark Re: Dartmouth Street L.I.D. I understand that you requested information about the Dartmouth Street Local Improvement District (LID). Enclosed is a copy of the preliminary engineer's report, which describes the project and the method of assessment Also enclosed is Table A, a roll of estimated assessments prepared in 1984. The roll has not been updated for inflation or for changes in land values. Hence, the roll should be used only as a rough estimate of future assessments. Sincerely, /s Randall R. Wooley City Engineer (Exhibit 28, Record of Exhibits, Submitted at March 17, 1998 hearing). Thus, even Waremart must concede that it purchased knowing its assessments would be based upon the zone method. Its argument now is not about fairness. Nor is it about whether Ordinance 88-08 adopted the Engineer's Report, or whether the Engineer's Report included the assessment formula. Its argument is about an unanticipated windfall of hundreds of thousands of dollars. B. ORS 223.415 To avoid the operation of Ordinance 88-08, Waremart writes: [E]ven if the City council had adopted the "proximity zones method" of assessment in 1988, it would be legally entitled now to change that formula to the Harper Righellis formula. Even if this were a reassessment proceeding, the statute provides in such cases that the government may adopt a different plan of apportioning benefits (Mr. Ball's letter at 2). Page 3 :6-99 wl,r d,.,ry.dbc1rW yo-194.,/ Waremart has quoted in isolation a solitary phrase within the reassessment statute. This Council will appreciate seeing the entire sentence presented within its proper context. ORS 223.415 states: The reassessment shall be based upon the special and peculiar benefit of the local improvement to the respective lots at the time of the original making of the local improvement.... The reassessment shall be made in an equitable manner as nearly as may be in accordance with the law in force at the time the local improvement was made, but the governing body may adopt a different plan of apportioning benefits or exclude portions of the district when in its judgment it is essential to secure an equitable assessment. ORS 223.415. The following points should be self-evident: • First, the legislature intends this Council to make the reassessment based upon circumstances as they existed in 1984, "the time of the original making of the local improvement." To do otherwise would undermine the reasonable expectations of property owners when deciding to support or oppose formation of an LID. • Second, before any change may be made to the method or "plan" of assessment, the change must be found to be "essential" to secure an equitable assessment. It is not essential in this case. Waremart itself acknowledges the zone method was fair at the time the original improvement was made. • Third, the zone method of assessment, set forth in the Engineer's Report and incorporated by reference into Ordinances 84-17, 84-18, and 88-08, represents the law governing this LID at the time the local improvement was made. To be faithful to ORS 223.415, and reassess "in an equitable manner as nearly as may be in accordance with the law in force at the time the local improvement was made," the Council must assess based upon the zone method. Indeed, when the LID was formed in 1984, the City did not even have a "final assessment procedure." The Council may not treat the intervening development of a "final assessment procedure" as grounds to abandon the formula for assessment adopted in 1984 and readopted in 1988. Page 4 :6-99044 drdmprv.d*c1H&04,0,V4-t/ C. The City Had the Power to Adopt the Engineer's Report in 1988. Waremart next argues that, in 1988, "[b]ecause the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred." (Mr. Ball's letter at 3). The argument forgets that the Council had the power in 1988 to adopt a formula for assessment without also adopting an assessment roll. This legal principal is stated in Dames v. The City Council, 60 Or. App. 19, 652 P.2d 839, 842 (1982), review denied, 294 Or. 391 (1983): In adopting the engineer's report, which included the assessment formula, the City adopted a proposed assessment for properties within the district based on the status of individual parcels at that time. Although the proposed assessments are subject to remonstrance, the City had the power to determine the factual bases of the proposed assessments at an earlier time than the date the assessment amounts are formally adopted. Precisely the case here: In 1988 the City of Tigard had the power-and exercised the power-to "approve and adopt" the Engineer's Report and the method of assessment described therein. It bears repeating, the minutes of the Council hearing at which Ordinance 88-08 was adopted state: e. [The] City engineer noted that the proposed ordinance would not change the LID boundary or the formula used to calculate the assessments. (The Official Council Minutes of the April 11, 1988 meeting may be found at Tab 2, Exhibit 6, of the materials we submitted March 12, 1998). And in the course of his presentation, the City's engineer on the project, R.A. Wright, referenced to the map attached to the Engineer's Report as Exhibit A. The map shows how the zone method of assessment allocates the costs of the improvements among the property owners within the LID. Page 5 .6-99044ch rrp1ydoc1r1se0410-,VX.lf D. Changing the Formula Undermines the Right of Remonstrance. In our materials submitted to the Council on March 12, we cited the case law in Oregon that states that an LID is void when its "character and impact" are substantially changed. Waremart responds: In those cases, Oregon Courts were dealing with actions by local governments which effectively denied to property owners the rights to notice, a hearing, and the opportunity to defeat an assessment by remonstrance.... None of such rights has been denied to the Martins or any other affected property owner.... (Mr. Ball's letter at 3). The argument misses something about fairness; an idea inherent in our notions of ordered liberty, indeed, it is a principle embodied in the Constitution of this and every state, and the U.S. Constitution. The government may not elicit authority of the citizens to impose one kind of exaction, then substitute a very different kind of exaction later on. When the character and impact of an LID is substantially changed after the vote on whether to form the LID, the vote (or "remonstrance") to the formation of the LID becomes meaningless. For this reason, courts (and fair-minded Councils) do not allow substantial changes to LID'S. This aspect of due process is fundamental. We may not turn back the clock. The decision about whether to form the LID is past. The property owners who had the power of remonstrance, who exercised the fundamental right to vote on this LID, are, for the most part, gone. The Council itself has changed. The LID is formed and the right of remonstrance, exercised fourteen years ago, will not be exercised again. E. Waremart is Mistaken about Some Things. Waremart is determined to make the Martins look like bad people because the Martins exercised the right we all have as property owners to challenge the government when it takes our land against our will. For our part, we are convinced this Council will not allow the taint of retaliation to infect these proceedings in any way. Page 6 :6-99044dvd npl.docIP&O1/0198.1j I Waremart is also mistaken about some of its allegations. The Martins' challenge to formation of the LID did not "result in a trial and appeal that consumed 4 years of time." (Mr. Ball's letter at 4). The Martins' appeal of the LID lasted two years, from 1984 to 1986. (By way of comparison, Mr. Pollock fought the condemnation of his property for right of way for more than 3 years). It is true the Martins have persistently argued that the solution to the Triangle traffic problem will eventually involve construction of either an overpass or connection to Highway 217. After the Martins spent tens of thousands of dollars on traffic consultants to prove this point, the City was eventually persuaded and now includes the overpass of 217 on its adopted transportation plan. The Martins also eventually persuaded the City that the Dartmouth roadway should be five lanes under the Tigard Triangle Design standards. Thus it is also plainly true that, among other things, on the matter of the design deficiencies of the roadway, the Martins were right all along. The notion that the Martins' somehow held the two Triangle "giants" -publicly traded Costco and Waremart-hostage over the LID because of the overpass is a bit absurd. F. Miller v. Portland and Parker v Hood are Still the Law. Waremart suggests that two of the cases cited by Martins are not good law because the cases are old. The force of precedent is greater when the precedent is older. Courts are not inclined to change law that has been on the books for years and years. If the cases were no longer good law, then the opinion upon which Waremart relies, Crocker v. City ofAlbany, would have overruled them. It doesn't. Page 7 :6-99044JrJ rrp1v.alOCWV0410°D9.Jf II. FAIRNESS A. Even Waremart Acknowledges the Fairness of the R.A. Wright Method in 1981. Mr: Rolf asked the question at the end of the March 17 hearing: What is wrong with the zone method? Waremart's answer: Both R.A. Wright and Harper Righellis have developed approaches that are fair. The difference is 14 years. (Mr. Davis' letter at 4). As described above, and based upon ORS 223.415 (the statute upon which Waremart itself relies for authority): The reassessment shall be based upon the special and peculiar benefit of the local improvement to the respective lots at the time of the original making of the local improvement.... ORS 223.415. No one disputes that, in 1984, an assessment role was adopted and an assessment was made. No one disputes that the court of appeals held the original assessment void and stated that the City of Tigard "may reassess for up to the full cost of the improvement within the district." Martin v. City of Tigard, 78 Or. App. 181, 714 P.2d 1115 (1986). And based upon Waremart's acknowledgement of the fairness of the zone method in 1984, no one should dispute any longer that the proper method of assessment to apply is the one that made sense "at the time of the original making of the improvement"-i.e., the R.A. Wright zone method of assessment. B. You're Either In or You're Out Setting aside for the moment that ORS 223.415 requires reassessments to be based upon the special and peculiar benefits at the time of the making of the original improvement, Waremart argues that the properties developed differently than anticipated and therefore the original assessment method is no longer appropriate. But the properties that "developed differently" -the Waremart and Costco buildings-are outside the boundaries of the LID (save Page 8 :6-99 044 d.,d repfv.ubNi1i0410'~*98-I/ only the first few feet of Costco's building). (See Map 3 included with Martin Testimony at Tab 1, page 6). How properties outside the LID boundaries have developed should either be irrelevant, or the entire parcels outside the boundaries should be included for purposes of assessment. Remember, when R.A. Wright recommended the original boundaries, and the City Council adopted his recommendation, it was based upon the following reasoning with regard to benefit: The area judged to be benefited by the proposed street improvement includes all parcels that, by direct access or common ownership with a contiguous parcel having direct access, connect to the proposed street improvement and are not contiguous with, and better served by, another public street. (Engineer's Report, Tab 2, Exhibit 7, page 2). In 1998, the Waremart and Costco parcels both satisfy this test. Each parcel would quite obviously be included within the LID, if the LID were formed today. To suggest, as Waremart has done, that as a matter of "fairness" this Council should consider how the properties developed differently without also accepting a full and fair share of the LID costs based upon the obvious benefit, smacks only of narrow self- interest. C. That the "Anchors" are Outside the LID Today Begs the Question: What will Be Within the LID in the Future? Although the "anchor" stores are almost entirely outside the LID, Waremart nonetheless argues that, because of the "anchor" stores, the benefit that each property derives from Dartmouth "is less from the visibility afforded to the development, than from the access it provides." (Mr. Davis letter at 4). Focusing first upon access: Waremart's parcel has far and away the best access to Dartmouth because it has almost twice the frontage of the Martin parcel. The zone method accounts for this benefit since it places a somewhat higher value upon frontage (the three zones are assessed at the ratio of 3:2:1). Page 9 26-99 044 dW rrp1y.Joc-rln•Oa0-. 98•JJ ENS= With regard to visibility: Mr. Davis (to his credit) accepts the importance of visibility, he simply contends it is entitled to less weight given the development of anchor stores, albeit anchor stores which are outside the LID. Mr. Davis suggests visibility would be "essential" to the survival of a strip mall along Dartmouth, although not to a commercial development with an "anchor" like Cub Foods. One might reckon what a vociferous advocate Mr. Davis would be for his client if this City somehow tried to block the visibility of Cub Foods. Essential to its survival? Without any question, visibility is essential to the survival of all of the commercial development along Dartmouth. Remember as well that someday the "pads" along Dartmouth will develop. This is true both because these pads (such as the Office Max at the corner or Dartmouth and 72M Avenue) will command a premium price, and because the new 50% rule requires future development to be alongside the roadway. When the pads develop, Waremart/Cub Foods will realize the full economic benefit of its exceptional frontage-a benefit that is properly accounted for by the zone method of assessment. Thus, the zone method is fair. It was fair in 1984 (the only time relevant under ORS 223.415). It is fair today. CONCLUSION It is legally proper, consistent, fair and just to base the assessment role upon the adopted zone method of assessment. Dated this 7`h day of April, 1998. tfully Sub ' ed, Tarlow, ordan chraer, t Douglas V. Van Dyk On behalf of Gordon R. Martin and Gordon S. Martin Page 10 .76-99 044 dvd rrp1v.dociHv0410-198•Jf DARTMOUTH LID REBUTTAL. TO WAREMART AND COSTCO WRITTEN SUBMISSION The following is the rebuttal of Mr. Jerry Palmer to the written testimony of Mr. Robert Ball via letter to Mayor Nicolai and Council Members dated 3/30/98; Mr. Gordon Davis dated 3/27/98; and Mr. Jeffrey Keeney to Mr. William Monahan dated 3/31/98. The rebuttal format is presented by the two headings of Mr. Davis' Testimony: Wetlands and LID Assessment Methodology. WETLANDS Mr. Davis errors in his contention, or assumption, that my testimony at the 3/17/98 hearing regarding wetlands was referring to a comparison of the wetlands of the Waremart vs Martin properties. It was not the Waremart property BUT the Costco property that I was comparing to Martin's property in my example. Therefore his arguments on comparison are not correctly argued. What is of extreme interest, however, is that Mr. Davis' arguments magnify and highlight our contention that just to adjust area by subtracting wetland area to arrive at developable area is wrong. Mr. Davis states that Waremart's ratio of the fill of the original wetlands to the area of mitigation was "1 acre of fill to 4.45 acres of mitigation". That is exactly our point! Mr. Davis would want us to calculate the developable area of District properties deducting existing wetlands on properties not developed, and "mitigated' wetlands on properties developed. In his cited case of Waremart, the affect of their mitigation was a ratio of 1 to 4.45. A calculation today would have the affect of subtracting 4.45 acres of "mitigated" wetlands on Waremart property and only one acre if for an undeveloped property. The affect of wetlands mitigation to replace, relocate or enhance on undeveloped properties is unknown. It is our testimony that the multiplier is 1.5 to 2.0 to 3.0. Mr. Davis cited their experience to be 4.45! That data fully supports our contention that subtracting existing wetlands area only, does not treat the impact on developable area fairly. Again our testimony is that "all wetlands, in their form and configuration, do not impact development potential equally...". Costco's argument serves to make this point even clearer. Costco argues that even uplands should be excluded because of the impact of wetlands on uplands. There is really no reasonable end to the analysis of variables that might be undertaken in order to truly understand the impact of wetlands upon the development potential of specific properties within an LID. The wetlands were not excluded in 1984. In my opinion, the Council would be wise not to proceed with assessing by only developable area especially if that is defined by excluding only wetlands area from gross area. LID ASSESSMENT METHODOLOGY Mr. Davis errors in his description of the R.A. Wright methodology. He refers to the Wright methodology as "a front footage basis" (Mr. Davis P. 3, 4th paragraph). The Wright methodology is a zone methodology that both weights parcel area and frontage along a street. Both Mr. Davis and Mr. Ball focus on the frontage element of that methodology to perhaps exaggerate their arguments. That exaggeration does not correctly represent the zone methodology of R.A. Wright. Both Mr. Ball and Mr. Davis like to go outside the boundary of the District to argue the fairness of using the area methodology of Mr. Righellis but stay within the boundary to measure the area to be assessed. Their arguments rely upon development that has occurred from 1988 to 1998 both within and outside the District boundary. This dynamic for the undeveloped properties is yet to occur. What will happen in the future? It is unfair to take a snapshot it'. 1998 and use it to reflect on the benefit of the Dartmouth Street improvement. Development within, and outside the District boundary is yet to be completed. To rationalize the fairness of an assessment methodology based on 1998 conditions vs 1988 conditions vs future (2008) conditions is grossly unfair to undeveloped parcels in the District. One unchanged defining characteristic of the District is the boundary. That boundary is the same in 1998 as 1988. That boundary creates "unbalanced" parcels that will be assessed. The parcels are unbalanced in shape, form, depth and size. The R.A. Wright methodology weighted the spread of assessment on a zone basis to reflect that variation in depth/size of the assessed parcels. That defining characteristic of the District (assessed parcels) is unchanged. Our plea is to stay within the District boundaries to assess costs benefits and not be swayed by the variations of development patterns that have occurred, or as yet will occur, either within or outside the boundaries. Benefit of the Dartmouth improvement of assembled lands outside the boundary is evidenced by the arguments of Mr. Ball and Mr. Davis. The assessed parcels on the Dartmouth improvement provided access and visibility benefit to the aggregate properties. The "unbalanced", fully undeveloped parcels of Pollock and Martin will develop under requirements of the Triangle standards. Redevelopment, or additional development of other properties within the District will also meet the requirements of the Triangle standards. This standard requires 50% of the street frontage have buildings within ten feet of the property line. The standard reinforces the appropriateness of the R.A. Wright methodology. Mr. Davis is both correct and incorrect in his statements on Page 4 of his written testimony. He states "The actual `frontage' that each has on Dartmouth has neither constrained nor enhanced the manner in which the development has been shaped." From 1988 to 1998 that has been the owners choice. From 1998 forward that will change. This is evidenced by the Triangle standards. He did add that, "Instead, the form of each development is a function of both the road frontage (highlight added) and the overall size, shape and depth of the parcels." This is confirmation of the fairness of the R.A. Wright zone methodology! In conclusion, we repeat "there is not right or wrong, there is really only the search for fairness." To quote Mr. Davis, "both R.A. Wright and Harper Righellis have developed approaches that are fair." To go further, however, we don't believe a snapshot of conditions in 1998 is a basis to use to evaluate fairness. The foresight of R.A. Wright in their methodology is more fair to the assessed parcels within the District given the "unbalanced" parcel depth and size and the fact that further development is yet to occur. rir►c. r. lyJW 12:49PM P 2 FROM : Panasonic PPF ENGINEERING KENT W. COX and ASSOCIATES, INC. PLANNING Consume Engk YWS Lend Surveyors SURVEYING LAND DEVELOPMENT 204 N.E. KELLY AVENUE Repfatratlan GRESHAM, OREGON 97030.7844 OreV*gan 6674454 APfRletbnns: M FAX (603) 655.9634 Americmn Sock* of Civil Engineers Idaho who Profeaeionw Lend Surveyors of Orogon Ameften Congress of Sum *g and Mapping April 6, 1998 File: 98-022(ml) VIA FAX Honorable Mayor Jim Nicolai Members of the Tigard City Council Tigard City Hall 13125 S. W. Hall Boulevard Tigard, Oregon 97223 RE: Dartmouth LID ASSESSMENT Response to 3-30-98 Letter from Robert S. Ball to Mayor and Council Dear Mayor and City Council: This letter is in response to the March 30, 1998 letter from Robert S. Ball to Mayor and Council. A. Page 3 of his letter states "Because the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred. There was simply no consideration by the Council in 1988 of the formula to be used for spreading the assessments...." Resaopse: Section 4 of the City of Tigard Ordinance No. 88-08 states, "The preliminary engineer's report, as revised on March 21, 1988 is approved and adopted." City Council Minutes of April 11, 1988 page 8 states under "Item e.", "City Engineer noted that the proposed ordinance would not change the LID boundary or the formula used to calculate the assessments." City Council Minutes of April 11, 1988 page 12, states, "With regard to the estimated costs of the project and the 15 percent increase, Legal Counsel advised that this information was included in the documents which had been available for the public at the front counter (City Hall) for some time. Councilor Johnson asked what was the percentage of opponents in the LID. City Engineer responded that the opponent owns approximately 25 percent of the property within the LID. There have been no other objections received or opponents of record." APR 07 '9B 12:46 PASP PO FROM Panasonic PPF Clearly the City Council, in 1988, was intending to assess the project by the 3 zone method. Also the Council understood the Martin Assessment was about 25%, not the now proposed 41%+. B. Page 3 further states: "As described above, the Harper Righellis formula is a change from the R.A. Wright recommended formula., but is not a change from any prior commitment by the City Council." ResooasILAnsbais: ° As stated above, the Council fd commit to the RA. Wright formula. Please enter this letter as additional public written testimony for the Local Improvement District. Very, tKent , P.L.S. President cc: Douglas Van Dyke (Tarlow, Jordan and Schrader) APR 07 '98 12:46 PAGE.03 SUPPLEMENTAL RECORD OF EXHIBITS DARTMOUTH LID ASSESSMENT HEARING APRIL 7,1998 SUBMITTED ON BEHALF OF GORDON R. MARTIN AND GORDON S. MARTIN Exhibit No. 43: January 18, 1996 facsimile Memorandum from Waremart (Gordon E. Davis, Consultant) to Ed Christensen. Exhibit No. 44: August 25, 1993 Waremart Waiver (Non-Remonstrance Agreement) regarding Second Dartmouth LID). Exhibit No. 45: March 25, 1993, Waremart/Supervalu Development Approval, Final Order No. 93-05 PC Exhibit No. 46: Martin's Reply to Waremart regarding Change to Dartmouth LID Assessment Method. Exhibit No. 47: Jerry M. Palmer, Dartmouth LID: Rebuttal to Robert Ball and Gordon Davis' Written Submissions. Exhibit No. 48: Kent W. Cox & Associates - Letter dated April 6, 1998, to Mayor Nicoli & Council regarding response to letter from Robert S. Ball. 26-99 04' dvd doc.doc'dv0Ji0"•9R-! JRR-19-1-M 26.27 EPXM Gordon Day io 10 5981868 r'.02 I Can- on . Davis 1020 SW Tay1 r. 8ulte Ebb PortlaW. Oredon 97 205 503) 248-1196 Facsimile 503) 2274221 Mobile I 503) 25"386 FACIL.-Skmamm ° a& To: Ed Chrictonspen i FAXC: Regarding: 2nd LID Date: January 1a, 1996 Total0agea: 2 i ~ Just so you arpp were, Paul has no obligation to parWPate In a second LID except to the "nt on knprovements on 72nd. Sea attached. As I indicated; Paul may be willing to consider participating with the creek crossing and the 99/Dartrnouth Intersection in addition to 72nd improvements, but ®s you ca~ see his actual obligation Is considerably less. EXHIBIT PAGE OF APR 07 '98 10:45 09252023100126222002 PPGE.02 JAIL-10 1796 16127 FRW C-r-don Da-, Is TO 5991868 P.02 _ Alt•V a n ggILV4 Lt.cl. UPf of *it" b"U.6" tag t►v ei....s.. - MY of 4L•.d seas fM a.a► alvm. - U4664. OR }7Ii7 ►t1• we. VA1Va (EIOA,bill0lt>~TTaA11Ct AOELDf811?) The undersigned owner of t &o real property deecrtbad below doom hereby record its consetst to the formation ut a local irprovestont dls•CricL by the City of Tigard for Lhe purposes of iaproving 72nd Avenue, which the described property abuts. The undersigned expressly waives all present and future rights to oppose or remonstrate •isainet %ho formation of a local improvement district for improveaente to 72nd Avenue in exoooo of those Improvements constructed as part of the development or the property, reserving only the right to contest the Inolusloa of P&Wtioular mast iLvow in tho iaproverone district proceeding and any right It may !save under the lava of the State of Oregon to contest the proposed assesamont ffo"Mia. The real property that is the subject of this consent covenant is described as follovrs: Attacbed Exhibit "A" IN WITNESS WHSAWF, I hereunto set my hand on this day of August. 1993. Print game of forporation David L. Soshoon S.0_ sox 990 _ Vlea liddreas .QE9t Ticle -11111nesnolia_ JPL 55440 -1Ii STATE OF liIN1~Y$OTA) II ) 6i. COMM OF RM Blip) This instrumnt was, acluiovledEed before me on August . 1993. by David L. Soehnon as Vic4 president of SUPtKVALU 8oldlasc. Inc. r ANN eMft ~►UBUdMUW690T11 ~s Ql+~c5177'~'~. WWI Notary's Signature My Commission $xpiress p t s Accepted on be'If of the City of Tigard this day of August, 1993. I III NO CHANGE in Tom[ S?A?ElILdT City Engineer JM43S.•e III EXHIBIT 3 PAGE J7 OF 2 TOTr L P. (V I APR 07 198 1045 092520231001262?.2002 PAW. 03 • a ' After Recording Return Copy e_ dcorded Document to: 93076023 City Recorder - City of Tigard Washington County 13125 SW Hall Blvd. - Tigard, OR 97227 CORPORATION File No. WAIVER (NON-REMONSTRANCE AGREEMENT) STREET IMPROVEMENTS The undersigned owner of the real property described below does hereby record its consent to the formation of a local improvement district by the City of Tigard for the purposes of improving Dartmouth Avenue, which the described property abuts. The undersigned expressly waives all present and future rights to oppose or remonstrate against the formation of a local improvement district for improvements to Dartmouth Avenue in excess of those improvements constructed as part of the development of the property or through the original "Dartmouth LID," reserving only the right to contest the inclusion of particular cost items in the improvement district proceeding and any right it may have under the laws of the State of Oregon to contest the proposed assessment formula. The real property that is the subject of this consent covenant is described as follows: Attached Exhibit "A" IN WITNESS WHEREOF, I hereunto set my hand on this t`day of August, 1993. SUPERVALU HOLDINGS. INC. )~l Print Name of. Corporation David L. Boehnen P.O. Box 990 Vice President Address Title Minneapolis. MN 55440 STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) This instrument was acknowledged before me on August 1993, by David L. Boehnen as Vice President of SUPERVALU Holdings, Inc. w = TERESA ANN SMITH 1~0'L M PUSUC-MINNESOTA C.11-4,1 CARVER COUNTY Notary's Signature My ComminionExpireeOct. 14, 1 9~6~ My Commission Expires: IC11,I1cC-. Accepted on behalf of the City of Tigard this day of Augttst!, 1993. 0000 City Engineer T NO CHANGE IN TAR STATEMENT EDX -114 PAGE OF .MW0635.Vp 082593:1 -.3 T-10431 i STATE OF OREGON County of Washington SS I, Jerry R. Hanson, Director of Assessment and Taxation and Ex-Officio Recorder of Con- veyances for said county, do here certify that the within instrument of ng was received and recorded in book of records of said county. Jerry R. Hanson Director of Assessment and Yaxatjon. Ex- Officio County Cterk' - Doc 93076023 Rect: 108089 23.00 09/16/1993 01:18:39PM 3 EXHIBIT PAGE--.~E,OF T-10432 EXHIBIT A Lm.v oPmEnc- a 2724 S.E. Sunflower Ct. cominuccion Hlllsboro, Oregon 97123 ,c:qV®Ccb (503) 648-4959 FAX: (503) 640-9385 PROPERTY DESCRIPTION: TAX LOTS # 600, 2500, AND 2501, MAP # 1S 1-36DC FOR: SUPER VALUE DATE: AUG. 31, 1993 LOCATION: PACIFIC HWY. & DARTMOUTH JOB NUMBER: 9110024 FOR IDENTIFICATION PURPOSES ONLY OVERALL RETAIL SITE FOR USE ON LEGAL INSTRUMENT A PORTION OF THE SOUTHEAST QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 1 WEST, W.M., WASHINGTON COUNTY, OREGON, SAID PORTION BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE! EAST LINE OF SAID PARCEL I, IN THAT CERTAIN BARGAIN AND SALE DEED TO SUPERVALU HOLDINGS, INC. AND RECORDED AS DOCUMENT NO. 93003638, DEED REC.i:DS OF SAID COUNTY, WHICH POINT BEARS SOUTH 00°02'16" EAST 152.20 FEET FROM THE NORTHEAST CORNER THEREOF, SAID POINT OF BEGINNING ALSO BEARS NORTH 05°04'21" WEST 975.53 FEET FROM THE WASHINGTON COUNTY MONUMENT AT THE SOUTH QUARTER CORNER OF SAID SECTION 36, AND RUNNING THENCE NORTH 86045'24" WEST 21.07 FEET TO THE CENTER OF RED ROCK CREEK; THENCE IN THE CENTER OF SAID CREEK SOUTH 58° 43'05" WEST 5.76 FEET, SOUTH 04°12'11" WEST 34.80 FEET, SOUTH 51°41'12" WEST 44.29 FEET, SOUTH 15°53'22" EAST 19.63 FEET, SOUTH 26°50'41" WEST 68.45 FEET, SOUTH 78047'53" WEST 31.55 FEET, SOUTH 28°58'14" WEST 51.39 FEET, SOUTH 71° 42'53" WEST 25.45 FEET, SOUTH 13°12'08" EAST 56.70 FEET, SOUTH 26°18'07" WEST 28.27 FEET, SOUTH 56°08'24" WEST 32.37 FEET, SOUTH 24°39'15" WEST 27.15 FEET, SOUTH 19°40'08" EAST 29.20 FEET, SOUTH 47°21'43" WEST 18.99 FEET, SOUTH 140 11'18" EAST 29.48 FEET, SOUTH 59°58'35" WEST 23.13 FEET, SOUTH 09°44'38" WEST 14.97 FEET, SOUTH 66°43'03" WEST 12.43 FEET, SOUTH 17°55'29" WEST 13.88 FEET, SOUTH 71°08'07" WEST 22.17 FEET, SOUTH 30°38'58" WEST 50.50 FEET, SOUTH 04° 36'13" EAST 19.85 FEET, SOUTH 63°54'34" WEST 17.35 FEET, SOUTH 40°04'35" WEST 46.87 FEET, SOUTH 04°35'05" EAST 26.76 FEET, SOUTH 87°53'43" WEST 15.88 FEET, ^rrrv z~o~o~a^ WP_ST 35.45 FEET, SOUTH 78°41'09" WEST 16.27 FEET, SOUTH 55° EXHIBIT PAGE 3 OF it loo 9 ,••i•'~ ~ - •..r L ~~(s % . t t 1600 r [[yy` 1 • .114 I~ x.•) k I lion '.r. 2602 a1~ Ja4 r..r f5ol 1800 4 • . nr s s 71100 aloe 2000 23-61 cl :I - r • n+ u+ .ri -1 n, ,lam _ r•. .7t.'.,~~ I,.a.c~Ilr r.nt7 'it 2500 a r7 L n 'r~ - - - - _ .L r+• ,o fr.r , :H +•2.00 $000 tsoo 21100 ' v/ 2 i 1 1 1 2504 _ _ 1 _ _ Ld ~1 I I ( 1502 ~1~. { 1 I 5 . J. j Z003 LL_ N , ,,.r x- ilt• DuWU 59-111 2 .UILO a 111•15 9-71 1 •I~ + 1 1. { .1 - i I: 2200 I[ f r.,Hr1 5 t Z 11 L' / f 9- 7 If..701 2 1 1 1 I I ••a~7.7 _ .F' - - - - - - _ - - _ - _ i { { 1 4 • - - - - 5100 ;I I 1 1 1 I 11 j t 25W/-~. 2502 1 •i _ 1' _ _ •~5 _ _ .~7 I_ • _..5-. _ - , _ : 11-3400 G: H r l0 12 I' t • _ 5 t.,1.11 = 1 f f J j.. - - a 7 8.,1177, u 7 r11,um 5501 2! + - _ - - n Lti 7 - - - i i - - - a r 1L, SW CLINTON ~I I Iyuggs 1.11.1 1& L r1~ T « 1100 7 1000 - 21100 S. tool Q N{ 2 6 ' - - - - - - - - - - 1 7711 { { • ~a I"'t :oat 200. ® SE 4S ~ .Or4 ! 2 4:00 4400 • C ` ~ • r.l = rNM P 2: ,•..:.r« ...M. ~ 5- -F3- -U- 1-7- L- 1••"r...... 250 R CITY OF TIGARD PLANNING COMMISSION FINAL ORDER NO. 93-05 PC • A FINAL ORDER INCLUDING FINDINGS AND CONCLUSIONS APPROVING AN APPLICATION FOR DEVELOPMENT OF A SHOPPING PLAZA PROPOSED BY SUPERVALU STORES. The Tigard Planning Commission has reviewed the applicant's plans and narrative materials, comments of reviewing agencies, and the Planning Division's staff report and recommendations for the application described below. The Commission held a public hearing for the purpose of receiving testimony on this application on March 22, 1993. The Commission has based its decision on the facts, findings, and conclusions noted below. 1. PROPOSAL SUMMARY CASE: CUB FOODS/ SUPERVALU HOLDINGS INC. Site Development Review SDR 93-0002 Planned Development Review PDR 93-0001 Sensitive Lands Review SLR 93-0002 Sign Cade Exception SCE 93-0001 REQUEST: A request for Planned Develoixnent Review/Site Development Review approval of plans for development of a 150,000 sq. ft., single-story shopping plaza on a 19.9 acre site. Sensitive Lands Review approval is requested to allow development (a retaining wall and site grading) to intrude 7 feet into the required 25 foot buffer area adjacent to the wetlands adjacent to Red Rock Creek. Community Development Code Section 18.84.028.A states that land within 25 feet of an identified wetlands is considered as wetlands. All development is normally prohibited within wetland areas unless a Sensitive Lands Review permit is granted. Although not a part of this application, it is noted that the applicants have separately applied to the Oregon Division of State Lands to fill an approximately 6900 square foot wetland. Sign Code Exception approval is requested to allow 28 foot high freestanding signs on both SW 72nd Avenue and SW Dartmouth Street whereas Community Development Code Chapter 18.114 would normally allow a total combined height of 42 feet to be distributed between the two signs. In addition, Sign Code Exception approval is requested to allow these two signs to have a combined sign area of 280 square feet whereas a combined sign area of 210 feet is normally permitted. APPLICANT: Gordon E. Davis for SuperValu Stores P.O. Box 8774 Portland OR 97207 OWNER: SuperValu Holdings, Inc. 11840 Valley View Road Eden Prairie, MN 55344 OWNER: (Tax Lots 100 and 101) Gordon R. Martin PO Box 740 Gleneden Beach, OR 97308 T FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU EQUY1 PAGE OFC2.4- T-10450 LOCATION: Northwest corner of SW 72nd Avenue and proposed Dartmouth Street (WCTM iSl 36DC, tax lots 600, 2500, 2501; WCTM 1S1 36CD, tax lot 2000; WCTM 2S1 1BA, tax lots 100 and 101. These parcels are listed as shown on the Washington County Assessor's maps currently an file at the Tigard Community Development Department. The Community Development Department has previously approved several lot line adjustment applications for these parcels so that the actual proposed development site after recording the surveys of these approved lot line adjustments will be bounded by SW 72nd Avenue on the east, SW Dartmouth Street on the south, and Red Rock Creek on the west). PLAN DESIGNATION: General Commercial ZONING DESIGNATION: C-G (General Commercial) and C-G (PD) (General Commercial with the Planned Development overlay zone) See attached zoning map. APPLICABLE LAW: Community Development Code Chapters 18.62, 18.80, 18.84, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164. STAFF RECOlHENDATION: General approval of all applications listed above subject to several modifications and conditions of approval. SITE MAP/ZONING MAP: W % ~ A. \G ln)II s~• a ~Yn i 1 y. ~1 1 1 1 SR OWWALL AIIQT I , I 1 = i I 1 LT / %W. CL"rre" TOOI/TI, L7R[wt10w.-- O~ 51 E '1 uL..OI. OIIT • + 1,L /III ■LLI■ 2 s.r KK1 •r0 IL 1 FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU PAGE _a?-OF T-1®451 II. DETAILED APPLICATION DESCRIPTION Planning Commission final orders typically include a fairly detailed description of the existing site configuration, zoning, surrounding uses, and a detailed description of the proposal culled from staff's review of the development plans. With this application, however, the applicants have provided a very thorough narrative describing the site and surrounding properties, as well as a very detailed description of the proposed development and the necessary applications. Therefore, this order will not repeat this information already supplied by the applicants but will list the following as the exhibits to -be considered as the applicants' statement: 1. March 1, 1993 letter from Gordon Davis to Randy Wooley; 2. January 28, 1993 letter from Gordon Davis to the Planning Division along with attached Narrative Description; 3. Site Plan (sheet 1 of 4) and Grading Plan (sheet 2 of 4) dated March 1, 1993 by Alpha_Engineering; 4. Utility Plan (sheet 3 of 4) by Alpha Engineering and Priest Engineering; 5. Elevation (sheet 4 of 4) by Planmark; 6. Landscaping Plan (sheet 1 of 1 by Alpha Engineering and Priest Engineering). 7. Topographic Map of Site by Alpha Engineering; 8. Transportation Impact Study for Cub Foods Commercial Center by Kittelson & Associates February, 1993; IT SHOULD BE NOTED THAT THE SITE AND GRADING PLANS THAT ARE UNDER REVIEW WERE SUBMITTED AS REPLACEMENT SHEETS SUBSEQUENT TO THE ORIGINAL SUBMITTAL. AS SUCH, THESE PLANS CONTAIN INCONSISTENCIES WITH THE LANDSCAPING PLAN. THE COMMISSION HAS CONSIDERRED THE SITE AND GRADING PLANS LISTED ABOVE TO SUPERSEDE THE EARLIER SUBMITTAL. IT IS ADDITIONALLY NOTED THAT THE SITE PLAN REFERS TO FIVE SEPARATE LOTS WHEREAS THE APPLICATION DOES NOT REFER TO ANY MINOR LAND PARTITION OR LOT LINE ADJUSTMENT APPLICATION TO BE MADE AT THIS TIME SO AS TO RESULT IN SUCH A LOT CONFIGURATION. THE APPLICANTS' AGENT, GORDON DAVIS, HAS TOLD STAFF THAT THE APPLICANTS MAY APPLY FOR APPROVAL TO RECONFIGURE THE SITE INTO THE FIVE LOTS IN THE FUTURE. THIS ANALYSIS CONSIDERS THE SITE AS ONE DEVELOPMENT SITE. In addition, the following documents relating to the site were reviewed by staff prior to reviewing this application but were not included in the Planning Commission's packets due to their length and technical nature. These documents are available for review at the Planning Division office. 1.• Geotechnical Investigation - Proposed Tigard Center by Applied Geotechnology Inc. 2. Joint DSL/Corps of Engineers fill permit application FP #7216 and supporting documents. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU EXHIUITrag PAGES OF T-10452 III. AGENCY AND NPO CO?4iENTS The City of Tigard Engineering Department, Tri-Het, and the Unified Sewerage Agency have submitted multiple pages of comments on this proposal. Their comments are attached as an appendix to this report. The City of Tigard Building Division has reviewed the proposal and provides the following comments: a. Finished cut or fill slopes shall have a maximum 2 to 1 slope; b. Erosion control measures shall be maintained throughout construction activities; C. Disabled person parking spaces will need to comply with Oregon State Statutes with regard to size, number of spaces, and signage. The State of Oregon Division of State Lands (DSL) has been notified of this proposal due to the portion of the site which is shown to include possible wetlands area by the National Wetlands Inventory map. The applicants wetland delineation prepared by IES Associates confirms the existence of wetlands on the site. Application has been made for on-site mitigation for the proposed disturbance of a portion of the wetlands. The Division of State Lands has commented that a removal/fill permit is required for this project (comment of February 5, 1993). The applicants have submitted a copy of their application for a Joint DSL/Corps of Engineers Fill Permit dated February 9, 1993 (DSL Permit #FP 7216). The Tualatin Valley Fire and Rescue District has commented that all fire hydrant locations are subject to the final approval of the Fire District. The Oregon Department of Transportation has reviewed this proposal and has commented that the traffic study should have included analysis of the proposed development's impacts on the Hwy. 217/SW 72nd Avenue interchange for both existing conditions and with improvements. ODOT has further commented that they cannot comment on impacts to the interchange until the analysis is completed. PLANNING DIVISION COMMENT: STAFF CONTACTED ODOT AND TOLD ODOT THAT THE CITY WAS NOT GOING TO REQUIRE THIS ADDITIONAL REVIEW FOR THIS PROJECT AT THIS TIME FOR THE ADDITIONAL ANALYSIS ODOT IS NOW REQUESTING. ODOT HAD BEEN APPRISED OF THIS POTENTIAL DEVELOPMENT FOR SOME TIME AND HAD NOT PREVIOUSLY REQUESTED THIS ANALYSIS. Northwest Natural Gas has commented that a 2 inch diameter gas line exists on the west side of SW 72nd Avenue. This line has not been shown on the preliminary improvement plans. The applicants' engineer should contact Scott Palmer at 721-2449 for information on the location of this line and responsibilities for relocation of the gas line. Portland General Electric and Ge-;eral Telephone have reviewed the proposal and have issued no comments or objections. The Tualatin Valley Water District and NPO #4 were provided with copies of the proposed development plans. As of this date, no comments have been received from those agencies. Staff forwarded a written comment from Irv Larson of 11720 SW 68th Avenue to the Commission for consideration. No other oral or written comments were received at the public hearing. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU EXJ 4 5 PAGE OF T-10453 IV. FINDINGS AND CONCLUSIONS Chapter 18.120 - Site Development Review Code Section 18.120.180.A.1 (Site Development Review - Approval Standards) requires that a commercial development proposal be found to be consistent with the various standards of other Community Development Code chapters. The applicable criteria in this case are City of Tigard Community Development Code Chapters 18.62, 18.84, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164. These Chapters are also listed as approval standards for a planned development review application under Code Section 18.80.120.2. The proposal's consistency with these various Code chapters is reviewed in the following sections of this final order. The proposal contains no elements related to the provisions of Code Chapter 18.92 (Residential Density Calculations), Chapter 18.94 (Manufactured/Mobile Home Regulations), Chapter 18.98 (Building Height Limitations: Exceptions), and Chapter 18.144 (Accessory Use and Structures) which are also listed under Code Section 18.120.180.A.1 and Section 18.80.120.A.2. These chapters are therefore found to be inapplicable as approval standards. Code Section 18.120.180.A.2 (Relationship to the Natural and Physical Environment) provides other Site Development Review approval standards not necessarily covered by the provisions of those previously listed code chapters. These other standards are addressed immediately below. The proposal is found to comply with the applicable portions of Code Section 18.120.180.A.2 relating to Site Development_ Review approval standards for provision of buffering and screening- of the proposed development through compliance with the buffering and screening requirements of Code Chapter 18.100 as described under the review of that Chapter. Code Section 18.120.180.A.8 as well as Code Section 18.80.120.A.3 1 states that where 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 the floodplain. This area shall include appropriate portions suitable for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. The Flood Insurance Rate Map for the City of Tigard prepared by FEMA does not map any 100-year floodplain area for Red Rock Creek on this site (FIRM Community Panel No 410276 0003B, dated March 1, 1982, although floodplain area is mapped to the south of this site). Therefore, no dedication of floodplain area is required. Code Sections 18.120.180.9 and .10 require consideration of crime prevention and safety in the design of a proposed development. The relatively open development and landscaping pattern proposed along with the parking lot and building lighting should provide a reasonably safe site design for future customers and employees of the development. Chapter 18.80 - Planned Development Review Chapter 18.80 provides a process for creating planned environments through the application of flexible development standards. The purpose statement notes that it is the intent of this section to preserve to the greatest extent possible the existing landscape features and amenities through the use of site planning procedures that relate the type and design of a development to the site. Since this development site carries a Planned Development designation, a general review of these standards is necessary. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Egil 5 PAGE _ OF T-10454 Code Section 18.80.120 identifies approval criteria for a planned development site plan. Of particular note with regard to the current request is Section 18.80.120.A.3.a which states: streets, buildings, and other site elements shall be designed and located to preserve the existing trees, topography, and natural drainage to the greatest extent possible.- With the underlying zoning district allowing large scale commercial developments, such as has been proposed, and the substantial slope of the site that needs to be graded to allow such a development, it would be very difficult if not impossible to allow this type of development without substantially altering the tree cover and existing topography. The application proposes a very substantial amount of site grading and removal of almost all existing trees in order to accomplish this development. However, the application provides for preservation and substantial enhancement of the wetlands associated with Red Rock Creek. In addition the landscaping plan provides for a significant amount of replacement landscaping and trees to provide a relatively attractive development around a large commercial box development. Therefore, the Commission finds that the development plan makes a reasonable attempt at satisfying this criterion. Section 18.80.120.A.3.b provides standards relative to buffering and screening a proposed development site from surrounding uses and streets. This criterion is addressed under the discussion of Code Chapter 18.100 below. Sections 18.80.120.A.3.c, d, and e refer to residential developments that are developed as planned developments. These approval standards are therefore inapplicable. Sections 18.80.120.A.3.f, g, i .i, and k are essentially references to the requirements of other Code Chapters dealing with access, landscaping, signs, parking, and sensitive lands. Findings relative to these Code Chapters should be considered tantamount to consistency to these planned development approval standards. Section 18.80.120.A.3.h allows the approval authority to require the developer to provide facilities relative to public transit needs such as bus turn-outs or shelters, if the proposed development abuts a public transit route. SW 72nd Avenue abutting the site is not currently nerved by Tri-Het bus service, although Tri-Met's comments raise the possibility that current service routes might someday be shifted to directly serve this area. Tri-Met has provided comments on the proposed development plan but has not requested the provision of any transit related facilities. Therefore, no transit related facilities will be required as conditions of development approval. Chapter 18.62 - C-G Zoning District The proposed uses of the site, food and beverage retail sales and general retail sales, are permitted uses in the C-G zoning district (Code Section 18.62.030). Staff is charged with reviewing future usage of the site through the review of business tax applications and building permit applications. Proposed site improvements comply with the C-G zoning district dimensional standards (Code Section 18.62.030) for building height (45 foot maximum height allowed; 26 foot maximum height proposed); lot coverage (85 percent maximum allowed site coverage in the C-G zone; proposed site coverage of less than 75 percent); and landscaped area (minimum landscape coverage of 15 percent; proposed landscape coverage in excess of 25 percent). There are no applicable building setback requirements since none of the site directly abuts a residential zoning district, except across SW 72nd Avenue from the site. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU E(H1BIT6___jj-E_ pXdge OF. T-1045 5 Chapter 18.84 - Sensitive Lands Review The applicants retained IES Associates to conduct a wetland delineation on the site. IES identified two jurisdictional wetlands on the site as indicated on the site plan. The wetlands area that is located within the proposed parking lot area has been proposed to be filled. Under the requirements of Chapter 18.84, the City of Tigard defers to the Oregon Division of State Lands and US Army Corps of Engineers permitting processes for wetland modifications. The applicants have filed a separate joint permit application with the DSL/Corps for filling of this wetland area. This area is therefore not subject to City review. The joint DSL/Corps permit application and wetland fill mitigation plan is available for review through the Planning Division although it is not technically part of this development application. Page 8 of the applicants' narrative describes how the proposed wetlands mitigation plan will work in consort with the stormwater quality treatment and detention plan required by the USA requirements for the Tualatin River Basin. The Planning commission approves the preliminary plans for this facility subject to the conditions of approval recommended by the Engineering Department. The Engineering Department will consider the comments provided by USA in the review of the final facility and storm drainage plans. Contrary to USA's recommendation, however, the City of Tigard typically does not desire dedication of such facilities to the City with the added maintenance responsibilities. Sensitive Lands Review approval is requested, however, to allow modification of the 25 foot buffer area adjacent to the wetlands adjacent to Red Rock Creek. This area adjacent to the wetlands is not subject to DSL/Corps review, but is subject to City of Tigard regulations. Community Development Code Section 18.84.028.A requires that land within 25 feet of an identified wetlands be considered as wetlands. Modifications to any area considered wetlands, not including areas under the DSL/Corps permit requirements, may be permitted subject to the review and approval of the modification plans consistent with Code Section 18.84.040.D. The applicant has addressed these standards on page 8 through 10 of the applicants, narrative. The Commission concurs with the applicants, analysis for this request. The Commission approves the Sensitive Lands Review Permit for the proposed wetland buffer modification. The following is adopted from the applicants, narrative as proposed findings in support of this request: Section 18.84.040.D outlines the following numbered approval criteria necessary to obtain a Sensitive Lands Permit for a wetland area alteration (in this case a buffer alteration) that does not meet the jurisdictional definition of other state and federal regulatory agencies. The applicant has proposed findings to this criteria. The City adopts those findings. 1. The proposed landform alteration or development is neither on wetland in an area designated as significant wetland on the Comprehensive Plan Floodplain and Wetland Map nor is within 25 feet of such a wetland. Finding: The Red Rock Creek wetland in this area is not identified as a significant wetland or otherwise identified in the City's Comprehensive Plan Floodplain and Wetland map. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU P e1T PAGE OF ' T-10456 2. The extent and nature of the proposed landform alteration or development will not create site disturbances to an extent greater than the minimum required for the use. Finding: Because of the meandering nature of the wetland line, the wetland and its buffer extend eastward toward the development area in only one spot. While the parking lot itself will be 30 feet away from the actual wetland line, the severe grading requirements of the site force the parking lot to be elevated at the western edge almost 10 ®feet. In order to minimize intrusion into the wetland and/or buffer areas, retaining walls will be used. However, construction of that wall will intrude an average of approximately 7 feet into the buffer area for this approximately 110 foot area. Of the approximately 800 lineal feet of wetland edge, only approximately 110 feet will be impacted by the retaining wall within the buffer area. The intrusion area is approximately 770 square feet. However, in an approximately 200 lineal foot area immediately north of the intrusion area, the wetland boundary and parking diverge so that the average buffer is approximately 40 feet, equalling approximately 3,000 square feet more buffer than is required. 3. Any encroachment or change in on-site or off-site drainage which would adversely impact wetland characteristics have been mitigated. Finding:- The proposed stormwater quality treatment and detention basin and the proposed wetland enhancement/mitigation plan are designed to manage on and off site drainage. 4. Where natural vegetation has been removed due to landform alteration or development, erosion control provisions of the Surface Water Management program of Washington County must be met and areas not covered by structures or impervious surfaces will be replanted in like or similar species in accordance with Chapter 18.100. Finding: The proposed stormwater quality treatment and detention basin and the proposed wetland mitigation/enhancement program will replace and substantially enhance the level of both upland, transitional and wetland vegetation within the Red Rock Creek corridor. 5. All other sensitive lands requirements have been met. Finding: • No other substantive requirements are applicable to this proposal. 6. The provisions of Chapter 18.150, Tree Removal shall be met. Finding: No trees are to be removed within this area. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU PAGES OF T-10457 7. Other Comprehensive Plan policies are met. Finding: The proposal is consistent with Physical Limitations and Natural Hazards (the area is not within a 100 year floodplain nor contains other physical hazards), Parks, Recreation and Open Space policies of the Comprehensive Plan (the area is not a designated park or recreation area and the proposed mitigation plan meets the general open space policies of the plan). Chapter 18.96 - Additional Yard Area Requirements Code Section 18.96.020.8.2 requires a minimum 30 foot setback from the centerline of SW 72nd Avenue, beyond any setback required by the underlying zoning district. As previously mentioned, there is no applicable setback imposed by the C-G zoning district. The proposed building would be set back 80 feet from the centerline of SW 72nd Avenue. Therefore, Code Section 18.96.020.8.2 has been satisfied. Chapter 18.100 - Landscaping Code Section 18.100.030 requires street trees to be planted in accordance with certain detailed standards for all developments fronting on a public or private street. Code Section 18.100.035.A specifies a minimum caliper size of 2 inches at planting and 20 to 40 foot spacing. The landscaping plan proposes minimum planting sizes for Chancellor Linden street trees of 3.5 to 4 inch caliper on 40 foot centers along SW Dartmouth Street thereby satisfying this standard as well as with the Dartmouth Street landscaping guidelines approved by the City Council on October 27, 1992. The applicants' landscaping plan also proposes minimum planting sizes for Sweetgum street trees of 2.5 inch caliper on 40 foot centers along SW 72nd Avenue consistent with the Code's street tree standard. The landscaping plan provides for appropriate low height plantings along the site's frontages on both sides of the sidewalks to reduce the impacts of cn-site lights on adjacent uses and upon traffic on the abutting streets to satisfy the standards of Code Section 18.100.110.A.1 as well as the Dartmouth Street landscaping guidelines. It is noted here that these comments are based upon the review of the submitted landscaping plan which calls for a landscaped strip between the curbs and sidewalks. The revised site plan which is part of the review package does not provide for sidewalks to be set back from the curbs. The landscaping plan is consistent with both the City Council's adopted landscaping guidelines for Dartmouth Street and also with Code Section 18.164.070.8, whereas the site plan is not. This Code section requires that a planter strip separation of at least five feet in width be provided on any collector street, except in certain conditions - none of which apply to the current situation. The Dartmouth Street landscaping guidelines call for a minimum seven foot wide planter strip. Therefore, the site plan will need to be revised to provide for a seven foot wide planter strip consistent with the Dartmouth guidelines and the applicants' la-dscaping plan. The landscaping plan also provides more than 120 trees relatively evenly distributed within and adjacent to the parking lot at a ratio in excess of the Code's standard of at least one tree per seven parking spaces (Code Section 18.100.110.A.1.d). Refuse and recycling facilities are required to be screened from views from other properties and from streets by Code Section 18.100.110.8 and D. The plans do not indicate areas for refuse FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU L-11yALT 9 -15 PAGE _Q OF "1 T-10458 and recycling facilities (although it is likely that these will be provided on or adjacent to the loading docks on the north edge of the buildings). The applicants will be required to provide details on the screening of these facilities. Code Sections 18.100.80 and .130 provide for vegetative buffering and screening between a proposed development and abutting land uses. The Code's buffer matrix does not provide for any specific buffering or screening standards for a commercial use such as is proposed and abutting commercial properties. The buffer matrix requires a minimum 20 foot buffer yard between commercial development and single-family residential areas such as is found to the east of this site. However, this buffer standard does not apply when there is an intervening street. Nevertheless, Code Sections 18.80.120.A.3.b (Planned Development approval standards) and 18.120.A.4 (Site Development Review approval standards) provide more subjective approval standards for the buffering of a new use from surrounding uses. The landscaping plan provides for well landscaped perimeters of the site with a minimum dimension of fifteen feet. The Commission finds that these landscaped perimeter areas will provide for sufficient landscaped buffering and screening to satisfy the intent of these more subjective Code buffer sections. Chapter 18.102 - Visual Clearance Areas Chapter 18.102 specifies vision clearance triangles adjacent to intersections in which the height of plantings, signs, etc. are limited in height to assure safe and adequate sight distance at intersections to reduce potential hazards from vehicular turning movements. The landscaping plan appears to be consistent with the standards of this Chapter, as long as lower shrubs are kept trimmed below three feet in height and deciduous trees are trimmed so that no branches are lower than eight feet in height. Signs are also subject to this Code section. Chapter 18.106 - Parking The site plan provides for substantially more than the Code's required minimum number of parking spaces for a combined grocery store and general retail sales plaza of this size (Code Section 18.106.030.0) . 398 parking spaces would be required by the Code standard of 1 space per 200 square feet of gross floor area for the 79,455 square foot food and beverage retail sales. 166 spaces would be required for the proposed 66,295 square foot total retail store area by the Code standard of 1 space per 400 square feet for general retail sales uses. The total required parking would therefore be 564 spaces. The site plan provides for 790 total parking spaces. The parking proposed would exceed Code minimum standards by 226 parking spaces. This may be important with regard to the need to revise plans to provide for the planter strip between the curb and sidewalk along SW Dartmouth. If the grading plan needs to be revised to accommodate the planter strip, it would be preferable to reduce the size of the parking area rather than create a taller retaining wall. Future development lots 4 and 5 will need to be reviewed for parking adequacy at the time of development review. If the property owner does re- partition this property in the future to provide the five individual lots shown on the site plan, joint use access and parking agreements should be provided amongst all of the parcels involved in this development. Code Section 18.106.040.A.1 allows up to 25 percent of parking stalls to be compact stalls. Less than 5 percent of the parking spaces to be provided would be compact spaces. This standard is therefore satisfied. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALUPfr 10 SAGE1Q OF 4~ - T-10459 Code section 18.106.020.A.c requires developments to provide disabled person parking facilities as required by State of Oregon and federal law. According to ADA requirements (Americans with Disabilities Act), a minimum of 16 designated disabled person accessible spaces are required for parking areas which provide between 750 and 800 parking spaces. The site plan provides for 18 disabled person car and van parking spaces in locations convenient to the primary building entrances, thereby satisfying this standard. Code section 18.106.020.P requires developments to provide secured bicycle parking facilities at a minimum ratio of at least 1 bicycle parking space per 15 auto parking spaces. The site plan does not provide for any bicycle parking spaces. The site plan should be required to be revised to provide for at least 53 bicycle parking spaces within conveniently located racks in order to satisfy this standard. The proposed automobile parking spaces and parking lot aisleways are appropriately configured to satisfy all applicable Code Section 18.106.050 parking area dimensional standards. Proposed loading spaces on the north side of the buildings satisfy Code Sections 18.106.080 and .090 standards for off-street loading spaces. Chapter 18.108 - Access and Circulation The proposed internal driveway and sidewalk system satisfies the requirement of Code Section 18.108.080(A) which requires that a commercial development of this size provide at least two access driveways and sidewalk(s) to provide access from adjoining streets. The plan provides for two-way driveways and sidewalks leading from both streets abutting the site as well as a one-way service driveway from SW 72nd Avenue to the loading areas on the northern side of the proposed buildings. Section 18.108.050.A requires sidewalk connections between the public sidewalks adjacent the site and the primary entrances to the commercial uses. This is provided by the on-site sidewalks along the driveways from SW 72nd and SW Dartmouth connecting to a sidewalk within a landscaped island leading to the sidewalks in front of the buildings. A fifteen-foot wide sidewalk covered by a ten-foot wide canopy extends across the fronts of the buildings. The site plan is therefore consistent with all applicable Code Chapter 18.108 access standards. The proposed internal roadway system provides good access for emergency vehicles access as well as all other users throughout the site. Chapter 18.114 - Signs The applicants, narrative states that wall signs will be installed for each of the three major tenants on the building front and that these signs will not be larger than 15 percent of the building face for any of these three buildings. These signs would therefore be consistent with Cade Section 18.114.C.l.b.i.1 standards for wall signage in the C-G zoning district. The narrative states that an additional "wall" sign will located on one of the retaining walls in the southwest corner of the site, facing Dartmouth. This -wall" sign is identified on the site plan. The Commission disagrees with the applicants that this sign on the proposed retaining wall would be a wall sign permitted by Section 18.114.C.l.b.i.1. That Section specifically mentions that permitted wall sign area is determined by the gross area of the building face (emphasis added) on which the sign is to be mounted. The retaining wall is clearly not a building; therefore, the FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU a;6;; ~q 91 I PAGE ---O~Fa , T-104.60 J Commission finds that this sign should be considered a freestanding sign and will therefore only be permitted if other proposed signage is omitted. The applicants, narrative notes that two (other) freestanding signs are proposed; one on the east side of the Dartmouth Street entrance to the development and one on the north side of the main 72nd Avenue entrance. The maximum available increase in sign copy area and sign height have been requested for these freestanding signs through sign exemptions provided in Section 18.114.130.G.l.c.ii. and Section 18.114.145.A.3. Section 114.130.G.l.c.ii provides for a 50 percent increase in sign copy area when a site contains more than a single tenant and the additional sign area is needed to adequately identify the separate tenants. Section 114.145.A.C. provides for a 25 percent increase in sign area and height if the increase will not deter from the purpose of the sign code. Attached with the narrative are drawings of the two (other) proposed freestanding signs. The dimensions on these drawings are accurate (dimensions indicated on the site plan - Sheet 1 - are incorrect). The applicant has provided proposed findings addressing the approval criteria for the sign code exceptions. Due to the size of the site, topographic differences between the building locations and the two abutting streets, and large amount of frontage on these streets, the Commission concurs with the applicants that special circumstances exist which justify the additional sign area and height requested without compromising Code purposes of limiting sign clutter. The Commission approves of the requested Sign Code Exceptions and adopts the following findings provided by the applicants. The applicants state that the two sign code exceptions are requested to more adequately identify the multiple tenants in the proposed development. Unlike many comparable retail centers with many tenants, this center is designed to accommodate three major tenants. While there will be additional retail users in Retail Space A and on Lots 4 and 5, those uses will be identified with wall signs only. Since the retail complex is designed to focus on the three major tenants, each needs sufficient identification from the adjacent roads to ensure customer recognition. In addition, since the elevation of Dartmouth at the entry drive is 12 to 14 feet below the parking lot surface, little if any of the major retail buildings will be able to be seen from Dartmouth. Given this difference in elevation, it is essential that each of the three major retail users be identified at the street. The proposed freestanding sign on 72nd Avenue is necessary since there will be no other building identification visible from that street. The proposed freestanding signs are consistent with a development of this size. The combined sign area for the two proposed freestanding signs is less than the combined sign area that would be allowed if this development had eight businesses and was classified as a shopping center. In addition, even with the requested sign exceptions, the proposed signs will be smaller than the standard CUB food signs used throughout the northwest. Even though found to be consistent with sign standards through this review, a separate sign permit must be obtained from the Planning Division prior to erecting any sign. Sign size, height, and location must be shown to conform with Code standards (including vision clearance) in order for sign permits to be issued. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Paqe 12 1T SAGE OF2 T-10461 Chapter 18.150 - Tree Removal Chapter 18.150 will be satisfied in that the applicant will be required to obtain a tree removal permit prior to removing trees over 6 inches in caliper size in preparation for development. Permits will be granted only if it is found necessary to remove the trees to accommodate structures, sidewalks, driveways, utilities, or other necessary site improvements. It should be clear from the review of the site plan and grading plan that this will require the removal of most of the trees on the site due to the significant amount of grading which must occur. Nevertheless, trees such as are located on future lots 4 and 5 should not be removed until such time as is necessary to allow for development. e Chapter 18.164 - Public Improvement Requirements STREETS The site is located immediately to the north of the future Dartmouth Street Extension and immediately west of SW 72nd Avenue. Both streets are classified as major collector streets by the Comprehensive Plan's Transportation Plan Map. Major collector streets have the following minimum improvement standards imposed by Code Section 18.164.030.E.1.a: 60-80 feet of right-of-way, 44 feet of pavement, and 2-4 moving lanes. SW 72nd Avenue adjacent to the site currently has the following improvements: 40 feet of right-of-way, 11 - 13 feet of pavement west of centerline, and no curbs or sidewalks. Typically half-street improvements are required to be a condition of development approval to bring abutting roads up to the minimum standards. The applicants apparently have no problem with such requirements and have proposed improvements beyond the minimum improvement standards based upon their traffic report's analysis of needed road improvements. Based on the applicants' traffic report, at such time as the entire Tigard Triangle is fully developed, the projected volume on S.W. 72nd Avenue adjacent to the site will exceed the level requiring a five lane facility. The applicants state that the traffic report used conservative assumptions on future development of the Triangle. The basis of those assumptions is the existing land use plan for the area which was utilized even though that plan is being reconsidered by the City. While the plan revisions have not yet been adopted, recent decisions by the Planning Commission with regard to the Triangle will likely lead to many areas that are now zoned for primarily office development to be redesignated for medium density residential use. These changes would tend to reduce future peak-hour traffic volumes from the levels considered in the traffic report. Therefore, based on the traffic analysis provided by the applicants and the proposed changes to the land use plan, the applicants are proposing the following: (refer to Gordon Davis' March 1, 1993 letter to Randy Wooley and the March 1, 1993 revised site plan): A. Between the Dartmouth/S.W. 72nd Avenue intersection, and to a point approximately 200 feet north of the 72nd Avenue driveway, an additional 31 feet of right-of-way, which will create a total of 51 feet of right-of-way on the west side of the centerline. B. The remaining frontage along S.W. 72nd Ave would have increased right-of-way to a total of 45 feet on the west side of the , centerline. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 13 n PAGE J T-10462 C. A total street section between the Dartmouth/72nd intersection and the site driveway on 72nd Avenue will have 51 feet of paving and will include: - a bike lane on the west side - a southbound through travel lane - a southbound left turn lane - a northbound left turn lane - a northbound through travel lane D. A total street section between the 72nd Avenue driveway to a point approximately 200 feet north will include: - a bike lane on the west side - a southbound through travel/right turn (into the site) - a center merge/left turn lane - a northbound travel lane E. From the north property line to a point approximately 200 feet north of the 72nd Avenue driveway: - a bike lane on the west side - a north and southbound travel lane - a continuous left turn lane F. Curbs and sidewalks will be constructed along the entire west frontage of 72nd Avenue. The Planning Commission concur with these proposed improvements along the site's SW 72nd Avenue frontage, except that the Commission points out that the sidewalk will need to be removed from the curb by at least five feet consistent with Code Section 18.164.070.B. Conditions of approval are specified at the end of this final order to specify these street improvements along SW 72nd Avenue. The proposed Dartmouth Street extension will be built under the Dartmouth local improvement district. The local improvement district will construct a three-lane roadway with curbs, and gutter within a 70 foot right-of-way between Pacific Highway and SW 72nd Avenue. Construction is scheduled to occur in summer, 1993. Approval of this development plan will therefore be conditioned upon Dartmouth Street be open for traffic between SW Pacific Highway and SW 68th Avenue prior to occupancy of any of the proposed retail spaces. Access from SW 72nd Avenue alone would not provide sufficient access for this size and type of development. The applicants' traffic report indicates that a three-lane Dartmouth Street should function adequately for approximately 20 years, under present growth assumptions, but that sometime later a five lane facility may be needed. The analysis also shows that the demand for a five lane facility does not necessarily come from the development, but from the build-out of the entire Tigard Triangle, again, under present growth assumptions. Again, the assumptions that were used in the traffic analysis are more than likely going to change as the Triangle land-use plan is revised such that lesser traffic peaks would be anticipated. As stated by Gordon Davis in his March 1, 1993 letter: In a future of uncertainty, it is nonetheless clear that under present growth assumptions, the three lane facility will function very adequately for the development of those properties and for development within the Triangle for the next 20 years. However as future decisions are made on other transportation issues, the impacts to Dartmouth will become clear and decisions can then be made on the appropriate additional improvements to Dartmouth. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 14 r i:Jn i T I ~ PAGE 14OF T-1046 In response to the traffic report's findings, the applicant is proposing the following improvements to Dartmouth Street: A. In anticipation that a five lane facility may be needed at some time in the future, dedication of an additional amount of right-of-way to bring the total right-of-way to 45 feet from the centerline. B. In addition to the improvements provided by the Dartmouth local improvement district, the following would be provided by the applicants: - A second westbound through lane on Dartmouth Street between the 72nd Avenue intersection and the Dartmouth entrance driveway to the development. - From the Dartmouth driveway west, an acceleration lane on Dartmouth Street which would transition back to the three-lane roadway. - A deceleration right turn lane for vehicles turning right into the site from Dartmouth Street. C. A 6-foot wide sidewalk adjacent to the curb. The Planning Commission generally concurs with the need for these proposed improvements along the site's SW Dartmouth Street frontage, with the following exceptions. Again, the Commission points out that the sidewalk will need to be removed from the curb by at least seven feet to be consistent with the Dartmouth Street landscaping guidelines adopted by the City Council last October as well as with the minimum five foot separation required by Code Section 18.164.070.B. Mr. Davis' letter argues that separation of the sidewalk from the curb along Dartmouth would require that a seven-foot tall retaining wall be built to accommodate the separated sidewalk without affecting the parking lot design. While we agree with Mr. Davis that a seven-foot retaining wall is not in scale with the pedestrian environment which is desired, staff has pointed out that the need for the taller retaining wall could be diminished (or extinguished) by reducing the size of the extremely large parking lot some. The proposed parking lot would provide 236 parking spaces in excess of Code standards. By reducing the parking lot by eleven parking spaces along its southern edge, the sidewalk separation should be able to be provided without an increase in the presently proposed retaining wall height of four feet. The Planning Commission will require that the sidewalk be separated from the curb by a planter strip of at least seven feet in width and that and that the grading and site plans be revised accordingly to accommodate the sidewalk without increasing the height of the retaining wall to more than four feet in height. The Planning Commission differs with the applicants traffic study with regard to the need for the proposed second westbound lane between SW 72nd Avenue and the site entrance. The Commission does not find that the traffic report justifies the need for this additional lane and we find that the additional roadway width may be detrimental to the scale of development and attractive streetscape which the City has been attempting to create along Dartmouth Street. It is understood that the applicants may desire to construct this additional lane at this time to avoid future disruption of access to the development when and if additional road width is found to be desirable. However, absent a clear prediction of future traffic and absent a final land use plan for the Triangle, the Planning Commission finds that this additional lane shall be omitted. The Commission concurs, however, with the proposed right-of-way dedication in this area so that FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 15 AGC OF T-104 buildings or other substantial improvements are not constructed upon area that may be needed for future road widening. This decision regarding improvements on Dartmouth Street will require roadway improvements sized to handle normal traffic levels for the foreseeable future rather than sized for peak traffic levels or possible future increased traffic levels. This should result in a more pleasing streetscape at all times in exchange for possible additional congestion at peak traffic periods or the possibility of future construction to add an additional lane. It is important that the City also consider the quality of the trip in transportation decisions rather than lacing primary emphasis on providing for maximum quantities of trips. The Planning Commission is therefore hesitant to recommend the scale of improvements proposed by the applicants. Recommended conditions of approval are provided at the end of this report to specify the required improvements to Dartmouth Street. SANITARY SEWER Code Section 18.164.090 requires that new developments be adequately served by sanitary sewerage collection facilities developed consistent with City of Tigard design standards. Currently there is no sanitary sewer serving the site. As part of the Dartmouth Street local improvement district, an eight-inch diameter sanitary sewer line is being installed within the street. This line should provide adequate service to the proposed development. The Dartmouth Street LID is providing sanitary sewer stubs to SW 72nd Avenue for future extension of sewer to the north. Typically, the City would require each development to extend sanitary sewer main lines to the farthest uphill property line. However, in this case there are two additional elements that must be considered: A. Cub Foods/Supervalu will not have any need for the sanitary sewer line in SW 72nd Avenue; and B. The Dartmouth Street LID shows the sanitary sewer line in SW 72nd Avenue to be located on the west side of the road's centerline. The applicants will presumably be required to provide improvements to the west side of SW 72nd Avenue as a condition of development approval. If the sanitary sewer is placed on the west side of SW 72nd Avenue and then redevelopment occurs on the east side, then it would be necessary to tear up the street improvements to get access to the sewer on the west side. It is staff's recommendation, that the developer be required to determine where this proposed sanitary sewer line in SW 72nd Avenue can be shifted to the east side of the street so as not to later interfere with the improved street. For any portion of the line that must remain on the west side of SW 72nd Avenue, the applicant should be required to provide for its installation. STORM SEWER Code Section 18.164.100.A states that development permits shall only be issued where adequate provisions for storm drainage have been made. The applicant is proposing a private on-site storm sewer system to serve this development. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 16 E:i;u I PAGE OF T-104 5 Part of the proposed wetland enhancement and mitigation program for this development works in combination with the proposed stormwater quality treatment and detention plan. In the large triangular upland area between Dartmouth Street, the parking lot, and the wetland boundary, this area will be shaped into a basin and developed as a wetland marsh. All stormwater from the project will be discharged into this basin which is designed to meet the standards for stormwater quality treatment, prior to entering Red Rock Creek. The Unified Sewerage Agency has established and the City has agreed to enforce (Resolution and Order No. 91-47) Surface Water Management Regulations requiring the construction of on-site water quality facilities or fees in-lieu of their construction. The applicant is proposing to construct on-site water quality facilities. Based on the preliminary plans, the storm water from the site will be piped into a private system. It will then be transported to one of several water quality facilities prior to being discharged into Red Rock Creek. Red Rock Creek, the identified wetlands, and the mitigated wetlands are classified as a sensitive areas under Resolution and Order No. 91-47. Classification as a sensitive area requires that an undisturbed corridor be provided adjacent to the water body. The required corridor must be a minimum of 25 feet wide, measured horizontally, from the defined boundaries of the sensitive area. The applicant has defined the sensitive area and provided for the 25 foot buffer. Where the applicant has encroached within the minimum 25 foot buffer, an adequate area of compensation has been provided. OTHER UTILITIES Code Section 18-164.120.A requires new developments to provide for the underground placement of utility services such as electric, telephone, and natural gas service. The City Council has established a fee-in-lieu-of underground placement of utilities to be assessed where it is found to be impractical to place these facilities underground due to utility provider concerns, limited frontage affected, or other reasons. The developer of this site will be responsible for underground placement of utilities on the site; however review of the final public improvement plans with affected agencies may result in a situation where these agencies would resist underground installation. Therefore, the conditions of approval provide for the Engineering Department to review the final public improvement plans with input from other utility providers and to then determine whether the utilities will need to be placed underground or if a fee should be collected. Tise Pla~zning fiommssaanS Sate, Deveapment tte~rsev~ ST3R 53=~OE?l and P3 anued I3evelopsnen ev era 3R 3 -3K50 : far tie proposed dub izooc tkjx: P pj.a~a ,aad 'Seus~.~.v~ Launds Ibevxe~x Sl.5.. 9~-UO€~ <I.;axsdfOZ~ mr~~.~'~catzana anti deva2 r~'pmertt ~rsthiss the 2rs foot area: ad3 acenL to wet lands oss the ss t gpl?zava7 , xs gzanted ~~ec~ try the ~~13.o~szn tendita,pns z: THE FOLLOWING CONDITIONS SHALL BE MET OR FINANCIALLY SECURED PRIOR TO THE ISSUANCE OF BUILDING PERMITS. UNLESS STATED OTHERWISE, THE STAFF CONTACT IS CHRIS DAVIES OF THE ENGINEERING DIVISION: 1. Previously approved lot line adjustments for the involved parcels shall be completed prior to the issuance of building permits. Evidence of the recording of the lot line adjustments shall be FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 17 11rC_L-7_ OF 2 provided to the Planning Division. STA_vF CONTACT: Jerry Offer, Planning Division. 2. The site and grading plans shall be revised to accommodate the following: a. Sidewalks shall be separated from the curb by a planter strip do" no less than five feet in width along SW 72nd Avenue, and no less than seven feet in width along SW Dartmouth Street; b. The revised plans should not necessitate increasing the retaining wall directly north of Dartmouth Street to a height of greater than four feet; C. The proposed Cub Foods sign on the retaining wail shall be omitted, or alternatively, the other freestanding sign along SW dartmouth Street shall be omitted; d. Additional details shall be provided regarding the required screening of trash and recycling facilities, as well as the screening of roof-top mechanical equipment. e. The site plan shall be revised to provide for at least 53 bicycle parking spaces within conveniently located bicycle racks. STAFF CONTACT: Jerry Offer, Planning Division. 3. The applicant shall be responsible for the underground installation of utilities along the frontages of SW Dartmouth Street and SW 72nd Avenue, unless the Engineering Department in consultation with other utility providing agencies- determines that a fee in-lieu of underground installation is justified. 4. The applicant shall investigate the feasibility of relocating the proposed sanitary sewer line in SW 72nd Avenue to the east side of the road's centerline. The applicant shall be responsible for the installation of any portion of the line that must be installed on the west side of the centerline. The City Engineer shall have the final determination as to the location. 5. An agreement shall be executed by the applicant, on forms provided by the City, which waives the property owner's right to oppose or remonstrate against a future local improvement district formed to further improve SW Dartmouth Street. 6. An agreement shall be executed by the applicant, on forms provided by the City, which waives the property owner's right to oppose or remonstrate against a future local improvement district formed to improve SW 72nd Avenue. 7. Two (2) sets of detailed public improvement plans and profile construction drawings shall be submitted for preliminary review to the Engineering Department. Seven (7) sets of approved drawings and one (1) itemized construction cost estimate, all prepared by a Professional Engineer, shall be submitted for final review and approval (NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. 8. Additional right-of-way shall be dedicated to the public along the SW Dartmouth Street frontage to increase the right-of-way to 45 feet from the centerline. The description shall be tied to the existing FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU g 8 TA44 OF right-of-way centerline. The dedication document shall be on City forms. Instructions are available from the Engineering Department. 9. Additional right-of-way shall be dedicated to the public along the SW 72nd Avenue frontage to increase the right-of-way to 51 feet from centerline (from the intersection of SW 72 Avenue/Dartmouth Street north to a point that is, at a minimum, 200 feet north of the applicants, access on SW 72nd Avenue). The description shall be tied to the existing right-of-way centerline. The dedication document shall be on City forms. 10. Additional right-of-way shall be dedicated to the public alc...g the SW 72nd Avenue frontage to increase the right-of-way to 45 feet from the centerline, (from the north property line south to where L1,. right-of-way increases to 51 feet as detailed in #9 above). The description shall be tied to the existing right-of-way centerline. The dedication document shall be on City forms. 11. Standard street improvements, including concrete sidewalk separated from the curb, driveway aprons, curbs, asphaltic concrete pavement, storm drainage, streetlights, and underground utilities shall be installed along the SW 72nd Avenue and Dartmouth Street frontages. Improvements shall be designed and constructed to major collector street standards and shall conform to the alignment of existing adjacent improvements or to an alignment approved by the Engineering Department. NOTE: The street improvements shall be as described in the applicants• preliminary plan submittal dated March 1, 1993 except that sidewalks shall be separated from curbs and the additional Dartmouth Street westbound lane from SW 72nd Avenue to the site entrance shall be omitted. 12. Building permits will not be issued and construction of proposed public improvements shall not-commence until after the Engineering Department has reviewed and approved the public improvement plans and a street opening permit or construction compliance agreement has been executed. A 100 percent performance assurance or letter of commitment, a developer-engineer agreement, the payment of a permit fee and a sign installation/streetlight fee are required. 1?:, The proposed privately operated and maintained sanitary sewer and storm drainage system plan-profile details shall be provided as part of the public improvement plans. 14. The applicant shall demonstrate that storm drainage runoff can be discharged into the existing drainageways without significantly impacting properties downstream. 15. Sanitary sewer and storm drainage details shall be provided as part of the public improvement plans. Calculations and a topographic map of the storm drainage basin and sanitary sewer service area shall be provided as a supplement to the public improvement plans. Calculations shall be based on full development of the serviceable area. The location and capacity of existing, proposed, and future lines shall be addressed. 16. The applicant shall provide connection of proposed buildings to the public sanitary sewerage system. A connection permit is required to connect to the existing public sanitary sewer system. 17. The applicant shall be required to provide an on-site water quality facility as established under the guidelines of Unified Sewerage Agency Resolution and Order No. 91-47. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU page 19 _.;~ii T-'~, a .18. The applicant shall provide, as a minimum, a 25 foot buffer (except as approved for modification by the Planning Commission'. order) which meets the requirements of Section 6.08.3, of USA Resolution and Order No. 91-47. 19. The applicant shall obtain a "Joint Permit" from the City of Tigard. This permit shall meet the requirements of the NPDES and Tualatin Basin Erosion Control Program. 20. The applicant should be aware that the City of Tigard has adopted Chapter 70 of the State of Oregon Structural Specialty Code and that the grading plan shall comply with this chapter. 21. The developer shall submit an erosion control plan ensuring compliance with erosion control standards for the Tualatin River Basin. STAFF CONTACT: George Steele, Building Division. 22. A Joint DSL/Corps of Engineers wetlands fill permit shall be obtained by the applicants, (Authority: Section 404, Clean Water Act, and ORS 541.605 to 641.695). A copy of the permit shall be provided to the City Engineering Department by the applicant. •23. No construction vehicles shall access or depart the site via Baylor Street and Clinton Street except with prior approval of the City Engineer. Approval for exceptions will be given only if the applicant can show that there is no practical alternative for access. No construction vehicles or equipment may be stored or parked on Baylor Street and Clinton Street. Parking of construction vehicles on SW 72nd Avenue shall be limited to the site frontage and shall comply with all existing regulations as to location and duration of parking. No construction materials shall be stored within the rights of way of SW 72nd Avenue or Dartmouth Street at any time. Construction vehicles means the vehicles of any contractor or subcontractor involved in the construction of the site improvements or buildings proposed under this application and shall include the vehicles of their suppliers and employees. STAFF CONTACT: Ken Schreindl, Code Enforcement officer, 639-4171. 24. A tree removal permit must be obtained from the Planning Division before removal of any trees in excess of 6 inches in diameter. The Planning Division may prescribe protective measures for the trees to be retained. These measures must be remain in place throughout construction activities on the site. STAFF CONTACT: Jerry Offer, Planning Division. UNLESS A SATISFACTORY PERFORMANCE ASSURANCE IS POSTED, THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO THE ISSUANCE OF AN OCCUPANCY PERMIT: 25. Sign permits shall be obtained from the Planning Division prior to the installation of any signs on the site which are intended to be seen from the public right-of-way or other parcels. STAFF CONTACT: The Planning Division. •26. The proposed landscaping materials and other proposed site improvements shall be installed in substantial conformance with the approved site and landscaping plans. STAFF CONTACT: Jerry Offer, Planning Division. . 27. An occupancy permit shall not be granted until SW Dartmouth Street is open for traffic between SW Pacific Highway and SW 68th Avenue. Staff Contact: City of Tigard Building Official. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page-20 ~:Gb 45 P611 OF ` APPROVAL SHALT BE VALID IF EXERCISED WITHIN EIGHTEEN MONTHS OF THE FINAL DECISION DATE. It is further ordered that the applicant be notified of the entry of this order. PASSED: This day of March, 1993, by the Planning Commission of the City of Tigard. e, Pr i Tig d Pl g fission FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALII Page 21 OF T-1 r BALL JANIK LLP A T T O R N E Y S ONE MAIN PLACE 1 OI SourHwEsr MAW STREET. Sur1E 1 100 PORTLIND. OREGON 97204-3219 ROBERT S. BALL TELEPHONE 503-228-2525 'll FAcsIMLLE 503-295-1058 fig]]@°bJP.com March 30, 1998 BY MESSENGER Mr. William A. Monahan City Administrator City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: Dartmouth Street Local Improvement District No. 40 Dear Bill: Enclosed for filing in this matter are a letter from me on behalf of Waremart, Inc., and a letter from Gordon Davis, also on behalf of Waremart. Please call me if you have any questions. Sincerely, ~kk~ Robert S. Ball RSB/ew FnIEW cc: Mr. Paul Simmons --Mflpl~n Mr. Gordon E. Davis MAR 3 0 199$ POMIAND. OREGON WAsHworom D.C. SALEM. OREGON 0163342.01 BALL JANIK LLP A T T O R N E Y S ONE MAIN PLACE 101 SoLrrRwFsr MAIN STREET. SurrE 1 100 PORTLAND, OREGON 972043219 ROBERT S. BALL TELEPHONE 503-228-2525 'll FAcsIMaE 503-295-1058 rball@bJP•com March 30, 1998 BY MESSENGER The Honorable Mayor Jim Nicolai Members of the Tigard City Council Tigard City Hall 13125 SW Hall Boulevard Tigard, Oregon 97223 Re: Dartmouth Street Local Improvement District No. 40 Dear Mayor Nicolai and Council Members: As you know, we represent Waremart, Inc., which is the owner of Cub Foods, in connection with the Dartmouth Street LID, and your proposed Resolution 98-11. This letter sets forth Waremart's response to (a) the written submission dated March 12, 1998 by and on behalf of Gordon R. Martin and Gordon S. Martin, (b) the testimony and argument made on behalf of the Martins at the City Council hearing on March 17, 1998, and (c) the Assessment Analysis Report by Harper Righellis, Inc. dated March 7, 1997. 1. Summary of Waremart's Position A. Waremart supports the Harper Righellis assessment proposal as it has been amended. B. The Harper Righellis assessment formula is within the City Council's legal right under the Tigard Municipal Code to "use any reasonable method to apportion the assessment between the properties to be specially benefited." Section 13.04.060(b)(1)(B). C. The Harper Righellis formula is fair, because it recognizes that the properties are benefited based upon their respective useable acreages within the LID boundary, rather than based upon lineal frontages along Dartmouth Street. Lineal frontage along Dartmouth Street is largely irrelevant to the respective benefits associated with the improvement of Dartmouth Street. D. It would be grossly inequitable for the City to adopt the formula initially recommended by R.A. Wright Engineering in 1984 and 1988, because that formula incorrectly PORrIA ND. OREGON WASHINGTON, D.C. SALEM. OREGON 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 2 anticipates that the improvement of Dartmouth Street would create the greatest benefit for strips of land having specified proximity to Dartmouth Street. As actually developed and to be developed, the entire developable acreage within the LID boundary will be benefited approximately equally. There is no factual basis for apportioning benefit based upon distance from the roadway. E. The wetlands on the properties in the LID area are sufficiently similar in their development impacts that they should be treated similarly in the assessment formula. The only fundamental distinction between the wetlands areas is in size. The Harper Righellis formula recognizes this and therefore deducts wetlands in determining net developable acreage. 2. The Hamer Righellis Formula Meets all Legal Criteria A. Effect of Prior Ordinances Counsel for the Martins has asserted that the City Council, in 1984 and 1988, adopted the "proximity zones method" of assessment. Accordingly, it has been urged that the Harper Righellis assessment formula represents a change in the City's commitment to the property owners, and is beyond the City's legal authority. Under this reasoning, the Martins claim that City Council has no choice but to adopt R.A. Wright Engineering's "proximity zones method" of assessment. Under the applicable City Ordinance (Section 13.04.060(b)(2)), the Council may use either a preassessement procedure (assessing the properties prior to construction based on estimated costs) or a final assessment procedure (assessing the properties after construction is completed, based upon final costs). Ordinance 84-14 was adopted to establish the initial boundary of the LID and to provide that the properties would be preassessed based upon the estimated cost of $1,995,700, on a "zone basis." Ordinance 84-17 amended Ordinance 84-14 to exclude from the district certain properties which were developed for residential uses and were determined not to derive a benefit from the LID. The Council noted in Ordinance 84-17 (Section 5) that "Benefit for purposes of LID No. 40 is hereby determined to be derived according to a property's ability to develop as set forth in the Comprehensive Plan for the City of Tigard." Ordinance 84-18 then affirmed the preassessment procedure and approved a preassessment roll. After several years of litigation by the Martins, the City Council adopted Ordinance 88-08, which abandoned the preassessment procedure and adopted the final (post- construction) assessment procedure. At a minimum, the delays and litigation costs caused by the Martins made the preassessement procedure impracticable. 0162977.01 BALL .JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 3 Contrary to the assertion by the Martins, Ordinance 88-08 did not adopt, or commit the City to, the "proximity zones method" of assessment. Because the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred. There was simply no consideration by the Council in 1988 of the formula to be used for spreading the assessments.I Upon adoption of Ordinance 88-08, Ordinance 84-18 had no further relevant effect. B. "Change" in Assessment Formula As described above, the Harper Righellis formula is a change from the R.A. Wright recommended formula, but is not a change from any prior commitment by the City Council. Contrary to the assertion by the Martins, the Harper Righellis formula does not "shift" an assessment from other property owners to the Martins. There is no current assessment formula to "shift." However, even if the City Council had adopted the "proximity zones method" of assessment in 1988, it would be legally entitled now to change that formula to the Harper Righellis formula. Even if this were a reassessment proceeding, the statute provides in such cases that the governing body my adopt a different plan of apportioning benefits ORS 223.415 (emphasis added). The cases cited to the contrary by counsel to the Martins deal with very different circumstances. In those cases, Oregon courts were dealing with actions by local governments which effectively denied to property owners the rights to notice, a hearing, and the opportunity to defeat an assessment by remonstrance. See the discussion of these cases in the next section of this letter. None of such rights has been denied to the Martins or any other affected property owner. The Dartmouth Street LID has been subject to extremely protracted rights of hearing, remonstrance and litigation. Indeed, such rights remain alive today. This is the first hearing on an assessment formula for this LID since it was changed to a final assessment LID. The Martins are not being deprived of the right to a hearing in this proceeding, and they have made clear to the City Council they are cognizant of their right to contest in court any assessment formula they do not approve. The Martins have submitted Council minutes dated April 11, 1988 in which the City Engineer noted that the "proposed ordinance would not change the LID boundary or the formula used to calculate the assessments." The ordinance itself, however, did not establish any formula. It negated Ordinance 84-18 in which a formula had been established. Note that the formula in the Engineer's Report from 1984 was merely a "recommendation" to the Council. Once it was repealed, it was never again adopted. 0162877.01 BALL JAN1K LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 4 Although the City could not legally change the character of the improvements to be assessed, and could not redefine the boundary of the district, neither of these issues is raised here. As long as the City follows its own ordinance in adopting a "reasonable method to apportion the assessment" it can change an assessment. In this case, however, no change is involved. C. The Increased Cost of LID Imt)rovements Does Not Invalidate the Dartmouth Street LID Counsel for the Martins has argued that the LID costs have exceeded the estimate to such an extent that the proposed assessments may not be imposed. Waremart is no more pleased than the Martins with the cost of the LID. Unlike the Martins, Waremart has done nothing to initiate litigation and cause delays that have increased the cost of the LID. In 1984, the costs for the LID as estimated by R.A. Wright Engineering were $1,995,7000, including land acquisition costs. In 1998, the actual costs are $5,023,639.40, including land acquisition costs. The difference of approximately $3 million appears to include an increase in land acquisition costs of approximately $1.4 million, net borrowing expense of approximately $640,000, substantial litigation costs, and other matters. The hard construction costs did not increase substantially. Except for litigation costs, nearly all of the increases are directly attributable to the passage of 14 years from the date of the original estimate. During these 14 years, the Martins have been very effective in causing delays which have increased the costs. First, they (alone among the affected property owners) challenged the LID in a trial and appeal that consumed 4 years of time and added litigation costs to the LID. After other protracted condemnation litigation between the City and Donald Pollock, the Martins for several years held the LID hostage to their attempt to impose a second LID on the property owners. They refused to approve gRy assessment formula unless the other property owners and the City would agree upon construction of an overpass and connections on Highway 217, and unless the boundary of the LID was expanded beyond 450 feet from Dartmouth Street. The refusal of Waremart and the other property owners to accept these illegal conditions has led to the current proceeding. It is also instructive that the Martins do not appear to contend that the size of the assessment automatically renders the assessment invalid. They contend that the size of the assessment renders the assessment invalid only if their proposed assessment formula is not adopted. Counsel for the Martins cited two cases for the proposition that an assessment which has increased substantially above the engineer's estimate is invalid. The most recent of 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 5 the cited cases was decided in 1916. Neither of the cases stands for the proposition the Martins contend. The cases of Miller v. Portland, 78 Or 165, 151 P 728 (1915) and Parker v. Hood River, 81 Or 707, 160 P 1158 (1916), relied upon by the Martins, both predate the LID statutes, and found that a substantial variance between an estimated assessment and a final assessment rendered the final assessment unenforceable because in those cases the property owners had no notice and opportunity to object. These are not the facts here. A more recent case, which was not mentioned by the Martins, was Crocker v. City of Albany, 241 Or 180, 405 P2d 364 (1965), which held that unless there is fraud or palpably unjust or oppressive action, courts will not interfere with a situation where a final assessment is substantially higher than the estimated assessment. Even this case, which refutes the Martins' legal position, is not directly applicable here, because the Dartmouth LID is not based on an estimated assessment methodology, and because the Martins have not been deprived of any notice or right to object to the assessment. 3. The Harper Ri6ellis Formula is Fair A. The R.A. Wright "Proximity Zones" Method of Assessment Would not Reflect the Benefits to the Properties The Martins have, on the one hand, argued that the City should adopt the R.A. Wright formula. On the other hand, they have contended, through their engineer Ed Christensen, that it was necessary to revise the Wright formula to "remove inconsistencies" in it, to recognize that the road alignments in the area are different from those anticipated by R.A. Wright, and to correct "numerous inaccuracies" in the original R.A. Wright approach. The R.A. Wright formula was reasonable when it was prepared, but the land assemblages which occurred after the formula was prepared have changed the nature of development in the area. There was no reasonable basis for R.A. Wright to predict the assemblages of land in the Tigard Triangle. Just as the R.A. Wright formula did not accurately forecast street alignments in the Tigard Triangle, it did not accurately forecast land development patterns. The fundamental flaw in the R.A. Wright approach is that it presumes a direct relationship between road frontage and benefit. Any such relationship that existed in 1984 and 1988 does not exist today. With the development parcels that now exist (and have been or will be developed), the benefits of Dartmouth Street do not depend on road frontage. They depend primarily on access. 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 6 This should be obvious by considering the following hypothetical. Assume an LID contains two parcels, each having 10 net developable acres. One of the parcels has 400 lineal feet of street frontage; the other has 200 lineal feet of street frontage. Each of them needs access to the street to make development feasible. If every other factor is equal (e.g., each parcel is reasonably configured for development), the two 10-acre parcels will have approximately equal values for development. The parcel with 200 lineal feet of frontage will not inherently be less valuable, or receive less benefit from the development of the street. The flaw in the R.A. Wright methodology (if it were to be applied in 1998) is compounded by creating artificial bands of value based on proximity to Dartmouth Street. Those bands of value assume that development of buildings on the property will be as close to the street as possible. They assume strip development of at least some of the property in the district. That has simply not been the case, nor will it be the case with future development by the Martins. These flaws were not known in 1984, or even in 1988. At that time, it was unknown that larger parcels would be created by land assemblages, and it was unknown how the parcels would actually be developed. Today, however, we know that at least two 150 foot artificial "bands" created by R.A. Wright contain parking, not buildings. The reality is that the value of these parcels is based on their size and functionality, not their lineal frontage on a street. The Harper Righellis formula takes this into account. Jerry Palmer of Alpha Engineering argued on behalf of the Martins that the "zone method" brings into parity the depth of lots in relation to street improvements. He urged that benefit should be measured by proximity of the improvement to the street, because improvements which are further from the street require the extension of utilities, reducing the value and the benefit. What this analysis overlooks is that none of the properties in the LID has a configuration requiring that the frontage be used for parking and requiring that the improvements be located toward the rear of lots. These development patterns reflect the optimal utilization of each parcel, or the maximizing of parcel values for development, as determined voluntarily by the property owners. The development patterns make amply clear that the values of the parcels are not derived from street frontage. Finally, the City Council should recognize that the "proximity zones" method of assessment would create a result in which some of the property within the LID boundary would not be assessed, presumably on the theory that it would not receive Any benefit. One of the purposes of the hearing leading to formation of the LID district was to determine that the 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 7 properties within the district were specially benefited. Excluding some of them from assessment would be inconsistent with the formation of the district, and would be an arbitrary and capricious result. B. The Martins' Primary Complaint is About the LID Boundary. The Martins have argued that it is unfair that some of the improvements in the Tigard Triangle are outside the LID. They urge that the benefit of Dartmouth Street improvements extends to land and improvements which will not pay their fair shares of the LID costs. These arguments have nothing to do with the assessment formula, which is the only issue before the City Council. The question before the Council is how to assess land within the boundary of the LID. The Martins are complaining about the boundary of the LID, which 4P was established in Ordinance 84-17, (challenged by the Martins) and is final. C. The Areas Delineated as Wetlands Should Be Subtracted in Determining Relative Benefits. Mr. Palmer argued on behalf of the Martins that not all wetlands are equal, and therefore subtracting wetlands to determine net developable acreages is not a reliable means of determining relative values and benefits. As a general proposition, Waremart agrees that not all wetlands affect development, and values, in the same way. In this case, however, the wetlands generally do affect the properties in the same way: (a) they have configurations which affect but do not preclude development of the parcels, (b) they require mitigation, requiring expense, (c) they constitute areas not available for development, and (d) they may be the basis for landscape credits for the parcels. Mr. Van Dyke urged that the wetlands which run through Martin parcels is unique and may not be moveable. This contention is contradicted by the development permit currently issued for the Martin property. In any event, however, the Martins have failed to say that at the time the LID was formed, the Waremart property also contained a wetland running through the property. It was mitigated, at Waremart's expense, as a normal part of the development process. The Martins simply face a similar obligation. There is no basis for concluding that the Martins' wetlands should be excluded from the LID formula but the Waremart wetlands should not. There is no more reliable means of taking the wetlands into account than deducting the wetlands areas in order to determine net developable acreage. 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 8 D. The Potential Improvement of 72nd Avenue is Not a Proper Factor in Determining the Assessment for Dartmouth Street The Martins contend that their assessment should be reduced because development of their property will require improvement of 72nd Avenue. The cost of 72nd Avenue improvements, the manner in which they will be financed, and the financial impact on the Martins' property (and other properties) are unknown. It would be improper for the City Council to speculate on these (or any other) factors in arriving at an assessment formula. An assessment based on speculation would be inherently arbitrary and capricious, making the assessment unfair and subject to challenge. Please note that the Waremart and Pollock properties also abut 72nd Avenue. Waremart made substantial improvements on 72nd Avenue during construction of the Cub Foods center. The cost of these improvements is not an offset to Waremart's obligations in the Dartmouth Street LID. E. Proceeds Payable to Each Property Owner for Right-of-Way Acquisition Should Not Affect the Assessment Formula. The Martins have argued that the City Council should review the net proposed assessments (gross assessments minus right-of-way proceeds) to determine whether the formula is fair. The relative proceeds from the sale of rights-of-way have nothing to do with the selection of a formula or its fairness. They simply reflect how much right-of-way each of the property owners has had to relinquish. Those who have sold more right-or-way have a greater reduction in net developable acreage (i.e., in the values of their property). The Martins perceive unfairness in the fact they have less right-of-way to sell. This is merely a fact, neither fair nor unfair. Overall, the Martins have argued for an assessment formula which would give them a windfall benefit because their land has relatively little frontage on Dartmouth Street, and have also argued that it is unfair that Waremart had more frontage to be sold as right-of-way to the City. We believe the Harper Righellis report has considered the possible alternative approaches to assessment and analyzed them fairly. While Waremart might suggest a slightly different approach in some areas, we believe it is more important to bring closure to this process. 0162877.01 -BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 9 We urge you to adopt the Harper Righellis formula for assessment. Thank you for your consideration. Sincerely, k' ~4'-r f t Robert S. Ball RSB/pjc For Distribution to all Members of the Tigard City Council: Mr. Paul Hunt Mr. Brian Moore Mr. Bob Rohlf Mr. Ken Scheckla cc: Mr. Charles E. Corrigan, Esq. Mr. Tony Righellis Mr. Douglas Van Dyk, Esq. Mr. Jeffrey Keeney, Esq. Mr. Donald Joe Willis, Esq. Mr. Gordon E. Davis Mr. Paul Simmons 0162877.01 ..GORDON E. DAVIS 1035 NW. HOYT STREET PORTLAND, OREGON 97209 503) 221-5306 FAX 503) 827-3477 E-MAIL hoyt@teleport.com PROPERTY DEVELOPMENT SERVICES March 27, 1998 PUBLIC AFFAIRS CONSULTING STRATEGIC PLANNING The Honorable Mayor 31m Nicolai Members of the Tigard City Council Tigard City Hall 13125 SW Hall Blvd. Tigard, Oregon 97223 RE: Dartmouth Street Local Improvement District 40 Dear Mayor Nicolai and Council Members: As you know, 1 represent Waremart, Inc., the owner of Cub Foods and other undeveloped property east and west of Red Rock Creek, north of Dartmouth. 1 have represented Waremart and its predecessor SuperValu Stores throughout property acquisition, site planning and approvals and construction of what is now the Cub Foods center. Prior to SuperValu and Waremart's involvement in the property, i completed the rezoning of the Duvall Street and 791 Street neighborhoods from residential to commercial. I am a development consultant and am presently managing the development of two, 20 acre shopping centers In the Sacramento area. Waremart, Inc. has asked me to provide some historical information and respond to some of the infonnation that was presented in the hearing that the Council conducted on March 171 regarding the Dartmouth LID proposed method of assessment. In particular, Waremart has asked me to comment on certain portions of the written submission dated March 12, 1998 by and on behalf of Gordon R. and Gordon S. Martin. Wetlands Waremart owns the property on the north side of Dartmouth from 72nd west to the properties that front on Highway 99. A portion of their property has been developed with the Cub Foods center. A portion of their property remains undeveloped. As originally purchased, SuperValu stores owned slightly over 23 acres. After the Dartmouth alignment was fixed, SuperValu, then Waremart, entered into an agreement with Western-Duff Partners, then Costco to transfer that portion of the Waremart land that was west of the Dartmouth alignment to Costco in exchange for the rights to use '/2 acre of uplands In the southern portion of the Costco property for future wetland mitigation associated with the development of the Waremart property. The 23 acres that SuperValu purchased was the property that it Intended to develop as a retail center which would include a Cub Foods store and other retail users. However, Red Rock Creek and its associated wetlands go right through the middle of the site. Early in the planning stages it was determined that there was no possibility of relocating a creek of this size and natural significance. The only alternatives to develop the property were either to span the creek with a road incorporating both sides of the creek into a single development project or to divide the parcel and create two completely separate development projects. The Honorable Mayor Jim Nicolal City Council Members of the City of Tigard March 27, 1998 Page 2 Several alternate development plans were prepared that tried to Incorporate both sides of the creek Into a single commercial development. However, the effort to cross the creek and wetlands was simply too great to justify the cost and mitigation requirements so we proceeded with two separate development projects. Even then, in order to develop the east side (with Cub Foods), a wetland fill of .15 acres was required and mitigation creating .68 acres of new wetland was completed. A wetland fill permit has also been obtained to develop the western property, which will involve a fill of .18 acres and mitigation creating .79 acres of new wetland (.23 acres of which will be done on the Costco property). Waremart intends to proceed this year to complete this west side mitigation project. In the written submittals on behalf of the Martins, Mr. Palmer's contention that "all wetlands, In their form and configuration, do not impact development potential equally,..." (Palmer. p.3) may be true In the abstract but is not so when applied to the properties in the LID, in particular the Waremart parcel. Mr. Palmer cites as an example "...a long narrow bank of wetland along a stream, diagonally through a site, is far different than an equal area that Is within a rectangular area in one corner of a parcel." (Palmer. p. 3) While Mr. Palmer does not cite either the Martin or the Waremart parcel as the basis for this example, since the bulk of the Martin argument is directed toward Waremart, It Is safe to assume that he was referring to these two properties In his example. However, the example simply does not hold in the face of more Information. First, the Waremart wetlands and creek completely bisect the Waremart property and effectively divide the property into two separate development projects. If one looks only at the Cub Foods side of the Waremart property (which it appears Mr. Palmer has done), Mr. Palmer's contention may be right. But that a view that is possible only after development is complete, not before. Second, while it may be convenient to look at the Martin wetlands in their present natural state and argue that they effectively bisect the property and therefore constrain development, we know the actual constraint is much less dramatic. The Martins have received a wetland fill permit (Division of State Lands permit #RF 9256) which allows them to fill 1.55 acres of wetlands in exchange for creating 2.0 acres of new wetland. Their permit allows them to relocate their "long narrow band of wetland along a stream, [running] diagonally through a site..." to a location adjacent to and parallel with Dartmouth with at least two road crossings into their development. It is clear that Mr. Palmer was attempting to demonstrate that the wetlands have affected the Martin property far greater than the Waremart property but In fact, exactly the opposite is the case. Furthermore, the Martins should be pleased that their fill to mitigation ratio is only 1 acre of fill to 1.29 acres of mitigation whereas Waremart's ratio is 1 acre of fill to 4.45 acres of mitigation. Harper Righeiiis may not have accurately accounted for wetlands and mitigation areas on each property, but there is no doubt that each property owner has had to contend with wetlands and that each has or will be affected more or less by the physical constraints they pose and by the real costs of providing mitigation. The major LID properties do not have identical wetlands, but the Martins have not had to divide their development parcel Into to two separate development projects because of their wetlands. They have been able to obtain a permit that allows their property to be developed as a single project with minimal impact to the development. Waremart has not had such flexibility. As to the contention that wetlands can be used to satisfy the city's 15 percent open space requirement (Martin, p. 12) and should therefore not be excluded from the LID assessment area (as Harper Righellis has done), the city code does not require open space in commercial zones. The city does have a 15 percent landscaping requirement, which can, In part, be met by wetlands. However, the city code also requires that all commercial projects must have landscape screening of parking and loading areas, landscape planters throughout the parking lot at a ratio of one for each seven parking spaces, street trees and In some cases landscape buffering to adjacent properties and roads. Only after having complied with the city's mandatory landscaping requirements and only to the extent that those requirements do not equal 15 percent landscape coverage, may a project use wetlands to achieve the 15 percent requirement. As a practical matter, most commercial centers achieve their 15 percent landscape requirement solely through mandatory landscaping. s ' The Honorable Mayor Jim Nicolal CiryCouncil Members of the City of Tigard March 27, 1998 Page 3 To keep wetlands In a property's LID assessment area because they might be able to be used to satisfy the 15 percent landscaping requirement simply doesn't match with other mandatory landscape provisions and is in any case, highly variable on a project-by-project basis. LID Assessment Methodology I think it is important to understand what R.A. Wright was working with when he developed the original assessment formula. In the city's Comprehensive Plan, Dartmouth was clearly Intended to be the catalyst for development of commercial uses in the Triangle. In fact, the Comprehensive Plan precluded any commercial development in this northern area of the Triangle until Dartmouth was committed for construction. This Is why the Martins various legal challenges not only kept the road from being built, but any of the commercially zoned properties from being developed. At the time Wright was developing the formula, he was working principally with the properties that were zoned commercial. No one could possibly contemplate that either Waremart or Costco or any other developer would purchase the 14 homes on Duvall Street or the 19 homes on 79t', rezone those properties to commercial and consolidate them into a larger commercial development parcel. Certainly Wright would have been nailed to the wall if he had suggested that those residential blocks be included in the LID. It was because of this that Wright was faced with a potential Improvement District, as Jerry Palmer indicates, containing "unbalanced parcels." (Palmer, p. l ) If the commercial property had developed as it was zoned at the time, the type of commercial development would have been dramatically different between the Martin property and the other properties. The Martin property was (and is) large, deep and relatively square whereas the properties on the north and west sides of Dartmouth were relathely narrow and long. This difference in parcel configuration created a significant difference in the development potential of property that was available to Wright to spread the assessments. Such a difference made it almost impossible for him to consider any other formula than a front footage basis. Jerry Palmer is probably correct when he says that the "R.A. Wright methodology is fair and reasonable." (Palmer, p. l ) At the time and with the circumstances in which he was working, Wright's methodology may well have been fair and reasonable. However, 14 years later, in this time and under the circumstances as we know them today, Mr. Palmer poses the correct question when he asks, "what has changed to suggest that the R.A. Wright method of assessment... is not valid today?" (Palmer, p.1.) The answer is that a great deal has changed from 14 years ago. SuperValu/Waremart purchased, removed and rezoned the entire Duvall Street neighborhood. In all, 24 parcels (only 8 of which were in the original LID) were purchased and consolidated into a single commercial development parcel. Even though the wetlands that bisect the parcel ultimately forced Waremart to divide the property into two development projects, the consolidation of residential properties from the proposed Dartmouth alignment north to the theater complex, clearly changed the way in which the property on the north side of Dartmouth would develop. The same thing occurred with Costco. Western-Duff Partners/Costco acquired 25 parcels, 19 of which were residential homes along 791 Street. That property was rezoned commercial and eventually consolidated along with the adjacent commercial property into a single commercial development parcel. When these two acquisitions and consolidations occurred, no longer are the Improvement District's development parcels "unbalanced." The Waremart/Costco acquisitions and consolidations resulted in three relatively similar commercial development parcels (albeit Waremart's parcel was split into two separate development projects by wetlands). Actual construction by Waremart and Costco and Martin's various development proposals clearly show that each contain one t, The Honorable Mayor Jim Nicolal City Council Members of the City of Tigard March 27, 1998 Page 4 or more major retail users along with retail "pads" and secondary retail uses. Each has large parking lots and each take their access from one or more locations on Dartmouth and for Waremart and Martin, 72nd. The actual "frontage" that each has on Dartmouth has neither constrained nor enhanced the manner In which the development has been shaped. Instead, the form of each development Is a function of both the road frontage and the overall size, shape and depth of the parcels. This would not have been the case for the commercial properties as they existed prior to the Costco and Waremart acquisitions and consolidations. The Martin property could have developed exactly as they have now proposed. However, neither the original north nor west side properties could have developed as Waremart and Costco has now done. Because of their original shape and size, they would have been developed with one or more buildings generally aligned parallel to Dartmouth in the typical "strip center" configuration. The size and depth of the properties precluded "anchor" use like Cub Foods, Costco or most other large anchor retail uses. Instead the commercial buildings would have been filled with smaller, individual retail uses for which, In the absence of a strong anchor retail use, visibility from Dartmouth would be essential to their survival. Wright understood both this development potential and constraint and created an assessment formula that accurately reflected the only reality that he could contemplate at that time. But today, the benefit that each property derives from Dartmouth is less from the visibility afforded to the development, than from the access It provides. In fact, the real development value of the Martin, Waremart and Costco properties is from their size, shape and depth and their access from Dartmouth. The Harper Righellis formula recognizes this and recognizes that only the Martin property had this value in 1984 and that things have indeed changed dramatically in these 14 years. Conclusion Mr. Palmer is right when he says, "there is not right or wrong, there is really only the search for fairness." (Palmer. p. 2) Both R.A. Wright and Harper Righellis have developed approaches that are fair. The difference Is 14 years. Harper Righellis presents an approach that Is fair in today's terms and reflects what we now know and what Mr. Wright could not have known In 1984. Thank you for your consideration of this Information. Sincerely, Gordon E. Davis ENI STEN S EN GINEERING, INC. C.,t.~~ by PLANNERS, CIVIL ENGINEERS, AND SURVEYORS C~~'3~r✓,..g~,.~ MEMO TO: Doug Van Dyk, Esq. FROM: Ed Christensen, P.E. RE: Dartmouth LID Construction Project Benefits DATE: April 10, 1998 At the hearing on March 17, 1998, Mayor Jim Nicoli, questioned whether the Dartmouth LID benefitted more than just the adjoining properties fronting Dartmouth Street. Because the entire Triangle area has not developed, it is difficult to directly correlate the benefits of the Dartmouth Street project improvements to adjoining existing and future projects fronting and not fronting Dartmouth Street. This is primarily because both the street and the underground utilities installed with the Dartmouth Street LID improvements benefit areas outside the Dartmouth LID which either have been or will be developed. Further, though extensions of the storm drainage and sanitary sewer systems can accommodate areas of service outside the LID, so can other utility extensions not within the Dartmouth LID project boundaries or scope. However, on the major improvements constructed with the Dartmouth LID, the fronting and other properties in the Tigard Triangle have or can benefit in the following manor: STREETS Without the Dartmouth Street improvements, none of the fronting properties along Dartmouth could have developed in the manner or to the extent contemplated or builtout. Though most of the properties have frontages on other corridors such as Pacific Highway, S.W. 72nd Avenue, S.W. 691, Avenue, and Hermosa Way, because of topographic, site distance, access spacing, and natural resources constraints, it is unlikely that any of these properties could have developed anywhere near the manor that they have or are currently contemplated to be developed without having Dartmouth Street in place. Further, given the development contemplated by the City of Tigard in the Triangle Street Plan, there is no way the remaining Triangle could develop without Dartmouth Street as constructed or completion in a similar form. Because the traffic capacity of Dartmouth is currently almost used up, it is evident that the majority of the benefit of the Dartmouth Street improvement is derived by projects developed outside of the Dartmouth LID, i.e. parking lots do not generate traffic. STORI\I DRAINAGE None of the properties on the west and south side of Dartmouth receive any additional benefit from the storm drainage improvements constructed within Dartmouth, except a minor amount at the 7150 SW Hampton Street, Suite 226 • Portland, Oregon 97223 • Phone (503) 598-1866 • Fax (503) 598-1868 E-Mail: cei@cybcmw.com driveways. Properties to the east and north of Dartmouth were provided stubs into the storm drainage system for their future use, though the Cub Foods parcels will not likely utilize their stubs except as required for the SW 72nd Avenue improvements. Therefore, the benefit from the storm drainage system constructed for the Dartmouth Street improvements benefits primarily Dartmouth Street, SW 72nd Avenue and the Pollack parcel north of Dartmouth Street. SANITARY SEWER SYSTEM As previously discussed, the sanitary sewer system as constructed in Dartmouth was contemplated to sen-ice areas outside the Dartmouth LID, as well as areas within the Dartmouth LID. Currently, the only properties utilizing the sanitary sewer system as constructed are properties outside the Dartmouth LID, or exempt properties. These properties are Car Toys, Costco, and Cub Foods. Depending on whether the Candlewood project extends sewer as proposed to the south side of the Martin property and develops ahead of the Tri-County Center project, the logical sanitary sewer service for the back portion of the Martin project would be provided off of Hermosa Way and not from the sanitary sewer system constricted in Dartmouth Street. Therefore, except for the pads fronting Dartmouth for the Martin and Pollock properties, the properties benefitting from the sanitary sewer system as constructed in Dartmouth are located primarily outside of the local improvement district. WATER SYSTEM A 16-inch water main was constructed with the Dartmouth LID improvements. The 16-inch water main was oversized and interconnected with existing 12-inch lines in S.W. 69`h Avenue, S.W. 72nd Avenue, and Pacific Highway. The oversizing of this waterline is directly attributable to increased demand for properties adjoining Dartmouth Street, and does not likely provide additional capacity outside of Dartmouth Street except in extreme fire demand cases. As constructed and contemplated, the only properties benefitting currently from the 16-inch waterline as constructed in Dartmouth Street are Office Max parcel, Costco, the Cub Foods remainder parcel, and the pads fronting Dartmouth Street on the Martin property. Both the majors on the Cub Foods parcel as currently developed, and the Tri-County Center project as proposed, will obtain their water from S.W. 72nd Avenue. Therefore, the only parcel fronting Dartmouth Street benefitting from the waterline as constricted in Dartmouth, and being outside the Local Improvement District is Costco. CONCLUSION As reviewed, the primary benefits of the Dartmouth LID project are currently utilized by areas outside of the Dartmouth LID. Only development of the Martin and Pollock parcels, could come close to correctly utilizing the Dartmouth LID improvements as originally contemplated under the R.A. Wright formula. As currently developed, properties outside of the Dartmouth LID are benefitting massively, while not supporting there fair share costs. The only method of assessment that even comes close to adequately sharing the costs of the Dartmouth LID improvements, is the Zone Method of Assessment. 7150 SW Hampton Street, Suite 226 • Portland, Oregon 97223 • Phone (503) 598-1866 • Far (503) 599-1868 E-Mail: cei@cybem%v.com GORDON E. DAVIS 1035 NW. HOYT STREET PORTLAND, OREGON 97209 503) 221-5306 FAX 503) 827-3477 E-MAIL hoytgteleport.com PROPERTY DEVELOPMENT SERVICES April 10, 1998 PUBLIC AFFAIRS CONSULTING STRATEGIC PLANNING Memo to File RE: Phone conversation with Oregon Division of State Lands On April 10, 1998, 1 had a phone conversation with )enny Zickers of the Oregon State Division of State Lands regarding the status of Removal/Fill Permit #9256. This permit was issued on August 2, 1995 to Gordon Martin. The permit was renewed in 1996, 1997 and is presently in force and due to expire on June 14, 1998. The renewal notice has not yet been sent to the permit holder but will be sent out approximately one month prior to the expiration date. I f ► PeraiL l,Remo tc~l /Fill To Fro,n! Watem-ay: rid d Rack Cr Co. Counts; ffg4hk Stan. County Expiration Date: .Au_2, 199 61.-b/ -C~J • H P:,o'1i a Pore o =ax » ;Uf7 -7-42-1 FdX a ~-GORDON HARTLY IS AtTI ORr= IN ACCORDANCE WITH ORS 196.800 TO 196.990 TO PERFORM THE OFF-RATIONS DESCRIBED IN THE ATTACfOED COPY OF THE APPLICATION, SUBJECT TO THE SPECIAL CONDI'T'IONS LISTED ON A rACTffiIENT A AND TO THE FOLLOWING GENERAL CONDITlONS_ 1. This permit does not authorize trespass on the lands of others. The permit holder shall obtain all necessary access permits or rights-of-way before entering lands owned by another. 2. This permit does not authorize any work that is not in compliance with local zoning or other local, state, or federal regulation pertaining to the operations authorized by this permit. The permit holder is responsible for obtaining the necessary approvals and permits before proceeding under this permit. 3. All work done under this permit must comply with Oregon Administrative Rules, Chapter 340; Standards of Quality for Public Waters of Oregon. Specific water quality provisions for this project are set forth on Attachment A. 4. Violations of the terms and conditions of this permit are subject to administrative and/or legal action which may result in revocation of the permit or damages. The permit holder is responsible for the activities of all contractors or other operators involved in work done at the site or under this permit. 5. A copy of the permit shall be available at the work site whenever operations authorized by the permit are being conducted. 6. Employees of the Division of State Lands and all duly authorized representatives of the Director shall be permitted access to the project area at all reasonable times for the purpose of inspecting work performed under this permit. r . Any permit holder who objects to the conditions of this permit may request a hearing from the Director, in writing, within 10 days of the date this permit was issued. NOTICE: If removal is from state-owned submerged and submersible land, the applicant must comply with leasing and royalty provisions of ORS 274.530. If the project involves creation of uew lands by filling on state-owned submerged or submersible lands, you must comply -with ORS 2-4.905 4.905 - 2 i 4.940. This permit does not relieve the permittee of an obligation to secure appropriate leases from the Division of State Lands, to conduct activities ova state-owned submerged or submersible lands. Failure to comply with these requirements may result in civil or criminal liability. For more information about these requirements, please contact the Division of State Lands, Waterway Leasing Office, 373-3805. Earle A. Johnson. Manager Western Region Field Operations Oregon Division of State Lands August 2. 199 Authorized ?nature Date Issued V . ATTACIDYiENT A Special Conditions for :material Removal/Fill Permit No. 9256 1. This permit authorizes the placement of up to 26,350 cubic yards of fill material and the removal of up to 59,200 cubic yards of material in Section 1, US, R1W (Red Rock Creek Tributary) for commercial development as outlined in the attached permit application, map and drawings. This permit also authorizes the removal of material necessary for wetland/stream creation as specified in special condition 7 below. 2. Turbidity shall not exceed 10`c above natural stream turbidities as a result of the project. The turbidity standard may be exceeded for a limited duration, (per OAR 340-41) provided all practicable erosion control measures have been implemented as applicable, including, but not limited to: -use of filter bags, sediment fences, silt curtains, leave strips or berms, or other measures sufficient to prevent offsite movement of soil; -use of an impervious material to cover stockpiles when unattended or during a rain event; -waste materials and spoils shall be placed at as approved upland disposal site and not in any unauthorized wetland areas; -all areas of soil disturbance shall be seeded or otherwise revegetated with native species upon completion of construction to prevent subsequent erosion. 3. Petroleum products, chemicals, or other deleterious materials shall not be allowed to enter the water. 4. Operation of equipment in the active flowing stream shall be between September 30 and July 1. 5. No fresh concrete shall come into contact with the active flowing stream. 6. Removal of emsting woody vegetation shall be minimal. MITIGATIOIN CONDITIONS 7. The following conditions apply to the replacement stream/wetland as described in the application and as depicted on Figures 2 through 4. a. The wetland shall be constructed prior to or concurrently with the construction project. b. The wetland shall be excavated cr maintained as outlined on Figure 3 with slopes ao steeper than 3:1. - page one- Attachment A RF 9256 Page two c. The shoreline of the wetland shall be seeded or planted with grass and/or legumes, native shrubs and trees as described in Figure 2 of the Landscape Plan. Frees and shrubs shall be of the species indicated with the addition of Black Twinberry U&picera invo data), plantings shall be spaced a mi.-rnum of 6 feet O.C. with some clustering of vegetation. Following planting of the area, the vegetation shall be allowed to establish a natural character with minimal maintenance. The criteria for success shall be 8001o survival for a period of five years. d. The issuance of this permit is conditional upon establishment of replacement wetlands of appro--dmately 2.0 acres and the preservation of 0.41 acres of existing wetland for loss of 1.55 acres of wetland .habitat. e. The newly created wetland and preserved wetland shall be fenced with a minimal four foot high vinyl coated fence to protect the area from human impacts. LIO OMNG COhUTIbNS 8. To insure a successful habitat replacement the permittee shall, for a period of five years, maintain the wetland until vegetation has become established and the area is functioning as designed. 9. The applicant shah establish fixed photo points. Photos shall be taken, annually from the established points for monitoring purposes. A photo documentation report shall be submitted annually to the Division of State Lands for a period of five years after wetland construction. CO - t~,TY COMMONS 10. The Division of State Lands retains the authority to require appropriate corrective actions to the mitigation site in the event the newly created wetlands are not functioning as designed within a period of five years. 11. The Division of State Lands retains the authority to temporarily halt or modify the project in case of excessive turbidity or damage to natural resources. August 2, 1995 i RECEIVED '-1 US Army Corps PERMIT APPLICATION FORM of Engineers T~s APPI.P'AcN vAL'. MEv -.?is R:avq.-ME'--S OF eON AGi$V 2 8 1994 Portland District . e Corps Action ID Number Oregon Division of State Lands Number SEND ONE SIGNED COPY OF YOUR APPLICATION TO EACH AGENCY. Disrict Engineer State of Oregon A, N: CENPP-PE-RP Divlsion of Stote Lands P O Sox 2946 775 Summer Street NE Portland. OR 97205-2946 Salem OR 97310 503/326-7730 503/378-3805 Apclicant Ncne Gordon S. Martin business phone x (.,03) 620-2477 and Address 1L266 sir lend avea ue home phone „ Tl~-~"d O 9722':3 FAX* (003) C20-1542 O Cc-Applicant business Chane O Authoried Agan1 K O Conlrrctor home phone NCme Cnd Address FAX R PrOaerry Owner business phone n (idctferenT `~cn a=--ficcn7 home hone Name and AdCress phone =AX C NoJEc:T LOCATION S,iaeT. Roco or osner cesc iprve :cca-.ion i Leacl Desc icron ~ucrTe• y Secrion Townsnip Range In or Neor (Cily or Town) Counry icx Map Tax pct R Ott 6-.)e S x .41 /UV /U/ Gb/ ` cf 4U/', `/O`2_, Waterway River Mile I LaMude Longitude 1S COnSer.7 t0 2..^.'6C : frpery granted fc The CCr~s end .he CIV:sign of:tCt@ LCnds? 0 Yes 0 No PROPOSED PROJECT INFORMATION Ac'ivity ;yp2: 0 =111 0 Excavc cn (re rovc~ 0 In-Wa-e, StTucture 0 Maintain/Repair en Existing S1LOTure Brie` 1esCr p ic. c- - ~t=~-6-7 ~c rrr a ca ? ~^~ci~' deye? ow^-nt Fill will involve cu4:0 v^r. s Cn.nuclly a;:nd/cr Cubio yards for ^ne roTo7 project --:3C,L_ cu:lc yc: cs ir, c wetland o: ~e_cw the ordinary high water or high ride line FiTi wiG he 0 .'<ipra C),Rccx 0 Grcvel 0 Scr.C 0 S;rt 0 Cloy 0 Organics Cther 1*_--tt- 2I F-11 Fill 1^npcc' Arec is 1._55 Az as: lengf % width: - depth Removal •x.111 valve cubic yards cnnuclly cnd/or _ .20^_. cubic yards for the totei protect cucic yards I-_ "low n.e ordinary Non wCfer or high tide line Removal witf b=- 0 ,ipra 0 ,ZCcl, O Grcve: O Scnd 0 sit 0 Clay 0 Organics 0 Othar R3movallr.-pactAree's i. ws ?s-ir.:.edSrC-Cc;a ?7r Ica: E-irrC:ec October- lam, 1993 CCTpIocn~CTB V.`:11 any ma-er.cl. Ccrs'~o cn -=.rrs.:~nc'. 5'C. enter o wetland or w_'erwoy? Q Yes 0 NO I° y35, C~S : 2 t 1@ ^~rc O~ C:~C. ' Cc Cna YCw The C?SC'^Crge ,CCCtiCn on The sj'e Plan. li7 Ell l Frc;=`r =c_a cnd `.-z= The ;Mania's, the prepc-tp owners. proposes to deve!op the 25.35 acre site into a 340,000 Plus square feet commercial,'retait crater. The City of Tigard has zoned the site for commercial test, and it is the last large commercial property in the Tigard Triangle, and oce of the few undeveloped large parceLs in the City Limits. Project description: There is as existing demand for big-box developments in the METRO urea. The project coasists of developing the site into a 340,000+ square foot cotamcvrciallretail teeter and associated parting. The center piece of the proposed development would be a 185,500 square foot pad, which would be used for a big box re=tail center. In addition there would be 5 - i smaller pads. Most of the rest of the site would be used for parking. There use approxmately 1.96 acres of wetlands on the site. The development would directly impact I.5S acres of the wc!]=d.,. The wetland impacts would be mitigated partially on site, and partially off site. See attached,Qnalvtis ofAlternartve: and Vends report for a more detailed project description. How many project drawing sheets cre included with this cppl!coticn? 7 NOME: A complete opplicotion must include drawings and a location mcp subs-&ed On Separate 8'/2X 11 sheets. (J PROJECT IMPACTS AND ALTeRNATrVES Oescnbe alternative sites and mroject designs that were considered to avoid impacts to the wcterway or wetlon:d. There are no other available sites vdthin the Tigard Triangle that meet the needs for this type of development. In addition, we developer has owned the property since the 1920's. They art: toing to develop the property under their ownership. T bev have been truing to develop the property for approximately 15 years, and only recently has their be any interest by commercial/retail concerns. Since there were not any other sites available to the developers they considered four different project desivms. See attached.4naF_.sis of.4lrernarives and Veed report for a detailed descriptiota of the four different alternatives. Cescnbe whet mecsures you will use ('before end otter constr~jznon) to minimee irrpac s to the wcer.'vcy er v: eticrd. The portion of the site that will be undeveloped will be clearly marked, and a silt fence or hay bales will be installed along its edge prior to any clearing or excavation- Construcrion in and around the wetlands will occur during the dry summer months to reduce runoff and sedimentation. Prior to the project going out for bids an erosion control plan will be developed. Runoff from the developed area will enter a water quality/detention facility prior to entering either the wetlands or natural drainages. NOTE; necassc v, :s2 addi loner sheets. C ADDmONAL INFORMATION A.cloinirg =ropery Owners and Their Ad_resaes cnd Phone Nurncers Les the prcncs,d ccInviry or any re!c=sd cctiviy received me etfenticn of the Caps of Engineers cr we State of Oragcn in tt-.e pest, o.~., we"_rd : elinecticn, viciC'or, perr,it, lecse r?cuest, 5' O y_=3 0 NO ,f yes. wNCt 4e-ih; oct;cn nurnbei(s) were c;signed by tt'e respective agencies: Ste :o[al ccr prehens:vp pion cno :cuing orc.,n:rye. OTl,ts G-cject I',ps been revewed and .'s ccrus&ent with the local comprehensive plot) cnd zoning orc:ncnca. Ofiis prcrEC' heS teen reviewed cnd is not consistent with the local comprehe =tiive plan cnd zoning ordnance. Consistency of this project with the local planning ordinance ccnrtet be dererr;uned until the following local approval(s) are oetaired: OConCitionol Use Approval evelapment Permit 0 elan Anerciment Ozone Change hest 751evts. 1-4-cd~ 4QC- Jv An o;:aGcction r 0 ?-,es not been mode for loco) approvals checked above. Sgncr.,re (of local plCnrrng ofiicic:) T'rfte City / Go D C COASTAL ZONE CERMFICATION If the prCoosed a .t deSerit-ed in your permit application is wilttin the Oregon aortal zone. tt,e following car fiicotion is required before your ceclicction can be pro -d. A public notice will be issued wtlh the certification sTaterment which wia be torwaraed to the Oregon Dep(2mnent of Lana CorservQdon and - icoment (:)LCD) for Its concurrence or oojection. For additional infcr-mction on the Oregon Cooed Zone tvtoncgement Progrcr% confocr . eoartrrent of 1175 Court Street NE. Sclera Cregcn 97310 or call 373-00.°0. CER ON STATEMENT I cemfythct. ro sue I*er of my knowledge and t_e6ef. the pro ^ aCviry Cesc652a in this =pricdtion Complies wft. The approved Cregon Co=al Zone Mcrcye.nert P ogron and will be completed in o mo ccrsistent with the program. Print/Typ-o Name Tne Acp i ;am Signature Date V SIGNATUiie FOR JOINT APPLICATION (REQUIRED) APClic:c:Vo•^ is her_ty mace for ate a vibes descrbec herein. I cor)"y that 1 ern far rjT= with the inform ion contained Tl the Cpl=rrcrtian. and, tc T; ,e best of my la,.cwledge and beIlef. this informcticr. is me. complete. arc accurate. I further certify trot I pesess the cti."orty ino(ucing the necesscry requisite property interests to undertake tiie proposed ecivities. I understcnd that the gronting of outer permits oy tea=l. e=c nty, rare or fe:erci a;encies does not release ne from the reCZuuerner t of obtdning the perri's requested before Comr aencing the project. I undervcnd tnat local permits may:)-- required before 'me rate remova1-11 permit is isrued. I LTtderstcnd Mar pay-e^t of the required Sri a ,Crocessing fee does not yuorcnree per, at ° =-,ce. irtrl'(-Y G-,e { ^?C~ ~ fry ; irt+A ;,~c....r s~rtityrr tcxspr~c.:r.~ Case r I car-ify -~Gr ; racy cc' cs fide dory cuthorzec ogert: of `tie cppiiccr.T. x+6.1_ ~2_ ~Q°-1t ~i~•,G ~''d - !9 Site Conditions of impact crea Irnpcct crea is 0 Ccecn 0 Estucory 0 7Rnwv 0 Lcke 0 Streom (9 Freshwater WeNond Note: Estuc:ion Resource Replacement is required by Vote low for prcjects involving intertidal cr tidol marsh ettercticns. A separate Wetlands Resource Compers=lion Plen r-.cy be appended to the appGCotion. Has a wetland delineation been completed for this site? ~D Yes 0 No It yes, by whom: Dr. Martin Schott 152 SE 3rd Ave, (503) 266-6946 Canby, OR 97013 Describe the existing Physical and biologicol character of the wetland/waterway site by area and type of resource (use s2aarate sheets cnd photos, if necessary) See the enclosed wetland delineation report for a description of the site. The wetland functions were assessed using the method developed by Reppert et- a] 1979, and it is attached to the application packet, Resource Replacement Mitigation Describe measures to be taken to replace unavoidably impacted wettond resources The project would impact approximateit• 1.55 acres of the 1.96 acres of wetlands on the site. The wetland impacts would be mitigated for partially on site and partially off site. The project proposes to relocated most of the drainage which bisects the property 8uther to the north. It would run parallel to Dartmouth Road. The relocated portion of the drainage and its associated wed=.L- would be 0.41 acres. and there would be a 15 foot wide buffer strip on both sides of the drahmee. The %vetland alone the dramsee would be planted to scrub-shrub species, with a grass/sedge undcrstery. The off-site mitigation would be located adjacent to Cook Faris. It would enlarge an existing wen=d mitigation area by 2.2 acres. The existing mitigation area consists of a pond and island complex with the steep banks planted to trees and shrubs. The islands are primarily emergent wetlands. The proposed mitigation was designed to complement the existing mitigation area, and to replace the wetlands impacted by the project. The proposed mitigation consists of developing emergent, scrub-shrub, and forested wetlands. No open wat- fcatures are proposed bccauso the existing miazatioa aria alreadly has a large proportion of open water. The emcreent wetlands are designed to be narrow bands between scrub-shn:b and/or forested bawds. The scrub-shrub communityy will consists of a nearly solid stand of nutka rose, which is the s,=b-stuvb community that will be impacted. The formzd bands vi-M consist of a rai=e of Oregon ash and Douglas hawthorn. This is intended to r-place the 18 Oregon ash that arc within the wetland that would be impacted. Sze mitigation enclosed mitigation draNyines. Location: 1/4, S-CTI0 14, ' UG 77,:'?P TI&S, FL-!:\-a ?Mi, W.M' TL #1500. .N11TlG.%TI0ti I oR %v r:•rLAND IMPACTS «'ETLAND IMPACTS The project would impact approximately 1.55 Acres of the J.96 acres of wetlands on the project area. There would be approximately 1.41. acres o1'emergent wetland, and 0.14 acres of forest/scrub-shrub wetlands filled. WETLAND FUNCTIONS The wetland associated with the drainage which bisects the property was evaluated using the Reppert method. The wetland had moderate or low values for nine wetland functions (see attached evaluation forms). The wetland had it moderate value for the Natural Biological Function. Two of the three sub-categories of this function had moderate values, and one had a low value. The ephemeral nature of tJtc drainage, the lack of open water, and the small size or clue wetland were the limiting features. The wetland received a low score for the Aquatic Study Area and Refuge function. Again this was due to its small size, lack of perennial water, and relatively few habitat types. The Hydrologic Support function was given a moderate value liven though it received a low and moderate valtre.5 for its two subcategories. The ephemeral nature of the drainage was the major limiting factor. The Shoreline Protection function had a low value because of the size and condition of the drainage. The small size of the wetland and the composition of the habitat led the low to moderate values of the Storage of Storm Water function. The small size of the wetland was the reason the Natural GToundwater function received a low value. The Water Purification function had a moderate overall value, but the values should be low. The nature of the drainage, its location, and its size limits the potential of the wetland to effectively purify water. The wetland had low value for both the Cultural and Recreational functions. This was due to its size, location, and ownership. WETLAND MTT CATION The enclosed wetland mitigation plans arc designed to replace Uicowetland functions that would be lost when the project is developed. The Litigation on site acres) would partially offset some of the loss of wildlife habitat (natural biological function). It would still provide a corridor dvough the site, but the quality of the corridor would be significantly poorer than the current drainage and associated uplands. The redaction in siae would result in a reduction in net primary production and food chain support. The already low values of the wetland for Aquatic Study Area and Refuge would fir ther decline, as would the flood storage function. The flood storage function would be mitigated through the development ofwater quality/detentiozt facilities that are required by Washingron County and the City, The ground water recharge potential of the wetland is already low, and is not expecred to be significantly aitcred by the reduction of wetlands on the site. The wetlands on the site appear to be water discharge points, and not recharge areas. The current water purification value for the wetland is low to moderate, and with the proposed on oil site ;ttit;sat:ti.I tie valtr` of the function should be Approximately the sarne. Koth the cultural and recreauona} functions currently are low, and may actually increase once the project is built. The relocated drainage would havo it pathway (hroubh the buffer area, which would be both aesthetic and be used for recreation. The funation most effected by the proposed development would be the natural biological. Since there-is-not enough mitigation potential on site additional mitigation is proposed offsite. fAW lit- There is some existing w anon on the site, and the proposed mitigation was designed to compliment the existing mitigation. ently most of the existing mitigation consis,LTS and island complex, and most of the wetta emergent. 'a'llele is af9we~ ores" Vscrub-shrub bu(i''s;r along its erase. The proposed mitigation to amount of forest, scrub-shrub and emergent wetland. The forest a • trub wctlan he tong narrow bands with bands of emergent wet) cxt them. The emergent wetland wou during the late winter and ear rig. The o8'site ' + ion should enhance the existing biological function • ing mitigation. area, it would incr v 2.2 acres, and woul rtat diversity. In addition, since it is within the 100 year not) t atin Wver, it would increase the flood storage function. The mini a t for some exc and planting tress and shrubs, both would ease the flood storage of the area. Finally, he site is adjacent to Cook Park, an ear the Tigard Kgh School both the cultural and recreationa ions sltpuld improve. G V~ ~ ~ •••...111!!! H m 1 1~ w i r ~UT'4►BL 'fYYg r+ '/~1+ ~I16L '(A6 ~ ds 1 / I'r~...`..~• SL`s I t i ~ v.sr.• a w.... • I 5 , M`•`~` ' ''`F! ' E 1~+~# a ate..-. •rT~f u1 .,ry ° ..-6 6 ~i r~ r p e- A~ c . FR; ~'•-'~yFn:=A~•• • i 4fu~ °_,g'' ' i < < t l i t ®Q •w ~~:.w t'1~' o _ 1:~ 111 Ivry ~.r . Ed d i , • t+ 'p 113111 • -s f.tU".!7 (!1.~U1:11' 101 66 AV r r r /fir j~ r ilk i~ , ! ~ ~ r fY~€ ,d C% .(J ET~ • .tl'' t , ~ r, ` a• ~b• / t" \'Y~r .'~.+r .•t,~ ! I~IJ •a- a-' I I'I•~ rAww t 1, `l~ icy /r~ /~r {E `iQ(J R•'V F I 60 ' ( Ilr : J;F~~• ~ / , •~t / ~ ~ ~ / f. ~ 1 ~ # F - a~ I JA r.r.l: i • t /QSJ/•{' t f-16 •t fr _-_1 ~~`'!~t~~~~ •L 1 ~J~ ! 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It1~ .,,-'-~F•Tr: I~// f~ ~~+•l; 1.77 _ ~ ~ rr•»e+. ~\c.``~: ,~,x'''~ ! ~ 17 )qj • ` f;.~,ol I . / 's`,,,~•Z~i::<:. iit s \ Ill 7JI ~ r= v'1~-~~-'k.'..'~'1 + 47 {i G ~ .ui F3 "•rai"' _`i: , t 1YI `Irl r'~~it I I 1 I-A i;{r' I ~i\ h ,i-~~„'r'' 1111 ~l -sr ~ i~~ : 7r _ ~.r:~s'~•---~i~e~f ' ' --.es-~rr-'~~ -r. i ~7 ; i +l• 1 ~ • 1 g; -4-~~►` 41. goo-5,,,~~vE. ty~ -I S"° logo NOW 1 1 , / ExiStor, g Gr t- r1GdR7 l2RU . SAMrAmr SEWERA,EMENz 15 / Max c A/nil J. ¢ e\ P AF 441vI T Vft 8,0 1t1 , I~rR~►rIOPI ~ J f I /r~~ ~r / / ~ / • I/jam' { 4 PKETRM9 T0&0nT®rp LLP ATTORNEYS 1600 Pioneer Tower 888 SW Fifth Avenue Portland, Oregon 97204 503-221-1440 JEFFREY H. KEENEY 503-802-2025 FAX 503-972-3725 jeffk@tonkon.com March 31, 1998 VIA MESSENGER Mr. William A. Monahan City Manager City of Tigard 13125 SW Hall Boulevard Tigard, OR 97223 Re: Dartmouth Road LID Assessment Dear Mr. Monahan: Enclosed, on behalf of Costco Wholesale Corporation and in response to Objection No. 15 of the written materials submitted on March 12, 1998 by Douglas Van Dyk on behalf of Gordon R. Martin and Gordon S. Martin, are two copies of a wetlands delineation report and map of Tax Lot 200 prepared by W&H Pacific and SRI/Shapiro/Agco, Inc. (the Wetlands Report). As set forth on the Wetlands Report, there are 4.59 acres of wetland area located within Tax Lot 200, i.e., .965 more acres of wetland than included on the map submitted by Mr. Van Dyk. At a minimum, the 4.59 acres of wetland identified in the Wetlands Report should be excluded from the number of "Net Developable Acres" in Tax Lot 200. In addition, the "upland" located in the southeast corner of Tax Lot 200 should also be excluded as not developable inasmuch as the upland is "landlocked" by (i) wetlands to the north, west and south, and (ii) the Martin Property to the east. Based on the foregoing, Costco believes the Assessment Roll prepared by Harper Righellis, Inc. dated March 16, 1998 correctly sets forth the amount of Net Developable Acres located within Tax Lot 200. c C I J~ & b y G, t vht'a►'~ Mr. William A. Monahan March 31, 1998 Page 2 Do not hesitate to call me if you have any questions. 4r Jeene JHK/mmd Enclosure cc w/enc: Mr. Jack S. Frank cc w/o enc: Mr. Richard J. Olin 002641/000421201420 v01 Toi"nTmV LLP A"ONNEYS Delineation of Wetland on Tax Lot 200 At the COSTCO Wholesale Store Tigard, Oregon Prepared for COSTCO Wholesale Corporation Prepared by SRI/SHAPIRO/AGCO, Inc. 1 March 31, 1998 Delineation of Wetland on Tax Lot 200 At the COSTCO Wholesale Store Tigard, Oregon Prepared for COSTCO Wholesale Corporation 999 Lake Drive Issaquah, Washington 98027 Prepared by Stan Geiger Kelley Canode John Gordon SRI/SHAPIRO/AGCO, Inc. 1650 N.W. Front Avenue, Suite 302 Portland, Oregon 97209 SRI/SHAPIRO/AGCO, Inc. Project #2981037 March 31, 1998 TABLE OF CONTENTS WETLAND DELINEATION SUMMARY 2 1.0 INTRODUCTION 3 2.0 METHODS AND SOURCE MATERIALS 3 2.1 Source Materials 3 2.2 Data Collection Methods to Address Technical Criteria 4 2.2.1 Hydrologic Assessment 4 2.2.2 Soils Assessment 4 2.2.3 Vegetation Assessment 4 3.0 EXISTING SITE CHARACTERISTICS 5 3.1 Landscape Context and Topography 5 3.2 Hydrology 5 ® 3.3 Soils 6 3.4 Vegetation 6 4.0 WETLAND FINDINGS 7 4.1 Wetland Characteristics 7 5.0 CONCLUSION AND DISCUSSION 8 6.0 REFERENCES 10 Appendix A Pocket w/ full size map Appendix B Data Sheets i ~i WETLAND DELINEATION SUMMARY SITE NAME: COSTCO Tigard SITE LOCATION: S.W. Dartmouth St., Tigard, OR. SW 1/4, S 36 T1S, R1W and NW %4, S 1, T2S, RI W. CLIENT: COSTCO Wholesale Corporation SRI/SHAPIRO/AGCO, INC. Project #2981037 HYDROLOGY There are four main sources of water influencing the site. Red Rock Creek enters the northeastern corner of the property, flows generally southwest to a pond, and continues flowing south to the property boundary. Two small, unnamed streams flow onto the property from the east. They merge, and flow into Red Rock Creek on the southern portion of the site. An area of active seeps at the base of the COSTCO fill contributes significant water to the northwestern corner of the site. Hydrologic evidence sufficient to meet wetland criteria was found on most of the site, except most of the east-central portion. SOILS Two soils are mapped within the study site: Huberly silt loam and Verboort silty clay loam. Both soils are poorly drained, and are listed as hydric soils in Washington County. Hydric soil indicators were found in soil samples on the majority of the site, except the east-central portion. VEGETATION Much of the study site is covered with a nearly closed canopy of hydrophytic trees. Most of the site supports a variety of predominantly wetland emergent, shrub, and woody vine species under the trees. Upland plants predominate under the trees on the east-central part of the site. WETLAND DETERMINATION SHAPIRO's investigation of hydrology, soils, and vegetation has determined that approximately 4.59 acre of the site is palustrine wetland. Vegetation is the primary determinant of the wetland boundary, augmented by soil conditions. Generally, the northern, west-central, and southern portions of the site are wetland. The east-central portion is upland. PROJECT STAFF: Stan Geiger, Kelley Canode, John Gordon Delineation of Wetland on Tar Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -2- 1.0 INTRODUCTION COSTCO Wholesale Corporation requested a delineation to determine the extent of wetlands on tax lot 200 on the property located at SW Dartmouth St., Tigard, Oregon (SW %4 Section 36, Township IS, Range 1 W, and NW %4 Section 1, Township 2S, Range 1 W). Staff from SRI/SHAPIRO/AGCO, Inc. (SHAPIRO) conducted a wetland delineation on the site on March 25 and 26, 1998. The objective of this delineation was to determine the location of wetlands on COSTCO property within the boundaries of the Local Improvement District (LID) for Dartmouth Street (Figure 1). O This report includes general information (2.0 Methods and Source Materials) and site-specific information (3.0 Existing Site Conditions, 4.0 Wetland Findings, 5.0 Conclusions) to explain SHAPIRO's wetland delineation. Wetland delineation data sheets are included as Appendix B. 2.0 SOURCE MATERIALS AND METHODS 2.1 Source Materials Primary guidance for SHAPIRO's investigation was the Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1 (Manual; Environmental Laboratory, 1987). The protocols described in the Manual are currently recognized by the US Army Corps of Engineers (COE) and Oregon Division of State Lands (DSL) as the standard for wetland delineations in Oregon. The Manual provides technical criteria, field indicators, and recommended procedures to be used in determining whether an area is a wetland, and the location of wetland boundaries. The Manual requires that three criteria exist for an area to be considered wetland. These criteria are the presence of hydric soils, wetland hydrologic conditions, and a predominance of hydrophytic vegetation. Available information and data were compiled and reviewed prior to fieldwork. Soil mapping information was compiled from data in the Washington County Soils Survey (Natural Resource Conservation Service [NRCS], formerly Soil Conservation Service [SCS]). U.S. Geological Survey (USGS) 7.5-minute topographic quadrangle maps, U.S. Fish and Wildlife Service (USFWS) National Wetland Inventory (NWI) maps, site-specific topographic maps, and previous wetland delineation maps were consulted. Wetland delineations were conducted on the site before SHAPIRO's work. USFWS NWI has mapped wetlands on nearly the entire site. A survey of the property conducted in 1993 (Harper Righellis, Inc.) identified the entire study property as wetland, but noted that the wetland location was approximate. A later wetland delineation (Martin, 1998) identified approximately 60% of the property as upland. Delineation of Wetland on Tar Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -3- 1 '2- ~-...+_.S-•-.._ - a'~ai. •rw..+• 44~_._. ..L.....~_ ~_.1,..~ :a~GFI.._.._,.. .u .~.t ._a,-__.~_.._-.~+.~...i1.c~ -'E - ._~-.ct s.G-~f+.. wi,.3.... F I E 1.0 INTRODUCTION COSTCO Wholesale Corporation requested a delineation to determine the extent of wetlands on i tax lot 200 on the property located at SW Dartmouth St., Tigard, Oregon (SW '/a Section 36, e Township 1S, Range I W, and NW 1/4 Section 1, Township 2S, Range 1W). Staff from SRI/SHAPIRO/AGCO, Inc. (SHAPIRO) conducted a wetland delineation on the site on March 25 t. and 26, 1998. The objective of this delineation was to determine the location of wetlands on COSTCO property within the boundaries of the Local Improvement District (LID) for Dartmouth Street (Figure 1). u~ This report includes general information (2.0 Methods and Source Materials) and site-specific 1 information (3.0 Existing Site Conditions, 4.0 Wetland Findings, 5.0 Conclusions) to explain t. SHAPIRO's wetland delineation. Wetland delineation data sheets are included as Appendix B. E E 2.0 SOURCE MATERIALS AND METHODS ~ 2.1 Source Materials LJ I: Primary guidance for SHAPIRO's investigation was the Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1 (Manual; Environmental Laboratory, 1987). The protocols described in the Manual are currently recognized by the US Army Corps of Engineers (COE) and r Oregon Division of State Lands (DSL) as the standard for wetland delineations in Oregon. The Manual provides technical criteria, field indicators, and recommended procedures to be used in determining whether an area is a wetland, and the location of wetland boundaries. The Manual l: requires that three criteria exist for an area to be considered wetland. These criteria are the E presence of hydric soils, wetland' hydrologic conditions, and a predominance of hydrophytic-, vegetation. f Available information and data were compiled and reviewed prior to fieldwork. Soil mapping 1 information was compiled from data in the Washington County Soils Survey (Natural Resource k,. 3 Conservation Service [MRCS], formerly Soil Conservation Service [SCS]). U.S. Geological Survey (USGS) 7.5-minute topographic quadrangle maps, U.S. Fish and Wildlife Service (USFWS) National Wetland Inventory (NWI) maps, site-specific topographic maps, and E ~_3 previous wetland delineation maps were consulted. Wetland delineations were conducted on the site before SHAPIRO's work. USFWS NWI has mapped wetlands on nearly the entire site. A survey of the property conducted in 1993 (Harper ! Rghellis, Inc.) identified the entire study property as wetland, but noted that the wetland location. was approximate. A later wetland delineation (Martin, 1998) identified approximately 60% of the 1 property as upland. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon r a Page -3- f C~ a 2.2 Data Collection Methods to Address Technical Criteria Observations of soils, vegetation, and hydrology were made using a modification of the Manual's "Routine Onsite" method. Data sites were selected to provide a valid representation of site conditions. Data was collected from these sampling locations to determine the location of the wetland boundary. These sample locations were identified in the field with blue and red flagging, and the locations were surveyed. Additional sites were investigated between these data points to verify changes in the three parameters, further characterize the wetland, and refine the wetland boundary. The wetland boundary was flagged with blue flagging numbered sequentially to facilitate surveying. 2.2.1 Hydrologic Assessment The Manual defines wetland hydrologic conditions as saturation within a major portion of the root zone (usually above 12 inches), typically for at least 12.5% of the growing season. Wetland hydrology indicators include depth of inundation, depth to water table, soil saturation, sediment deposits, water marks, drift lines, and drainage patterns. Evidence of these indicators was recorded in the field. 2.2.2 Soils Assessment Hydric soils are formed under wet conditions. These soils characteristically have high water tables, are frequently inundated, or are otherwise saturated for extended periods. These conditions often produce specific characteristics (i.e., low chroma and mottles) in the soil. Soil pits at sampling locations inside and outside potential wetland areas were excavated to a depth of 18 inches or more. Soil profiles were examined for hydric soil indicators. Soil characteristics (matrix color, mottling, texture, and other features) were recorded. 2.2.3 Vegetation Assessment Hydrophytic vegetation is composed of plant species that have adapted to growing in soils that are periodically deficient of oxygen as a result of saturation. Five basic groups of vegetation are recognized based on their frequency of occurrence in wetlands (Reed, 1988). These categories, referred to as the "wetland indicator status" (from the wettest to driest habitats), are: obligate wetland (OBL); facultative wetland (FACW); facultative (FAQ; facultative upland (FACU); and obligate upland (UPL). Using soil pit locations as centers of reference, percent-cover estimates of the dominant plant species were performed. A 5-foot radius area was used for herbaceous vegetation and a 30-foot radius for woody vines, shrubs, and trees. A vegetation dominance analysis technique from the Manual was applied to this data. The vegetation criterion for wetlands requires that the results of this analysis indicate that more than 50% of the dominant (greater than 20% cover) species are FAC, FACW, or OBL. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -4- 3.0 EXISTING SITE CHARACTERISTICS 3.1 Landscape Context; Topography The objective of this delineation was to determine the location of wetlands on COSTCO property within the boundaries of the LID for Dartmouth Street. Highway 217 borders the southwestern corner of the project site for approximately 300 feet. Between the project site's western boundary and Highway 217 is an approximately 300 feet wide emergent wetland and pond. The COSTCO building and parking complex is adjacent to the northern property boundary. Red Rock Creek enters the northeastern corner of the site through a culvert under S.W.. Dartmouth Street. Undeveloped urban agricultural land lies to the east of the property. Most of this open land is covered with grasses, with scattered evergreens and deciduous trees. The project site is a.gently sloping to a level basin. North of the site, fill for the COSTCO parking lots rises about 30 feet above the project site. The northern section of the eastern property boundary is at the base of a gently sloping rise. Near the southern end of the eastern boundary, a large stockpile of fill on a neighboring property abuts the site. South and west of the site is the elevated right-of-way for Highway 217. The property slopes gently from north to south, with the eastern boundary somewhat higher than the west. 3.2 Hydrology Red Rock Creek forms approximately 100 feet of the northern section of the eastern property boundary. It flows southwest onto the property through a complex of channels. The main stream flows into the northwestern corner of an approximately .33 acre excavated pond near the center of the property. The stream discharges from the western side of the pond and continues flowing south. Two small, unnamed tributaries flow onto the property from the east. They merge and flow into Red Rock Creek on the southern portion of the site. Red Rock Creek exits the property through a culvert under Highway 217. The extreme northern part of the property, at the base of the fill slope below the COSTCO parking lots, is an area of active seeps. Water from these seeps coalesces into channels and flows southwesterly, leaving the site on the western boundary. This water, combined with surface flow originating further west (off the study site), maintains the emergent wetland and pond between the study site and Highway 217. Water leaving this wetland flows along the fill for the highway, joining Red Rock Creek along the southern boundary of the project site. On the northern and west-central portions of the site, stream channels are braided, with numerous overflow channels. There are extensive areas of surface saturation and shallow inundation on these parts of the site, as well as the southern part. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -5- The east-central part of the site has fewer, well defined stream channels, with small, infrequent areas of surface saturation, and lacks inundated areas. 3.3 Soils Two soils are mapped within the study site: Huberly silt loam and Verboort silty clay loam. Both soils are poorly drained, and are listed as hydric soils in Washington County. Huberly silt loam is mapped on the majority of the site. Verboort silty clay loam is mapped only on the southern portion of the eastern edge of the property. Huberly silt loam is described as having a surface layer of very dark gray (IOYR3/1) silt loam about 8 inches thick, with dark gray (IOYR4/1) mottles. From 8 inches to 15 inches, the soil is grayish-brown (IOYR5/2) silt loam. Verboort silty clay loam is described as having a surface layer 8 inches deep, of very dark brown (1 OYR2/2) silty clay loam. The same color and texture continue in the next layer, to a depth of 12 inches. Below 12 inches, the color is very dark gray (10YR3/1), with many fine, dark reddish- brown (IOYR3/1) mottles. Hydric soil indicators were found in soil samples in the northern, west-central, and southern portions of the site. These samples generally had very low chroma of 1, and mottles that varied from fine, faint, and few to large, bright, and abundant. r Soil samples from the east-central portion of the property typically had a chroma of 2, and lacked mottles. This is consistent with the NRCS soil data indicating Verboort silty clay loam on the eastern side of the property. 3.4 Vegetation Six kinds of vegetation communities are found on the site. Three of them are forest communities with Oregon ash (Fraxinus latifolia; FACW) as the dominant tree species. One forest community (Fbb) occupies much of the east-central part of the project site. The dominant species under its canopy are Himalayan blackberry (Rubus discolor; FACU) and ornamental hawthorn (Crataegus monogyna; FACU+). At the edges of this community, Himalayan blackberry gradually decreases in density. A second forest community (Fss) is found in small areas primarily on the southern and western edges of the community first described. The dominant species under the canopy in these areas are Nootka rose (Rosa nutkana; FAC) and climbing nightshade (Solanum dulcamara; FAC+), with some patches of Douglas' spiraea (Spiraea douglasii; FACW). The third forest community (Fern) has emergent herbaceous hydrophytes as the dominant plants under the trees. A variety of grasses, sedges (Carex sp.), rushes (Juncus sp.), and other herbs and forbs are typical. Where these two communities are adjacent to the first community described, the boundary is neither clear, sharp, nor obvious, but is marked by an intergrading transition zone. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -6- M A fourth community Swv is composed of h dro h s shrubs and woody vines. Climbing nightshade, Nootka rose, and red-osier dogwood (Corpus sericea; FACW) are the predominant species. This community is located primarily near the southern boundary of the property. Emergent hydrophytes comprise a fifth community (Em). Species represented in this category are cattail (Typha latifolia; OBL), teasel (Dipsacus sylvestris; FAC), marsh seedbox (Ludwigia palustris; OBL), rushes, sedges, and grasses. This type of community is found primarily near the southwestern and southern boundaries of the property. The sixth community type (Hb), essentially a monoculture of Himalayan blackberry, is near the southern end of the eastern boundary. 4.0 WETLAND FINDINGS Analysis of data by SHAPIRO scientists indicates that wetland criteria for soil, hydrology, and vegetation are met on 4.59 acres of the project site. Four of the vegetation communities described above (Fss, Fem, Swv, and Em) are wetland communities. The communities Fbb and Hb are upland plant associations. 4.1 Wetland Characteristics The Fss community described above is typified by sample point SP-14. The soil matrix color was 10YR5/1, with large, bright mottles. The site was inundated to a depth of 4 inches. Dominant plants were Oregon ash, nightshade, spiraea, and clustered rose (Rosa pisocarpa; FAC). All of these plants are FAC or wetter. This site met wetland criteria. SP-13 is in the Fern community. Soil color was 10YR2.5/1 and was saturated to the surface, with areas of inundation. Dominant plants were Oregon ash, giant false helibore (Yeratrum californicum, FACW), colonial bentgrass (Agrostis tenuis; FAC), and slough sedge (Carex obnupta, OBL). All of these plants are FAC or wetter. This site met wetland criteria. The Swv community, with its hydrophytic shrubs and woody vines, is similar to SP-16. Soil was IOYR2.5/1, with mottles. The sample site was shallowly inundated. Dominant plants were red- osier dogwood, nightshade, Nootka rose, colonial bentgrass, teasel, and spreading rush (Juncus patens; FACW). All of these plants are FAC or wetter. This site met wetland criteria. SP-15 is in a section of the Em community that includes scattered trees and shrubs in the vegetation sample. Herbaceous species at the site included soft rush, colonial bentgrass, and teasel. An undocumented site 30 feet west of the sample site included cattail, soft rush, and teasel as the dominants. This site also met the wetland criteria for soil, water, and vegetation. The Fbb upland community is typified by SP-5 and SP-9, both by the vegetation present and the ambiguity of wetland indicators present at the sites. Soil at SP-5 did not meet the soil criterion, as the chroma was too high and there were no mottles. Hydrologic indicators also were missing at SP- 5, but the vegetation meets the wetland requirement, despite the abundance of Himalayan blackberry, an upland species. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -7- Soil at SP-9 met the soil criterion, but with weak, ambiguous indicators. The soil saturation in SP-9 was close enough to the surface to meet the hydrology criterion. Vegetation at SP-9 did not meet the requirement because of the addition of catchweed bedstraw (Galium aparine; FACU) to the community. The sixth community, Hb, clearly did not meet the vegetation criterion, so was not considered wetland regardless of soil and hydrology conditions. The wetland communities form a consolidated unit on the northern, western, and southern portions of the property. The boundary between them and the upland communities is neither smooth nor regular. In some places it is marked by clear, rather abrupt changes in vegetation. In other places it is marked by slight changes in the composition of the vegetation community. 5.0 CONCLUSION AND DISCUSSION SHAPIRO staff determined that there are 4.59 acres of wetland on the project site. SHAPIRO's delineation differs from those performed previously on the site. The NWI delineation was generated from black and white aerial photographs, with selected "ground-truthing" conducted to confirm the delineations. The wetlands mapped by NWI on this site are the pond, classified as POWKZx (Palustrine Open Water, artificially flooded intermittently exposed/permanent, excavated) and the remainder of the site, classified PSS/EM1Y (Palustrine, Scrub-Shrub [broad-leaved]/Emergent, saturated/ as semipermanent/seasonal). The determination by Harper Righellis, Inc. that the entire site is wetland was apparently based on the observations that there was considerable observable water at or near the surface of the entire site, and that the site supported hydrophytic plants (Oregon ash, and, where it is absent, emergent hydrophytes). These characteristics of the site can be observed easily from the COSTCO parking lot and Highway 217. Neither of these is an accurate delineation of jurisdictional wetlands, however. NWI delineation protocols do not require that all three wetland criteria (soil, hydrology, and vegetation) be met in order for a site to be mapped as wetland. Therefore, the presence of Oregon ash and other hydrophytic vegetation on the site would lead to its delineation by NWI , even though jurisdictional criteria are not met. The Harper Righellis work does not consider correctly the impact of upland species (primarily Himalayan blackberry), soil, and hydrology conditions on the wetland determination for the east- central part of the site, which is not easily accessible or visible. The delineation provided by the adjacent property owner to the east (Martin) is more refined and closer to an accurate jurisdictional delineation. However, it includes as upland two significant and diverse wetland communities on the southern end of the project site. These communities are documented by SHAPIRO sample points SP-15, SP-16, SP-17, and SP-18. Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -8- 1 Sample points SP-16 and SP-17 document a scrub-shrub wetland community on the southeastern comer of the site. The dominant shrubs in this community were red-osier dogwood, Nootka rose, and clustered rose. Sample points Sp-15 and SP-18 document an emergent wetland community dominated by colonial bentgrass (Agrostis tenuis, FAC), soft rush, cattail, and teasel. The data collected at these sample points also verified the presence of wetland soils and water regime. This area should clearly be included in the wetlands documented on the study site. i 1 1 1 1 1 Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -9- 6.0 REFERENCES Environmental Laboratory, 1987. Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, US Army Engineer Waterways Experimental Station, Vicksburg, Miss. Reed, Porter B., Jr., 1988. National List of Plant Species That Occur in Wetlands: Northwest (Region 9). Prepared by the U. S. Fish and Wildlife Service, St. Petersburg, Florida. NERC- 88/18.37. • U.S. Department of Agriculture, Soil Conservation Service, 1989. Hydric Soils of Oregon. U.S. Department of Agriculture, Soil Conservation Service, 1982. Soil Survey of Washington County, Oregon. U.S. Fish and Wildlife Service National Wetlands Inventory maps (Beaverton, OR, 1:58000,1981 CIR aerial photography, overlaid on USGS quadrangle). U.S. Geological Survey topographic map (Beaverton, OR, 1:24000, 7.5-minute quadrangle, 1961, photorevised 1984). Delineation of Wetland on Tax Lot 200 at the COSTCO Wholesale Store in Tigard, Oregon Page -10- 9 A~rxjx A 1 1 1 t t t t L.,~ • - - - ~IPI~~X ' ~ E106 57 NDlBU3 DVS. :iRl/SHAPIRO/ACCO. INC. I ~ 8lL1VdR'NN, ON600N j ~ ~9p0 1650 N.W. FRONT AVE. 1 I~-~ :iUITE 302 rex / ►~r"~ cPre. y PORTLAND, OR 97209 MARCH 77, 1 ogg JOB: 4-0304-0301 ~ N ~ DRAWING. 0304BD03.DSG REVISED: 3/3p~ 98 TEh' i - J i". SCALE ~ - - _ ~ - a ,a 60 ,10 ~ ~ TAx LOT 2200 II COSTCO ~ i ~ ~ / ' ' ~ ` ~ o C I I, I, ~I ~ I' I ~ O I . ' ~ I ~ I I' O _ I ~ I / w ` I~ I I I~ ~ ~ ; ~ I' ~ ' 'I I _ _ _ I I I TAX LO7 2000 _ _ _ _ _ _ _ _ I WAREMART INC. I I t _ a ~ I ~i I ~I i ~ it I I w I - N I U I ~ ~ I TI TAX LOT 2004 o ~ 11 'i CITY OF TIGARD ® ' _ I I `~1 i , , m ; ; ° J ~ I~ ~I I - _ ~ ~ - TAx Loy 20o i • ~ _ r cosrco ~ ~ n \~i - ~ ~ ~ A \ I l > -1 ~ wruvo oruNUnor+ uH[ - ~ / ~ , ~ _ I / TAX LOT 4200 ~ ~ - ~ - - - - _ _ / WAREMART INC. ~ o I TAX LOT 1201 / ~ ~ " - T _ E COSTCO , ~ , _ - ~ ~ wr nom 9 i € ~ l ~;,yy~jGgN,~Af~~'A/~~7,~lld"'TAX'LdT""BOA. 1 rax Lor IDI ~ ~ j~ ; ~ ~ ttiA q^t.T~'S~ ~ ~ ' / GORDON RICHARD MARTIN \ ~ i. - \ a , . - ~ >Q,.~ / / ~ ' /~1 f- - ~ '~'I ~ , ; ~ , ' a' TAX LOT 300 _I GORDON RICHARD MARTIN N ~ ~ x(11 - / r I i ~.7o*i Cdr ° _ I~ `_,I / I y (II, ~ ~ ~ ~ - , , " LEGEND: ~ j , ° ~ ~ . ' L.LD BOUNDARY ' \ _ - - - COSTCO BOUNDARY , . Ry bus°, M TAX LGT LINES ~ j ~~i~ WETLANDS _ ~ . ~~a - - _ _ Appendix B Wetland Delineation Data Sheets Y Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: SP-4 S 6(1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: Southeastem edge of pond; south of toe of the berm. Topographic Location: Approximately 10 feet from toe of berm. Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATIO Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 75 Shrub/Sapling Stratum - % total cover. 20 1. Carex sp. FACW 10 1. Crataegus monogyna *FACU+ 10 2. Agrostis tenuis FAC 50 2. Rosa nutkana FAC <5 3. Dactylis glomerate FACU 15 3. 11ex aquifolium UPL <5 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 30 Tree Stratum - o total cover: 80 1. Rubus discolor FACU 30 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 3 = 67 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 1 B 0-18" 7.5YR 2.511 Mottles faint, fine, and common Silty loam, blocky structure Histosol _ Reducing conditions _ Highly organic surf. layer _ Histic epipedon Gleyed _ Organic streaking _ Sufidic odor X Redox features (w/i 10') Organic pan -Prob. Aquic moisture regime -Concretions (wh 3') X On hydric soils list Remarks: Mottles faint, fine, and common. Soil Criterion Met? Yes HYDROLOGY Depth of inundation: Surface Depth to water table: 0" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X Inundated Oxidized rhizospheres X Saturated in upper 12" Water-stained leaves _ Water marks X Local soil survey data -Drift lines _FAC-Neutral test X Sediment deposits _ Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is t i p of a wet and? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 Project # 981037P Site Costco - Tigard • Applicant Costco Corporation Date 3125/98 Plot: SP-5 S 6 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: 30'south of SP-4 Topographic Location: Low/ying, generally flat area; approximately 20' south of berm. Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology_ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 60 Shrub/Sapling Stratum - % total cover. 5 1. Agrostis tennis FAC 60 1. Crataegus monogyna *FACU+ 5 2. 2. 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o o a cover. 80 Tree Stratum - 1/16 total cover. 80 1. Rubus discolor FACU 80 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 3 = 67 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-16" 10YR 312 No mottles Silty clay loam _Histosol _Reducing conditions -Highly organic surf. layer Histic epipedon Gleyed -Organic streaking Sufidic odor Redox features (w/i 10') Organic pan -Prob. Aquic moisture regime -Concretions (w/i 3') x On hydric soils list Remarks: Soil Criterion Met? No HYDROLOGY Depth of inundation: N/A Depth to water table: >18" Depth to saturation: >18 Primary indicators Secondary indicators (2 or more required) -Inundated -Oxidized rhizospheres -Saturated in upper 12" _Water-stained leaves Water marks Local soil survey data =Drift lines -FAC-Neutral test Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: Drainage patterns -Other. Remarks: Hydrology Criterion Met? No Remarks: DETERMINATION: Is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: SP-6 S 6 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: Between SP-4 and SP-5 Topographic Location: Generally flat, lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology_ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 85 Shrub/Sapling Stratum - % total cover: 10 1. Agrostis ten_u_i_s FAC 80 1. Crataegus monogyna *FACU+ 10 ! 2. Carex sp. FACW 5 2. 3. 3. 4. 4. 5. 5. . 6. ! 6 7. 7. Woody Vine stratum - o total cover: 50 Tree stratum - o total cover: 80 1. Rubus discolor FACU 50 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. ! 4 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 3 = 67 % (50/20 Rule) Remarks: ! Vegetation Criterion Met? Yes SOILS ! Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-16" 10YR 311 No mottles Silty loam ! _Histosol -Reducing conditions -Highly organic surf. layer Histic epipedon _Gleyed -Organic streaking Sufidic odor Redox features (w/i 10') _Organic pan -Prob. Aquic moisture regime -Concretions (w/i 3') x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 8" Depth to saturation: 5" Primary indicators Secondary indicators (2 or more required) ! Inundated =Oxidized rhizospheres X Saturated in upper 12" Water-stained leaves -Water marks -Local soil survey data Drift lines _FAC-Neutral test -Sediment deposits -Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: ! DETERMINATION: Is this plot a wetland? Yes ! SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 i I M Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: SP-7 S 6 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: Approximately 20' south of SP-8 Topographic Location: Generally flat, lovrlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 100 Shrub/Sapling Stratum - % total cover: 10 1. Agrositis tenuis FAC 95 1. Symphoricarpos albus FACU 5 2. Galium aparine FACU 5 2. Rosa pisocarpa FAC 5 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 0 Tree Stratum - o total cover: 80 1. 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 2 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaguepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-16" 10YR 311 _ Silty clay loam _Histosol -Reducing conditions -Highly organic surf. layer Histic epipedon Gleyed -Organic streaking Sufidic odor Redox features (w/i 10') _Organic pan 1 Prob. Aquic moisture regime -Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 4" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) -Inundated -Oxidized rhizospheres X Saturated in upper 12" Water-stained leaves _ Water marks _ Local soil survey data -Drift lines _FAC-Neutral test Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: SP-8 S 6 1 T IS(2S) R 1 W City Tigard County Washington State: OR Plot Location: At survey location 6046 Topographic Location: Generally float, low/ying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology_ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 55 Shrub/Sapling Stratum - % total cover: 20 1. Agrostis tenuis FAC 40 1. Crataegus monogyna *FACU+ 20 2. Ranunculus repens FACW 10 2. 3. Brassica sp UPL 5 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover. 50 Tree Stratum - o total cover: 80 1. Rubus discolor FACU 50 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 if 4 = 50 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-18" 10YR 2.511 Nottlessss common, medium, distinct Histosol Reducing conditions Highly organic surf. layer Histic epipedon Gleyed -Organic streaking X Sufidic odor X Redox features (w/i 10') Organic pan Prob. Aquic moisture regime -Concretions (w/i 3') _Organic hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 5" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) Inundated X Oxidized rhizospheres X Saturated in upper 12" Water-stained leaves Water marks Local soil survey data Drift lines _ FAC-Neutral test Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: Drainage patterns _Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATIO : Is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 1 Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3/25%98 Plot: SP-9 1 S 6 (1) T IS(2S) R 1W City Tigard County Washington State: OR Plot Location: 50' S.E. of SP-7 Topographic Location: Generally flat, low/yin_g area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology_ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 125 Shrub/Sapling Stratum - % total cover: 5 1. Agrostis tenuis FAC 90 1. Crataegus monogyna *FACU+ 5 2. Galium aparine FACU 20 2. 3. Polystichun munitum FACU 5 3. 4. Solanum dulcamara FAC+ 10 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover. 25 Tree Stratum - o total cover: 60 1. Rubus discolor FACU 25 1. Fraxinus latifolia FACW 60 2. ~ 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 4 = 50 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-10" 7.5 YR 312 Mottles faint, small, few Silty clay loam 10-16" 10 YR 2.511 Mottles faint, small, few Clay loam _Histosol -Reducing conditions -Highly organic surf. layer _ Histic epipedon _ Gleyed -Organic streaking Sufidic odor Redox features (w/i 10') _Organic pan -Prob. Aquic moisture regime -Concretions (w/i 3') x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: rn/a Depth to water table: 15" Depth to saturation: 12" Primary indicators Secondary indicators (2 or more required) -Inundated _Oxidized rhizospheres -Saturated in upper 12" _Water-stained leaves Water marks Local soil survey data =Drift lines =FAC-Neutral test Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? No Remarks: DETERMINATION: Is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET - 1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3/25/98 Plot: P-10 S 36 1 T IS (2S) R 1W City Tigard County Washington State: OR Plot Location: Approximately 200' south of SP-9 Topographic Location: Generally flat lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 90 Shrub/Sapling Stratum - % total cover: 80 1. Agrostis tenuis FAC 40 1. Rosa nutkana FAC 40 2. Dactylis glomerata FACU 40 2. Crataegus monogyna "FACU+ 40 3. Rumex crispus FACW 5 3. 4. Brassica sp. UPL trace 4. 5. Geum macrophyllum FACW- trace 5. 6. 6. 7. 7. Woo y ine Stratum 7/o total cover: 0 Tree Stratum - o total cover: 85 1 1. Fraxinua latifolia FACW 85 2. 2. 3. 3. 4 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 3 of 5 = 60 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-8" 10YR 2.511 Mottles few, small, faint 7.5 YR 416 Clay loam 8-16" 2.5 YR 310 Mottles abundant, large, bright 7.5 YR 414 Clay loam _Histosol Reducing conditions Highly organic surf. layer Histic epipedon Gleyed -Organic streaking _Sufidic odor X Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of Inundation: n/a Depth to water table: 12" Depth to saturation: 8" Primary Indicators Secondary indicators (2 or more required) Inundated -Oxidized rhizospheres X Saturated In upper 12" _ Water-stained leaves -Water marks -Local soil survey data -Drift lines FAC-Neutral test -Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: This is a small (estimated 300 sq. ft.) site isolated from other wetland areas. It was not flagged. DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-11 S 38 9 T IS (2S) R 1W City Tigard County Washington State: OR Plot Location: NE corner of property, along eastern property line Topographic Location: Generally flat, lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 80 Shrub/Sapling Stratum - % total cover: 70 1. Carex sp. FACW 50 1. Crataegus monogyna *FACU 0 2. Agrostis tenuis FAC 20 2. Rosa nutkana FAC 20 3. 3. Douglas' spirea FACW 40 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 5 Tree Stratum - a total cover: 80 1. Rubus discolor FACU 5 - 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 5 of 5 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-12" 10 YR 411 Mottles common, large, distinct 10R 314 Silt clay loam B 12-18" 10 YR 411 Mottles few, fine, faint Clay loam Histosol -Reducing conditions -Highly organic surf. layer Histic epipedon Gleyed -Organic streaking Sufidic odor Redox features (wh 10") Organic pan -Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 5" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) -Inundated Oxidized rhizospheres X Saturated in upper 12" Water-stained leaves -Water marks X Local soil survey data -Drift lines FAC-Neutral test X Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET - 1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-12 S 36 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: Eastem boundary north of pond Topographic Location: Generally flat lowlying area ' Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 5 Shrub/Sapling Stratum - % total cover: 0 1. Carex obnupta OBL 5 1. 2. Polystichum munitum FACU Trace 2. 3. 3. 4. 4. 5 5 6. 6. 7. 7. Woody Vine Stratum - o total cover: 80 Tree Stratum - o total cover: 90 1. Rubus discolor FACU 80 1. Fraxinus latifolia FACW 50 2. 2. Prunus sp. UPL 40 3. 3. 4 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 1 of 3 = 33 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-8 " 7.5 YR 311 Mottles abundant, coarse, distinct 7:5 YR 516 Silt loam 8-18" 7.5 YR 311 Mottles abundant, coarse, distinct 7.5 YR 716 Silt loam _Histosol Reducing conditions Highly organic surf. layer _Histic epipedon Gleyed -Organic streaking _Sufidic odor X Redox features (w/i 10") -Organic pan -Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: - Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 12" Depth to saturation: 8" Primary indicators Secondary indicators (2 or more required) -Inundated -Oxidized rhizospheres X Saturated in upper 12" _ Water-stained leaves Water marks X Local soil survey data `Drift lines _FAC-Neutral test -Sediment deposits -Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-13 S 36 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Locatlon: Eastern property boundary NW of SP-12 Topographic Location: Generally flat, lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils _ vegetation _ hydrology _ signif. disturbed? No Explain: VIRTATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 95 Shrub/Sapling Stratum - % total cover: 10 1. Veratrum califomicum FACW+ 40 1. Symphoricarpos albus FACU 10 2. Carex obnupta OBL 20 2. 3. Agrostis tenuis FAC 30 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: - 55 Tree Stratum - o total cover: 95 1. Rubus discolor FACU trace 1. Fraxinus latifolia FACW 95 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 4 of 4 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-8" 10 YR 2.511 Silt loam Histosol Reducing conditions Highly organic surf. layer _Histic epipedon _Gleyed -Organic streaking X Sufidic odor _Redox features (w/i 10") -Organic pan -Prob. Aquic moisture regime -Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: 3" Depth to water table: 0" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X Inundated -Oxidized rhizospheres X Saturated in upper 12" _Water-stained leaves Water marks X Local soil survey data _ Drift lines _ FAC-Neutral test Sediment deposits _ Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes emar s; DETERMINATION: Is this plot a wetland? Yes 1 SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET - 1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-14 S 36 (1) T 1S 2S) R 1W City Tigard County Washington State: OR Plot Location: Southwestem portion of property; approximately 60' east.of property line. Topographic Location: Generally flat, lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 30 Shrub/Sapling Stratum - % total cover: 50 1. Solanum dulcamara FAC+ 20 1. Spirea douglasii FACW 30 2. Agrostis tenuis FAC 10 2. Rosa pisocarpa FAC 20 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 10 Tree Stratum - o total cover: 80 1. Rubus discolor FACU 10 1. Fraxinus latifolia FACW 80 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 4 of 4 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 8 0-16" 10 YR 2.511 Mottles common, coarse, distinct 10 YR 618 Silt loam _Histosol Reducing conditions Highly organic surf. layer _Histic epipedon Gleyed -Organic streaking X Sufidic odor -Concretions features (w/i 10") -Organic pan Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: 4" Depth to water table: 0" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X Inundated -Oxidized rhizospheres X Saturated in upper 12" _ Water-stained leaves -Water marks X Local soil survey data _ Drift lines _ FAC-Neutral test X Sediment deposits _ Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns _Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes t SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3/25/98 Plot: P-15 S 36 1 T IS(2S) R 1W City Tigard County Washington State: OR Plot Location: Southwestern corner of property Topographic Location: Generally flat lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 120 Shrub/Sapling Stratum - % total cover. 50 1. Agrostis tenuis FAC 100 1. Rosa pisocarpa FAC 20 2. Juncus effusus FACW 15 2. Rosa nutkana FAC 20 3. Dipsacus sylvestris FAC 5 3. Crataegus monogyna *FACU+ 10 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: <5% Tree Stratum - o total cover: 20 1. Rubus discolor FACU trace 1. Fraxinus latifolia FACW 20 2. 2. 3. 3. 4 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 4 of 4 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-16" 10 YR 2.511 Mottles common, medium, 5YR 416' Silt loam 1 _Histosol Reducing conditions Highly organic surf. layer Histic epipedon _Gleyed Organic streaking Sufidic odor -Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: 3" Depth to water table: on Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X Inundated X -Oxidized rhizospheres X Saturated in upper 12" _ Water-stained leaves Water marks X Local soil survey data _ Drift lines FAC-Neutral test -Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns - Other: Remarks: Hydrology Criterion Met? Yes Remarks: ' DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET - 1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125/98 Plot: P-16 S 36 1 T 1SRS) R 1W City Tigard County Washington State: OR Plot Location: Southem property boundary Topographic Location: Generally flat lowlying area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 135 Shrub/Sapling Stratum - % total cover: 50 1. Agrostis tenuis FAC 70 1. Comus sericea sp. Sericea FACW 30 2. Juncus patens FACW 30 2. Rosa nutkana FAC e20 3. Dipsacus sylvestris FAC 20 3. 4. Urtica dioica FAC+ trace 4. 5. Solanum dulcamara FAC+ 15 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 5 Tree tra um - o total cover: 5 1. Rubus discolor FACU 5 1. Crataegus monogyna *FACU+ 5 2. 2. 3* 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 515 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? YES SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 8 0-10" 10 YR 2.511 Mottles common, fine, faint Silt loam _Histosol -Reducing conditions -Highly organic surf. layer _Histic epipedon _Gleyed -Organic streaking _Sufidic odor X Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime -Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: 3" Depth to water table: 0" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X Inundated -Oxidized rhizospheres X Saturated in upper 12" _Water-stained leaves -Water marks X Local soil survey data _ Drift lines _ FAC-Neutral test -Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: X Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-17 S 36 (1) T IS(2S) R 1W City Tigard County Washington State: OR Plot Location: Southernproperty boundary approximately 100' NE of SP-16 Topographic Location: Generally flat, lowly/ng area Do Normal Circumstances exist on the site? Yes Explain: Are soils vegetation hydrology _ signif. disturbed? No Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 45 Shrub/Sapling Stratum - % total cover: 80 1. Dipsacus sylvestris FAC 30 1. Rosa pisocarpa FAC 80 ® 2. Agrostis tenuis FAC 10 2. ® 3. Pteridium aquilinum FACU trace 3. 4. Carex sp. FACW trace 4. 5. 5. 6. 6. 7. 7. Woody ine ra um - io total cover: 10 Tree Stratum - o total cover: 10 1. Rubus discolor FACU 10 1. Crataegus monogyna "FACU+ 5 2. 2. Salix sp. FAC 5 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 2 of 2 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Met? Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other B 0-16" 10 YR 2.511 Concretions @ 2mm within 2" of surface Silt loam Histosol Reducing conditions Highly organic surf. layer _Histic epipedon Gleyed -Organic streaking _Sufidic odor _Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime X Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: 2" Depth to water table: 0" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) X -Inundated -Oxidized rhizospheres X Saturated in upper 12" _Water-stained leaves -Water marks X Local soil survey data Drift lines _FAC-Neutral test Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-18 S 36 1 T 1S(2S) R 1W City Tigard . County Washington State: OR Plot Location: Approx 30' northwest of SP-15 and 100' east of Highway 217. Topographic Location: Flat. Do Normal Circumstances exist on the site? yes Explain: Are soils vegetation hydrology _ signif. disturbed? no Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 110 Shrub/Sapling Stratum - % total cover: 20 1. Typha latifolia OBL 40 1. Rosa nutkana FAC 20 2. Juncus effusus FACW 40 2. 3. Dipsacus sylvestris FACW 20 3. 4. Agrostis sp. FAC 10 4. 5 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 40 Tree Stratum - o total cover: 10 1. Solanum dulcamara FAC+ 25 1. Fraxinus latifolia FACW 10 2. Rubus discolor FACU 15 2. 3. 3. 4 4 Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 5 of 5 = 100 % (50/20 Rule) Remarks: Vegetation Criterion Metz Yes SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 0-9" 10YR2.511 n/a clayey silt loam 9-16" 10YR2.511 common, fine, 7.5YR416 mottles clayey silt loam Histosol Reducing conditions Highly organic surf. layer _Histic epipedon _Gleyed -Organic streaking _Sufidic odor -Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: in Depth to water table: 0" Depth to saturation: on Primary indicators Secondary indicators (2 or more required) x Inundated -Oxidized rhizospheres x Saturated in upper 12" Water-stained leaves -Water marks Local soil survey data _ Drift lines FAC-Neutral test -Sediment deposits Recorded Data (aerials, groundwater data)? - Explain: Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Yes SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3125198 Plot: P-19 S 36 1 T IS(2S) R 1W City Tigard County Washington State: OR Plot Location: Approx. 100' west of east property boundary, 100' north of SP-16. Topographic Location: Flat. Do Normal Circumstances exist on the site? yes Explain: Are soils vegetation hydrology _ signif. disturbed? no Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: 40 Shrub/Sapling Stratum - % total cover: 30 1. bryophytes n/a 40 1. Rosa nutkana FAC 20 2. 2. Crataegus monogyna FACU+ 10 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: _ 60 Tree Stratum - o total cover: _ 60 1. Rubus discolor FACU 60 1. Crataegus monogyna FACU+ 60 2. 2. 3. 3. 4 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 1 of 3 = 33 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 0-9" 10YR311 n/a silt clay loam 9-16" 10YR2.511 few, fine, faint mottles silt clay loam Histosol Reducing conditions Highly organic surf. layer Histic epipedon _Gleyed Organic streaking Sufidic odor x Redox features (wh 10") -Organic pan -Prob. Aquic moisture regime -Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: >16" Depth to saturation: >16" Primary indicators Secondary indicators (2 or more required) -Inundated -Oxidized rhizospheres Saturated in upper 12" _Water-stained leaves -Water marks -Local soil survey data _ Drift lines _ FAC-Neutral test -Sediment deposits -Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? No Remarks: DETERMINATION: is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Cosfco -Tigard Applicant Costco Corporation Date 3/25/98 Plot: P-20 S 36 (1) T 1S(2S) R 1W City Tigard County Washington State: OR Plot Location: Approx. 100' northeast of SP-10, and 50' west of the east property boundary. Topographic Location: Flat. Do Normal Circumstances exist on the site? yes Explain: Are soils vegetation hydrology _ signif. disturbed? no Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover. 40 Shrub/Sapling Stratum - % total cover: 40 1. Polystichum munitum FACU 15 1. Crataegus monogyna FACU+ - 30 2. Agrostis sp. (tenuis?) FAC 15 2. Rosa nutkana FAC 10 3. 10 3. 4. 4. 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 80 Tree ra um - o total cover: 75 1. Rubus discolor FACU 80 1. Fraxinus latifolia FACW 75 2. 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 1 of 3 = 33 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 0-8" 10YR311 n/a silty clay loam 8-16" 10YR411 large, common 7.5YR416 mottles silty clay loam ,Histosol _Reducing conditions -Highly organic surf. layer Histic epipedon Gleyed Organic streaking Sufidic odor Redox features (w/i 10") -Organic pan Prob. Aquic moisture regime -Concretions (w/i 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: 5" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) Inundated -Oxidized rhizospheres x Saturated in upper 12" Water-stained leaves _ Water marks _ Local soil survey data Drift lines FAC-Neutral test Sediment deposits `Recorded Data (aerials, groundwater data)? - Explain: Drainage pattems `Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? Alo 1 SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 WETLAND DETERMINATION DATA SHEET -1987 MANUAL Project # 981037P Site Costco - Tigard Applicant Costco Corporation Date 3/25/98 Plot: P-21 S 36 1 T 1S 2S R 1W City Tigard County Washington State: OR Plot Location: East of pond, approximately half way between pond and east property boundary. Topographic Location: Slight depression, about V deep and 30' diameter. Do Normal Circumstances exist on the site? yes Explain: Are soils vegetation hydrology , signif, disturbed? no. Explain: VEGETATION Dominant Plant Species Ind. % Cover Ind. % Cover Herb Stratum - % total cover: <5 Shrub/Sapling Stratum - % total cover: 55 1. bryophytes n/a <5 1. Crataegus monogyna FACU+ 25 2. 2. Rosa nutkana FAC 20 3. 3. Acer circinatum FAC- 5 4. 4. Fraxinus latifolia FACW 5 5. 5. 6. 6. 7. 7. Woody Vine Stratum - o total cover: 80 Tree Stratum - o total cover: 90 1. Rubus discolor FACU 80 1. Quercus ganyana UPL 90 2. Hedera helix UPL <5 2. 3. 3. 4. 4. Percent of Dominant Species that are OBL, FACW, or FAC (excluding FAC-): 1 of 4 = 25 % (50/20 Rule) Remarks: Vegetation Criterion Met? No SOILS Mapped Unit Name: Huberly silt loam Drainage Class: poorly drained Taxonomy: Fine-silty, mixed, mesic Typic Fragiaquepts Horizon Depth Matrix Color Redox Abundance, Size, Color Texture, Structure, Other 0-8" 10YR311 n/a silty clay loam 8-16" 10YR411 large, abundant, 7.5YR414 silty clay loam Histosol -Reducing conditions -Highly organic surf. layer _Histic epipedon _Gleyed Organic streaking Sufidic odor x Redox features (w/i 10") Organic pan -Prob. Aquic moisture regime `Concretions (wh 3") x On hydric soils list Remarks: Soil Criterion Met? Yes HYDROLOGY Depth of inundation: n/a Depth to water table: <10" Depth to saturation: 0" Primary indicators Secondary indicators (2 or more required) V) Inundated Oxidized rhizospheres > x Saturated in upper 12" _Water-stained leaves J _ Water marks _ Local soil survey data Drift lines _ FAC-Neutral test -Sediment deposits -Recorded Data (aerials, groundwater data)? - Explain: -Drainage patterns -Other: Remarks: Hydrology Criterion Met? Yes Remarks: DETERMINATION: Is this plot a wetland? No SHAPIRO and Associates 1650 NW Naito Parkway Suite 302 Portland, OR 97209 (503) 274-9000 /-7 ..i•: e..i:.. ~-CJ~ V /.(fir ► ~ HAND DELIVERED April 7, 1998 i' City of Tigard 13125 SW Hall Blvd Tigard OR 97224 Re: Dartmouth LID Our File No. 44708/26799 Dear Mayor Nicoli & Council Members: This letter forwards to you materials which we submit in Reply Y to Waremart and Costco regarding the Dartmouth LID Assessments. The materials include the following: s~ j'`~ 1. Martin's Reply to Waremart regarding Change to Dartmouth 9-k LID Assessment Method. rx::~y+rt?acr #rc,.v t;s - 2. Jerry M. Palmer, Dartmouth LID: Rebuttal to Robert Ball r~~,_~<z:=._~;~-w~~~=-~q•~~.-•~ and Gordon Davis' Written Submissions. s4,•_°'1~ 3. Kent W. Cox & Associates - Letter dated April 6 1998, to r.~ Mayor Nicoli & Council regarding response to letter from Robert S. Ball. 4. Supplemental Record of Exhibits. 0066 We hope you will have the opportunity to review these materials in advance of the FO 7LIMO"XONWM y hearing. ` i Thank you in advance for your consideration. Very truly yours TARILW, JORD S 'H D R Do as V. an Dyk Enclosures cc w/enc: Gordon R. Martin Robert Ball, Esq. 5-Y• Charles R. Corrigan, Esq. Jeff Keeney, Esq. -y.~ `ti'M'. µ'i,5 A Total Quality.tlanagement Organi_ation :6-991146 DID 11r.J.x rl t 04 0- 98-if .I~ ..err 1: MARTINS' REPLY TO WAREMART REGARDING CHANGE TO DARTMOUTH LID ASSESSMENT METHOD Submitted on behalf of Gordon R. Martin and Gordon S. Martin April 7, 1998 Prepared by Douglas V. Van Dyk Tarlow Jordan & Schrader J INTRODUCTION This memorandum replies to the information submitted on behalf of Waremart and Costco. Two things are most important: 1. The R.A. Wright formula was adopted (and Waremart apparently does not dispute that it relied on the formula when it purchased its property); and 2. The R.A. Wright formula is fair (even Waremart acknowledges it was fair when adopted. See Mr. Davis' letter at 3 and 4). This memorandum is limited to the analysis of these two issues. By separate letters, our experts respond to the other points raised. I. ADOPTION OF THE ZONE METHOD A. Ordinance 88-08 Says "Adopted" It is essential to consider the plain and precise language of Ordinance 88-08. Waremart avoids any such discussion, but it is key, so we quote the relevant language again, with the language regarding "adoption" of the preliminary engineer's report in bold type: The title of Ordinance 88-08 is: AN ORDINANCE CURING DEFECTS IN THE PLANS FOR THE [LID], AMENDING ORDINANCE 84-17, ADOPTING FINAL PLANS AND SPECIFICATIONS AND A REVISED PRELIMINARY ENGINEER'S REPORT, AND ESTABLISHING A FINAL ASSESSMENT PROCEDURE. The body of Ordinance No. 88-08 states: NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1: Ordinance 84-17 (including Resolution No. 84-14, as adopted therein) is amended to delete that portion of the planned improvement not located within the legal boundaries of the LID... and is further amended to comply with the provisions of this ordinance, which shall be deemed to include the final plans and specifications and revised preliminary engineer's report approved and adopted herein. Page 1 16-99044dvdreply. d2erli04/0%984f Section 4: The preliminary engineer's report as revised on March 21, 1988, is approved and adopted. Since it is evident that in fact the preliminary engineer's report (hereinafter "Engineer's Report") was adopted in 1988, the only remaining legal question for this Council is what, precisely, was included in the Engineer's Report? Although Waremart avoids discussing the precise language of the Engineer's Report, it is also critically important, so we present it here again for the Council's review: Land that is subject to assessment shall be divided into three zones controlled by distance from the right-of-way line of the proposed street improvement. Zone A will include all land that is from 0 to 150 feet from, the right of way line. Zone B will be all land from 150 feet to 300 feet, and Zone C will be all land between 300 and 450 feet from the proposed right of way. Land beyond 450 feet will not be assessed (You will find the 1988 version of the Engineer's Report at Tab 2, Exhibit 7). Note that the report uses the imperative "shall" rather than "may" when describing the division of the properties into three zones. The language of commitment, therefore, on the part of the City is altogether apparent. It means nothing that R.A. Wright "recommended" the report to Council. The Council adopted the recommendation! Indeed, Council routinely "adopts" recommendations of staff and makes them into law. It is interesting (and telling) that Waremart does not attempt to rebut that it relied on the zone method of assessment when it purchased its property along Dartmouth. Council will recall the following letter from the former City Engineer, Randy Wooley, to Supervalu/Waremart's architect, Planmark, sent in 1989 before Waremart purchased its interest: Page 2 :6-99044dwlreply .dXAr&O41O%98-JJ Bruce Kelly Planmark Re: Dartmouth Street L.I.D. I understand that you requested information about the Dartmouth Street Local Improvement District (LID). Enclosed is a copy of the preliminary engineer's report, which describes the project and the method of assessment Also enclosed is table A, a roll of estimated assessments prepared in 1984. The roll has not been updated for inflation or for changes in land values. Hence, the roll should be used only as a rough estimate of future assessments. Sincerely, A Randall R. Wooley City Engineer (Exhibit 28, Record of Exhibits, Submitted at March 17, 1998 hearing). Thus, even Waremart must concede that it purchased knowing its assessments would be based upon the zone method. Its argument now is not about fairness. Nor is it about whether Ordinance 88-08 adopted the Engineer's Report, or whether the Engineer's Report included the assessment formula. Its argument is about an unanticipated windfall of hundreds of thousands of dollars. B. ORS 223.415 To avoid the operation of Ordinance 88-08, Waremart writes: [E]ven if the City council had adopted the "proximity zones method" of assessment in 1988, it would be legally entitled now to change that formula to the Harper Righellis formula. Even if this were a reassessment proceeding, the statute provides in such cases that the government may adopt a different plan of apportioning benefits (Mr. Ball's letter at 2). Page 3 :6-" 04.1 d d Ry1y.dbckAV --roa.i/ Waremart has quoted in isolation a solitary phrase within the reassessment statute. This Council will appreciate seeing the entire sentence presented within its proper context. ORS 223.415 states: The reassessment shall be based upon the special and peculiar benefit of the local improvement to the respective lots at the time of the original making of the local improvement.... The reassessment shall be made in an equitable manner as nearly as may be in accordance with the law in force at the time the local improvement was made, but the governing body may adopt a different plan of apportioning benefits or exclude portions of the district when in its judgment it is essential to secure an equitable assessment. ORS 223.415. The following points should be self-evident: • First, the legislature intends this Council to make the reassessment based upon circumstances as they existed in 1984, "the time of the original making of the local improvement." To do otherwise would undermine the reasonable ' expectations of property owners when deciding to support or oppose formation of an LID. • Second, before any change may be made to the method or "plan" of assessment, the change must be found to be "essential" to secure an equitable assessment. It is not essential in this case. Waremart itself acknowledges the zone method was fair at the time the original improvement was made. • Third, the zone method of assessment, set forth in the Engineer's Report and incorporated by reference into Ordinances 84-17, 84-18, and 88-08, represents the law governing this LID at the time the local improvement was made. To be faithful to ORS 223.415, and reassess "in an equitable manner as nearly as may be in accordance with the law in force at the time the local improvement was made," the Council must assess based upon the zone method. Indeed, when the LID was formed in 1984, the City did not even have a "final assessment procedure." The Council may not treat the intervening development of a "final assessment procedure" as grounds to abandon the formula for assessment adopted in 1984 and readopted in 1988. Page 4 :6'990444 repfv.ibc1r1s0110%94-J/ C. The City Had the Power to Adopt the Engineer's Report in 1988. Waremart next argues that, in 1988, "[b]ecause the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred." (Mr. Ball's letter at 3). The argument forgets that the Council had the power in 1988 to adopt a formula for assessment without also adopting an assessment roll. This legal principal is stated in Dames v. The City Council, 60 Or. App. 19, 652 P.2d 839, 842 (1982), review denied, 294 Or. 391 (1983): In adopting the engineer's report, which included the assessment formula, the City adopted a proposed assessment for properties within the district based on the status of individual parcels at that time. Although the proposed assessments are subject to remonstrance, the City had the power to determine the factual bases of the proposed assessments at an earlier time than the date the assessment amounts are formally adopted. Precisely the case here: In 1988 the City of Tigard had the power-and exercised the power-to "approve and adopt" the Engineer's Report and the method of assessment described therein. It bears repeating, the minutes of the Council hearing at which Ordinance 88-08 was adopted state: e. [The] City engineer noted that the proposed ordinance would not change the LID boundary or the formula used to calculate the assessments. (The Official Council Minutes of the April 11, 1988 meeting may be found at Tab 2, Exhibit 6, of the materials we submitted March 12, 1998). And in the course of his presentation, the City's engineer on the project, R.A. Wright, referenced to the map attached to the Engineer's Report as Exhibit A. The map shows how the zone method of assessment allocates the costs of the improvements among the property owners within the LID. Page 5 :6-99 044 d'd irply docirli011098.1l D. Changing the Formula Undermines the Right of Remonstrance. In our materials submitted to the Council on March 12, we cited the case law in Oregon that states that an LID is void when its "character and impact" are substantially changed. Waremart responds: In those cases, Oregon Courts were dealing with actions by local governments which effectively denied to property owners the rights to notice, a hearing, and the opportunity to defeat an assessment by remonstrance... . None of such rights has been denied to the Martins or any other affected property owner.... (Mr. Ball's letter at 3). The argument misses something about fairness; an idea inherent in our notions of ordered liberty, indeed, it is a principle embodied in the Constitution of this and every state, and the U.S. Constitution. The government may not elicit authority of the citizens to impose one kind of exaction, then substitute a very different kind of exaction later on. When the character and impact of an LID is substantially changed after the vote on whether to form the LID, the vote (or "remonstrance") to the formation of the LID becomes meaningless. For this reason, courts (and fair-minded Councils) do not allow substantial changes to LID's. This aspect of due process is fundamental. We may not turn back the clock. The decision about whether to form the LID is past. The property owners who had the power of remonstrance, who exercised the fundamental right to vote on this LID, are, for the most part, gone. The Council itself has changed. The LID is formed and the right of remonstrance, exercised fourteen years ago, will not be exercised again. E. Waremart is Mistaken about Some Things. Waremart is determined to make the Martins look like bad people because the Martins exercised the right we all have as property owners to challenge the government when it takes our land against our will. For our part, we are convinced this Council will not allow the taint of retaliation to infect these proceedings in any way. Page 6 :6-" 041 drd ieyly.dociris0 10 ,9R.Jf Waremart is also mistaken about some of its allegations. The Martins' challenge to formation of the LID did not "result in a trial and appeal that consumed 4 years of time." (Mr. Ball's letter at 4). The Martins' appeal of the LID lasted two years, from 1984 to 1986. (By way of comparison, Mr. Pollock fought the condemnation of his property for right of way for more than 3 years). It is true the Martins have persistently argued that the solution to the Triangle traffic problem will eventually involve construction of either an overpass or connection to Highway 217. After the Martins spent tens of thousands of dollars on traffic consultants to prove this point, the City was eventually persuaded and now includes the overpass of 217 on its adopted transportation plan. The Martins also eventually persuaded the City that the Dartmouth roadway should be five lanes under the Tigard Triangle Design standards. Thus it is also plainly true that, among other things, on the matter of the design deficiencies of the roadway, the Martins were right all along. The notion that the Martins' somehow held the two Triangle "giants" -publicly traded Costco and Waremart-hostage over the LID because of the overpass is a bit absurd. F. Aliller v Portland and Parker v Flood are Still the Law. Waremart suggests that two of the cases cited by Martins are not good law because the cases are old. The force of precedent is greater when the precedent is older. Courts are not inclined to change law that has been on the books for years and years. If the cases were no longer good law, then the opinion upon which Waremart relies, Crocker v. City of Albany, would have overruled them. It doesn't. Page 7 26 044 Nd reply. J"1rLvO4V-,919•J/ II. FAIRNESS A. Even Waremart Acknowledges the Fairness of the R.A. Wright Method in 1984. Mr. Rolf asked the question at the end of the March 17 hearing: What is wrong with the zone method? Waremart's answer: Both R.A. Wright and Harper Righellis have developed approaches that are fair. The difference is 14 years. (Mr. Davis' letter at 4). As described above, and based upon ORS 223.415 (the statute upon which Waremart itself relies for authority): The reassessment shall be based upon the special and peculiar benefit of the local improvement to the respective lots at the time of the original making of the local improvement... . ORS 223.415. No one disputes that, in 1984, an assessment role was adopted and an assessment was made. No one disputes that the court of appeals held the original assessment void and stated that the City of Tigard "may reassess for up to the full cost of the improvement within the district." Martin v. City of Tigard, 78 Or. App. 181, 714 P.2d 1115 (1986). And based upon Waremart's acknowledgement of the fairness of the zone method in 1984, no one should dispute any longer that the proper method of assessment to apply is the one that made sense "at the time of the original making of the improvement"-i.e., the R.A. Wright zone method of assessment. B. You're Either In or You're Out Setting aside for the moment that ORS 223.415 requires reassessments to be based upon the special and peculiar benefits at the time of the making of the original improvement, Waremart argues that the properties developed differently than anticipated and therefore the original assessment method is no longer appropriate. But the properties that "developed differently" -the Waremart and Costco buildings-are outside the boundaries of the LID (save Page 8 26-99044,hePrav.d*c!.1y04107:"-Jf only the first few feet of Costco's building). (See Map 3 included with Martin Testimony at Tab 1, page 6). How properties outside the LID boundaries have developed should either be irrelevant, or the entire parcels outside the boundaries should be included for purposes of assessment. Remember, when R.A. Wright recommended the original boundaries, and the City Council adopted his recommendation, it was based upon the following reasoning with regard to benefit: The area judged to be benefited by the proposed street improvement includes all parcels that, by direct access or common ownership with a contiguous parcel having direct access, connect to the proposed street improvement and are not contiguous with, and better served by, another public street. (Engineer's Report, Tab 2, Exhibit 7, page 2). In 1998, the Waremart and Costco parcels both satisfy this test. Each parcel would quite obviously be included within the LID, if the LID were formed today! To suggest, as Waremart has done, that as a matter of "fairness" this Council should consider how the properties developed differently without also accepting a full and fair share of the LID costs based upon the obvious benefit, smacks only of narrow self- interest. C. That the "Anchors" are Outside the LID Today Begs the Question: What will Be Within the LID in the Future? Although the "anchor" stores are almost entirely outside the LID, Waremart nonetheless argues that, because of the "anchor" stores, the benefit that each property derives from Dartmouth "is less from the visibility afforded to the development, than from the access it provides." (Mr. Davis letter at 4). Focusing first upon access: Waremart's parcel has far and away the best access to Dartmouth because it has almost twice the frontage of the Martin parcel. The zone method accounts for this benefit since it places a somewhat higher value upon frontage (the three zones are assessed at the ratio of 3:2: 1 Page 9 .6-99044dvd rrply.doerN04,0i98.1J With regard to visibility: Mr. Davis (to his credit) accepts the importance of visibility, he simply contends it is entitled to less weight given the development of anchor stores, albeit anchor stores which are outside the LID. Mr. Davis suggests visibility would be "essential" to the survival of a strip mall along Dartmouth, although not to a commercial development with an "anchor" like Cub Foods. One might reckon what a vociferous advocate Mr. Davis would be for his client if this City somehow tried to block the visibility of Cub Foods. Essential to its survival? Without any question, visibility is essential to the survival of all of the commercial development along Dartmouth. Remember as well that someday the "pads" along Dartmouth will develop. This is true both because these pads (such as the Office Max at the corner or Dartmouth and 72"d Avenue) will command a premium price, and because the new 50% rule requires future development to be alongside the roadway. When the pads develop, Waremart/Cub Foods will realize the full economic benefit of its exceptional frontage-a benefit that is properly accounted for by the zone method of assessment. Thus, the zone method is fair. It was fair in 1984 (the only time relevant under ORS 223.415). It is fair today. CONCLUSION It is legally proper, consistent, fair and just to base the assessment role upon the adopted zone method of assessment. Dated this 7t' day of April, 1998. pectfully Sub ed, Tarlow, ordan chrader, / Douglas V. Van Dyk On behalf of Gordon R. Martin and Gordon S. Martin Page 10 26-99 a+ dd,.av.daw.tioao-roa•a/ DARTMOUTH LID REBUTTAL TO WAREMART AND COSTCO WRITTEN SUBMISSION The following is the rebuttal of Mr. Jerry Palmer to the written testimony of Mr. Robert Ball via letter to Mayor Nicolai and Council Members dated 3/30/98; Mr. Gordon Davis dated 3/27/98; and Mr. Jeffrey Keeney to Mr. William Monahan dated 3/31/98. The rebuttal format is presented by the two headings of Mr. Davis' Testimony: Wetlands and LID Assessment Methodology. WETLANDS Mr. Davis errors in his contention, or assumption, that my testimony at the 3/17/98 hearing regarding wetlands was referring to a comparison of the wetlands of the Waremart vs Martin properties. It was not the Waremart property BUT the Costco property that I was comparing to Martin's property in my example. Therefore his arguments on comparison are not correctly argued. What is of extreme interest, however, is that Mr. Davis' arguments magnify and highlight our contention that just to adjust area by subtracting wetland area to arrive at developable area is wrong. Mr. Davis states that Waremart's ratio of the fill of the original wetlands to the area of mitigation was "1 acre of fill to 4.45 acres of mitigation". That is exactly our point! Mr. Davis would want us to calculate the developable area of District properties deducting existing wetlands on properties not developed, and "mitigated' wetlands on properties developed. In his cited case of Waremart, the affect of their mitigation was a ratio of 1 to 4.45. A calculation today would have the affect of subtracting 4.45 acres of "mitigated" wetlands on Waremart property and only one acre if for an undeveloped property. The affect of wetlands mitigation to replace, relocate or enhance on undeveloped properties is unknown. It is our testimony that the multiplier is 1.5 to 2.0 to 3.0. Mr. Davis cited their experience to be 4.45! That data fully supports our contention that subtracting existing wetlands area only, does not treat the impact on developable area fairly. Again our testimony is that "all wetlands, in their form and configuration, do not impact development potential equally...". Costco's argument serves to make this point even clearer. Costco argues that even uplands should be excluded because of the impact of wetlands on uplands. There is really no reasonable end to the analysis of variables that might be undertaken in order to truly understand the impact of wetlands upon the development potential of specific properties within an LID. The wetlands were not excluded in 1984. In my opinion, the Council would be wise not to proceed with assessing by only developable area especially if that is defined by excluding only wetlands area from gross area. LID ASSESSMENT METHODOLOGY Mr. Davis errors in his description of the R.A. Wright methodology. He refers to the Wright methodology as "a front footage basis" (Mr. Davis P. 3, 4th paragraph). The Wright methodology J is a zone methodology that both weights parcel area and frontage along a street. Both Mr. Davis and Mr. Ball focus on the frontage element of that methodology to perhaps exaggerate their arguments. That exaggeration does not correctly represent the zone methodology of R.A. Wright. Both Mr. Ball and Mr. Davis like to go outside the boundary of the District to argue the fairness of using the area methodology of Mr. Righellis but stay within the boundary to measure the area to be assessed. Their arguments rely upon development that has occurred from 1988 to 1998 both within and outside the District boundary. This dynamic for the undeveloped properties is yet to occur. What will happen in the future? It is unfair to take a snapshot in 1998 and use it to reflect on the benefit of the Dartmouth Street improvement. Development within, and outside the District boundary is yet to be completed. To rationalize the fairness of an assessment methodology based on 1998 conditions vs 1988 conditions vs future (2008) conditions is grossly unfair to undeveloped parcels in the District. One unchanged defining characteristic of the District is the boundary. That boundary is the same in 1998 as 1988. That boundary creates "unbalanced" parcels that will be assessed. The parcels are unbalanced in shape, form, depth and size. The R.A. Wright methodology weighted the spread of assessment on a zone basis to reflect that variation in depth/size of the assessed parcels. That defining characteristic of the District (assessed parcels) is unchanged. Our plea is to stay within the District boundaries to assess costs/benefits and not be swayed by the variations of development patterns that have occurred, or as yet will occur, either within or outside the boundaries. Benefit of the Dartmouth improvement of assembled lands outside the boundary is evidenced by the arguments of Mr. Ball and Mr. Davis. The assessed parcels on the Dartmouth improvement provided access and visibility benefit to the aggregate properties. The "unbalanced", fully undeveloped parcels of Pollock and Martin will develop under requirements of the Triangle standards. Redevelopment, or additional development of other properties within the District will also meet the requirements of the Triangle standards. This standard requires 50% of the street frontage have buildings within ten feet of the property line. The standard reinforces the appropriateness of the R.A. Wright methodology. Mr. Davis is both correct and incorrect in his statements on Page 4 of his written testimony. He states "The actual `frontage' that each has on Dartmouth has neither constrained nor enhanced the manner in which the development has been shaped." From 1988 to 1998 that has been the owners choice. From 1998 forward that will change. This is evidenced by the Triangle standards. He did add that, "Instead, the form of each development is a function of both the road frontage (highlight added) and the overall size. shape and depth of the parcels." This is confirmation of the faimess of the R.A. Wright zone methodology! In conclusion, we repeat "there is not right or wrong, there is really only the search for fairness." To quote Mr. Davis, "both R.A. Wright and Harper Righellis have developed approaches that are fair." To go further, however, we don't believe a snapshot of conditions in 1998 is a basis to use to evaluate fairness. The foresight of R.A. Wright in their methodology is more fair to the assessed parcels within the District given the "unbalanced" parcel depth and size and the fact that further development is yet to occur. -nil r nu rariao~:nt rrr ENGINEERING KENT W. COX and ASSOCIATES, INC. PLANNING Consutting Engneers Lared Surveyors SURVEYING : LAND DEVELOPMENT 204 N.E. KELLY AVENUE R"Istratiom GRESH", OREGON 97030-7544 (603) 657-4464 Afr=tt = Oregon I~~ FAX (503) 665.9634 American Sodety of CW Engineers Profesoionai Land surveyors of Oregon Washington American Congress of Surveying and LtapPing April 6, 1998 File: 98-022(ml) VIA FAX Honorable Mayor Tint Nicolai Members of the Tigard City Council Tigard City Hall 13125 S.W. Hall Boulevard Tigard, Oregon 97223 $E: Dartmouth LID ASSESSMENT Response to 3-30-98 Letter from Robert S. Ball to Mayor and Council Dear Mayor and City Council: This letter is in response to the March 30, 1998 letter from Robert S. Ball to Mayor and Council. A. Page 3 of his letter states "Because the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred. There was simply no consideration by the Council in 1988 of the formula to be used for spreading the assessments...." Response: Section 4 of the City of Tigard Ordinance No. 88-08 states, "The preliminary engineer's report, as revised on March 21, 1988 is approved and adopted." City Council Minutes of April 11, 1988 page 8 states under "Item e..", "City Engineer noted that the proposed ordinance would not change the LID boundary or the formula used to calculate the assessments." City Council Minutes of April 11, 1988 page 12, states, "With regard to the estimated costs of the project and the 15 percent increase, Legal Counsel advised that this information was included in the documents which had been available for the public at the front counter (City Hall) for some time. Councilor Johnson asked what was the percentage of opponents in the LID. City Engineer responded that the opponent owns approximately 25 percent of the property within the LID. There have been no other objections received or opponents of record." APR 0? '9e 12:46 pqt A~ 11A is' Clearly the City Council, in 1988, was intending to assess the project by the 3 zone method. Also the Council understood the Martin Assessment was about 25%, not the now proposed 41%+- B. page 3 further states: "As described above, the Harper Righellis formula is a charge from the R.A. Wright recommended formula, but is not a change from any prior commitment by the City Council." Resuonse/Anatia_ As stated above, the Council >iA commit to the R.A. Wright formula. s Please enter this letter as additional public written testimony for the Local Improvement District. Very 4x-, Kent , P.L.S. President cc: Douglas Van Dyke (Tarlow, Jordan and Schrader) APR 07 '9e 12:46 PAGE. 03 SUPPLEMENTAL RECORD OF EXHIBITS DARTMOUTH LID ASSESSMENT HEARING APRIL 7,1998 SUBMITTED ON BEHALF OF GORDON R. MARTIN AND GORDON S. MARTIN Exhibit No. 43: January 18, 1996 facsimile Memorandum from Waremart (Gordon E. Davis, Consultant) to Ed Christensen. Exhibit No. 44: August 25, 1993 Waremart Waiver (Non-Remonstrance Agreement) regarding Second Dartmouth LID). Exhibit No. 45: March 25, 1993, Waremart/Supervalu Development Approval, Final Order No. 93-05 PC Exhibit No. 46: Martin's Reply to Waremart regarding Change to Dartmouth LID Assessment Method. Exhibit No. 47: Jerry M. Palmer, Dartmouth LID: Rebuttal to Robert Ball and Gordon Davis' Written Submissions. Exhibit No. 48: Kent W. Cox & Associates - Letter dated April 6, 1998, to Mayor Nicoli & Council regarding response to letter from Robert S. Ball. :6-99 04- Jw/Joe.abrris04,V 94.1 JAN-18-17X 16:'x''9 FROM Gordon Dav i o 70 5 1868 P. 01 Gordan= E. Davis 1020 SW Tayl r. Suite 555 Portlarxl, Oredon 97205 503) 248-1186 Facs*m 503) 227-7221 Mobile 503) 250-0398 CSIMILTE "Pj11n'".4 To: Ed Christensen i FCC: Regarding: 2nd LID Date: January 18, 1996 T®tel;Pages: 2 Just so you arp aware, Paul has no obligation to participate In a second LID except to the , nt on improvements on 72nd. Sec attached. As I Indicated; Paul may be willing to consider participating with the creek crossing and the 99113artmouth intersection in addition to 72nd improvements, but as you carj am his actual obligation is considerably less. EXHIBIT PAGE OF APR 07 198 10:45 0925213231001265222002 PAGE. 02 JA4-3U 1796 16:27 FROM Wr'don 1I4.1 Is iU ~xtocv ~".VA: A tee BatwQ®L" btakft 6007 of *V464 DWYwM too city U6646041 - eats of fao.rl 1"" IM 0141 Blvd. • it4aed. Oa ►7tal gamma= rate We. VArM (NOW->Q MNST>iAt1CE AQUIUM) IMMMEM The undowel ►od owner of v►o real property deseribad below does hereby record its eonsea►t to the turoation of a local 1wProveomt dlrtricL by the City of Tigard Sor Lhe purposes of improving 72nd Avenue. which the described property abuts. Tit* undossianed expressly veivas all prasant and future rights to oppose or remonstrate against the fomation of a local Smpraveoent district £or Lsprovesonte to 72nd Avenue in exceos of those isprovenents constructed as part of the devslepasont or the property. reserving only the right to contact the inclusion v£ pextioular vest tLoas in the isprovesent distriot peoceedina and any right it may have under the lava of the State of Oregon to contort the proposed exassament for"ls. The real property that is the subject of this consent covenant is described as fotlovs: Attached Exhibit "A" IN VITSESS WHEAFAF. I hsreunto act my band on this S~ day of August. 1993. SUFERVALR HMTNGS. 7NC_ It) 5~ Print Name of 4orporation David L. Boshven ' i >t_O_ lox 990 1 Viae preaiesnt Addtvss ?ills i _Hlnnssavlis- !~1 55440 STATE OF KIND Zion) C6. Comm OF H8)Pp PIN) This instruman~ was a0wovledged before me on August ac.1993. by David L. Aoshnon as Vic+ President of SUM MIX Holdlv4s, Inc. a TH _ 11N~~R74' 6OTO, foz ~ giEml Y N otary's Signature W Et~issOd. tI,161d My Cocoission Expires : C { _ n Accepted on ba~'alf of the City of Tigard this day of August, 1993. t NO CHAME IN T STAT>!i City )rt>ginsar .~voas..p IIII EXHIBIT 43 PAGE Z OF 2 TOTAL P.W I I APR 0? '98 1045 092520231001 26222W2 PAM. 03 After Recording Return Copy o, dcordod Document tot 9 3 0 7 6 0 2 3 City Recorder - Clty of T1Bard Washington County \ 13125 SW Sall Blvd. - Tigard, OR 97223 CORPORATION F11e No. WAIVER (NON-REMONSTRANCE AGREEMENT) STREET IMPROVEMENTS The undersigned owner of the real property described below does hereby record its consent to the formation of a local improvement district by the City of Tigard for the purposes of improving Dartmouth Avenue, which the described property abuts. The undersigned expressly waives all present and future rights to oppose or remonstrate against the formation of a local improvement district for improvements to Dartmouth Avenue in excess of those improvements constructed as part of the development of the property or through the original "Dartmouth LID," reserving only the right to contest the inclusion of particular cost items in the improvement district proceeding and any right it may have under the laws of the State of Oregon to contest the proposed assessment formula. The real property that is the subject of this consent covenant is described as follows: Attached Exhibit "A" IN WITNESS WHEREOF, I hereunto set my hand on this i'day of August, 1993. -15 SUPERVALU HOLDINGS. INC. Print Name of Corporation David L. Boehnen P.O. Box 990 Vice President Address Title Minneapolis, MN 55440 STATE OF MINNESOTA) ) ss. COUNTY OF HENNEPIN) This instrument was acknowledged before me on August ~S 1993, by David L. Boehnen as Vice President of SUPERVALU Holdings, Inc. H TERESA ANN SMITH ~ NOTARY PUBUC-MINNESOTA . L ,0. CLrL4n ~~±7k CARVER COUNTY Notary's Signature Puy Cocunlssion Expires Oct. ia, 1 96$1 My Commission Expires: ICI 1-OCI LC b .~.•,~nn„n,. pp~~ Accepted on behalf of the City of Tigard this 2 day of mks-`, 1993. City Engineer EX T 44 NO CHANGE IN TAX STATEMENT PAGE OF 08259 1 ^ ~ 3 3:1 1 T-10431 O 1 STATE OF OREGON County of Washington SS i, Jerry R. Hanson, Director of Assessment and Taxation and Ex-Officio Recorder of Con- veyances for said county, do hereby certify that the within instrument of writing was received and recorded in book of rt3cords of said county. Jerry R. Hanson Director of Assessment and `Taxation, Ex- Officio. County Clerk' Doc 93076023 Rect: 108089 23.00 09/16/1993 01:18:39PM 3 EXHIBIT PAGE-,LOF T-10432 EXHIBIT A mvF.LopmEm: E 2724 S.E. Sunflower Ct. com" Rucrio~1 Hillsboro, Oregon 97123 (503) 648-4959 FAX: (503) 640-9385 PROPERTY DESCRIPTION: TAX LOTS # 600, 2500, AND 2501, MAP # 1S1-36DC FOR: SUPER VALUE DATE: AUG. 31, 1993 LOCATION: PACIFIC HWY. & DARTMOUTH JOB NUMBER: 9110024 FOR IDENTIFICATION PURPOSES ONLY OVERALL RETAIL SITE FOR USE ON LEGAL INSTRUMENT A PORTION OF THE SOUTHEAST QUARTER OF SECTION 36, TOWNSHIP 1 SOUTH, RANGE 1 WEST, W.M., WASHINGTON COUNTY, OREGON, SAID PORTION BEING MORE PARTICULAR DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EAST LINE OF SAID PARCEL I, IN THAT CURTAIN BARGAIN AND SALE DEED TO SUPERVALU HOLDINGS, INC. AND RECORDED AS DOCUMENT NO. 93003638, DEED REC.i:DS OF SAID COUNTY, WHICH POINT BEARS SOUTH 00°02'16" EAST 152.20 FEET FROM THE NORTHEAST CORNER THEREOF, SAID POINT OF BEGINNING ALSO BEARS NORTH 05°04'21" WEST 975.53 FEET FROM THE WASHINGTON COUNTY MONUMENT AT THE SOUTH QUARTER CORNER OF SAID SECTION 36, AND RUNNING THENCE NORTH 86°45'24" WEST 21.07 FEET TO THE CENTER OF RED ROCK CREEK; THENCE IN THE CENTER OF SAID CREEK SOUTH 58° 43'05" WEST 5.76 FEET, SOUTH 04012'11" WEST 34.80 FEET, SOUTH 51°41'12" WEST 44.29 FEET, SOUTH 15°53'22" EAST 19.63 FEET, SOUTH 26°50'41" WEST 68.45 FEET, SOUTH 78047'53" WEST 31.55 FEET, SOUTH 28°58'14" WEST 51.39 FEET, SOUTH 71- 42'53* WEST 25.45 FEET, SOUTH 13°12'08" EAST 56.70 FEET, SOUTH 26°18'07" WEST 28.27 FEET, SOUTH 56°08'24" WEST 32.37 FEET. SOUTH 24039'15" WEST 27.15 FEET, SOUTH 19°40'08" EAST 29.20 FEET, SOUTH 47°21'43" WEST 18.99 FEET, SOUTH 14- 11'18* EAST 29.48 FEET. SOUTH 59058'35" WEST 23.13 FEET, SOUTH 09044'38" WEST 14.97 FEET, SOUTH 66°43'03" WEST 12.43 FEET, SOUTH 17°55'29" WEST 13.88 FEET. SOUTH 71°08'07" WEST 22.17 FEET, SOUTH 30°38'58" WEST 50.50 FEET, SOUTH 04- 36'13* EAST 19.85 FEET, SOUTH 63°54'34" WEST 17.35 FEET, SOUTH 40°04'35" WEST 46.87 FEET, SOUTH 04°35'05" EAST 26.76 FEET, SOUTH 87053'43" WEST 15.88 FEET, ^**TV z~°~o'~a" WRST 35.45 FEET, SOUTH 78°41'09" WEST 16.27 FEET, SOUTH 55° EXHIBIT PAGE 3 OF 10►► t . r V Iria. M vq, i rr S • oo.' ooc► _ j►re• .....1 ►ri is Q pooz +n = i { q 'j' - - - • ~ . - - - 0002 ~ G - Q _ { g I rro, C Oct 4 - t 00•t 000► ~ 0011, rtw- .m i rl'~~. NO.LNIl0 MS • M" II n. .II 4 lost L Io.1•.. [ al f t S I4604 ♦a1 to 01 • •~-if~N00►t(J 1=r • { I • -i.: 'I i1. - _ :i. _ _1. - .i1 - I 1 73- I-1 • i tocc = •at t, ~ 1 I 1 I I I I~ I. ' -1 • Ootc ! - - - - i 1 1 1 t - - - - 1 1 .e.: t. a al j 1 4 • Z 1 I I I : t nf.•.r / a1 t ootc 1 1 i ♦ tools-is ► •nn• 1 ur.n 1 . - ,rrrr 'r. l'1 li 1~! 1 - - •1' - r 1. 1 . - ♦ nr.ro • n - Y too. a c I I I ~tl cove 1 1 s t _ I_ I ;►r, I, 1 1 I I a hl j ►ott 1 1 _ 1 0091 0063• 0009 00.3 -.8}:~ I I - - ' 'AT r I I; 1 ~ ,C • I rrr. r . N~ I...... f 000: ! ,..ei 1 y N or it 0041 oal IV cr 1. M 0011 EL: liv, ool s G' n CITY OF TIGARD PLANNING COHHISSION FINAL ORDER NO. 93-05 PC A FINAL ORDER INCLUDING FINDINGS AND CONCLUSIONS APPROVING AN APPLICATION FOR DEVELOPMENT OF A SHOPPING PLAZA PROPOSED BY SUPERVALU STORES. The Tigard Planning Commission has reviewed the applicant's plans and narrative materials, comments of reviewing agencies, and the Planning Division's staff report and recommendations for the application described below. The commission held a public hearing for the purpose of receiving testimony on this application on March 22, 1993. The Commission has based its decision on the facts, findings, and conclusions noted below. 1. PROPOSAL SUMMARY CASE: CUB FOODS/ SUPERVALU HOLDINGS INC. Site Development Review SDR 93-0002 Planned Development Review PDR 93-0001 Sensitive Lands Review SLR 93-0002 Sign Code Exception SCE 93-0001 REQUEST: A request for _Planned Development Review/Site Development Review approval of plans for development of a 150,000 sq. ft., single-story shopping plaza on a 19.9 acre site. Sensitive Lands Review approval is requested to allow development (a retaining wall and site grading) to intrude 7 feet into the required 25 foot buffer area adjacent to the wetlands adjacent to Red Rock Creek. Community Development Cade Section 18.84.028.A states that land within 25 feet of an identified wetlands is considered as wetlands. All development is normally prohibited within wetland areas unless a Sensitive Lands Review permit is granted. Although not a part of this application, it is noted that the applicants have separately applied to the Oregon Division of State Lands to fill an approximately 6900 square foot wetland. Sicm Code Exception approval is requested to allow 28 foot high freestanding signs on both SW 72nd Avenue and SW Dartmouth Street whereas Community Development Code Chapter 18.114 would normally allow a total combined height of 42 feet to be distributed between the two signs. In addition, Sign Code Exception approval is requested to allow these two signs to have a combined sign area of 280 square feet whereas a combined sign area of 210 feet is normally permitted. APPLICANT: Gordon E. Davis for SuperValu Stores P.O. Box 8774 Portland OR 97207 OWNER: SuperValu Holdings, Inc. 11840 Valley View Road Eden Prairie, MN 55344 OWNER: (Tax Lots 100 and 101) Gordon R. Martin PO Box 740 Gleneden Beach, OR 97308 FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU EXHgJ_1 _45 PAGE OF~1 T-10450 LOCATION: Northwest corner of SW 72nd Avenue and proposed Dartmouth Street (WCTH 1S1 36DC, tax lots 600, 2500, 2501; WCTM 1S1 36CD, tax lot 2000; WCTH 2S1 1BA, tax lots 100 and 101. These parcels are listed as shown on the Washington County Assessor's maps currently on file at the Tigard Community Development Department. The Community Development Department has previously approved several lot line adjustment applications for these parcels so that the actual proposed development site after recording the surveys of these approved lot line adjustments will be bounded by SW 72nd Avenue on the east, SW Dartmouth Street on the south, and Red Rock Creek on the west). PLAN DESIGNATION: General Commercial ZONING DESIGNATION: C-G (General Commercial) and C-G (PD) (General Commercial with the Planned Development overlay zone) See attached zoning map. APPLICABLE LAW: Community Development Code Chapters 18.62, 18.80, 18.84, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164. STAFF RECOMMENDATION: General approval of all applications listed above subject to several modifications and conditions of approval. SITE HAP/ZONING MAP: - t an~.al. L 1*. 1 , j s• MIII~I,L FIAT I ` e T1 [T - I : ~ ~0{,711 [ZTOItO~.-_ O•' SITE - 4. l tla - ~ /µAi Ll• 3.. KK, •~0 FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU PAGE--a2-OF t T-10451 II. DETAILED APPLICATION DESCRIPTION Planning Commission final orders typically include a fairly detailed description of the existing site configuration, zoning, surrounding uses, and a detailed description of the proposal culled from staff's review of the development plans. With this application, however, the applicants have provided a very thorough narrative describing the site and surrounding properties, as well as a very detailed description of the proposed development and the necessary applications. Therefore, this order will not repeat this information already supplied by the applicants but will list the following as the exhibits to be considered as the applicants' statement:* 1. March 1, 1993 letter from Gordon Davis to Randy Wooley; 2. January 28, 1993 letter from Gordon Davis to the Planning Division along with attached Narrative Description; 3. Site Plan (sheet 1 of 4) and Grading Plan (sheet 2 of 4) dated March 1, 1993 by Alpha. Engineering; 4. Utility Plan (sheet 3 of 4) by Alpha Engineering and Priest Engineering; S. Elevation. (sheet 4 of 4) by Planmark; 6. Landscaping Plan (sheet 1 of 1 by Alpha Engineering and Priest Engineering). 7. Topographic Map of Site by Alpha Engineering; 8. Transportation Impact Study for Cub Foods Commercial Center by Kittelson & Associates February, 1993; IT SHOULD BE NOTED THAT THE SITE AND GRADING PLANS THAT ARE UNDER REVIEW WERE SUBMITTED AS REPLACEMENT SHEETS SUBSEQUENT TO THE ORIGINAL SUBMITTAL. AS SUCH, THESE PLANS CONTAIN INCONSISTENCIES WITH THE LANDSCAPING PLAN. THE COMMISSION HAS CONSIDERRED THE SITE AND GRADING PLANS LISTED ABOVE TO SUPERSEDE THE EARLIER SUBMITTAL. IT IS ADDITIONALLY NOTED THAT THE SITE PLAN REFERS TO FIVE SEPARATE LOTS WHEREAS THE APPLICATION DOES NOT REFER TO ANY MINOR LAND PARTITION OR LOT LINE ADJUSTMENT APPLICATION TO BE MADE AT THIS TIME SO AS TO RESULT IN SUCH A LOT CONFIGURATION. THE APPLICANTS' AGENT, GORDON DAVIS, HAS TOLD STAFF THAT THE APPLICANTS MAY APPLY FOR APPROVAL TO RECONFIGURE THE SITE INTO TEE FIVE LOTS IN THE FUTURE. THIS ANALYSIS CONSIDERS THE SITE AS ONE DEVELOPMENT SITE. In addition, the following documents relating to the site were reviewed by staff prior to reviewing this application but were not included in the Planning Commission's packets due to their length and technical nature. These documents are available for review at the Planning Division office. 1. Geotechnical Investigation - Proposed Tigard Center by Applied Geotechnology Inc. 2. Joint DSL/Corps of Engineers fill permit application FP 07216 and supporting documents. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU 51Tj 'L PAGE_ OFD T-1®4'52 III. AGENCY AND NPO COMMENTS The City of Tigard Engineering Department, Tri-Met, and the Unified • Sewerage Agency have submitted multiple pages of comments on this proposal. Their comments are attached as an appendix to this report. The City of Tigard Building Division has reviewed the proposal and provides the following comments: a. Finished cut or fill slopes shall have a maximum 2 to 1 slope; b. Erosion control measures shall be maintained throughout construction activities; C. Disabled person parking spaces will need to comply with Oregon State Statutes with regard to size, number of spaces, and signage. The State of Oregon Division of State Lands (DSL) has been notified of this proposal due to the portion of the site which is shown to include possible wetlands area by the National Wetlands Inventory map. The applicants wetland delineation prepared by IES Associates confirms the existence of wetlands on the site. Application has been made for on-site mitigation for the proposed disturbance of a portion of the wetlands. The Division of State Lands has commented that a removal/fill permit is required for this project (comment of February 5, 1993). The applicants have submitted a copy of their application for a Joint DSL/Corps of Engineers Fill Permit dated February 9, 1993 (DSL Permit #FP 7216). The Tualatin Valley Fire and Rescue District has commented that all fire hydrant locations are subject to the final approval of the Fire District. The Oregon Department of Transportation has reviewed this proposal and has commented that the traffic study should have included analysis of the proposed development's impacts on the Hwy. 217/SW 72nd Avenue interchange for both existing conditions and with improvements. ODOT has further commented that they cannot comment on impacts to the interchange until the analysis is completed. PLANNING DIVISION COMMENT: STAFF CONTACTED ODOT AND TOLD ODOT THAT THE CITY WAS NOT GOING TO REQUIRE THIS ADDITIONAL REVIEW FOR THIS PROJECT AT THIS TIME FOR THE ADDITIONAL ANALYSIS ODOT IS NOW REQUESTING. ODOT HAD BEEN APPRISED OF THIS POTENTIAL DEVELOPMENT FOR SOME TIME AND HAD NOT PREVIOUSLY REQUESTED THIS ANALYSIS. Northwest Natural Gas has commented that a 2 inch diameter gas line exists on the west side of SW 72nd Avenue. This line has not been shown on the preliminary improvement plans. The applicants' engineer should contact Scott Palmer at 721-2449 for information on the location of this line and responsibilities for relocation of the gas line. Portland General Electric and General Telephone have reviewed the proposal and have issued no comments or cojections. The Tualatin Valley Water District and NPO #4 were provided with copies of the proposed development plans. As of this date, no comments have been received from those agencies. Staff forwarded a written comment from Irv Larson of 11720 SW 68th Avenue to the Commission for consideration. No other oral or written comments were received at the public hearing. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU IX1 4 ~b_ PAGE 4 OF T-10453 IV. FINDINGS AND CONCLUSIONS Chanter 18.120 - Site Development Review Code Section 18. 120. 180.A. 1 (Site Development Review - Approval Standards) requires that a commercial development proposal be found to be consistent with the various standards of other Community Development Code chapters. The applicable criteria in this case are City of Tigard Community Development Code Chapters 18.62, 18.84, 18.96, 18.100, 18.102, 18.106, 18.108, 18.114, 18.120, 18.150, and 18.164. These Chapters are also listed as approval standards for a planned development review application under Code Section 18.80.120.2. The proposal's consistency with these various Code chapters is reviewed in the following sections of this final order. The proposal contains no elements related to the provisions of Code Chapter 18.92 (Residential Density calculations), Chapter 18.94 (Manufactured/Mobile Home Regulations), Chapter 18.98 (Building Height Limitations: Exceptions), and Chapter 18.144 (Accessory Use and Structures) which are also listed under Code Section 18.120.180.A.1 and Section 18.80.120.A.2. These chapters are therefore found to be inapplicable as approval standards. Code Section 18.120.180.A.2 (Relationship to the Natural and Physical Environment) provides other Site Development Review approval standards not necessarily covered by the provisions of those previously listed Code chapters. These other standards are addressed immediately below. The proposal is found to comply with the applicable portions of code Section 18.120.180.A.2 relating to Site Development_ Review approval standards for provision of buffering and screening- of the proposed development through compliance with the buffering and screening requirements of Code Chapter 18.100 as described under the review of that Chapter. Code Section 18.120.180.A.8 as well as code Section 18.80.120.A.3 1 states that where 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 the floodplain. This area shall include appropriate portions suitable for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan. The Flood Insurance Rate Map for the City of Tigard prepared by FEMA does not map any 100-year floodplain area for Red Rock Creek on this site (FIRM Community Panel No 410276 0003B, dated March 1, 1982, although floodplain area is mapped to the south of this site). Therefore, no dedication of floodplain area is required. Code Sections 18.120.180.9 and .10 require consideration of crime prevention and safety in the design of a proposed development. The relatively open development and landscaping pattern proposed along with the parking lot and building lighting should provide a reasonably safe site design for future customers and employees of the development. Chapter 18.80 - Planned Development Review Chapter 18.80 provides a process for creating planned environments through the application of flexible development standards. The purpose statement notes that it is the intent of this section to preserve to the greatest extent possible the existing landscape features and amenities through the use of site planning procedures that relate the type and design of a development to the site. Since this development site carries a Planned Development designation, a general review of these standards is necessary. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU dNIge PAGE _OF T-10454 Code Section 18.80.120 identifies approval criteria for a planned development site plan. Of particular note with regard to the current request is Section 18.80.120.A.3.a which states: streets, buildings, and other site elements shall be designed and located to preserve the existing trees, topography, and natural drainage to the greatest extent possible.- with the underlying zoning district allowing large scale commercial developments, such as has been proposed, and the substantial slope of the site that needs to be graded to allow such a development, it would be very difficult if not impossible to allow this type of development without substantially altering the tree cover and existing topography. The application proposes a very substantial amount of site grading and removal of almost all existing trees in order to accomplish this development. However, the application provides for preservation and substantial enhancement of the wetlands associated with Red Rock Creek. In addition the landscaping plan provides for a significant amount of replacement landscaping and trees to provide a relatively attractive development around a large commercial box development. Therefore, the Commission finds that the development plan makes a reasonable attempt at satisfying this criterion. Section 18.80.120.A.3.b provides standards relative to buffering and screening a proposed development site from surrounding uses and streets. This criterion is addressed under the discussion of Code Chapter 18.100 below. Sections 18.80.120.A.3.c, d, and .e refer to residential developments that are developed as planned developments. These approval standards are therefore inapplicable. Sections 18.80.120.A.3.f, g, i .i. and .k are essentially references to the requirements of other Code Chapters dealing with access, landscaping, signs, parking, and sensitive lands. Findings relative to these Code Chapters should be considered tantamount to consistency to these planned development approval standards. Section 18.80.120.A.3.h allows the approval authority to require the developer to provide facilities relative to public transit needs such as bus turn-outs or shelters, if the proposed development abuts a public transit route. SW 72nd Avenue abutting the site is not currently served by Tri-Het bus service, although Tri-Met's comments raise the possibility that current service routes might someday be shifted to directly serve this area. Tri-Het has provided comments on the proposed development plan but has not requested the provision of any transit related facilities. Therefore, no transit related facilities will be required as conditions of development approval. Chapter 18.62 - C-G Zoning District The proposed uses of the site, food and beverage retail sales and general retail sales, are permitted uses in the C-G zoning district (Code Section 18.62.030). Staff is charged with reviewing future usage of the site through the review of business tax applications and building permit applications. Proposed site improvements comply with the C-G zoning district dimensional standards (Code Section 18.62.030) for building height (45 foot maximum height allowed; 26 foot maximum height proposed); lot coverage (85 percent maximum allowed site coverage in the C-G zone; proposed site coverage of less than 75 percent); and landscaped area (minimum landscape coverage of 15 percent; proposed landscape coverage in excess of 25 percent). There are no applicable building setback requirements since none of the site directly abuts a residential zoning district, except across SW 72nd Avenue from the site. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU :iIBIT Age~OF,-~ T-1 0455 Chapter 18.84 - Sensitive Lands Review The applicants retained IES Associates to conduct a wetland delineation on the site. IES identified two jurisdictional wetlands on the site as indicated on the site plan. The wetlands area that is located within the proposed parking lot area has been proposed to be filled. Under the requirements of Chapter 18.84, the City of Tigard defers to the Oregon Division of State Lands and US Army Corps of Engineers permitting processes for wetland modifications. The applicants have filed a separate joint permit application with the DSL/Corps for filling of this wetland area. This area is therefore not subject to city review. The joint DSL/Corps permit application and wetland fill mitigation plan is available for review through the Planning Division although it is not technically part of this development application. Page 8 of the applicants' narrative describes how the proposed wetlands mitigation plan will work in consort with the stormwater quality treatment and detention plan required by the USA requirements for the Tualatin River Basin. The Planning Commission approves the preliminary plans for this facility subject to the conditions of approval recommended by the Engineering Department. The Engineering Department will consider the comments provided by USA in the review of the final facility and storm drainage plans. Contrary to USA's recommendation, however, the City of Tigard typically does not desire dedication of such facilities to the City with the added maintenance responsibilities. Sensitive Lands Review approval is requested, however, to allow modification of the 25 foot buffer area adjacent to the wetlands adjacent to Red Rock Creek. This area adjacent to the wetlands is not subject to DSL/Corps review, but is subject to City of Tigard regulations. Community Development Code Section 18.84.028.A requires that land within 25 feet of an identified wetlands be considered as wetlands. Modifications to any area considered wetlands, not including areas under the DSL/Corps permit requirements, may be permitted subject to the review and approval of the modification plans consistent with Code Section 18.84.040.D. The applicant has addressed these standards on page 8 through 10 of the applicants' narrative. The Commission concurs with the applicants' analysis for this request. The Commission approves the Sensitive Lands Review Permit for the proposed wetland buffer modification. The following is adopted from the applicants' narrative as proposed findings in support of this request: Section 18.84.040.D outlines the following numbered approval criteria necessary to obtain a Sensitive Lands Permit for a wetland area alteration (in this case a buffer alteration) that does not meet the jurisdictional definition of other state and federal regulatory agencies. The applicant has proposed findings to this criteria. The City adopts those findings. 1. The proposed landform alteration or development is neither on wetland in an area designated as significant wetland on the Comprehensive Plan Floodplain and Wetland Map nor is within 25 feet of such a wetland. Finding: The Red Rock Creek wetland in this area is not identified as a significant wetland or otherwise identified in the City's Comprehensive Plan Floodplain and Wetland map. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Pa e 7 E AMIT 4-5 PAGE I OF T°-1®456 2. The extent and nature of the proposed landform alteration or development will not create site disturbances to an extent greater than the minimum required for the use. Finding: Because of the meandering nature of the wetland line, the wetland and its buffer extend eastward toward the development area in only one spot. While the parking lot itself will be 30 feet away from the actual wetland line, the severe grading requirements of the site force the parking lot to be elevated at the western edge almost 10 feet. In order to minimize intrusion into the wetland and/or buffer areas, retaining walls will be used. However, construction of that wall will intrude an average of approximately 7 feet into the buffer area for this approximately 110 foot area. Of the approximately 800 lineal feet of wetland edge, only approximately 110 feet will be impacted by the retaining wall within the buffer area. The intrusion area is approximately 770 square feet. However, in an approximately 200 lineal foot area immediately north of the intrusion area, the wetland boundary and parking diverge so that the average buffer is approximately 40 feet, equalling approximately 3,000 square feet more buffer than is required. 3. Any encroachment or change in on-site or off-site drainage which would adversely impact wetland characteristics have been mitigated. Finding:- 40 The proposed stormwater quality treatment and detention basin and the proposed wetland enhancement/mitigation plan are designed to manage on and off site drainage. 4. Where natural vegetation has been removed due to landform alteration or development, erosion control provisions of the Surface Water Management program of Washington County must be met and areas not covered by structures or impervious surfaces will be replanted in like or similar species in accordance with Chapter 18.100. Finding: The proposed stormwater quality treatment and detention basin and the proposed wetland mitigation/enhancement program will replace and substantially enhance the level of both upland, transitional and wetland vegetation within the Red Rock Creek corridor. 5. All other sensitive lands requirements have been met. Finding: No other substantive requirements are applicable to this proposal. 6. The provisions of Chapter 18.150, Tree Removal shall be met. Finding: No trees are to be removed within this area. 8 J FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALII E"89 PAGE OF T-10457 7. Other Comprehensive Plan policies are met. Finding: The proposal is consistent with Physical Limitations and Natural Hazards (the area is not within a 100 year floodplain nor contains other physical hazards), Parks, Recreation and Open Space policies of the Comprehensive Plan (the area is not a designated park or recreation area and the proposed mitigation plan meets the general open space policies of the plan). Chapter 18.96 - Additional Yard Area Requirements Code Section 18.96.020.8.2 requires a minimum 30 foot setback from the centerline of SW 72nd Avenue, beyond any setback required by the underlying zoning district. As previously mentioned, there is no applicable setback imposed by the C-G zoning district. The proposed building would be set back 80 feet from the centerline of SW 72nd Avenue. Therefore, Code Section 18.96.020.8.2 has been satisfied. Chapter 18.100 - Landscaping Code Section 18.100.030 requires street trees to be planted in accordance with certain detailed standards for all developments fronting on a public or private street. Code Section 18.100.035.A specifies a minimum caliper size of 2 inches at planting and 20 to 40 foot spacing. The landscaping plan proposes minimum planting sizes for Chancellor Linden street trees of 3.5 to 4 inch caliper on 40 foot centers along SW Dartmouth Street thereby satisfying this standard as well as with the Dartmouth Street landscaping guidelines approved by the City Council on October 27, 1992. The applicants' landscaping plan also proposes minimum planting sizes for Sweetgum street trees of 2.5 inch caliper on 40 foot centers along SW 72nd Avenue consistent with the Code's street tree standard. The landscaping plan provides for appropriate low height plantings along the site's frontages on both sides of the sidewalks to reduce the impacts of on-site lights on adjacent uses and upon traffic on the abutting streets to satisfy the standards of Code Section 18.100.110.A.1 as well as the Dartmouth Street landscaping guidelines. It is noted here that these comments are based upon the review of the submitted landscaping plan which calls for a landscaped strip between the curbs and sidewalks. The revised site plan which is part of the review package does not provide for sidewalks to be set back from the curbs. The landscaping plan is consistent with both the City Council's adopted landscaping guidelines for Dartmouth Street and also with Code Section 18.164.070.B, whereas the site plan is not. This Code section requires that a planter strip separation of at least five feet in width be provided on any collector street, except in certain conditions - none of which apply to the current situation. The Dartmouth Street landscaping guidelines call for a minimum seven foot wide planter strip. Therefore, the site plan will need to be revised to provide for a seven foot wide planter strip consistent with the Dartmouth guidelines and the applicants' la-dscaping plan. The landscaping plan also provides more than 120 trees relatively evenly distributed within and adjacent to the parking lot at a ratio in excess of the Code's standard of at least one tree per seven parking spaces (Code Section 18.100.110.A.1.d1. Refuse and recycling facilities are required to be screened from views from other properties and from streets by Code Section 18.100.110.B and D. The plans do not indicate areas for refuse FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU VPM PAGE OF T-10458 and recycling facilities (although it is likely that these will be provided on or adjacent to the loading docks on the north edge of the buildings). The applicants will be required to provide details on the screening of these facilities. Code Sections 18.100.80 and .130 provide for vegetative buffering and screening between a proposed development and abutting land uses. The Code's buffer matrix does not provide for any specific buffering or screening standards for a commercial use such as is proposed and abutting commercial properties. The buffer matrix requires a minimum 20 foot buffer yard between commercial development and single-family residential areas such as is found to the east of this site. However, this buffer standard does not apply when there is an intervening street. Nevertheless, Code Sections 18.80.120.A.3.b (Planned Development approval standards) and 18.120.A.4 (Site Development Review approval standards) provide more subjective approval standards for the buffering of a new use from surrounding uses. The landscaping plan provides for well landscaped perimeters of the site with a minimum dimension of fifteen feet. The COmmission finds that these landscaped perimeter areas will provide for sufficient landscaped buffering and screening to satisfy the intent of these more subjective Code buffer sections. Chanter 18.102 - Visual Clearance Areas Chapter 18.102 specifies vision clearance triangles adjacent to intersections in which the height of plantings, signs, etc. are limited in height to assure safe and adequate sight distance at intersections to reduce potential hazards from vehicular turning movements. The landscaping plan appears to be consistent with the standards of this Chapter, as long as lower shrubs are kept trimmed below three feet in height and deciduous trees are trimmed so that no branches are lower than eight feet in height. Signs are also subject to this Code section. Chapter 18.106 - Parking The site plan provides for substantially more than the Code's required minimum number of parking spaces for a combined grocery store and general retail sales plaza of this size (Code Section 18.106.030.C). 398 parking spaces would be required by the Code standard of 1 space per 200 square feet of gross floor area for the 79,455 square foot food and beverage retail sales. 166 spaces would be required for the proposed 66,295 square foot total retail store area by the Code standard of 1 space per 400 square feet for general retail sales uses. The total required parking would therefore be 564 spaces. The site plan provides for 790 total parking spaces. The parking proposed would exceed Code minimum standards by 226 parking spaces. This may be important with regard to the need to revise plans to provide for the planter strip between the curb and sidewalk along SW Dartmouth. If the grading plan needs to be revised to accommodate the planter strip, it would be preferable to reduce the size of the parking area rather than create a taller retaining wall. Future development lots 4 and 5 will need to be reviewed for parking adequacy at the time of development review. If the property owner does re- partition this property in the future to provide the five individual lots shown on the site plan, joint use access and parking agreements should be prcvided amongst all of the parcels involved in this development. Code Section 18.106.040.A.1 allows up to 25 percent of parking stalls to be compact stalls. Less than 5 percent of the parking spaces to be provided would be compact spaces. This standard is therefore satisfied. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU 10 PAGE In OF~ T-10459 Code section 18.106.020.A.c requires developments to provide disabled person parking facilities as required by State of Oregon and federal law. According to ADA requirements (Americans with Disabilities Act), a minimum of 16 designated disabled person accessible spaces are required for parking areas which provide between 750 and 800 parking spaces. The site plan provides for 18 disabled person car and van parking spaces in locations convenient to the primary building entrances, thereby satisfying this standard. Code Section 18.106.020.P requires developments to provide secured bicycle parking facilities at a minimum ratio of at least 1 bicycle parking space per 15 auto parking spaces. The site plan does not provide for any bicycle parking spaces. The site plan should be required to be revised to provide for at least 53 bicycle parking spaces within conveniently located racks in order to satisfy this standard. The proposed automobile parking spaces and parking lot aisleways are appropriately configured to satisfy all applicable Code Section 18.106.050 parking area dimensional standards. Proposed loading spaces on the north side of the buildings satisfy Code Sections 18.106.080 and .090 standards for off-street loading spaces. Chapter 18.108 - Access and Circulation The proposed internal driveway and sidewalk system satisfies the requirement of Code Section 18.108.080(A) which requires that a commercial development of this size provide at least two access driveways and sidewalk(s) to provide access from adjoining streets. The plan provides for two-way driveways and sidewalks leading from both streets abutting the site as well as a one-way service driveway from SW 72nd Avenue to the loading areas on the northern side of the proposed buildings. Section 18.108.050.A requires sidewalk connections between the public sidewalks adjacent the site and the primary entrances to the commercial uses. This is provided by the on-site sidewalks along the driveways from SW 72nd and SW Dartmouth connecting to a sidewalk within a landscaped island leading to the sidewalks in front of the buildings. A fifteen-foot wide sidewalk covered by a ten-foot wide canopy extends across the fronts of the buildings. The site plan is therefore consistent with all applicable Code Chapter 18.108 access standards. The proposed internal roadway system provides good access for emergency vehicles access as well as all other users throughout the site. Chanter 18.114 - Signs The applicants, narrative states that wall signs will be installed for each of the three major tenants on the building front and that these signs will not be larger than 15 percent of the building face for any of these three buildings. These signs would therefore be consistent with Code Section 18.114.C.l.b.i.1 standards for wall signage in the C-G zoning district. The narrative states that an additional -wall- sign will located on one of the retaining walls in the southwest corner of the site, facing Dartmouth. This -wall- sign is identified on the site plan. The Commission disagrees with the applicants that this sign on the proposed retaining wall would be a wall sign permitted by Section 18.114.C.l.b.i.1. That Section specifically mentions that permitted wall sign area is determined by the gross area of the building face (emphasis added) on which the sign is to be mounted. The retaining wall is clearly not a building; therefore, the FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU ~i ~9. Wl~ PAGE IL OF2 T-10460 Commission finds that this sign should be considered a freestanding sign and will therefore only be permitted if other proposed signage is omitted. The applicants' narrative notes that two (other) freestanding signs are proposed; one on the east side of the Dartmouth Street entrance to the development and one on the north side of the main 72nd Avenue entrance. The maximum available increase in sign copy area and sign height have been requested for these freestanding signs through sign exemptions provided in Section 18.114.130.G.l.c.ii. and Section 18.114.145.A.3. Section 114.130.G.l.c.ii provides for a 50 percent increase in sign copy area when a site contains more than a single tenant and the additional sign area is needed to adequately identify the separate tenants. Section 114.145.A.C. provides for a 2S percent increase in sign area and height if the increase will not deter from the purpose of the sign code. Attached with the narrative are drawings of the two (other) proposed freestanding signs. The dimensions on these drawings are accurate (dimensions indicated on the site plan - Sheet 1 - are incorrect). The applicant has provided proposed findings addressing the approval criteria for the sign code exceptions. Due to the size of the site, topographic differences between the building locations and the two abutting streets, and large amount of frontage on these streets, the commission concurs with the applicants that special circumstances exist which justify the additional sign area and height requested without compromising Code purposes of limiting sign clutter. The Commission approves of the requested Sign Code Exceptions and adopts the following findings provided by the applicants. The applicants state that the two sign code exceptions are requested to more adequately identify the multiple tenants in the proposed development. Unlike many comparable retail centers with many tenants, this center is designed to accommodate three major tenants. While there will be additional retail users in Retail Space A and on Lots 4 and 5, those uses will be identified with wall signs only. Since the retail complex is designed to focus on the three major tenants, each needs sufficient identification from the adjacent roads to ensure customer recognition. In addition, since the elevation of Dartmouth at the entry drive is 12 to 14 feet below the parking lot surface, little if any of the major retail buildings will be able to be seen from Dartmouth. Given this difference in elevation, it is essential that each of the three major retail users be identified at the street. The proposed freestanding sign on 72nd Avenue is necessary since there will be no other building identification visible from that street. The proposed freestanding signs are consistent with a development of this size. The combined sign area for the two proposed freestanding signs is less than the combined sign area that would be allowed if this development had eight businesses and was classified as a shopping center. In addition, even with the requested sign exceptions, the proposed signs will be smaller than the standard CUB food signs used throughout the northwest. Even though found to be consistent with sign standards through this review, a separate sign permit must be obtained from the Planning Division prior to erecting any sign. Sign size, height, and location must be shown to conform with code standards (including vision clearance) in order for sign permits to be issued. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 12 -PIT rnGE F O 2 T-10461 Chapter 18.150 - Tree Removal Chapter 18.150 will be satisfied in that the applicant will be required to obtain a tree removal permit prior to removing trees over 6 inches in caliper size in preparation for development. Permits will be granted only if it is found necessary to remove the trees to accommodate structures, sidewalks, driveways, utilities, or other necessary site improvements. It should be clear from the review of the site plan and grading plan that this will require the removal of most of the trees on the site due to the significant amount of grading which must occur. Nevertheless, trees such as are located on future lots 4 and 5 should not be removed until such time as is necessary to allow for development. v Chapter 18.164 - Public Improvement Requirements STREETS The site is located immediately to the north of the future Dartmouth Street Extension and immediately west of SW 72nd Avenue. Both streets are classified as major collector streets by the Comprehensive Plan's Transportation Plan Map. Major collector streets have the following minimum improvement standards imposed by Code Section 18.164.030.E.1.a: 60-80 feet of right-of-way, 44 feet of pavement, and 2-4 moving lanes. SW 72nd Avenue adjacent to the site currently has the following improvements: 40 feet of right-of-way, 11 - 13 feet of pavement west of centerline, and no curbs or sidewalks. Typically half-street improvements are required to be a condition of development approval to bring abutting roads up to the minimum standards. The applicants apparently have no problem with such requirements and have proposed improvements beyond the minimum improvement standards based upon their traffic report's analysis of needed road improvements. Based on the applicants' traffic report, at such time as the entire Tigard Triangle is fully developed, the projected volume on S.W. 72nd Avenue adjacent to the site will exceed the level requiring a five lane facility. The applicants state that the traffic report used conservative assumptions on future development of the Triangle. The basis of those assumptions is the existing land use plan for the area which was utilized even though that plan is being reconsidered by the City. While the plan revisions have not yet been adopted, recent decisions by the Planning Commission with regard to the Triangle will likely lead to many areas that are now zoned for primarily office development to be redesignated for medium density residential use. These changes would tend to reduce future peak-hour traffic volumes from the levels considered in the traffic report. I Therefore, based on the traffic analysis provided by the applicants and the proposed changes to the land use plan, the applicants are proposing the following: (refer to Gordon Davis' March 1, 1993 letter to Randy Wooley and the March 1, 1993 revised site plan): A. Between the Dartmouth/S.W. 72nd Avenue intersection, and to a point approximately 200 feet north of the 72nd Avenue driveway, an additional 31 feet of right-of-way, which will create a total of 51 feet of right-of-way on the west side of the centerline. B. The remaining frontage along S.W. 72nd Ave would have increased right-of-way to a total of 45 feet on the west side of the centerline. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU PageT13 PAGE OF 11-2-1 t T-10462 C. A total street section between the Dartwouth/72nd intersection and the site driveway on 72nd Avenue will have 51 feet of paving and will include: - a bike lane on the west side - a southbound through travel lane - a southbound left turn lane - a northbound left turn lane - a northbound through travel lane D. A total street section between the 72nd Avenue driveway to a point approximately 200 feet north will include: - a bike lane on the west side - a southbound through travel/right turn (into the site) - a center merge/left turn lane - a northbound travel lane E. From the north property line to a point approximately 200 feet north of the 72nd Avenue driveway: - a bike lane on the west side - a north and southbound travel lane - a continuous left turn lane F. Curbs and sidewalks will be constructed along the entire west frontage of 72nd Avenue. The Planning Commission concur with these proposed improvements along the site's SW 72nd Avenue frontage, except that the Commission points out that the sidewalk will need to be removed from the curb by at least five feet consistent with Code Section 18.164.070.B. Conditions of approval are specified at the end of this final order to specify these street improvements along SW 72nd Avenue. The proposed Dartmouth Street extension will be built under the Dartmouth local improvement district. The local improvement district will construct a three-lane roadway with curbs, and gutter within a 70 foot right-of-way between Pacific Highway and SW 72nd Avenue. Construction is scheduled to occur in summer, 1993. Approval of this development plan will therefore be conditioned upon Dartmouth street be open for traffic between SW Pacific Highway and SW 68th Avenue prior to occupancy of any of the proposed retail spaces. Access from SW 72nd Avenue alone would not provide sufficient access for this size and type of development. The applicants' traffic report indicates that a three-lane Dartmouth Street should function adequately for approximately 20 years, under present growth assumptions, but that sometime later a five lane facility may be needed. The analysis also shows that the demand for a five lane facility does not necessarily come from the development, but from the build-out of the entire Tigard Triangle, again, under present growth assumptions. Again, the assumptions that were used in the traffic analysis are more than likely going to change as the Triangle land-use plan is revised such that lesser traffic peaks would be anticipated. As stated by Gordon Davis in his March 1, 1993 letter: In a future of uncertainty, it is nonetheless clear that under present growth assumptions, the three lane facility will function very adequately for the development of those properties and for development within the Triangle for the next 20 years. However as future decisions are made on other transportation issues, the impacts to Dartmouth will become clear and decisions can then be made on the appropriate additional improvements to Dartmouth. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 14 r- 1 : • r-Y t' GE OF . T-1046 In response to the traffic report's findings, the applicant is proposing the following improvements to Dartmouth Street: A. In anticipation that a five lane facility may be needed at some time in the future, dedication of an additional amount of right-of-way to bring the total right-of-way to 45 feet from the centerline. B. In addition to the improvements provided by the Dartmouth local improvement district, the following would be provided by the applicants: - A second westbound through lane on Dartmouth Street between the 72nd Avenue intersection and the Dartmouth entrance driveway to the development. - From the Dartmouth driveway west, an acceleration lane on Dartmouth Street which would transition back to, the three-lane roadway. - A deceleration right turn lane for vehicles turning right into the site from Dartmouth Street. C. A 6-foot wide sidewalk adjacent to the curb. The Planning Commission generally concurs with the need for these proposed improvements along the site's SW Dartmouth Street frontage, with the following exceptions. Again, the Commission points out that the sidewalk will need to be removed from the curb by at least seven feet to be consistent with the Dartmouth Street landscaping guidelines adopted by the City Council last October as well as with the minimum five foot separation required by Code Section 18.164.070-B. Hr. Davis' letter argues that separation of the sidewalk from the curb along Dartmouth would require that a seven-foot tall retaining wall be built to accommodate the separated sidewalk without affecting the parking lot design. While we agree with Mr. Davis that a seven-foot retaining wall is not in scale with the pedestrian environment which is desired, staff has pointed out that the need for the taller retaining wall could be diminished (or extinguished) by reducing the size of the extremely large parking lot some. The proposed parking lot would provide 236 parking spaces in excess of Code standards. By reducing the parking lot by eleven parking spaces along its southern edge, the sidewalk separation should be able to be provided without an increase in the presently proposed retaining wall height of four feet. The Planning Commission will require that the sidewalk be separated from the curb by a planter strip of at least seven feet in width and that and that the grading and site plans be revised accordingly to accommodate the sidewalk without increasing the height of the retaining wall to more than four feet in height. The Planning Commission differs with the applicants traffic study with regard to the need for the proposed second westbound lane between SW 72nd Avenue and the site entrance. The Commission does not find that the traffic report justifies the need for this additional lane and we find that the additional roadway width may be detrimental to the scale of development and attractive streetscape which the City has been attempting to create along Dartmouth Street. It is understood that the applicants may desire to construct this additional lane at this time to avoid future disruption of access to the development when and if additional road width is found to be desirable. However, absent a clear prediction of future traffic and absent a final land use plan for the Triangle, the Planning Commission finds that this additional lane shall be omitted. The Commission concurs, however, with the proposed right-of-way dedication in this area so that FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 15 PAGE OF T-104 buildings or other substantial improvements are not constructed upon area that may be needed for future road widening. This decision regarding improvements on Dartmouth Street will require roadway improvements sized to handle normal traffic levels for the foreseeable future rather than sized for peak traffic levels or possible future increased traffic levels. This should result in a more pleasing streetscape at all times in exchange for possible additional congestion at peak traffic periods or the possibility of future construction to add an additional lane. It is important that the City also consider the quality of the trip in transportation decisions rather than lacing primary emphasis on providing for maximum quantities of trips. The Planning Commission is therefore hesitant to recommend the scale of improvements proposed by the applicants. Recommended conditions of approval are provided at the end of this report to specify the required improvements to Dartmouth Street. SANITARY SEWER Code Section 18.164.090 requires that new developments be adequately served by sanitary sewerage collection facilities developed consistent with City of Tigard design standards. Currently there is no sanitary sewer serving the site. As part of the Dartmouth Street local improvement district, an eight-inch diameter sanitary sewer line is being installed within the street. This line should provide adequate service to the proposed development. The Dartmouth Street LID is providing sanitary sewer stubs to SW 72nd Avenue for future extension of sewer to the north. Typically, the City would require each development to extend sanitary sewer main lines to the farthest uphill property line. However, in this case there are two additional elements that must be considered: A. Cub Foods/Supervalu will not have any need for the sanitary sewer line in SW 72nd Avenue; and B. The Dartmouth Street LID shows the sanitary sewer line in SW 72nd Avenue to be located on the west side of the road's centerline. The applicants will presumably be required to provide improvements to the west side of SW 72nd Avenue as a condition of development approval. If the sanitary sewer is placed on the west side of SW 72nd Avenue and then redevelopment occurs on the east side, then it would be necessary to tear up the street improvements to get access to the sewer on the west side. It is staff's recommendation, that the developer be required to determine where this proposed sanitary sewer line in SW 72nd Avenue can be shifted to the east side of the street so as not to later interfere with the improved street. For any portion of the line that must remain on the west side of SW 72nd Avenue, the applicant should be required to provide for its installation. STORM SEWER Code section 18.164.100.A states that development permits shall only be issued where adequate provisions for storm drainage have been made. The applicant is proposing a private on-site storm sewer system to serve this development. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU _ Pa a 16 FnGE OFD T-104 5 Part of the proposed wetland enhancement and mitigation program for this development works in combination with the proposed stormwater quality treatment and detention plan. In the large triangular upland area between Dartmouth Street, the parking lot, and the wetland boundary, this area will • be shaped into a basin and developed as a wetland marsh. All stormwater from the project will be discharged into this basin which is designed to meet the standards for stormwater quality treatment, prior to entering Red Rock Creek. The Unified Sewerage Agency has established and the City has agreed to enforce (Resolution and Order No. 91-47) Surface Water Management Regulations requiring the construction of on-site water quality facilities or fees in-lieu of their construction. The applicant is proposing to construct on-site water quality facilities. Based on the preliminary plans, the storm water from the site will be piped into a private system. It will then be transported to one of several water quality facilities prior to being discharged into Red Rock Creek. Red Rock Creek, the identified wetlands, and the mitigated wetlands are classified as a sensitive areas under Resolution and Order No. 91-47. Classification as a sensitive area requires that an undisturbed corridor be provided adjacent to the water body. The required corridor must be a minimum of 25 feet wide, measured horizontally, from the defined boundaries of the sensitive area. The applicant has defined the sensitive area and provided for the 25 foot buffer. Where the applicant has encroached within the minimum 25 foot buffer, an adequate area of compensation has been provided. OTHER UTILITIES Code Section 18.164.120.A requires new developments to provide for the underground placement of utility services such as electric, telephone, and natural gas service. The City Council has established a fee-in-lieu-of underground placement of utilities to be assessed where it is found to be impractical to place these facilities underground due to utility provider concerns, limited frontage affected, or other reasons. The developer of this site will be responsible for underground placement of utilities on the site; however review of the final public improvement plans with affected agencies may result in a situation where these agencies would resist underground installation. Therefore, the conditions of approval provide for the Engineering Department to review the final public improvement plans with input from other utility providers and to then determine whether the utilities will need to be placed underground or if a fee should be collected. ~'fse P~sisns.ng Co~isszan APPROYEB SsteSDevd"Eapment MdVs eve SDR g~ }OE21:'aaiid P.aaaed ~3eve3,oentevies~R,32-iXSQsd fob the prcposecl Ebb. i?aos~~he~gping :asa aad seuss t~.v~ Tads Re~rxesc SCR 93-9 2 :?:Zaxidformf.: ocia.£zeations f" > and level opmesrt srs this the 2rs dfcet area ad3 acesrt tos Sxetlaada ass tse s3 to Bppr•QVaI xs gzaated ~3ec~µticr t2~. f`r~~.loszn~ ccndi~~w~ss' THE FOLLOWING CONDITIONS SHALL BE MET OR FINANCIALLY SECURED PRIOR TO THE ISSUANCE OF BUILDING PERMITS. UNLESS STATED OTHERWISE, THE STAFF CONTACT IS CHRIS DAVIES OF THE ENGINEERING DIVISION: 1. Previously approved lot line adjustments for the involved parcels shall be completed prior to the issuance of building permits. Evidence of the recording of the lot line adjustments shall be FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 17 T- EJ OF 7 provided to the Planning Division. STAFF CONTACT: Jerry Offer, Planning Division. 2. The site and grading plans shall be revised to accommodate the following: a. Sidewalks shall be separated from the curb by a planter strip 4017_~ no less than five feet in width along SW 72nd Avenue, and no less than seven feet in width along SW Dartmouth Street; b. The revised plans should not necessitate increasing the retaining wall directly north of Dartmouth Street to a height of greater than four felt; C. The proposed Cub Foods sign on the retaining wall shall be omitted, or alternatively, the other freestanding sign along SW dartmouth Street shall be omitted; d. Additional details shall be provided regarding the required screening of trash and recycling facilities, as well as the screening of roof-top mechanical equipment. e. The site plan shall be revised to provide for at least 53 bicycle parking spaces within conveniently located bicycle racks. STAFF CONTACT: Jerry Offer, Planning Division. . 3. The applicant shall be responsible for the underground installation of utilities along the frontages of SW Dartmouth Street and SW 72nd Avenue, unless the Engineering Department in consultation with other utility providing agencies. determines that a fee in-lieu of underground installation is justified. 4. The applicant shall investigate the feasibility of relocating the proposed sanitary sewer line in SW 72nd Avenue to the east side of the road's centerline. The applicant shall be responsible for the installation of any portion of the line that must be installed on the west side of the centerline. The City Engineer shall have the final determination as to the location. 5. An agreement shall be executed by the applicant, on forms provided by the City, which waives the property owner's right to oppose or remonstrate against a future local improvement district formed to further improve SW Dartmouth Street. 6. An agreement shall be executed by the applicant, on forms provided by the City, which waives the property owner's right to oppose or remonstrate against a future local improvement district formed to improve SW 72nd Avenue. 7. Two (2) sets of detailed public improvement plans and profile construction drawings shall be submitted for preliminary review to the Engineering Department. Seven (7) sets of approved drawings and one (1) itemized construction cost estimate, all prepared by a Professional Engineer, shall be submitted for final review and approval (NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. 8. Additional right-of-way shall be dedicated to the public along the SW Dartmouth Street frontage to increase the right-of-way to 45 feet from the centerline. The description shall be tied to the existing FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU gQ~,lB OF T-1` ----i right-of-way centerline. The dedication document shall be on City forms. Instructions are available from the Engineering Department. 9. Additional right-of-way shall be dedicated to the public along the SW 72nd Avenue frontage to increase the right-of-way to 51 feet from centerline (from the intersection of SW 72 Avenue/Dartmouth Street north to a point that is, at a minimum, 200 feet north of the applicants, access on SW 72nd Avenue). The description shall be tied to the existing right-of-way centerline. The dedication document shall be on City forms. 10. Additional right-of-way shall be dedicated to the public alt-g the SW 72nd Avenue frontage to increase the right-of-way to 45 feet from the centerline, (from the north property line south to where tna. right-of-way increases to 51 feet as detailed in #9 above). The description shall be tied to the existing right-of-way centerline. The dedication document shall be on City forms. 11. Standard street improvements, including concrete sidewalk separated from the curb, driveway aprons, curbs, asphaltic concrete pavement, storm drainage, streetlights, and underground utilities shall be installed along the SW 72nd Avenue and Dartmouth Street frontages. Improvements shall be designed and constructed to major collector street standards and shall conform to the alignment of existing adjacent improvements or to an alignment approved by the Engineering Department. NOTE: The street improvements shall be as described in the applicants, preliminary plan submittal dated March 1, 1993 except that sidewalks shall be separated from curbs and the additional Dartmouth Street westbound lane from SW 72nd Avenue to the site entrance shall be omitted. 12. Building permits will not be issued and construction of proposed public improvements shall not-commence until after the Engineering Department has reviewed and approved the public improvement plans and a street opening permit or construction compliance agreement has been executed. A 100 percent performance assurance or letter of commitment, a developer-engineer agreement, the payment of a permit fee and a sign installation/streetlight fee are required. The proposed privately operated and maintained sanitary sewer and storm drainage system plan-profile details shall be provided as part of the public improvement plans. 14. The applicant shall demonstrate that storm drainage runoff can be discharged into the existing drainageways without significantly impacting properties downstream. 15. Sanitary sewer and storm drainage details shall be provided as part of the public improvement plans. Calculations and a topographic map of the storm drainage basin and sanitary sewer service area shall be provided as a supplement to the public improvement plans. Calculations shall be based on full development of the serviceable area. The location and capacity of existing, proposed, and future lines shall be addressed. 16. The applicant shall provide connection of proposed buildings to the public sanitary sewerage system. A connection permit is required to connect to the existing public sanitary sewer system. 17. The applicant shall be required to provide an on-site water quality facility as established under the guidelines of Unified Sewerage Agency Resolution and Order No. 91-47. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 19 T-I F .18. The applicant shall provide, as a minimum, a 25 foot buffer (except as approved for modification by the Planning Commission'. order) which meets the requirements of Section 6.08.3, of USA Resolution and Order No. 91-47. 19. The applicant shall obtain a "Joint Permit" from the City of Tigard. This permit shall meet the requirements of the NPDES and Tualatin Basin Erosion Control Program. 20. The applicant should be aware that the City of Tigard has adopted Chapter 70 of the State of Oregon Structural Specialty Code and that the grading plan shall comply with this chapter. 21. The developer shall submit an erosion control plan ensuring compliance with erosion control standards for the Tualatin River Basin. STAFF CONTACT: George Steele, Building Division. 22. A Joint DSL/Corps of Engineers wetlands fill permit shall be obtained by the applicants, (Authority: Section 404, Clean Water Act, and ORS 541.605 to 641.695). A copy of the permit shall be provided to the City Engineering Department by the applicant. 23. No construction vehicles shall access or depart the site via Baylor Street and Clinton Street except with prior approval of the city Engineer. Approval for exceptions will be given only if the applicant can show that there is no practical alternative for access. No construction vehicles or equipment may be stored or parked on Baylor Street and Clinton Street. Parking of construction vehicles on SW 72nd Avenue shall be limited to the site frontage and shall comply with all existing regulations as to location and duration of parking. No construction materials shall be stored within the rights of way of SW 72nd Avenue or Dartmouth Street at any time. construction vehicles means the vehicles of any contractor or subcontractor involved in the construction of the site improvements or buildings proposed under this application and shall include the vehicles of their suppliers and employees. STAFF CONTACT: Ken Schreindl, Code Enforcement Officer, 639-4171. 24. A tree removal permit must be obtained from the Planning Division before removal of any trees in excess of 6 inches in diameter. The Planning Division may prescribe protective measures for the trees to be retained. These measures must be remain in place throughout construction activities on the site. STAFF CONTACT: Jerry Offer, Planning Division. UNLESS A SATISFACTORY PERFORMANCE ASSURANCE IS POSTED, TEE FOLLOWING CONDITIONS SEATS BE SATISFIED PRIOR TO THE ISSUANCE OF AN OCCUPANCY PERMIT: 25. Sign permits shall be obtained from the Planning Division prior to the installation of any signs on the site which are intended to be seen from the public right-of-way or other parcels. STAFF CONTACT: The Planning Division. •26. The proposed landscaping materials and other proposed site improvements shall be installed in substantial conformance with the approved site and landscaping plans. STAFF CONTACT: Jerry Offer, Planning Division. . 27. An occupancy permit shall not be granted until SW Dartmouth Street is open for traffic between SW Pacific Highway and SW 68th Avenue. Staff Contact: City of Tigard Building Official. FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU 34ge_20 _ I 45 i 1f~F ~F d T-1 APPROVAL SHALL BE VALID IF EXERCISED WITHIN EIGHTEEN MONTHS OF THE FINAL DECISION DATE. It is further ordered that the applicant be notified of the entry of this order. PASSED: This day of March, 1993, by the Planning Commission of the City of Tigard. C-~ e, Pr i Tig d Pl g mmission FINAL ORDER - SDR 93-0002 CUB FOODS/SUPERVALU Page 21 T-TVr tiF.c Item No. Q O' DONNELL RAMIS CRE S., For council Newsletter dated 7 CORRIGAN & BACHRACH, LLP JEFF H. BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE MARK L. BUSCH 1727 N.W. Hoyt Suss ISI N. Grant, Suite 202 D. DANIEL CHANDLER PonlaW, Oregon 97209 Canby. Oregon 97013 DOM1NIC G. COLLETTA•• TELEPHONE: (503).166-1149 CHARLES E. CORRIGAN* TELEPHONE: (503) 222.44M STEPHEN F. CREW FAX: (503) 243.2944 MARTIN C. DOLAN VANCOUVER WASHINGTON OFFICE GARY F. FIRESTONE' First Independent Place WILLIAM E. GAAR PLEASE REPLY TO PORTLAND OFFICE 1220 Main Street. Suite 451 0. FRANK HAMMOND• Vancouver, Washington 98660-2964 MALCOL.M JOHNSON' TELEPHONE: (360) 699-7287 MARK P. O'DONNELL FAX: (360) 699-7221 T. CHAD PLASTER March 24, 1998 TIMOTHY V. RAMIS WILLIAM J. STALNAKER JAMES NI. COLEMAN ANDREW H. STAMP SPECIAL COUNSEL BARTON J. WACHSTETER • ALSO ADWITED TO PRACTICE IN WASHINGTON • • ALSO ADMITTED TO PRACTICE IN CALIFORNIA • ADMriTc.D TO PRACTICE IN WASHINGTON ONLY ALSO ADWITED TO PRACTICE IN WASHINGTON AND MONTARY FACSIMILE / William A. Monahan City of Tigard 13125 S.W. Hall Blvd. Tigard, OR 97223 Re: City of Tigard/Dartmouth Street LID Assessment Roll Comparison Dear Bill: Wayne Lowry passed on your request that Tony R.ighellis put together a summary showing the Dartmouth LID assessments as originally calculated, as recalculated after excluding the two exempt properties, and as last calculated taking into account the "Costco correction." That summary is enclosed. It should be noted that the "original assessment" shown in the enclosed summary differs from the assessments as set out in the Harper & Righellis report as initially circulated. That is because when the original report was compiled the total cost of the project was not known, such that an estimated cost of $4,000,000 was used. The "original assessment" column in the attached summary reflects the actual total costs of $4,576,637.01. Si r ours, Ch es E. Corrigan CEC/tjc Attachment / ✓ cc w/Attachment (via facsimile): Wayne Lowry cc w/o Attachment (via facsimile): Tony Righellis o _u N V Dartmouth Street LID Assessment Roll Comparison n Oii i4nal Asiatsmenl 069hal AssrclsmO it w7 h Ori}Iinal Aue"mont v4b N T" P;ucd E"tion Two Parcel £rskww fU 6 CosteoCorrecwl -4 PnrctlM PNfCd19 Pvtc•d 0D of you l 01 Total of Total Aaseument Asxessrnenl Assossuwvil Assessrnenl Auessrnard Assessmard n lax IJ a Taxiol % y o i Pacific Hi hw• Fromm P•rwle 0.00X 30.00 0.00% $0.00 0.0096 $0.00 m 1S136CO 1700 0.00`8 $0.00 0.00% $0.00 0.00% 50.00 IS136CO 1800 0.001'. $0.00 0.00"w 30.00 000% $0.00 rAi IS136CD 1900 0.00% 0.00 0.0016 000 0.00% 00 rn Coalco Pascale 26.49% $1,212,077.12 26.76% $1.224.672.111 17.67% 5889 898,28 r- (i $21,762.195 Ul t 1S136CD 2004 0.42:16 $19.152.49 0.42% $19.351.51 =134M.891.111 18138CD 2200 22,5291, St,030,872.42 22.76'!. 31,011,584.53 2SI IBA 200 3.54% Sm 052.22 3 58ti 163756.16 181064.35 A Wu•marl Parcels 24.19% $1,107,120.24 24.44% $1,118.624.67 27.47% 51 287436.03 0 IS136CD 2000 8.509{, $386,817.42 8.681: $392,857.74 965% $441,607.89 r ISI36CD 4200 0.97% 344,396.30 0.911% $44,857.70 1.10% $50,424.14 1S136cD 4300 3.40:4 $155,72U.42 3.44% $157,338.56 3.88% $116,86268 -4 131360C 2509 0.58% $26,968.27 0.58/i $26,642.27 0.65% 529,948.31 ~ ISI36DC 2504 0.57% S26,118b1 0.56% 429;387.69 0.65•w' $29,662.40 ~ 151 360C 4500 7.17% $328,24423 7.255: $531.655.11 8.15:16 $312,810.66 1 S1 36DC 4600 3005: $137,457.03 3 035'. S 13d 885.39 3.41%1 158 11983 N Pollock Nicola 9.14% $408,978.14 7.99% $365.960.44 8.13% $410042.61 p IS136DG 4400 3.44% $157,56223 3.46% $159,199.50 3.91'A $178,954.74 0 ISO 360C 4402 0951. $43,531.30 MOM,. $0.00 0.009 30.00 N S1 360D 7500 0.16% $804.03 0.18% $8,107.41 0.20% $9,113.47 11IS136DO Q 7600 026% 311,690.00 026% $12,013.55 0.301. $13,504.32 y~ 2SI IAA 2800 008:: $3,538.68 0.005: 50.00 0.00% $0.00 2SI IAA 2900 0.3916 SIAOS5.91 0.40;:, $16.243.59 0.45X $20,507.46 2S11AB l00 364•; 166.373.73 3671. 16810257 4.13'. 166962.61 l' Martin Pamela 1031% $1,640,643.50 40.91% $1.461873.62 45.91% $2,499,6110A m D 2SI ISA 100 1.01% 546,293.06 1.02% $46.774.11 1.16% $62,578.38 W m I 2SI IBA lot 8.64x. $395,332.82 8.73% $399,440.65 9.81% $449,007.00 " 2SI IBA 900 2381 n 51.069,908.68 24.0613 $1,101,292.23 27.05% $1,237,005.34 2S1 DA 401 8.93% 6317 130.91 7.00% $320,428.35 7.8756 5360168.40 Darknoulh 5Uae1 Cente# 70•F•e1 Right 0.00% $0.00 0.00% $0.00 0.00% 50.00 1SI36C0 4400 0.00% 50.00 0.00% 30.00 0.00% $0.00 ffm~~~ll) • 1S13813C 4700 0.01 .00 O.OO•w 000 0.0016 00r1 N Totals: 100.00X, $4.676,437.01 100.00% 54,678 877.01 100.00% S4 876,9]7.01 BALL JANIK LLP A T T O R N E Y S ONE MAIN PLACE 101 SoLrniwEsT MAW STREET. Surr£ 1100 PORTLAND. OREGON 9720432 19 TELEPHONE, 503-228-2525 ROBERT S. BALL FACsmLE 503-295-1058 rball@bjllp.com March 30, 1998 BY MESSENGER The Honorable Mayor Jim Nicolai Members of the Tigard City Council Tigard City Hall 13125 SW Hall Boulevard Tigard, Oregon 97223 Re: Dartmouth Street Local Improvement District No. 40 Dear Mayor Nicolai and Council Members: As you know, we represent Waremart, Inc., which is the owner of Cub Foods, in connection with the Dartmouth Street LID, and your proposed Resolution 98-11. This letter sets forth Waremart's response to (a) the written submission dated March 12, 1998 by and on behalf of Gordon R. Martin and Gordon S. Martin, (b) the testimony and argument made on behalf of the Martins at the City Council hearing on March 17, 1998, and (c) the Assessment Analysis Report by Harper Righellis, Inc. dated March 7, 1997. 1. Summary of Waremart's Position A. Waremart supports the Harper Righellis assessment proposal as it has been amended. B. The Harper Righellis assessment formula is within the City Council's legal right under the Tigard Municipal Code to "use any reasonable method to apportion the assessment between the properties to be specially benefited." Section 13.04.060(b)(1)(B). C. The Harper Righellis formula is fair, because it recognizes that the properties are benefited based upon their respective useable acreages within the LID boundary, rather than based upon lineal frontages along Dartmouth Street. Lineal frontage along Dartmouth Street is largely irrelevant to the respective benefits associated with the improvement of Dartmouth Street. D. It would be grossly inequitable for the City to adopt the formula initially recommended by R.A. Wright Engineering in 1984 and 1988, because that formula incorrectly PORTLIND. OREGON WASHINGTON. D.C. SM". OREGON 0162877.01 BALL JAN1K LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 2 anticipates that the improvement of Dartmouth Street would create the greatest benefit for strips of land having specified proximity to Dartmouth Street. As actually developed and to be developed, the entire developable acreage within the LID boundary will be benefited approximately equally. There is no factual basis for apportioning benefit based upon distance from the roadway. E. The wetlands on the properties in the LID area are sufficiently similar in their development impacts that they should be treated similarly in the assessment formula. The only fundamental distinction between the wetlands areas is in size. The Harper Righellis formula recognizes this and therefore deducts wetlands in determining net developable acreage. 2. The Harper Righellis Formula Meets all Legal Criteria A. Effect of Prior Ordinances Counsel for the 1v "artins has asserted that the City Council, in 1984 and 1988, adopted the "proximity zones method" of assessment. Accordingly, it has been urged that the Harper Righellis assessment formula represents a change in the City's commitment to the property owners, and is beyond the City's legal authority. Under this reasoning, the Martins claim that City Council has no choice but to adopt R.A. Wright Engineering's "proximity zones method" of assessment. Under the applicable City Ordinance (Section 13.04.060(b)(2)), the Council may use either a preassessement procedure (assessing the properties prior to construction based on estimated costs) or a final assessment procedure (assessing the properties after construction is completed, based upon final costs). Ordinance 84-14 was adopted to establish the initial boundary of the LID and to provide that the properties would be preassessed based upon the estimated cost of $1,995,700, on a "zone basis." Ordinance 84-17 amended Ordinance 84-14 to exclude from the district certain properties which were developed for residential uses and were determined not to derive a benefit from the LID. The Council noted in Ordinance 84-17 (Section 5) that "Benefit for purposes of LID No. 40 is hereby determined to be derived according to a property's ability to develop as set forth in the Comprehensive Plan for the City of Tigard." Ordinance 84-18 then affirmed the preassessment procedure and approved a preassessment roll. After several years of litigation by the Martins, the City Council adopted Ordinance 88-08, which abandoned the preassessment procedure and adopted the final (post- construction) assessment procedure. At a minimum, the delays and litigation costs caused by the Martins made the preassessement procedure impracticable. 0162877,01 BALL JAN1K LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 3 Contrary to the assertion by the Martins, Ordinance 88-08 did not adopt, or commit the City to, the "proximity zones method" of assessment. Because the assessment was necessarily deferred until completion of construction, the method of assessment was also deferred. There was simply no consideration by the Council in 1988 of the formula to be used for spreading the assessments.I Upon adoption of Ordinance 88-08, Ordinance 84-18 had no further relevant effect. B. "Change" in Assessment Formula As described above, the Harper Righellis formula is a change from the R.A. Wright recommended formula, but is not a change from any prior commitment by the City Council. Contrary to the assertion by the Martins, the Harper Righellis formula does not "shift" an assessment from other property owners to the Martins. There is no current assessment formula to "shift." However, even if the City Council had adopted the "proximity zones method" of assessment in 1988, it would be legally entitled now to change that formula to the Harper Righellis formula. Even if this were a reassessment proceeding, the statute provides in such cases that the governing body may adopt a different plan of apportioning benefits ORS 223.415 (emphasis added). The cases cited to the contrary by counsel to the Martins deal with very different circumstances. In those cases, Oregon courts were dealing with actions by local governments which effectively denied to property owners the rights to notice, a hearing, and the opportunity to defeat an assessment by remonstrance. See the discussion of these cases in the next section of this letter. None of such rights has been denied to the Martins or any other affected property owner. The Dartmouth Street LID has been subject to extremely protracted rights of hearing, remonstrance and litigation. Indeed, such rights remain alive today. This is the first hearing on an assessment formula for this LID since it was changed to a final assessment LID. The Martins are not being deprived of the right to a hearing in this proceeding, and they have made clear to the City Council they are cognizant of their right to contest in court any assessment formula they do not approve. 1 The Martins have submitted Council minutes dated April 11, 1988 in which the City Engineer noted that the "proposed ordinance would not change the LID boundary or the formula used to calculate the assessments." The ordinance itself, however, did not establish any formula. It negated Ordinance 84-18 in which a formula had been established. Note that the formula in the Engineer's Report from 1984 was merely a "recommendation" to the Council. Once it was repealed, it was never again adopted. 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 4 Although the City could not legally change the character of the improvements to be assessed, and could not redefine the boundary of the district, neither of these issues is raised here. As long as the City follows its own ordinance in adopting a "reasonable method to apportion the assessment" it can change an assessment. In this case, however, no change is involved. C. The Increased Cost of LID Improvements Does Not Invalidate the Dartmouth Street LID Counsel for the Martins has argued that the LID costs have exceeded the estimate to such an extent that the proposed assessments may not be imposed. Waremart is no more pleased than the Martins with the cost of the LID. Unlike the Martins, Waremart has done nothing to initiate litigation and cause delays that have increased the cost of the LID. In 1984, the costs for the LID as estimated by R.A. Wright Engineering were $1,995,7000, including land acquisition costs. In 1998, the actual costs are $5,023,639.40, including land acquisition costs. The difference of approximately $3 million appears to include an increase in land acquisition costs of approximately $1.4 million, net borrowing expense of approximately $640,000, substantial litigation costs, and other matters. The hard construction costs did not increase substantially. Except for litigation costs, nearly all of the increases are directly attributable to the passage of 14 years from the date of the original estimate. During these 14 years, the Martins have been very effective in causing delays which have increased the costs. First, they (alone among the affected property owners) challenged the LID in a trial and appeal that consumed 4 years of time and added litigation costs to the LID. After other protracted condemnation litigation between the City and Donald Pollock, the Martins for several years held the LID hostage to their attempt to impose a second LID on the property owners. They refused to approve gny assessment formula unless the other property owners and the City would agree upon construction of an overpass and connections on Highway 217, and unless the boundary of the LID was expanded beyond 450 feet from Dartmouth Street. The refusal of Waremart and the other property owners to accept these illegal conditions has led to the current proceeding. It is also instructive that the Martins do not appear to contend that the size of the assessment automatically renders the assessment invalid. They contend that the size of the assessment renders the assessment invalid only if their proposed assessment formula is not adopted. Counsel for the Martins cited two cases for the proposition that an assessment which has increased substantially above the engineer's estimate is invalid. The most recent of 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 5 the cited cases was decided in 1916. Neither of the cases stands for the proposition the Martins contend. • The cases of Miller v. Portland, 78 Or 165, 151 P 728 (1915) and Parker v. Hood River, 81 Or 707, 160 P 1158 (1916), relied upon by the Martins, both predate the LID statutes, and found that a substantial variance between an estimated assessment and a final assessment rendered the final assessment unenforceable because in those cases the property owners had no notice and opportune to obiect. These are not the facts here. A more recent case, which was not mentioned by the Martins, was Crocker v. City of Albany, 241 Or 180, 405 P2d 364 (1965), which held that unless there is fraud or palpably unjust or oppressive action, courts will not interfere with a situation where a final assessment is substantially higher than the estimated assessment. Even this case, which refutes the Martins' legal position, is not directly applicable here, because the Dartmouth LID is not based on an estimated assessment methodology, and because the Martins have not been deprived of any notice or right to object to the assessment. 3. The Harper Righellis Formula is Fair A. The R.R. Wright "Proximity Zones" Method of Assessment Would not Reflect the Benefits to the Properties The Martins have, on the one hand, argued that the City should adopt the R.A. Wright formula. On the other hand, they have contended, through their engineer Ed Christensen, that it was necessary to revise the Wright formula to "remove inconsistencies" in it, to recognize that the road alignments in the area are different from those anticipated by R.A. Wright, and to correct "numerous inaccuracies" in the original R.A. Wright approach. The R.A. Wright formula was reasonable when it was prepared, but the land assemblages which occurred after the formula was prepared have changed the nature of development in the area. There was no reasonable basis for R.A. Wright to predict the assemblages of land in the Tigard Triangle. Just as the R.A. Wright formula did not accurately forecast street alignments in the Tigard Triangle, it did not accurately forecast land development patterns. The fundamental flaw in the R.A. Wright approach is that it presumes a direct relationship between road frontage and benefit. Any such relationship that existed in 1984 and 1988 does not exist today. With the development parcels that now exist (and have been or will be developed), the benefits of Dartmouth Street do not depend on road frontage. They depend primarily on access. Ot62877.01 BALL JAN1K LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 6 This should be obvious by considering the following hypothetical. Assume an LID contains two parcels, each having 10 net developable acres. One of the parcels has 400 lineal feet of street frontage; the other has 200 lineal feet of street frontage. Each of them needs access to the street to make development feasible. If every other factor is equal (e.g., each parcel is reasonably configured for development), the two 10-acre parcels will have approximately equal values for development. The parcel with 200 lineal feet of frontage will not inherently be less valuable, or receive less benefit from the development of the street. The flaw in the R.A. Wright methodology (if it were to be applied in 1998) is compounded by creating artificial bands of value based on proximity to Dartmouth Street. Those bands of value assume that development of buildings on the property will be as close to the street as possible. They assume strip development of at least some of the property in the district. That has simply not been the case, nor will it be the case with future development by the Martins. These flaws were not known in 1984, or even in 1988. At that time, it was unknown that larger parcels would be created by land assemblages, and it was unknown how the parcels would actually be developed. Today, however, we know that at least two 150 foot artificial "bands" created by R.A. Wright contain parking, not buildings. The reality is that the value of these parcels is based on their size and functionality, not their lineal frontage on a street. The Harper Righellis formula takes this into account. Jerry Palmer of Alpha Engineering argued on behalf of the Martins that the "zone method" brings into parity the depth of lots in relation to street improvements. He urged that benefit should be measured by proximity of the improvement to the street, because improvements which are further from the street require the extension of utilities, reducing the value and the benefit. What this analysis overlooks is that none of the properties in the LID has a configuration requiring that the frontage be used for parking and requiring that the improvements be located toward the rear of lots. These development patterns reflect the optimal utilization of each parcel, or the maximizing of parcel values for development, as determined voluntarily by the property owners. The development patterns make amply clear that the values of the parcels are not derived from street frontage. Finally, the City Council should recognize that the "proximity zones" method of assessment would create a result in which some of the property within the LID boundary would not be assessed, presumably on the theory that it would not receive any benefit. One of the purposes of the hearing leading to formation of the LID district was to determine that the 0162877.01 ism BALL .JANiK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 7 properties within the district were specially benefited. Excluding some of them from assessment would be inconsistent with the formation of the district, and would be an arbitrary and capricious result. B. The Martins' Primary Complaint is About the LID Boundary. The Martins have argued that it is unfair that some of the improvements in the Tigard Triangle are outside the LID. They urge that the benefit of Dartmouth Street improvements extends to land and improvements which will not pay their fair shares of the LID costs. These arguments have nothing to do with the assessment formula, which is the only issue before the City Council. The question before the Council is how to assess land within the boundary of the LID. The Martins are complaining about the boundary of the LID, which was established in Ordinance 84-17, (challenged by the Martins) and is final. C. The Areas Delineated as Wetlands Should Be Subtracted in Determining Relative Benefits. Mr. Palmer argued on behalf of the Martins that not all wetlands are equal, and therefore subtracting wetlands to determine net developable acreages is not a reliable means of determining relative values and benefits. As a general proposition, Waremart agrees that not all wetlands affect development, and values, in the same way. In this case, however, the wetlands generally do affect the properties in the same way: (a) they have configurations which affect but do not preclude development of the parcels, (b) they require mitigation, requiring expense, (c) they constitute areas not available for development, and (d) they may be the basis for landscape credits for the parcels. Mr. Van Dyke urged that the wetlands which run through Martin parcels is unique and may not be moveable. This contention is contradicted by the development permit currently issued for the Martin property. In any event, however, the Martins have failed to say that at the time the LID was formed, the Waremart property also contained a wetland running through the property. It was mitigated, at Waremart's expense, as a normal part of the development process. The Martins simply face a similar obligation. There is no basis for concluding that the Martins' wetlands should be excluded from the LID formula but the Waremart wetlands should not. There is no more reliable means of taking the wetlands into account than deducting the wetlands areas in order to determine net developable acreage. 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 8 D. The Potential Improvement of 72nd Avenue is Not a Proper Factor in Determining the Assessment for Dartmouth Street The Martins contend that their assessment should be reduced because development of their property will require improvement of 72nd Avenue. The cost of 72nd Avenue improvements, the manner in which they will be financed, and the financial impact on the Martins' property (and other properties) are unknown. It would be improper for the City Council to speculate on these (or any other) factors in arriving at an assessment formula. An assessment based on speculation would be inherently arbitrary and capricious, making the assessment unfair and subject to challenge. Please note that the Waremart and Pollock properties also abut 72nd Avenue. Waremart made substantial improvements on 72nd Avenue during construction of the Cub Foods center. The cost of these improvements is not an offset to Waremart's obligations in the Dartmouth Street LID. E. Proceeds Payable to Each Property Owner for Right-of-Way Acquisition Should Not Affect the Assessment Formula. The Martins have argued that the City Council should review the net proposed assessments (gross assessments minus right-of-way proceeds) to determine whether the formula is fair. The relative proceeds from the sale of rights-of-way have nothing to do with the selection of a formula or its fairness. They simply reflect how much right-of-way each of the property owners has had to relinquish. Those who have sold more right-or-way have a greater reduction in net developable acreage (i.e., in the values of their property). The Martins perceive unfairness in the fact they have less right-of-way to sell. This is merely a fact, neither fair nor unfair. Overall, the Martins have argued for an assessment formula which would give them a windfall benefit because their land has relatively little frontage on Dartmouth Street, and have also argued that it is unfair that Waremart had more frontage to be sold as right-of-way to the City. We believe the Harper Righellis report has considered the possible alternative approaches to assessment and analyzed them fairly. While Waremart might suggest a slightly different approach in some areas, we believe it is more important to bring closure to this process. 0162877.01 BALL JANIK LLP The Honorable Mayor Jim Nicolai City Council Members of the City of Tigard March 30, 1998 Page 9 We urge you to adopt the Harper Righellis formula for assessment. Thank you for your consideration. Sincerely, a,~ -r f 6u C Robert S. Ball RSB/pjc For Distribution to all Members of the Tigard City Council: Mr. Paul Hunt Mr. Brian Moore Mr. Bob Rohlf Mr. Ken Scheckla cc: Mr. Charles E. Corrigan, Esq. Mr. Tony Righellis Mr. Douglas Van Dyk, Esq. Mr. Jeffrey Keeney, Esq. Mr. Donald Joe Willis, Esq. Mr. Gordon E. Davis Mr. Paul Simmons 0162877.01 GORDON E. DAVIS 1035 NW. HOYT STREET PORTLAND, OREGON 97209 503) 221-5306 FAX 503) 827-3477 E-MAIL hoyt%teleport.com ~i PROPERTY DEVELOPMENT SERVICES March 27, 1998 PUBLIC AFFAIRS CONSULTING STRATEGIC PLANNING The Honorable Mayor Jim Nicolai Members of the Tigard City Council Tigard City Hall 13125 SW Hall Blvd. Tigard, Oregon 97223 RE: Dartmouth Street Local Improvement District 40 Dear Mayor Nicolai and Council Members: As you know, I represent Waremart, Inc., the owner of Cub Foods and other undeveloped property east and west of Red Rock Creek, north of Dartmouth. I have represented Waremart and its predecessor SuperValu Stores throughout property acquisition, site planning and approvals and construction of what Is now the Cub Foods center. Prior to SuperValu and Waremarc's involvement in the property, 1 completed the rezoning of the Duvall Street and 791 Street neighborhoods from residential to commercial. I am a development consultant and am presently managing the development of two, 20 acre shopping centers in the Sacramento area. Waremart, Inc. has asked me to provide some historical information and respond to some of the information that was presented in the hearing that the Council conducted on March 171 regarding the Dartmouth LID proposed method of assessment. In particular, Waremart has asked me to comment on certain portions of the written submission dated March 12, 1998 by and on behalf of Gordon R. and Gordon S. Martin. Wetlands Waremart owns the property on the north side of Dartmouth from 72nd west to the properties that front on Highway 99. A portion of their property has been developed with the Cub Foods center. A portion of their property remains undeveloped. As originally purchased, SuperValu stores owned slightly over 23 acres. After the Dartmouth alignment was fixed, SuperValu, then Waremart, entered into an agreement with Western-Duff Partners, then Costco to transfer that portion of the Waremart land that was west of the Dartmouth alignment to COSCCO in exchange for the rights to use '/2 acre of uplands in the southern portion of the Costco property for future wetland mitigation associated with the development of the Waremart property. The 23 acres that SuperValu purchased was the property that it intended to develop as a retail center which would include a Cub Foods store and other retail users. However, Red Rock Creek and its associated wetlands go right through the middle of the site. Early in the planning stages it was determined that there was no possibility of relocating a creek of this size and natural significance. The only alternatives to develop the property were either to span the creek with a road incorporating both sides of the creek into a single development project or to divide the parcel and create two completely separate development projects. The Honorable Mayor Jim Nicolal City Council Members of the Clryof Tigard March 27, 1998 Page 2 Several alternate development plans were prepared that tried to incorporate both sides of the creek Into a single commercial development. However, the effort to cross the creek and wetlands was simply too great to justify the cost and mitigation requirements so we proceeded with two separate development projects. Even then, in order to develop the east side (with Cub Foods), a wetland fill of .15 acres was required and mitigation creating .68 acres of new wetland was completed. A wetland fill permit has also been obtained to develop the western property, which will involve a fill of .18 acres and mitigation creating .79 acres of new wetland (.23 acres of which will be done on the Costco property). Waremart Intends to proceed this year to complete this west side mitigation project. In the written submittals on behalf of the Martins, Mr. Palmer's contention that "all wetlands, in their form and configuration, do not impact development potential equally,..." (Palmer. p.3) may be true in the abstract but is not so when applied to the properties in the LID, in particular the Waremart parcel. Mr. Palmer cites as an example "...a long narrow bank of wetland along a stream, diagonally through a site, is far different than an equal area that is within a rectangular area in one comer of a parcel." (Palmer. p. 3) While Mr. Palmer does not cite either the Martin or the Waremart parcel as the basis for this example, since the bulk of the Martin argument is directed toward Waremart, it is safe to assume that he was referring to these two properties in his example. However, the example simply does not hold in the face of more information. First, the Waremart wetlands and creek completely bisect the Waremart property and effectively divide the property into two separate development projects. If one looks only at the Cub Foods side of the Waremart property (which it appears Mr. Palmer has done), Mr. Palmer's contention may be right. But that a view that is possible only after development is complete, not before. Second, while it may be convenient to look at the Martin wetlands in their present natural state and argue that they effectively bisect the property and therefore constrain development, we know the actual constraint is much less dramatic. The Martins have received a wetland fill permit (Division of State Lands permit #RF 9256) which allows them to fill 1.55 acres of wetlands in exchange for creating 2.0 acres of new wetland. Their permit allows them to relocate their "long narrow band of wetland along a stream, [running] diagonally through a site..." to a location adjacent to and parallel with Dartmouth with at least two road crossings into their development. It is clear that Mr. Palmer was attempting to demonstrate that the wetlands have affected the Martin property far greater than the Waremart property but in fact, exactly the opposite is the case. Furthermore, the Martins should be pleased that their fill to mitigation ratio is only 1 acre of fill to 1.29 acres of mitigation whereas Waremart's ratio is 1 acre of fill to 4.45 acres of mitigation. Harper Righeilis may not have accurately accounted for wetlands and mitigation areas on each property, but there is no doubt that each property owner has had to contend with wetlands and that each has or will be affected more or less by the physical constraints they pose and by the real costs of providing mitigation. The major LID properties do not have identical wetlands, but the Martins have not had to divide their development parcel into to two separate development projects because of their wetlands. They have been able to obtain a permit that allows their property to be developed as a single project with minimal impact to the development. Waremart has not had such flexibility. As to the contention that wetlands can be used to satisfy the city's 15 percent open space requirement (Martin, p. 12) and should therefore not be excluded from the LID assessment area (as Harper Righellis has done), the city code does not require open space in commercial zones. The city does have a 15 percent landscaping requirement, which can, in part, be met by wetlands. However, the city code also requires that all commercial projects must have landscape screening of parking and loading areas, landscape planters throughout the parking lot at a ratio of one for each seven parking spaces, street trees and in some cases landscape buffering to adjacent properties and roads. Only after having complied with the city's mandatory landscaping requirements and only to the extent that those requirements do not equal 15 percent landscape coverage, may a project use wetlands to achieve the 15 percent requirement. As a practical matter, most commercial centers achieve their 15 percent landscape requirement solely through mandatory landscaping. The Honorable Mayor Jim NlcoW Uty Council Members of the Uty of Tigard March 27, 1998 Page 3 To keep wetlands in a property's LID assessment area because they might be able to be used to satisfy the 15 percent landscaping requirement simply doesn't match with other mandatory landscape provisions and is in any case, highly variable on a project-by-project basis. LID Assessment Methodology I think it Is important to understand what R.A. Wright was working with when he developed the original assessment formula. In the city's Comprehensive Plan, Dartmouth was clearly intended to be the catalyst for development of commercial uses in the Triangle. In fact, the Comprehensive Plan precluded any commercial development in this northern area of the Triangle until Dartmouth was committed for construction. This is why the Martins various legal challenges not only kept the road from being built, but any of the commercially zoned properties from being developed. At the time Wright was developing the formula, he was working principally with the properties that were zoned commercial. No one could possibly contemplate that either Waremart or Costco or any other developer would purchase the 14 homes on Duvall Street or the 19 homes on 79'", rezone those properties to commercial and consolidate them into a larger commercial development parcel. Certainly Wright would have been nailed to the wall if he had suggested that those residential blocks be included in the LID. It was because of this that Wright was faced with a potential Improvement District, as Jerry Palmer indicates, containing "unbalanced parcels." (Palmer, p. I ) If the commercial property had developed as it was zoned at the time, the type of commercial development would have been dramatically different between the Martin property and the other properties. The Martin property was (and is) large, deep and relatively square whereas the properties on the north and west sides of Dartmouth were relatively narrow and long. This difference in parcel configuration created a significant difference In the development potential of property that was available to Wright to spread the assessments. Such a difference made it almost impossible for him to consider any other formula than a front footage basis. Jerry Palmer is probably correct when he says that the "R.A. Wright methodology is fair and reasonable." (Palmer, p. I) At the time and with the circumstances in which he was working, Wright's methodology may well have been fair and reasonable. However, 14 years later, in this time and under the circumstances as we know them today, Mr. Palmer poses the correct question when he asks, "what has changed to suggest that the R.A. Wright method of assessment... is not valid today?" (Palmer, p. 1.) The answer is that a great deal has changed from 14 years ago. SuperValu/Waremart purchased, removed and rezoned the entire Duvall Street neighborhood. In all, 24 parcels (only 8 of which were in the original LID) were purchased and consolidated into a single commercial development parcel. Even though the wetlands that bisect the parcel ultimately forced Waremart to divide the property into two development projects, the consolidation of residential properties from the proposed Dartmouth alignment north to the theater complex, clearly changed the way in which the property on the north side of Dartmouth would develop. The same thing occurred with Costco. Western-Duff Partners/Costco acquired 25 parcels, 19 of which were residential homes along 79" Street. That property was rezoned commercial and eventually consolidated along with the adjacent commercial property into a single commercial development parcel. When these two acquisitions and consolidations occurred, no longer are the Improvement District's development parcels "unbalanced." The Waremart/Costco acquisitions and consolidations resulted In three relatively similar commercial development parcels (albeit Waremart's parcel was split Into two separate development projects by wetlands). Actual construction by Waremart and Costco and Martin's various development proposals clearly show that each contain one The Honorable Mayor )Im Nicolal City Council Members of the City of Tigard March 27, 1998 Page 4 or more major retail users along with retail "pads" and secondary retail uses. Each has large parking lots and each take their access from one or more locations on Dartmouth and for Waremart and Martin, 72nd. The actual "frontage" that each has on Dartmouth has neither constrained nor enhanced the manner in which the development has been shaped. Instead, the form of each development Is a function of both the road frontage and the overall size, shape and depth of the parcels. This would not have been the case for the commercial properties as they existed prior to the Costco and Waremart acquisitions and consolidations. The Martin property could have developed exactly as they have now proposed. However, neither the original north nor west side properties could have developed as Waremart and Costco has now done. Because of their original shape and size, they would have been developed with one or more buildings generally aligned parallel to Dartmouth In the typical "strip center" configuration. The size and depth of the properties precluded "anchor" use like Cub Foods, Costco or most other large anchor retail uses. Instead the commercial buildings would have been fllied with smaller, individual retail uses for which, in the absence of a strong anchor retail use, visibility from Dartmouth would be essential to their survival. Wright understood both this development potential and constraint and created an assessment formula that accurately reflected the only reality that he could contemplate at that time. But today, the benefit that each property derives from Dartmouth is less from the visibility afforded to the development, than from the access it provides. In fact, the real development value of the Martin, Waremart and Costco properties is from their size, shape and depth and their access from Dartmouth. The Harper Rlghellis formula recognizes this and recognizes that only the Martin property had this value in 1984 and that things have indeed changed dramatically in these 14 years. Conclusion Mr. Palmer is right when he says, "there is not right or wrong, there is really only the search for fairness." (Palmer. p. 2) Both R.A. Wright and Harper Rlghellis have developed approaches that are fair. The difference is 14 years. Harper Righellis presents an approach that is fair in today's terms and reflects what we now know and what Mr. Wright could not have known in 1984. Thank you for your consideration of this information. Sincerely, Gordon E. Davis Dartmouth Public Heaving 3-17-98 Exhibit List Exhibit 1 - Tony Reghallis - map Exhibit 2 - Map 1 (zone method of assessment) (Van Dyk) Exhibit 3 - Map 2 - Noting properties (VD) excluded from LID Boundary Exhibit 4 - Map 4 - Location of residences. Exhibit 5 - Ordinance 84-18 Sections 1 & 2 Exhibit 6 - 88.08 Title of Ordinance Section 1 Section 4 Section 5 Exhibit 7 - The engineers report revised on 4-20-98. Exhibit 8 - Minutes 4/11/88 e. - "formula used" Exhibit 9 - Letter dated 1/9/89 from R. Wooley to Bruce Kelly. Exhibit 10 - Harper Reghallis - proposal. (Assessment Map) Exhibit 11 - Chart Gross Assessment under original "zone method" Exhibit 12 - Chart Gross Assessment under Harper Reghallis areas Exhibit 13 - Chart Net Assessment under original "zone method" "5C" Exhibit 14 - R.A. Wright engineering map "Exhibit A" Exhibit 15 - Chart Net Assessment under HR method with areas of Parcels and Wetland corrected. Exhibit 16 - Gross Assessment dist. & total areas or `JVaremart and Costco are under HR method. Exhibit 17 - Map - "Map 3" Exhibit 18 - Book Quoted from A. Brockman Chapter 13 - Special Assessments re: Frontage Footage Method. Exhibit 19 - Brockman Book Area Method Exhibit 20 - Brockman Zone Method Exhibit 21 - Wetland maps Exhibit 22 - Additional specific grounds for objection i\adm\jcssica\dartcxIt.doc s: n