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City Council Packet - 07/14/2009 TIGARD City of Tigard TIGARD CITY COUNCIL BUSINESS MEETING July 14th, 2009 COUNCIL MEETING WILL BE TELEVISED I: \Ofs \Donna \Ccpktl 13125 SW Hall Blvd. • Tigard, Oregon 97223 • 503.639.4171 TTY Relay: 503.684.2772 • www.tigard- or.gov Revised 7/10/09 — Added Agenda Item 8 — Authorize the City Manager to Sign a Purchase and Sale Agreement 0 C ® City of Tigard 1 I 1 T igard Business Meeting — Agenda -meak ,,...... ,ww.... ,,,r ..... r, ... .. d :: . ..... ... .�,��..•:. . °'f.. � ., o ,.. TIGARD CITY COUNCIL & LOCAL CONTRACT REVIEW BOARD (LCRB) MEETING DATE: July 14, 2009 MEETING LOCATION: City of Tigard — Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 rut PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign -up sheet(s). If no sheet is . available, ask to be recognized by the Mayor at the beginning of that agenda item. Citizen Communication items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign -in sheet. Business agenda items can be heard in any order after 7:30 p.m. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503 - 639 -4171, ext. 2410 (voice) or 503- 684 -2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and • Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting by calling: 503 - 639 -4171, ext. 2410 (voice) or 503- 684 -2772 (1llD - Telecommunications Devices for the Deaf). CABLE VIEWERS: The regular City Council meeting is shown live on Channel 28 at 7:30 p.m. The meeting will be rebroadcast at the following times on Channel 28: Thursday 6:00 p.m. Sunday 11:00 a.m. Friday 10:00 p.m. Monday 6:00 a.m. SEE ATTACHED AGENDA TIGARD CITY COUNCIL /LCRB /CCDA AGENDA — July 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503- 639 -4171 I www.tigard- or.gov I Page 1 of 5 il City of Tigard T Tigard Business Meeting — Agenda 'aa,•. .. . ;: �, >..,...e ti x;. .� ;2 ::'•.�w�.y. z ,��,. Yi' v'r..,^f ,,,.i'e. a «w�a,�,�,.,, ,. .,.,.....,«..�....,� S.� � r � � � VOL, •su.;.�; >,' _'.. .�� "c':�a�,e�i.� .. ��.� = ''• *"' -... ,., _ .. .. "'c1.�9'z" 4F« _. �n...��, a' ,.: . ._ , ., >p� ..,..� y...,...... ., , x_,., , TIGARD QTY COUNCIL & LOCAL CONTRACT REVIEW BOARD (LCRB) MEETING DATE /TIME: July 14, 2009/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard - Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 6:30 PM STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) and (h) to discus real property transaction negotiations and for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. All discussions are confidential and those present may disclose nothing from the Session. Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. ➢ Discuss City Manager Evaluation Criteria - Human Resources Department ➢ • 1 -5 South Study- Mayor Dirksen Letter 7:30 PM 1. BUSINESS MEETING 1.1 Call to Order - City Council, Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications & Liaison Reports 1.5 Call to Council and Staff for Non - Agenda Items 2. CITIZEN COMMUNICATION (Two Minutes or Less, Please) • Citizen Communication - Sign Up Sheet • Follow-up to Previous Citizen Communication 3. PROCLAMATIONS a. PROCLAIM TIGARD AS A 2010 CENSUS PARTNER b. SUPPORT GIVE 10 TELL 10 CAMPAIGN • Mayor Dirksen TIGARD CITY COUNCIL /LCRB /CCDA AGENDA — July 14, 2009 ..,,:� „__ ....�,.�.�...,.�...,..._ a._� City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503 - 639 -4171 I www.tigard - or.gov I Page 2 of 5 4. CONSENT AGENDA: (Tigard City Council and Local Contract Review Board) These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Motion to: 4.1 Approve City Council Minutes for May 12 and 19, 2009 4.2 Receive and File: a. Council Calendar b. Tentative Agenda c. Notes from June 30, 2009 Fifth TuesdayMeeting 4.3 Adoption of Tigard Police Officers Association (TPOA) New Collective Bargaining Agreement for FY 2009 -2011, and Authorization of City Manager to Sign - Resolution No. 09- 4.4 Approve an Updated Employment Agreement for the City Manager, Extending the Term and Incorporating Amendments 4.5 Approve Budget Amendment # _ to Recognize the Edward Byrne Grant Revenue in the Amount of $86,099 for the Police Department - Resolution No. 09 - 4.6 Reappointment of Board Members David Burke and Cecilia Nguyen, Appointment of Scott Hancock as Board Member and Appointment of John Storhm and Grace Amos as Alternates to the Tigard Library Board- Resolution No. 09- 4.7 Approve Application to the Department of Justice for a Strategic Enhancement Mentoring Program Grant 4.8 Approve Application to the Department of Justice for a Gang Prevention Youth Monitoring Program Grant 4.9 Authorize Submission of an Energy Efficiency and Conservation Block Grant to Install a New Energy Star Roof on the Permit Center 4.10 Approve Intergovernmental Agreement with Washington County Accepting $142,000 in Community Development Block Grant Funds for Garrett Street Sidewalk In -fill 4.11 Approve Workers' Compensation Insurance for Volunteers - Resolution No. 09- 4.12 Approve Standard Utility Franchise Agreement with Electric Lightwave LLC - Resolution No. 09- 4.13 Approve Wetland Mitigation Site Deed Restriction on City Property 4.14 Local Contract Review Board: a. Authorize City Manager to Negotiate and Sign a Three -Year Municipal Lease with Panasonic Finance Solutions b. Award Contract for Audiometric Services c. Award Contract for Application of Slurry Seal on Various City Streets under the FY 2009 -10 Pavement Major Maintenance Program 5. ADOPT PARK SYSTEM MASTER PLAN - Resolution No. 09- TIGARD CITY COUNCIL /LCRB /CCDA AGENDA — July 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503 - 639 -4171 I www.tigard- or.gov I Page 3 of 5 6. CONTINUATION OF LEGISLATIVE PUBLIC HEARING FROM MAY 12, 2009 - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008- 00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive Lands Permit requirements which reads: "5. The plans for the pedestrian/bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; ". Removal of this section would allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian/bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." LOCATION: Citywide. COMPREHENSIVE PLAN DESIGNATION: All City Comprehensive Plan Designations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; and Goal 8 Recreational Needs]; any federal [FEMA] or state statutes or regulations found applicable; any applicable METRO regulations; [Metro Code Sections 3.07.300, Urban Growth Management Functional Plan; and Title 3, Water Quality and Flood Management]; any applicable Comprehensive Plan Policies; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; and any applicable provisions of the City's implementing ordinances [TDC 18.130, 18.380, 18.390 and 18.775]. a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony. Proponent - Opponents e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No. 09- 7. CONTINUATION OF PUBLIC HEARING - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING TREE REMOVAL DCA2009 -00001 LEGISLATIVE PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING TREE REMOVAL (DCA2009- 00001) — COUNCIL GOAL # 1B — UPDATE THE TREE CODE TO MEET COMPREHENSIVE PLAN REQUEST: To amend the current Tigard Development Code to clarify how an applicant for development is to demonstrate compliance with the City's stated preference for tree protection over removal wherever possible. The complete text of the proposed Code Amendment can be viewed on the City's website at http: / /www.tigard- or.gov /code amendments. LOCATION: Citywide ZONE: All City Zoning Districts APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380, 18.390, and 18.790; Comprehensive Plan Policies 1.1.2, 1.1.3, 1.2.1, 1.2.6, 2.1.2, 2.1.14, 2.1.24, 2.2.1, 2.2.6, 2.3.1, 2.3.6, 6.1.6, 6.2.3, 6.2.4, and 6.2.5; Metro Functional Plan Titles 1, 2, and 3; and Statewide Planning Goals 1, 2, and 6. TIGARD CITY COUNCIL /LCRB /CCDA AGENDA — July 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503 - 639 -4171 I www.tigard or.gov I Page 4 of 5 a. Open Public Hearing b. Declarations or Challenges c. Staff Report: Community Development Department d. Public Testimony. Proponent - Opponents e. Staff Recommendation f. Council Questions g. Close Public Hearing h. Council Consideration: Ordinance No. 09- 8. AUTHORIZE THE CITY MANAGER TO SIGN THE PURCHASE AND SALE AGREEMENT FOR THE JOHN H ZUBER PROPERTY • Staff Report: Community Development Department 9. COUNCIL LIAISON REPORTS 10. NON-AGENDA ITEMS 11. ADJOURNMENT I /ADM/ Cathy/ CCA/ 2009 /090714P.doc TIGARD CITY COUNCIL /LCRB /CCDA AGENDA — July 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503- 639 -4171 I www.tigard- or.gov I Page 5 of 5 City of Tigard 1 �N ` ®' Study Session — Agenda 14 TIGARD CITY COUNCIL & LOCAL CONTRACT REVIEW BOARD (LCRB) MEETING DATE /TIME: July 14, 2009/6:30 p.m. Study Session and 7:30 p.m. Business Meeting MEETING LOCATION: City of Tigard - Town Hall, 13125 SW Hall Blvd., Tigard, OR 97223 6:30 PM STUDY SESSION • EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under ORS 192.660(2) (e) and (h) to discus real property transaction negotiations and for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. All discussions are confidential and those present may disclose nothing from the Session: - Representatives of the news media are allowed to attend Executive Sessions, as provided by ORS 192.660(4), but must not disclose any information discussed. No Executive Session may be held for the purpose of taking any final action or making any final decision. Executive Sessions are closed to the public. > Discuss City Manager Evaluation Criteria - Human Resources Department > I -5 South Study Mayor Dirksen Letter > Administrative Items o For tonight's business meeting: • Attached is a corrected Page 8 for the TPOA Agreement (Consent Agenda Item No. 4.3). The correction is to Article 13.5, Phone Calls on Duty, changing the time from 15 minutes or longer to 7 -1/2 minutes or longer. • Attached is written testimony received today from Ernie Plan, HBA of Metro Portland, regarding the legislative hearing on the tree code amendments, Agenda Item No. 7. • Attached is a copy of the Agenda Item Summary for Agenda Item No. 8 regarding the request to authorize the City Manager to sign the Purchase and Sale Agreement for the John H. Zuber property. This is the same material sent in the Friday newsletter packet. o Verizon Franchise Audit Results • Tigard is owed $87,228; we paid $14,007 for the audit • Settlement agreement language negotiated by Nancy Werner with Verizon; the agreement is conditioned upon all cities accepting its terms. > The Intertwine - A new network resulting from the "Connecting Green" groups. Would the City Council want Metro to discuss this with the City Council and present more information. > Canterbury Heights Condominiums - Parking Update (materials attached) > Urbanization Forum Resolution - Washington County (materials attached) Council Calendar see next page... TIGARD CITY COUNCIL STUDY SESSION AGENDA - JULY 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503 - 639 -4171 I www.tigard- or.gov Council Calendar July 15 League of Oregon Cities - City /State Relations - Regional Meeting, City of Tigard Library Community Room - 4:30 p.m. July 21 Business /Workshop Meeting - Town Hall - 6:30 p.m. July 28 Business Meeting - Cancelled August 8 Team Building Session - Fanno Creek House - 9 a.m. to 3 p.m. August 11 Business Meeting - 6:30 p.m. August 18 Workshop Meeting - 6:30 p.m. August 22 Business Meeting - 6:30 p.m. August 25 Durham Road Crosswalk Ribbon Cutting, 10 a.m. Executive Session - The Public Meetings Law authorizes governing bodies to meet in executive session in certain limited situations (ORS 192.660). An "executive session" is defined as "any meeting or part of a meeting of a governing body, which is dosed to certain persons for deliberation on certain matters." Permissible Purposes for Executive Sessions: • 192.660 (2) (a) - Employment of public officers, employees and agents, If the body has satisfied certain prerequisites. 192.660 (2) (b) - Discipline of public officers and employees (unless affected person requests to have an open hearing). 192.660 (2) (c) - To consider matters pertaining to medical staff of a public hospital. 192.660 (2) (d) - Labor negotiations. (News media can be excluded in this instance.) 192.660 (2) (e) - Real property transaction negotiations. 192.660 (2) (f) - Exempt public records to consider records that are "exempt by law from public inspection." These records are specifically identified in the Oregon Revised Statutes. 192 -660 (2) (g) - Trade negotiations - involving matters of trade or commerce in which the governing body is competing with other governing bodies. 192.660 (2) (h) - Legal counsel - for consultation with counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed. 192.660 (2) (i) - To review and evaluate, pursuant to standards, criteria, and policy directives adopted by the governing body, the employment- related performance of the chief executive officer, a public officer, employee or staff member unless the affected person requests an open hearing. The standards, criteria and policy directives to be used in evaluating chief executive officers shall be adopted by the governing body in meetings open to the public in which there has been an opportunity for public comment. 192.660 (2) (j) - Public investments - to carry on negotiations under ORS Chapter 293 with private persons or businesses regarding proposed acquisition, exchange or liquidation of public investments. 192.660 (2) (k)- Relates to health professional regulatory board. 192.660 (2) (1)- Relates to State Landscape Architect Board. 192.660 (2) (m)- Relates to the review and approval of programs relating to security. I: \ADM \CATHY \CCA SS - PINK SHEET\2009 \090714.dOC TIGARD CITY COUNCIL STUDY SESSION AGENDA — JULY 14, 2009 City of Tigard I 13125 SW Hall Blvd., Tigard, OR 97223 I 503 - 639 -4171 I www.tigard- or.gov � City of Tigard TIGARD Memorandum To: Mayor & City Councilors From: Sandy Zodrow, Human Resources Directo ,e / Re: Annual Performance Review for City Manager Date: July 8, 2009 Enclosed please find a copy of the review forms that were used by the City Council for last year's annual performance review of the City Manager. Two forms were initially utilized, one for the Council to note their comments and ratings, and one for Executive Staff to complete. After all of the parties finished completing their form, the comments and ratings were combined and placed on the "Council Appraisal of City Manager" form. The issue of what kind of review form the Council wishes to use this year is scheduled for discussion at the Study Session on July 14th. You may use these forms again, revise them, or direct that a new form(s) be developed. I will be there at the meeting to assist in any way I can. Council Appraisal of City Manager City of Tigard City Manager: Date: City Councilor: Mayor & Council Appraisal SECTION I: PERFORMANCE MEASUREMENT CRITERIA Please designate the appropriate box for each item and include examples, which support the rating. Administrative Ability Planning: Ability to anticipate and analyze problems. Maps effective solutions. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Organizing: Ability to arrange work and efficiently apply resources. Recognizes opportunities for management and operational efficiencies. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Timing - Opportunist: Makes decisions when sufficient information is available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Analytical: In making decisions considers the best available facts, projections, and evidence. To the extent that resources permit, insures that these tools are available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Job Knowledge: Has a solid understanding of all phases and departments of municipal government. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Personnel Functions Supervision: Builds and motivates a team, provides direction, monitors and adjusts performances as necessary. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: City Manager Performance Appraisal Delegation: Effectively assigns work to others to get City business done efficiently. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Communication with Employees: Listens to employees and openly communicates in order to provide sufficient information to keep the employees motivated and part of the team. Understands their concerns. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Hiring: Recognizes the value of excellent employees and hires and maintains available staff. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Labor Relations: Understands contract negotiations and contract administration. Equitably handles problems of grievances among subordinate employees. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Leadership: Motivates, encourages and seeks to develop skills and abilities in staff. Sets the standard for performance accountability by example.. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Collaboration Skills: Builds collaborative trust with staff. Treats staff with respect. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Risk Management: Implements effective programs to limit liability and loss. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement_❑ Comments: Page 2 of 8 City Manager Performance Appraisal Budget and Finance Financial Management: Accurately and concisely reports and projects the financial condition. Management practices and policies are designed to maintain or achieve a sound long -range financial condition. Uses debt cautiously, plans for the long -term replacement and maintenance of equipment and infrastructure. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Operational Efficiency: Obtains the best possible end result for the money spent. Monitors efficiency service improvement and effectiveness for all programs. Most economical utilization of manpower, materials and machinery. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Community Relations Public Service: Commitment to the service of the public. Recognizes and respects the value of public service. Projects a positive image of the City. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Forges Compromises: Has the ability to resolve conflicts with little or no assistance from outside sources. Is a good negotiator. Is credible and builds trust in the community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Sensitivity: Listens and understands the positions and circumstances of others. Communicates that understanding. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Communication with the Public: Approachable and responsive to the public and takes their concerns and problems seriously, regardless of how insignificant the questions or complaints seem to be. Is able to represent Council at community events and forums. Pursues an outreach style of management as a spokesperson for city issues. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Public Involvement: Involves citizens in city issues and programs. Provides link between the Council and business community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Media Relations: Develops effective relationships and positive image with public /media. Is able to accurately articulate City Council and community goals. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Page 3 of 8 City Manager Performance Appraisal Relation with Council Communication with Council: Accurately interprets the direction given by the Council. Provides Council with well informed concise oral and written communication. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Accepts Direction: Aggressively responds to the direction of the majority of the Council. Not sidetracked to the minority but recognizes their concerns. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Research: Prepares fully researched materials for Council action including alternatives and recommendations. Analyzes issues and presents policy alternatives to Council with documented justified recommendations. Assures that material is concise and easily understandable. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Intergovernmental Relations Develop Relations: Develops good working relationships with other local, county, regional, state and federal agencies. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Representative: Effectively represents the City on commissions, boards, and committees. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Resource Developer: Exerts appropriate influence on decisions affecting Tigard from other agencies, gaining resources to benefit the City. Has basic understanding of federal and state grants and appropriations. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Interpersonal Skills • Creativity: Implements effective and creative solutions to resolve City problems. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Honest, Fair: Consistently demonstrates integrity and honesty, straightforward and impartial. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Page 4 of 8 City Manager Performance Appraisal Adaptable: Responds positively to a changing work environment and changing local conditions. Does not cling to the status quo for its own sake. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Resilient: Energy and motivation maintained in spite of constant demands. Handles stress well. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Ethical: Conforms to the high standards of the profession. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Professional Development: Takes action to acquire new knowledge and skills. Encourages employees to do the same. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Judgment: Thinks logistically and utilizes independent thought to make sound decisions. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Economic Growth Economic Development: Identifies and helps Council create conditions which foster economic development. Understands importance of, and knowledge of factors and methods for, maintaining existing businesses, as well as recruiting new ones. Recognizes relationship of local economy to region and beyond. Develops policies and guidelines to reasonably allocate costs of public improvements and services related to economic development between the public and private sectors. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement Comments: SECTION II: ESTABLISHMENT OF GOALS & OUTCOMES FOR UPCOMING RATING PERIOD Outline the goals for the upcoming period and the desired outcomes. The City Manager's goals should be related to the Community goals. The City Manager goal may include a new project or may include a goal that is an ongoing fundamental portion of the position. Any number of goals may be set. The desired outcome is the standard against which performance will be measured. These should be specific and measurable including timeframes. Dept /City Goal: Individual Goal: Desired Outcome: Page 5 of 8 City Manager Performance Appraisal Dept/City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Page 6 of 8 City Manager Performance Appraisal Dept /City Goal: Individual Goal: Desired Outcome: Dept /City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: Dept/City Goal: Individual Goal: Desired Outcome: SECTION III: COUNCIL'S SUMMARY COMMENTS The following is an overall performance rating for the City Manager, recommended action by the Council, and sign off. The City Manger's signature does not necessarily mean that the City Manager agrees with the rating, only that the evaluation process has taken place. Summary Comments: Overall Rating (check one): Exceeds: Exceeds expectations in all or majority of categories. Fully Effective: Meets expectations in all categories (may exceed in some) Developing: does not meet expectations in one or more category Needs Improvement: Does not meet expectations in majority of categories City Manager's Signature Date Mayor's Signature Date Page 7 of 8 City Manager Performance Appraisal Rating Definitions & Scoring Exceeds = 4.0 Fully Effective = 3.0 Developing = 2.0 Needs Improvement = 1.0 Page 8 of 8 • Staff Input to the Council Appraisal of City Manager City of Tigard City Manager: Date: Rater: Executive Staff SECTION I: PERFORMANCE MEASUREMENT CRITERIA Please designate the appropriate box for each item and include examples, which support the rating. Administrative Ability Planning: Ability to anticipate and analyze problems. Maps effective solutions. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Organizing: Ability to arrange work and efficiently apply resources. Recognizes opportunities for management and operational efficiencies. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Timing - Opportunist: Makes decisions when sufficient information is available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Analytical: In making decisions considers the best available facts, projections, and evidence. To the extent that resources permit, insures that these tools are available. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Job Knowledge: Has a solid understanding of all phases and departments of municipal government. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Personnel Functions Supervision: Builds and motivates a team, provides direction, monitors and adjusts performances as necessary. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: City Manager Performance Appraisal Delegation: Effectively assigns work to others to get City business done efficiently. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Communication with Employees: Listens to employees and openly communicates in order to provide sufficient information to keep the employees motivated and part of the team. Understands their concerns. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Hiring: Recognizes the value of excellent employees and hires and maintains available staff. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Labor Relations: Understands contract negotiations and contract administration. Equitably handles problems of grievances among subordinate employees. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Leadership: Motivates, encourages and seeks to develop skills and abilities in staff. Sets the standard for performance accountability by example. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Collaboration Skills: Builds collaborative trust with staff. Treats staff with respect. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Risk Management: Implements effective programs to limit liability and loss. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Page 2 of 6 City Manager Performance Appraisal Budget and Finance Financial Management: Accurately and concisely reports and projects the financial condition. Management practices and policies are designed to maintain or achieve a sound long -range financial condition. Uses debt cautiously, plans for the long -term replacement and maintenance of equipment and infrastructure. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Operational Efficiency: Obtains the best possible end result for the money spent. Monitors efficiency service improvement and effectiveness for all programs. Most economical utilization of manpower, materials and machinery. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Community Relations Public Service: Commitment to the service of the public. Recognizes and respects the value of public service. Projects a positive image of the City. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Forges Compromises: Has the ability to resolve conflicts with little or no assistance from outside sources. Is a good negotiator. Is credible and builds trust in the community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Sensitivity: Listens and understands the positions and circumstances of others. Communicates that understanding. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Communication with the Public: Approachable and responsive to the public and takes their concerns and problems seriously, regardless of how insignificant the questions or complaints seem to be. Is able to represent Council at community events and forums. Pursues an outreach style of management as a spokesperson for city issues. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Public Involvement: Involves citizens in city issues and programs. Provides link between the Council and business community. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Page 3 of 6 City Manager Performance Appraisal Media Relations: Develops effective relationships and positive image with public /media. Is able to accurately articulate City Council and community goals. Exceeds ❑ Fully Effective El Developing El Needs Improvement El Comments: Intergovernmental Relations Develop Relations: Develops good working relationships with other local, county, regional, state and federal agencies. Exceeds ❑ Fully Effective ❑ Developing El Needs Improvement El Comments: Representative: Effectively represents the City on commissions, boards, and committees. Exceeds El Fully Effective El Developing El Needs Improvement ❑ Comments: Resource Developer: Exerts appropriate influence on decisions affecting Tigard from other agencies, gaining resources to benefit the City. Has basic understanding of federal and state grants and appropriations. Exceeds El Fully Effective El Developing El Needs Improvement ❑ Comments: Interpersonal Skills Creativity: Implements effective and creative solutions to resolve City problems. Exceeds El Fully Effective El Developing El Needs Improvement ❑ Comments: Honest, Fair: Consistently demonstrates integrity and honesty, straightforward and impartial. Exceeds El Fully Effective El Developing El Needs Improvement El Comments: Adaptable: Responds positively to a changing work environment and changing local conditions. Does not cling to the status quo for its own sake. Exceeds ❑ Fully Effective El Developing El Needs Improvement El Comments: Resilient: Energy and motivation maintained in spite of constant demands. Handles stress well. Exceeds El Fully Effective El Developing El Needs Improvement El Comments: Ethical: Conforms to the high standards of the profession. Exceeds El Fully Effective El Developing El Needs Improvement ❑ Comments: Page 4 of 6 • City Manager Performance Appraisal Professional Development: Takes action to acquire new knowledge and skills. Encourages employees to do the same. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Judgment: Thinks logistically and utilizes independent thought to make sound decisions. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: Economic Growth Economic Development: Identifies and helps Council create conditions which foster economic development. Understands importance of, and knowledge of factors and methods for, maintaining existing businesses, as well as recruiting new ones. Recognizes relationship of local economy to region and beyond. Develops policies and guidelines to reasonably allocate costs of public improvements and services related to economic development between the public and private sectors. Exceeds ❑ Fully Effective ❑ Developing ❑ Needs Improvement ❑ Comments: SECTION II: What do you consider the City Manager's greatest strengths? Do you have any suggestions for the City Manager, which you feel, will improve his effectiveness? Page 5 of 6 City Manager Performance Appraisal Rating Definitions & Scoring Exceeds = 4.0 Fully Effective = 3.0 Developing = 2.0 Needs Improvement = 1.0 Page 6 of 6 d �SS'o )(1(11, Lake Oswego Tigard Tualatin Sherwood Wilsonville logo logo logo logo logo DRAFT — June , 2009 DRAFT The Honorable David Bragdon, President The Honorable Carlotta Collette, District 2 Councilor, JPACT Chair The Honorable Carl Hosticka, District 3 Councilor Metro Council 600 NE Grand Ave. Portland, OR 97232 RE: Mayors of South Metro Cities Support for "I -5 South Corridor Refinement Plan – Wilsonville to North Tigard," RTP Project #11062 Dear Council President Bragdon and Councilors Collette and Hosticka: All five mayors of the South Portland metropolitan cities of Lake Oswego, Tigard, Tualatin, Sherwood and Wilsonville are writing to request your active support of the "I -5 South Corridor Refinement Plan – Wilsonville to North Tigard," Regional Transportation Plan (RTP) project #11062. Specifically, we seek the region's assistance to elevate the priority of this project to the RTP federal `fiscally constrained list' and as the `next corridor' study for the Portland Metropolitan Transportation Improvement Program (MTIP). Based on Metro's recent work - product entitled, Mobility Investment Track - Summary of Needs and 2007 Federal Priorities, dated May 2009, the I -5 South Corridor Refinement Plan is listed more often than any other refinement plan as a 2035 RTP Investment Priority in five key mobility corridors, including: • Corridor #2 – Portland Central City to Tualatin • Corridor #3 – Tualatin to Wilsonville • Corridor #7 – Tualatin to Oregon City • Corridor #19 – Beaverton to Tigard • Corridor #20 – Tigard/Tualatin to Sherwood The Oregon Department of Transportation reports that the portion of the South Metro I -5 Corridor between Highway 217 and I -205 is the busiest stretch of highway in Oregon -over 156,000 vehicles per day. ODOT also reports that the I -5 Boone Bridge over the Willamette River carries nearly as much traffic as the Columbia River Crossing CRC "project of national significance" and handles one -third more freight than the CRC: 1 - Major Bridges Daily Traffic Volume TOTAL Truck Truck 1 -5 Bridge !VOLUME % Vol Interstate CRC 1 126,600 18% 22,788 Boone Bridge 122,300 ! 28% 34,244 Vol Difference -4,300 11,456 % Difference -3.5% j 33.5% Furthermore, ODOT has indicated in the Metro Urban/Rural Reserves process that the South Metro I -5 Corridor and Boone Bridge is reaching maximum traffic - handling capacity, and will require a "huge" investment of over $500 million to remedy. The core reason for this extensive impact on regional corridors is that congestion and chokepoints on the South Metro I -5 Corridor directly impact the operations of Hwy 217 and I -205 — the most crucial highways of the Portland region. And in turn, cities along these routes like Beaverton, Gladstone, Happy Lake Oswego Tigard Tualatin Sherwood Wilsonville logo logo logo logo logo Letter to Metro Council: Mayors of South Metro Cities Support for "1 -5 South Page 2 Corridor Refinement Plan — Wilsonville to North Tigard," RTP Project #11062 June _, 2009 Valley, Milwaukie, Oregon City, Portland and West Linn are directly affected. Other entities such as the Port of Portland and traded - sector industries are also impacted by the operation of the South Metro I -5 Corridor when freight shipments are slowed or unpredictably delayed. Thus, while we mayors of the South Portland region are writing in support of this the I -5 South Corridor Refinement Plan project, the project benefits multiple jurisdictions and economic interests around the region. Until the 1 -5 South Corridor Refinement Plan is completed, the region will be unable to firmly determine logical cost - benefit investment decisions on I -5 connectivity enhancements, improved access controls and effective methods of alleviating freight mobility chokepoints in several jurisdictions adjacent to I -5. Reducing the impact of system congestion, capacity constraints and traffic hotspots has been advocated by the Regional Freight and Goods Movement Task Force as key issues for the regional freight transportation system. Additionally, the Regional Freight and Goods Movement Task Force is advocating that freight- oriented preservation, management and investment priorities should focus on "the core throughway system bottlenecks to improve truck mobility in and through the region," specifically citing that " hotspots of note include...the I -5 South corridor." The I -5 South Corridor Refinement Plan directly addresses these issues and explores potential solutions that help the region to avoid costly investments that may not be beneficial and to selectively target public investments for maximum benefit. In conjunction with the I -5 South Corridor Refinement Plan project, we also support JPACT's nomination of the High Capacity Transit Corridor number 11, "Portland to Sherwood in the vicinity of Barbur/Hwy 99W Corridor (LRT)" as the region's highest- ranked "Near Term Regional Priority" for study. Examining improved transit options in this larger mobility corridor complements the road study of the I -5 South Plan. Before the region invests in other transportation improvements and new urban- growth boundary expansion . areas, such as the Coffee Creek industrial area or the Tualatin - Sherwood- Wilsonville area, the region would be better positioned if we understood first the limitations and potential modifications of the South Metro I -5 Corridor, which carries more traffic and freight than any other highway segment in Oregon. We thank you for your time and consideration and look forward to working with the region to advance the I -5 South Corridor Refinement Plan as a critical tool to improve system mobility and reliability that benefits all Metro -area jurisdictions. Sincerely, Jack Hoffman Craig Dirkson Lou Ogden Keith Mays Tim Knapp Mayor, City of Mayor, City of Mayor, City of Mayor, City of Mayor, City of Lake Oswego Tigard Tualatin Sherwood Wilsonville cc: Chair Lynn Peterson, Clackamas County Board of Commissioners Chair Ted Wheeler, Multnomah County Board of Commissioners Chair Tom Brian, Washington County Board of Commissioners Jason Tell, Director, Region 1, Oregon Department of Transportation Bill Wyatt, Executive Director, Port of Portland ,- 9Ende1 i ` Cathy Wheatley Er "PI c -0 H 8P From: John Floyd Sent: Tuesday, July 14, 2009 2:29 PM To: Ron Bunch; Darren Wyss; 'Damien Hall'; Tim Ramis; Dick Bewersdorff; Cathy Wheatley Cc: Todd Prager Subject: Comments from HBA Attachments: PDXDOCS- #1856080- v1- Redline.DOC FYI — Comments from HBA regarding tonight's item (DCA2009- 00001). From: Ernie Platt [mailto:Erniep @hbapdx.org] Sent: Tuesday, July 14, 2009 2:23 PM To: John Floyd Subject: tree code amendments John Attached are edits we would propose this evening. I don't think any of them change the intent or the spirit of the staff. recommended text; merely trying to assure there will not be unintended consequences and be a bit more clear. Call if you wish to discuss, otherwise I'll see you this evening. Thanks, Ernie Platt Director of Local Government Affairs HBA of Metro Portland 15555 SW Bangy Rd. #301 Lake Oswego, OR 97035 • 503 603 -4515 FAX 503 684 -0588 erniephbapdx.orq • • 1 18.790.030 Tree Plan Requirement A. Tree Plan Required. A tree plan for the planting, removal, and protection of trees prepared and signed by a certified arborist and/or landscape architect shall be provided for any lot, parcel, or combination thereof for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever practicable. B. Plan Requirements. In order to determine that the City's preference for tree protection has been incorporated into the project design, the tree plan shall include the following: 1. Identification of the location, size, condition, and species of all existing trees. In addition to trunk locations, the plan shall include the approximate edge of canopy for each tree or group of trees including offsite trees which overhang the project site: 2. Identification of a program to retain existing trees or to mitigate tree removal over 12 inches in caliper as measured to the nearest tenth of an inch. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and be - exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees -over 12 inches in caliper requires a mitigation progratn in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to.50% of existing trees over 12 inches in caliper requires that two- thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed and the reason for their removal; 4. A protection program defining standards and methods that will be used by the applicant to protect existing trees that are proposed to be preserved, during and after construction, including offsite trees whose canopies overhang the project site. 5. A narrative and site plan demonstrating how the following design and construction techniques will be utilized to protect existin ! trees that are . ro . osed to be retained to the extent practicable. The format of the narrative must address each technique with a "yes" or "no" or "not applicable" answer, followed by a written explanation as to how the plans have included said techniques, or why said techniques are not practicable. The accompanying site plan shall include the location of all existing trees in relation to PDXDOCS:1856080.1 196080 -0005 the location of proposed grading, lot lines, and improvements. For existing trees to be • reserved the a • .licant shall indicate whether the followin •_.rotection techni• ues have been included, where practicable: a. Does the project protect and retain existing non - hazardous trees that are not likely to become a hazard during or soon after development, given their existing condition, ability to withstand unavoidable development related impacts, proximity to proposed land uses and structures, and susceptibility to windthrow? b. Do grading plans avoid soil compaction within the driplines of existing trees to be preserved, the removal of existing soil within driplines, or the placement of new soil within the driplines of existing trees to be preserved? c. Are infrastructure improvements such as stormwater facilities, utilities, sidewalks, and other improvements located outside of the driplines of existing trees to be preserved? d. Are lot layouts and building locations configured so that roads and driveways and building footprints are located outside of the driplines of existing trees to be preserved ?, e. Are parking: lot improvements located outside of the driplines of existing trees to be preserved ?: If no spaces be reduced, to a number of consistent with minimum parking stall requirements? • f. Does the site plan locate required open space and landscaping in areas that contain ' existing trees? • - - ; .I I.I . fl h-If the project cannot avoid disturbance within the driplines of existing trees to be preserved, as described in subsections a - e, above, does the protection program identify compatible construction techniques that will be used to prevent or reduce harm to existing trees to be preserved (i.e. tunneling for utilities, no -dig pavement installation, use of retaining walls to limit disturbance) to a level that the health and longevity of the trees will not be significantly impacted? Does the site plan locate required open space and landscar in • in areas that contain existing trees to be preserved? h. Does the project utilize lot size averaging and/or the reduction of lot width and de.th to .rotect existin• trees to be .reserved as allowed .er 18.790.040A 2 and 6. A mitigation plan signed by the project arborist and/or landscape architect that includes the location, species, spacing, and planting specifications for the replacement trees PDXDOCS:1856080.1 196080 -0005 and/or the amount of caliper inches that will be compensated through fees in lieu of planting. C. Prior tree removal. Trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. D. Approval Criteria. The approval authority may approve, approve with conditions, or deny a tree plan based on the following approval criteria: 1. The tree plan contains all contentof the application requirements set forth in sections 18.790.030(A) through (C), including the signature of a certified arborist on all documents, attachments, and amendments; and an answer of 2. The applicant has answered "yes" or "not applicable" on all questions required in section 18.790.030(b3B)(5), or has explained why use of a particular technique listed in that section is not practicable. E. Modifications to approved. Tree Plans:: Approved tree plans may be modified in the following manner. 1. Major Modification(s)-to Approved Tree Protection. Plans A. Determination request. An applicant may request approval of a modification to an approved tree protection plan or existing development by: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification addressing the changes listed in subsection B below. B. Evaluation criteria. The Director shall determine that a major modification(s) will result if one of the following changes are proposed, whichever is greater: 1. The total number of trees being removed increases by 10% or more, as defined by the whole of the original project; or 2. The total number of caliper inches being removed increases by 10% or more; C. When the determination is made. Upon determining that the proposed modification to the tree protection plan is a major modification, the applicant shall submit a new development application in accordance with the original project approval. 2. Minor Modification(s) to Approved Tree Protection Plans or Existing Development PDXDOCS:1856080.1 196080 -0005 A. Minor modification denied. Any modification which is not within the description of a major modification as provided in Section 18.79O.O3O.F.1 shall be considered a minor modification. B. Process. An applicant may request approval of a minor modification as follows: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification. C. Approval criteria. A minor modification shall be approved, approved with conditions or denied following the Community Development Director's review based on finding that: 1. The proposed development is in compliance with all applicable requirements of this title; and 2. The modification is, not a major modification. • • PDXDOCS:1856080.1 196080 -0005 Document comparison by Workshare Professional on Tuesday, July 14, 2009 1:01:51 PM Document 1 ID PowerDocs://PDXDOCS/1856035/1 PDXDOCS-#1856035-v1- Description Revisions_to_recommended_amendments_to_Tigard_De velopment_Code_18.790_(Tree_Removal) Document 2 ID PowerDocs://PDXDOCS/1856035/2 PDXDOCS-#1856035-v2- Description Revisionsto_recommended_amendmentsto_Tigard_De velopment_Code_18.790_(Tree_Removal) Rendering set Standard no moves Legend Insertion Deletion Movt14r-ein - • • • • • Moved to - Style change "...• Format change , Moved deletion . . Inserted cell Vfe : Deleted cell Moved cell:. Split/Merged cell . . . Padding cell h.41;;A:Vgataliai-VtilifrA:AkiMiNeititg:vatiittl Count Insertions 21 Deletions 7 Moved from 0 Moved to 0 Style change 0 Format changed 2 Total changes 30 PDXDOCS:1856080.1 196080-0005 Cor re c+, on 13 . s - TP0 A A5 ree2rn l A5 enda } -err /J o. 4 -1, For purposes of this Section, court time starts from the Police Department unless the employee goes directly to court from home, in which case the time starts from the employee's arrival at court. As a condition of receipt of payment for the time involved, all witness fees, mileage allowances, and other remuneration paid for appearances in court proceedings under this Article shall be turned over to the City. An employee who is on court I call -back remains on call -back until finally released for the day by the court. 13.4 Shift Differential Any member of the bargaining unit who has been employed at least six (6) months and who is required to work two (2) or more different shifts within a normal work week shall be compensated with two (2) hours of overtime for that week. This differential shall not apply when the above occurs as a result of mutual agreement between members of the bargaining unit for their own personal benefit. 13.5 Phone Calls While Off Duty If an employee receives a phone call from a supervisor while off duty that is related to his/her work for the City, the employee shall be paid for the actual time spent on the phone, provided the phone call lasts seven - and -a -half (7 1/2) minutes or longer. Such calls that last less than seven -and -a -half (7 %) minutes shall be considered de minimus and will not be compensated. 13.65 No Pyramiding The City shall not be required to pay twice for the same hours. ARTICLE 14 - HOLIDAY COMPENSATION In lieu of holidays off, each full -time employee shall be credited with eight (8) hours of holiday compensatory time or cash, at the option of the employee, for each month worked. If the employee elects to receive compensatory time, such time off shall be credited to his/her vacation/holiday account. Part-time employees shall receive a prorated compensatory time credit on a prorated basis to that of a forty (40) hour employee. Within 30 days of the dates specified herein, employees will be required to advise the City what portion of their holiday time is to be converted to their vacation/holiday account and/or paid monthly or on the dates specified below. If an employee elects to have a portion of their holiday hours paid, such payment shall be made on December 1 and/or June 1 of each year and shall not exceed 48 hours on either date. The City will provide employees with a selection form and each employee will be required to make a selection and return the form within the time period described in this section. ARTICLE 15 - VACATIONS 15.1 Accrual Vacations shall accrue as follows: City of Tigard and TPOA - Expiration Date: June30, 2009June 30, 2011 8 .. V N • MEMORANDUM TIGARD TO: City Council Craig Prosser, City Manager VIA: Ron Bunch, Community Development Director Gus Duenas, City Engineer FROM: Mike McCarthy, Project Engineer RE: Canterbury Lane Parking Issues DATE: July 7, 2009 Location This memorandum describes the installation of a NO PARKING zone on Canterbury Lane southeast of Highway 99W and the issues surrounding that installation. Below is a vicinity photo: r c, f iwo �;.„ P / N V „, �. i , 1... r :�- ...Y�. J•.� you \4 •. ii IA -- ASA / e WY �M.. •.ry.• I d! %,� - fl,w * . sue•. °t' "ta lk` o"-• \ o, , -r^ — r. ,ye - ,,, '` .., , ,J' ,may„.,. '"'= ' r4gy 1 b IF •z - - _ s ; ^f�7r 7 . .; ° c �s • psi p . ^ - . ) `.e ,... ., ?W r , ,„.„. oi , l'' . ,,..,,r.,,.. :,:,..,:,,,, )...-i ----. _...1 7 t „. t 0._ __..,6_, 4 ,. .1 h +y }t y` 0dlp. Staff received several calls from residents of the apartment complexes on the south side of Canterbury Lane Each of these calls addressed a similar issue: parked vehicles along the south side of Canterbury Lane blocked the visibility of drivers as they attempted to exit their driveways onto Canterbury Lane. Staff visited the site, checked sight distance, and found that the parked vehicles did indeed block driver visibility enough to be a safety issue. To address this issue, NO PARKING zones were established in March, 2009 on both sides of the driveways, as shown on Figure 1. Note that the aerial photo was taken before parking was disallowed. Technical Analysis This analysis was conducted based on standards from the publication A Policy on Geometric Design of Highways and Streets, published by the American Association of State Highway and Transportation Officials (AASHTO). The length of necessary sight distance is calculated based on the prevailing speed of traffic on the street. While the speed limit on Canterbury Ln is 25mph, the prevailing speed of traffic is estimated (based on field observation and common practice) at 30mph. Based on this prevailing speed, the stopping sight distance is calculated to be 200 feet, and the design intersection sight distance is calculated to be 335 feet. It is common practice to use the intersection sight distance (335 feet) for new intersections, but use the shorter stopping sight distance (200 feet) for cases like this, recognizing that existing conditions constrain the amount of sight distance that can be provided and that it is reasonably safe if the stopping sight distance is provided. Sight distance is measured from a hypothetical driver's eye 3.5 feet high and 8 feet back from the front bumper of the vehicle. While the standard calculation places the driver's eye 14.5 feet from the edge of the travel lane, 10 feet may be used in lower -speed cases, such as this one, to account for drivers pulling closer to the travel lane. It is typically assumed that drivers will commonly `nose out' into a parking lane in order to see approaching traffic. The calculation uses an approaching vehicle height of 4.25 feet. From these standards, we calculate a minimum sight distance of 200 feet from a hypothetical driver's eye 10 feet back from the travel lane. These measurements are used to plot a sight distance triangle showing the critical area for driver visibility. These triangles are shown on Figure 2 (note that the aerial photo was taken before parking was disallowed). Any object in the triangle will block visibility if it is tall enough to disrupt the driver's line of sight. Figure 3 shows the view of a driver pulling out from the Maple Tree Apartments driveway. The driveway intersects Canterbury at an acute angle. This skew means that most drivers are somewhat looking over their shoulder in order to see traffic. While the standard measuring procedure doesn't account for this, it does make it more difficult for drivers pulling out of this driveway. This accentuates the need to preserve good sight distance, and thus reinforces the need for a NO PARKING zone to maintain adequate sight distance. The result of the technical analysis is that NO PARKING zone was established for 75 feet on either side of the driveway. On the east side of the driveway, another apartment complex driveway is 130 feet southe of the Maple Tree driveway. 130 feet south of that driveway is 109 Avenue. Each driveway is busy enough that sight distance issues are significant, so it is necessary to maintain a clear sight distance triangle for each. As Figure 4 shows, these sight triangles overlap to the point where it is necessary to disallow parking from 75 feet west of the Maple Tree driveway to 109 Avenue. Public Comments We have received the most comments about the view to the west from the driveway to the Maple Tree apartments. The NO PARKING zone extends 75 feet (about three car lengths) west of this driveway. Apartment residents said they were hoping for more visibility, but accept the current posting as enough to be safe. Complaints have been received recently from residents of the new condominiums (north of Canterbury) that they need to be able to park on Canterbury. The condominium developer says that they provided adequate parking, but their residents still need to be able to park on Canterbury Lane. Evaluation The technical analysis confirmed that the NO PARKING zone is as small as possible, and could not be made smaller without compromising safety. One potential option would be to shift the roadway striping to move the available legal parking areas to the north side of the street, along the condominium property. The amount of available parking would still need to be limited to preserve sight distance from driveways, but it may be possible to allow another vehicle or two to park. However, there would be costs and driver confusion associated with the shift, and it would place the parking (and associated sight distance issues) on the side of the road with faster downhill traffic, which would decrease traffic safety. For these reasons, staff recommends against this option. • - Figure 1 PARKING NO Ill-1 - . , -- ... .. ..,* • . - . ' j oy% , ANY .- . PARKING .... .... ANY TIME A • t.. TIME I ; . IP / I 1 , IA. • q A ' , "4-- imam N. P .4 " i• MEM "4 It• I= - 16, I g ' ' empl Mr I I I . . •-• . - ' . . I I Change single arrow , - - .. • r 0 *4'j '. to double arrow - - 4 ...N. L•444—•J \\ — •44 4 4 ' , 1 MIMES 1 1 • ' . ' I, 1 I ) 11111111111 , 44 %,, i \''..' •.. r t I ig- . 41r7", 1111e, , l e , .-s iv . A ' . II - P - `st-- , !,. - \ OIL • - .. •Ahip ' ' * . • -."----• ''' Ill - 44 , 11. , . I MI IIIIW I 1 . • , , I 1 11 l iat *i s. 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' ' - ' 4.1* ' . ; 4 1111." —^ ...• ' .-41;4,4tir;0011. FAN-'7'.tr;mosi'l '` :::', ", .... 0 r ' _ - ' • ..., ' ' 411... :8 4 41L ; :: ' ; `,.. f, - I '' i, 4 . - -I'k . -?!.• N. ,. . . - - _.......,... . . , .‘ a : , r? ::1 Mir •.‘7" ' ...., ',,,_ 4 . ' 4 a , .„ 1 1 • 77 " " :. . , . Ill' . . . . . •' Figure 3: Driver eye v exiting Maple tree Apts dr ,,r- The White car is parked 3 feet past the beginning of the No _ '. °• � - x Parking zone. The person in the orange vest represents the .f ' ` • left front of a vehicle 200 feet from the driveway. 4 • ' k ' '; " • 4 ; Ati y A < r , -.1 7 1-: : I .' , a. .t, • 4# t S r � X - _...._- „. ,.a f k.. _ J • �` ` � .. y 3 ) - �.�y ;rte _ ` -- • t� ;'. r s t,- .4'....';-• '� fety nk t " 4„, 4 , � Y " 3 j, 1 aY p! ;G�" '+ : a.. ,+3"' {r 1 ' r C t r i . "4 -4 � wy '� y - g „�F ' , � ? , ,, ` . i e ms . . . +� r - w .. .:', -.z.' `. ."- ,., • 4i1- ' 'S�c- , - �"r r -111;.--,-....0;‘,... ,.Tv'.:174."-;6, p; .`_'. T ,L -: I . r W 4'..:--,:, � ` 4' �, . � 5+ , , ', � + %.1. , 4': � 'tza : 4'' a Y n 4 ,. 'L.,, M ' t ,,,, F e ➢ ., ,�+-' i' 9• J � �4YY� .. .. -1- ( .Jc` ` "a *.l; y • h * , r Figure 4: Canterbury Lane — Effect of Combined Sight Tr a resulting in a NO PARKING zone from cn 75 feet west of the Maple Apartments ay to 109 Tree rtments driveway Avenue s y f �, � p ti . I,M`, '` �k: � . IF + f - .4 . +'lIL .. *•"'.. : i ce - . ' � „ � f : ! f a t • - •} , I .. . i ( a i �r $ 1 bt r P • % 11r g t � r 1- mod:. - . "' simmili _ .. � �` � . s 7 t y + ?` , a t _ ; , :,aR ' t ; 11y - ir , r y r . __ ` f __ � •�'- • : �_.� t oot .77 w . . N � 4 , 4 rs r _ a 'M. F • r��F 1., -ice- - 'a � '.C.,;,',''‘.;0-.'':•,:<a,<• s f + : �, kS mod - t r - 1, , } °, � a t • • S • - -_. , . , ♦ :. - _— ' us e 711 _ � - r I P q tom_!, ] l . y �,y 5 } - . � .t l f , ..,:.__, .- . _ r r •. f1 � a � :a + : - `.r _ , " '+' � • � 1 �� F � fi } 4... ry Y .. �' r ;wit ■ Agenda Item # Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Authorize City Manager to sign the Purchase and Sale Agreement for the John H. Zuber property. Prepared By: Kim McMillan Dept Head Approval: n City Mgr Approval: aN ISSUE BEFORE THE COUNCIL Shall City Council authorize the City Manager to sign the Purchase and Sale Agreement , thereby approving the acquisition expenditure? STAFF RECOMMENDATION That City Council authorize the City Manager to sign the documents for the John H. Zuber property acquisition, thereby approving the expenditure. KEY FACTS AND INFORMATION SUMMARY As part of the Burnham Street improvement project, additional right -of -way and easements are required. This property is also impacted by the Ash Avenue project. The City has pursued the purchase of the remainder of the Zuber site for redevelopment opportunities in the downtown redevelopment district. OTHER ALTERNATIVES CONSIDERED Staff considered, and presented previously to City Council, the option of purchasing the right -of -way on Burnham Street only. This alternative leaves the Burnham Street /Ash Avenue intersection unfinished. This alternative also does not provide the City with the redevelopment opportunities of owning the entire property. CITY COUNCIL GOALS Not applicable ATTACHMENT LIST Exhibit A: Acquisition Map FISCAL NOTES This acquisition exceeds the City Manager's $75,000 authorization limit, thereby requiring the City Council approval. Prior to consideration of this item, City Council will disclose the property purchase price at the City Council meeting after it meets in an Executive Session. • - 1 / e b . k 0 ',/ , ' . .' „ - '' / / \\ ' . : �� \ • ��•. , j /'' .'ice .1 'god' ' // / 1,:, , \ .64 Iii ' Il l \,,; .• a \ ,:. \ \ 1300 G ` . \ \ \ e 15{ / : 310 > / 2� . 1 ° I lly r L. .31AC � � Q <' \ \ \S , � ws 600 `, < a \/ /3 1501 / \\ AC \ .ry� Y l1 / L '\ E / • ' \ I \ / 1700 ` � .39 AC / J \ q \ / 1800 c‘§/ 1.43 AC bq , 3� .� 11 ••,a / •)',1,:$ \s l S ly \ / / I'i \ � / / •\ \� rill ,, / / / `'°. O % ° r dam / / s:, aezzu ' \ \ 11 \ / i / / y T'� , ! \ a...... 2 y ,. YO° r � ' , � � .35 AC \ l/ 1 11 / \ 4 \ , r e, y/ /c) .- / � /I \ �`�' Ary 19.00 d' / //II t / a // ,�' \ / / 6 1 1 \ / /;�� ,• b / 2900 \X / , 2 111 .? s / aryQ ' %� 2a Ac / .41 AC /u l 8 d' /O. \ lr \ ;7 // e f J / \ C 2400 /,,° ,,,,§% �..' „ 11y� C ( �� I , � ``s � .% / / / / '\ 'l y \ EXHIBIT A PDX /1 1 88 52/1 59582/KS13/4848667.1 Cathy Wheatley From: Craig Prosser Sent: Monday, July 13, 2009 2:55 PM To: Cathy Wheatley Cc: Joanne Bengtson; Ron Bunch; Liz Newton Subject: FW: Urbanization Forum R &O and Transmittal Letter Attached Attachments: R &O UrbanForum 07_07_09_001.pdf This came in too late to be included in the Friday packet, I am thinking that we need to hand it out tomorrow as a Pint Sheet item, From: Mark Cushing [mailto:mark.cushing @tonkon.com] Sent: Friday, July 10, 2009 3:37 PM To: Jim Patterson; Sherilyn Lombos; Dennis Doyle; Dennis Mulvihill; Liz Newton; Sarah Jo Chaplin; Dave Waffle; Michael Sykes; greg @tvwd.org; Bob Cruz ; Mark Cushing; Jeff Johnson; Doug Menke; Don Otterman; Dave Wells ; Jim Hough; Ron Bunch; Craig Prosser; robert_davis @co.washington.or.us; tom.brian @verizon.net; Dennis Mulvihill Subject: FW: Urbanization Forum R &O and Transmittal Letter Attached All: Attached are the Resolutions and Transmittal Letter approved by the Washington County Board of Commissioners. The Board approved the same Resolutions approved by the other jurisdictions, with no changes. The Board also approved a Transmittal Letter with various points about the process going forward • with Metro, and clarified that its passage of the Resolutions was not intended to waive its right or ability down the road to oppose a cherry stern annexation. Mark • • i 1 IN THE BOARD OF COUNTY COMMISSIONERS 2 FOR WASHINGTON COUNTY, OREGON 3 In the Matter Adoption of the ) RESOLUTION AND ORDER Urbanization Forum Principles for ) 4 Jurisdictions Within Washington County ) No. 0 ` (' 3 5 This matter having come before the Board on July 7, 2009; and 6 WHEREAS, in 2008 the cities of Washington County including mayors and managers, 7 Board of Commissioners of Washington County and managers, the largest Special Districts of 8 Washington County including chief executive officers and board chairs (Tualatin Valley Fire & 9 Rescue (TVF &R), Tualatin Hills Park and Recreation district (THPRD), Tualatin Valley Water 10 District (TVWD), Clean Water Services (CWS), and Washington County Sheriff (with respect to 11 all services provided by the Sheriff including the Enhanced Sheriffs Patrol District) convened the 12 Washington County Urbanization Forum and held four (4) public Urbanization Forum meetings in 13 2008 to discuss ,key urbanization issues, including receiving public comments on such issues; 14 WHEREAS, during Urbanization Forum discussion, the participants explored issues and 15 conditions pertaining to forming consensus policies for the governance and management of: (1) 16 existing unincorporated urbanized areas in the County that contain approximately 200,000 residents, 17 (2) areas added to the regional UGB in the County for future urban development and growth in the 18 County, and (3) imminent growth management issues confronting all Urbanization Forum 19 participants as forecasted population growth in Washington County takes shape; and 20 WHEREAS, Washington County citizens and civic organizations participated in the 21 Urbanization Forum, principally through CPO leadership, through public large group and small 22 group meetings held in April, June, October, November, and December of 2008; and Page 1 - RESOLUTION AND ORDER 08-3154 WASHINGTON COUNTY COUNSEL 155 N. FIRST AvE, SUITE 340 - MS #24 HILLSBORO, OR 97124 PI -LONE (503) 846 -8747 - FAx (503) 846 -8636 1 WHEREAS, it was determined during Urbanization Forum discussions that the following 2 seven (7) urban unincorporated areas within the existing UGB required an area -by -area approach to 3 determine if any changes are appropriate or desired in current service and governance solutions, 4 and separate area -by -area discussions were conducted in each of these areas: 5 (1) Cedar Hills /Raleigh Hills /West Slope /Garden Home; (2) Bethany/Rock Creek/North Bethany; 6 (3) Cedar Mill; (4) Bull Mt/Areas 63 &64; 7 (5) Metzger; (6) Reedville; and 8 (7) Aloha; 9 and 10 WHEREAS, it was also determined, in Urbanization Forum discussions, that resolution of 11 matters of urbanization governance and management of areas added to the Urban Growth Boundary 12 in Washington County by Metro requires consensus among the Urbanization Forum participants and 13 Metro on a separate urbanization policy prepared by the Urbanization Forum for these areas; and 14 WHEREAS, the Urbanization Forum formed a Steering Committee and a working group and 15 conducted a series of public meetings to formulate and draft proposed policies pertaining to future 16 governance and urbanization within existing unincorporated urban areas and areas outside the UGB 17 that are added to the UGB by Metro; and 18 WHEREAS, Urbanization Forum participants agree that, while an urbanization policy that 19 assigns to cities the governance and management of new areas added to the UGB engenders different 20 urbanization issues and, accordingly, should be considered distinct from an urbanization policy for 21 existing unincorporated urban areas not likely to become part of a city in the foreseeable future and 22 already governed by Washington County, both urbanization policies are connected in terms of the Page 2 - RESOLUTION AND ORDER 08 -3154 WASHINGTON COUNTY COUNSEL 155 N. FIRST AVE, SUITE. 340 - MS #24 HILLSBORO, OR 97124 PHONE (503) 846 -8747 - FAX (503) 846 -8636 1 quality and delivery of public services to such areas by their service providers and governing 2 institutions, and the quality of urban life and amenities of residents and communities in both areas; 3 and 4 WHEREAS, future actions of the jurisdictions within Washington County and Metro will be 5 well served by each jurisdiction considering and adopting the consensus recommendations of the 6 Urbanization Forum to serve as guideposts for decisions of the individual jurisdictions on matters of 7 concern to the Urbanization Forum. Now, therefore, it is 8 RESOLVED AND ORDERED that the governing body of Washington County, Oregon, 9 together with the Cities, County, and Special Districts which participated in the Urbanization Forum 1.0 (Cities of Banks, Beaverton, Cornelius, Forest Grove, Hillsboro, King City, North Plains, Sherwood, 11 Tigard, and Tualatin; Washington County; CWS, THPRD, TVF &R; TVWD), hereby adopts this 12. proposed Urbanization Forum Resolution and thereby commits to undertake and complete the 13 specific actions listed below at the earliest practicable time 14 (1) We expressly recognize and support the process and work of the Urbanization Forum; 15 (2) We will join fellow jurisdictions that participated in the Urbanization Forum in preparing and 16 executing mutually - agreed to amendments by December, 2009, to Urban Planning Area 17 Agreements ( "UPAA's ") and/or executed and pending Urban Service Agreements ( "SB 122 18 Agreements "), as deemed necessary and appropriate by each jurisdiction's counsel, to provide 19 that all future additions to the applicable Urban Growth Boundary in Washington County 20 during and after 2010 must be governed and urbanized by the interested City in the County. 21 In this context, "urbanized" means that the interested City has planning responsibility under 22 state law, and land use decision making authority with respect to the subject territory. The Page 3 - RESOLUTION AND ORDER 08.3154 WASHINGTON COUNTY COUNSEL 155 N. FIRST Ave, Surre 340 — MS #24 HILLSBORO, OR 97124 PHONE (503) 846 -8747- FAX (503) 846 -8636 1 decision as to how urban services will be delivered shall be determined by the interested City 2 in consultation with area service providers in accordance with existing law and applicable 3 agreements. "Interested" in this context includes, but is not limited to, designations under 4 UPAA's or SB 122 Agreements; 5 (3) In conjunction with paragraph (2), we will join fellow Jurisdictions that participated in the 6 Urbanization Forum in commonly supporting actions as appropriate to abide by a policy 7 which ensures jurisdiction of roadways, which are deemed by the County to be part of the 8 county -wide road system, shall be under the jurisdiction of Washington County. Concurrent 9 with annexation, the relevant City agrees in good faith to engage in the statutory process for 10 transfer of county roads pursuant to ORS 373.270 and shall request all other roads that are 11 not part of the Countywide Road System be transferred and the County shall transfer these 12 roads; 13 (4) We will join fellow Jurisdictions that participated in the Urbanization Forum in commonly 14 urging Metro to expand the existing Urban Growth Boundary only to such areas as are 15 contiguous to incorporated areas of Washington County; 16 (5) With respect to those existing areas of urban unincorporated Washington County in which 17 the interested Cities do not pursue annexation activities such that these areas remain under 18 the governance of Washington County, we will join fellow Jurisdictions that participated in 19 the Urbanization Forum in identifying and developing financial tools for Washington County 20 to utilize funds collected from urban unincorporated areas or other funding sources consistent 21 with principles of equity and fairness in aligning services with revenue sources, and 22 legislation, attendant thereto as necessary, to provide urban services as needed to such areas Page 4 - RESOLUTION AND ORDER 08_]154 WASHINGTON COUNTY COUNSEL 155 N. F1Rsr AVE, SUITE 340 - MS #24 H]LLSBORO, OR 97124 Pi -TONE (503) 846 -8747 - FAx (503) 846 -8636 1 while they remain outside the governance of Cities without unduly reducing countywide 2 services paid for by all county residents; and 3 6) We will continue to work with fellow jurisdictions in Washington County and the public 4 through the Urbanization Forum and /or other appropriate mechanisms to explore and discuss 5 on a continuing basis the needs of current and future urbanized Washington County; and, it is 6 further 7 RESOLVED AND ORDERED that a copy of this Resolution be transmitted to all 8 jurisdictions who participated as members of the Washington County Urbanization Forum, Metro, 9 . the Washington County CPO's, and other interested civic and community organizations. 10 11 DATED this 7 day of July, 2009. 12 BOARD OF COUNTY COMMISSIONERS 13 FOR WASHINGTON COUNTY, OREGON 14 AYE NAY ABSENT BRIAN ✓ � rt�.^ 15 SCHOUI TEN `"- CHAIR STRADER 16 ROGERS DUYCK Z 00(A•G 17 RECORDING SECRET Y 18 19 20 21 22 Page 5 - RESOLUTION AND ORDER 08 -3154 WASHINGTON COUNTY COUNSEL 155 N. FIRST AVE, SurrE 340 - MS #24 HILLSBORO, OR 97124 PHONE (503) 846 -8747 - FAX (503) 846 -8636 Aft WASHINGTON COUNTY OREGON July 7, 2009 To: Cities and Special Districts Participating in the Urbanization Forum Re: Transmittal Letter for Urbanization Forum Resolution This letter requests that the cities and special districts participating in the Urbanization Forum join together with Washington County in a concerted effort to bring about the adoption of polices and enforcement mechanisms that fulfill the common desire stated in the Resolution that "...all future additions to the applicable Urban Growth Boundary in Washington County during and after 2010 must be governed and urbanized by the interested City in the County." The advancement of this key element of the Resolution depends on action by Metro, which is not a signatory to the Resolution itself. Currently Metro has no formal policy, ordinance or resolution that supports the Urbanization Forum objective of getting future UGB expansions to be contiguous to cities, or to cities being the service provider. The Metro Council has discussed this several times and is "sympathetic" but they will need us to help them bring about the • appropriate changes. There are two places where changes can be made. 1) The Urban and Rural Reserves Process. Urban Reserves by statute are the lands Metro will consider for expansion of the Urban Growth Boundary. In that process of mutually identifying Urban Reserve lands, the required agreement between Washington County and Metro could include a requirement that all expansions of the UGB must be contiguous to a city. 2) MPAC could advance a recommendation to change Metro's ordinance requiring Concept Planning to be done before the UGB expansion decision. This would result in the identification of the appropriate city as service provider for the urban growth boundary expansion and further enhance our desired policy result. Notable for our interest is that Metro's Boundary Change authority was clarified in the 2009 Legislative Session to include Urban and Rural Reserves, i.e., they can stipulate how these new lands will be developed. Another 2009 law change allows Metro's boundary to change automatically with a UGB expansion. While these add strength to Metro's legal authority, our desired changes will also need to be introduced into their process and supported. To this end, approval of this Resolution by the Washington County Board of Commissioners is subject to the following provision: "Washington County's approval of the Urbanization Forum Resolution is conditioned on the understanding that nothing in the Resolution precludes Washington County from opposing or refusing to consent to "cherry- stem" annexations." Board of County Commissioners 155 North First Avenue, Suite 300, MS 22, Hillsboro, OR 97124 -3072 phone: (503) 846 -8681 • fax: (503) 846 -4545 July 7, 2009 Page Two The intended effect is to notify the public, business community and other governments of our placing a condition on the Resolution should the needed regulatory framework or actions not be completed by Metro. The goals embedded in the Urbanization Forum Resolution will certainly be difficult to achieve, and are unlikely to happen in the near term or simultaneously. The effort described above is an opportunity for the Urbanization Forum to apply its collaborative work and influence to affect decisions that will move us toward our collective goals. This in itself is something we should all be proud of. Sincerely, • Tom Brian Chairman Washington County Board of Commissioners AGENDA ITEM NO. 2 - CITIZEN COMMUNICATION 'DATE: July 14, 2009 (Limited to 2 minutes or less, please) 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. This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony becomes part of the public record. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. NAME, ADDRESS & PHONE TOPIC STAFF Please Print CONTACTED Name: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address ....City. : State Zip Phone No. 'Name: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City State Zip Phone No. Name: Also, please spell your name as it sounds, if it will help the presiding officer pronounce: Address City State Zip Phone No. CITIZEN COMMUNICATION F \ Agenda Item No. L 1. For Agenda of July 14, 2009 MEMORANDUM TO: Honorable Mayor & City Council FROM: Cathy Wheatley, City Recorder RE: Three -Month Council Meeting Calendar DATE: July 7, 2009 Regularly scheduled Council meetings are marked with an asterisk (*). July • 14" Tuesday Council Business Meeting - 6:30 pm, Town Hall 21" Tuesday Council Workshop Meeting - 6:30 pm, Town Hall 28" Tuesday Meeting Cancelled August 11" Tuesday Council Business Meeting - 6:30 pm, Town Hall 18" Tuesday Council Workshop Meeting -- 6:30 pm, Town Hall 25" Tuesday Council Business Meeting - 6:30 pm, Town Hall September 89" Tuesday Council Business Meeting - 6:30 pm, Town Hall 15* Tuesday Council Workshop Meeting -- 6:30 pm, Town Hall 22* Tuesday Council Business Meeting - 6:30 pm, Town Hall I:\ ADM\ City Council\Council Calendar \3 -month calendar fo 090714 cc mtg.doc Agenda Item No. Tigard City Council Tentative Agenda 2009 Meeting of ? ?A.G /i / Meeting Date: July 14, 2009 Meeting Date: July 21, 2009 Meeting Date: July 28, 2009 Meeting Type/Time: Business /6:30 p.m. Meeting Type/Time: Workshop /6:30 Meeting Type/Time: Business /6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Request to Sched. Due June 2, 2009 Request to Sched. Due June 9, 2009 Request to Sched. Due Materials Due @ 5: June 30, 2009 Materials Due @ 5: July 7, 2009 Materials Due @ 5: Councilor Webb Absent Councilors Webb & Henderson Absent Meeting Cancelled Study Session - Time Sched. 45 min. - 0 Avail. Consent Agenda Exec Sess - Property (KM) &Litigation (RB)- 30 min. Approve Extending IGA with Metro Providing Tigard Police Discuss City Mgr. Evaluation Criteria - Sandy - 15 min. Dept. Support for the Enforcement of Metro Illegal Disposal Consent Agenda Ordinance - Chief D. Approve TPOA Labor Contract - Sandy Z. - RES LCRB - Award Pavement Overlay PMMP Contract - Vannie N Approve Updated City Mgr. Employment Agreement - Craig P. Workshop LCRB- Approve Mobile Data Veh. Computer Lease- Chief D Discussion with Citizens on Forming an Aquatic LCRB -Award Audiometric Svcs. Contract - Loreen District to Fund the Operation of the Tigard - LCRB- Award PMMP Slurry Seal Contract - Vannie N. Tualatin Swimming Pools - Dennis - 30 min. BA to recognize Edward Byrne Grant Revenue - Chief D. Street Maintenance Fee Public Outreach -Final Rpt - Gus. 20 mir Approve Dept. of Justice Grant Application - Chief D. Citywide Sewer Extension Program Status Update - Approve Application to Dept. of Justice for Gang Prev. -Chief Gus - 20 min. Wetland Mitigation Deed Rest. For Wall St. Const.- Greg B. Building Division Fee Adjustments - MarkfT"oby Approve IGA Accepting Garret St. Sidewalk Funds -Duane 20 mins. Auth. DOE Energy Efficiency and Cons.Block Grant - Dennis Building Division Service Schedule - Mark /Tot). Approve Utility Franchise w /Electric Lightwave - Loreen -RES 10 mins. Approve Workers Comp Insurance For Vols. - Loreen - RES Initiate Code Amendment re Expanding Opportunities for Library Board Appointments - Margaret - RES Community Service Organization Outdoor Fundraising Events Gary PJRon B. - 20 min. Presentation of Results of Parks Bond Survey and Discussion Business Meeting regarding Parks Bond Election Date - Dennis - 30 min. Meeting Cancelled Proc. - Tigard as a 2010 Census Partner - Joanne - 2 min. Report on Washington County Urban and Rural Reserves Proc. - Give 10 Tell 10 Campaign - Joanne - 3 min. Process - Ron & John F. - 20 min. Adopt Park System Master Plan - Dennis -20 - RES Continuation - Legis. PH - Code Amendment re Sensitive Lands Permit Requirements (Sec. 18.775.070.B.5) Gary-35 Continuation - PH -Amend Development Code Tree Removal Criteria - John F. - 55 min. Time Avail: 110 min. - Time Scheduled: 115 min. Time Avail: 180 min. - Time Scheduled: 180 min. Time Left: -5 min. Time Left: 0 min. Page 1 of 6 Color Key: Admin -Green CD - HR - Magenta Finance /IT - Library - Aqua Police - Blue Risk - Purple PW - CG = Council Goal 7/7/2009 Tigard City Council Tentative Agenda 2009 Meeting Date: August 11, 2009 Meeting Date: August 18, 2009 Meeting Date: August 25, 2009 Meeting Type/Time: Business /6:30 p.m. Meeting Type/Time: Workshop /6:30 p.m. Meeting Type/Time: Business /CCDA 6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Request to Sched. Due June 30, 2009 Request to Sched. Due July 7, 2009 Request to Sched. Due July 14, 2009 Materials Due @ 5: July 28, 2009 Materials Due @ 5: August 4, 2009 Materials Due @ 5: August 11, 2009 Councilor Buehner may be absent Study Session - Time Sched. 45 min. 0 Avail. Workshop Agenda Study Session - Time Sched. 15 min. - 30 Avail. City Manager Review - Admin or HR - SI - 30 min. Council Briefing #2 - Tigard Transportation System Tour /Inspection of Jail - Chief D. - 15 min. Exec Sess - Bumham St. Briefing - Kim Mc - 15 min. Plan Update - Darren - 30 min. CG #1 Urban Forestry Master Plan and Tree Code Update - Darren/Todd /John F. - 30 min. - PPT Discuss Arsenic Remediation Plan for the Tigard Consent Agenda Public Library Grounds - Dennis - 20 min. Consent Agenda Approve Req. that Wash. Co. Form CPO 4T - Liz N. - RES Draft Metro 2009 -30 Housing - Employment Projec- Receive & File - Police Dept. Annual Report - Chief D. tions and Urban Growth Report -John F., Ron B. Consider Agreement with DEQ re Arsenic Contamination 30 min. at TPL - Dennis Review Options - Amend TMC - Advertising Signs in Public Right of Way -Dick B.. Ron B. - 30 min Business Meeting Business Meeting Review Status of Council's Adopted Legislative Priorities Chamber of Commerce Rep. - 10 min. and Interests in 2009 Legislature - Kent & Liz - 10 min. Tigard Transit Center Redevelopment Feasibility Report- Council Goal Update - Admin. - 15 min. Sean - PPT - 45 min. Info PH - Formation of Sanitary Sewer District No. 45 - CCDA - Update on Downtown Circulation Plan - Sean - Hoodview Dr. - PPT - Gus. - 20 min. - RES 15 min. Info PH - Formation of Sanitary Sewer District No. 47 - Baylor St. -Need RTS! Annexation Policy Discussion - Unincorporated Islands - Gary P. /Marissa D. - 40 min. Time Avail: 110 min. - Time Scheduled: 85 min. Time Avail: 180 min. - Time Scheduled: 80 min. Time Avail: 110 min. - Time Scheduled: 55 min. Time Left: 25 min. Time Left: 100 min. Time Left: 55 min. Page 2 of 6 7/7/2009 Tigard City Council Tentative Agenda 2009 Meeting Date: September 8, 2009 Meeting Date: September 15, 2009 Meeting Date: September 22, 2009 Meeting Type/Time: Business /CCDA 6:30 p.m. Meeting Type/Time: Workshop & CCDA/6:30 p.m. Meeting Type/Time: Business /6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Request to Sched. Due July 28, 2009 Request to Sched. Due August 4, 2009 Request to Sched. Due August 11, 2009 Materials Due @ 5: August 25, 2009 Materials Due @ 5: September 1, 2009 Materials Due @ 5: September 8, 2009 Study Session - Time Sched. 20 min. - 25 Avail. Workshop Agenda Study Session - Time Sched. 0 min. Time Avail 45 min. Exec Sess - Burnham St. Briefing - Kim Mc - 15 min. Park & Rec Advisory Board Joint Meeting - SI - PW - 30 min. Update the Budget Committee on the City's Year -to -date Financial Picture and Prior Year -end Financials - PPT - Toby L. 45 min. Consent Agenda Update the CCDA Budget Committee on the City's Year -to -date Financial Picture and Prior Yer -end Financials - PPT -Toby L. 10 min. Consent Agenda Business Meeting Business Meeting Chamber of Commerce Rep. - 10 min. THS Student Envoy - 10 min. Proc. - Family Day - A Day to Eat Dinner with Your Proc. - National Alcohol & Drug Addiction Recovery - Children - Joanne B. - 5 min. month - Joanne - 2 min. TMC Amendment - Signs in Public Right of Way - Ron B., Proc. - Constitution Week - Joanne 3 min. Dick B. - 45 min CCDA - Commercial Facade Improvement Pilot Project . Sean -10 min. Time Avail: 110 min. - Time Scheduled: 25 min. Time Avail: 180 min. - Time Scheduled: 85 min. Time Avail: 110 min. - Time Scheduled: 15 min. Time Left: 85 min. Time Left: 95 min. Time Left: 95 min. Page 3 of 6 7/6/2009 Tigard City Council Tentative Agenda 2009 Meeting Date: September 29, 2009 Meeting Date: October 13, 2009 Meeting Date: October 20, 2009 Meeting Type /Time: 5th Tuesday /7 -9 p.m. Meeting Type /Time: Business /6:30 p.m. Meeting Type /Time: Workshop /6:30 p.m. Location: Public Works Building Location: City Hall Location: City Hall Facilitator: Request to Sched. Due September 1, 2009 Request to Sched. Due September 8, 2009 Materials Due @ 5: Materials Due © 5: September 29, 2009 Materials Due @ 5: October 6, 2009 Fifth Tuesday Meeting Study Session - Time Sched. 20 min. Time Avail 25 min. Workshop Agenda Exec Sess - Burnham St. Briefing - Kim Mc - 15 min. Council Goal Update - Admin. SI - 15 min. (Reevaluate need for monthly briefings at this time.) :dget Committee - SI - Toby - 30 min. Workshop on Downtown Code Amendments and Design Standards - Sean - 45 min. - PPT Consent Agenda Urban Forestry Master Plan Workshop - PPT - Todd & Marissa - 60 mins. Business Meeting THS Student Envoy - 10 min. Time Avail: 110 min. - Time Scheduled: 10 min. Time Avail: 180 min. - Time Scheduled: 150 min. Time Left: 100 min. _Time Left: 30 min. Page 4 of 6 7/6/2009 Tigard City Council Tentative Agenda 2009 Meeting Date: October 27, 2009 Meeting Date: November 10, 2009 Meeting Date: November 17, 2009 Meeting Type/Time: Business /6:30 p.m. Meeting Type/Time: Business /6:30 p.m. Meeting Type/Time: Workshop /6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Request to Sched. Due September 15, 2009 Request to Sched. Due September 29, 2009 Request to Sched. Due October 6, 2009 Materials Due @ 5: October 13, 2009 Materials Due © 5: October 27, 2009 Materials Due © 5: November 3, 2009 Study Session - Time Sched. 45 min. - 0 Avail. Study Session - Time Sched. 45 min. - 0 Avail. Workshop Agenda Annual Meeting with Tree Board - SI - CD - 60 min. Consent Agenda Consent Agenda Business Meeting Business Meeting Chamber of Commerce Rep. - 10 min. THS Student Envoy - 10 min. Youth Advisory Council Update - PD - SI - 15 min. Approve Urban Forestry Master Plan - Todd & Marissa PPT - 60 mins - RES Time Avail: 110 min. - Time Scheduled: 10 min. Time Avail: 110 min. - Time Scheduled: 85 min. Time Avail: 180 min. - Time Scheduled: 60 min. Time Left: 100 min. Time Left: 25 min. Time Left: 120 min. Page 5of6 7/6/2009 Tigard City Council Tentative Agenda 2009 Meeting Date: November 24, 2009 Meeting Date: December 8, 2009 Meeting Date: December 15, 2009 Meeting Type /Time: Business /6:30 p.m. Meeting Type /Time: Business/ 6:30 p.m. Meeting Type /Time: Workshop& CCDA/6:30 p.m. Location: City Hall Location: City Hall Location: City Hall Request to Sched. Due October 13, 2009 Request to Sched. Due October 27, 2009 Request to Sched. Due November 3, 2009 Materials Due @ 5: November 10, 2009 Materials Due @ 5: November 24, 2009 Materials Due @ 5: December 1, 2009 Study Session - Time Sched. 45 min. - 0 Avail. Study Session - Time Sched. 30 min. - 15 Avail. Workshop City Attorney Review - Admin. SI - 30 min. iodate the Budget Committee on the City's Year -to -date Financial Picture - PPT - Toby L. - 30 min. ,CDA: Update CCDA Budget Committee on the City's Year -to -date Financial Picture - PPT - Toby L. - 10 min. Consent Agenda Consent Agenda Business Meeting Business Meeting Chamber of Commerce Rep. - 10 min. THS Student Envoy - 10 min. Time Avail: 110 min. - Time Scheduled: 10 min. Time Avail: 110 min. - Time Scheduled: 10 min. Time Avail: 180 min. - Time Scheduled: 40 min. Time Left: 100 min. Time Left: 100 min. Time Left: 140 min. Page 6 of 6 7/6/2009 Agenda Item No. y C Meeting of 0,14 /YPOq June 30, 2009 Fifth Tuesday Meeting 7:00 pm, City of Tigard Public Works Building Council Attending: Councilor Buehner and Councilor Henderson Facilitator: Basil Christopher Staff: Deputy Recorder Krager A Boy Scout and his mother attended for 10 minutes because he needed to watch a public meeting for a badge he is earning. No other attendees arrived so they left. Council, Facilitator and Staff waited until 8:00 pm and no other citizens arrived so the meeting was adjourned. Agenda Item # Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Adoption of Tigard Police Officers Association ('IPOA) new collective bargaining agreement for FY2009 -2011, and authorization for City Manager to sign Prepared By. Sandy Zodrow Dept Head Approval: City Mgr Approval: C ISSUE BEFORE THE COUNCIL Should the Council approve a new collective bargaining agreement between the City of Tigard and TPOA for the period of July 1, 2009 to June 30, 2011, and authorize the City Manager to sign the agreement. STAFF RECOMMENDATION Approve the attached Resolution adopting a new collective bargaining agreement with TPOA and the City of Tigard and authorize the City Manager to sign the agreement. KEY FACTS AND INFORMATION SUMMARY The final terms of this agreement with TPOA and the City were discussed with the Council previously in Executive Session. The current collective bargaining agreement will expire on June 30, 2009. Major economic highlights of the new agreement include: 1) A two (2) year agreement with a wage and insurance reopener in the 2nd year of the contract. 2) A cost of living adjustment of 3.7% for FY09 -10 to be effective January 1, 2010 3) Maintenance of the health insurance coverage for the first year of the contract with a insurance reopener for the 2 ❑d year of the contract 4) An increase for bilingual pay from $50 /month to 2.5% per month for fluency under standards determined by the City and proven on an annual basis 5) A cap on special assignment pay, increased narcotics special assignment pay by 1 - 2.5% depending on experience, length of service, etc. The TPOA membership has ratified the tentative agreement. OTHER ALTERNATIVES CONSIDERED Various alternatives were considered and discussed during the negotiation process, as well as during discussions with the Council. CITY COUNCIL GOALS Improved operational efficiencies, cost effectiveness and recruitment and retention of quality law enforcement staff. ATTACHMENT LIST 1) Resolution - Adopting New Collective Bargaining Agreement Between the City of Tigard and TPOA, and authorizing City Manager to sign 2) Exhibit A - New Collective Bargaining Agreement between Tigard Police Officer's Association and the City of City for FY 2009 -2011 FISCAL. NOTES The cost of implementing the new contract provisions are contained within the adopted FY 09 -10 budget. I:\ Citywide\ Council Packets \Packet '09 \090714 \Agenda Item Summary - Adopt TPOA Contract 2009 -2011 (2).doc Cor re c+l o'n 13.5 — TPO A A5 reern+ Ik5enda - char() Mo. mil, 3 For purposes of this Section, court time starts from the Police Department unless the employee goes directly to court from home, in which case the time starts from the employee's arrival at court. As a condition of receipt of payment for the time involved, all witness fees, mileage allowances, and other remuneration paid for appearances in court proceedings under this Article shall be turned over to the City. An employee who is on court 1 call -back remains on call -back until finally released for the day by the court. 13.4 Shift Differential Any member of the bargaining unit who has been employed at least six (6) months and who is required to work two (2) or more different shifts within a normal work week shall be compensated with two (2) hours of overtime for that week. This differential shall not apply when the above occurs as a result of mutual agreement between members of the bargaining unit for their own personal benefit. 13.5 Phone Calls While Off Duty If an employee receives a phone call from a supervisor while off duty that is related to his/her work for the City, the employee shall be paid for the actual time spent on the phone, provided the phone call lasts seven -and -a -half (7 'A) minutes or longer. Such calls that last less than seven - and -a -half (7 ' /2) minutes shall be considered de minimus and will not be compensated. 13.65 No Pyramiding The City shall not be required to pay twice for the same hours. ARTICLE 14 - HOLIDAY COMPENSATION In lieu of holidays off, each full -time employee shall be credited with eight (8) hours of holiday compensatory time or cash, at the option of the employee, for each month worked. If the employee elects to receive compensatory time, such time off shall be credited to his/her vacation/holiday account. Part-time employees shall receive a prorated compensatory time credit on a prorated basis to that of a forty (40) hour employee. Within 30 days of the dates specified herein, employees will be required to advise the City what portion of their holiday time is to be converted to their vacation/holiday account and /or paid monthly or on the dates specified below. If an employee elects to have a portion of their holiday hours paid, such payment shall be made on December 1 and/or June 1 of each year and shall not exceed 48 hours on either date. The City will provide employees with a selection form and each employee will be required to make a selection and return the form within the time period described in this section. ARTICLE 15 - VACATIONS 15.1 Accrual Vacations shall accrue as follows: 1 City of Tigard and TPOA - Expiration Date: Jae -30, 2009June 30, 2011 8 1 MEMORANDUM T I GARD TO: City Council Craig Prosser, City Manager VIA: Ron Bunch, Community Development Director Gus Duenas, City Engineer FROM: Mike McCarthy, Project Engineer RE: Canterbury Lane Parking Issues DATE: July 7, 2009 Location This memorandum describes the installation of a NO PARKING zone on Canterbury Lane southeast of Highway 99W and the issues surrounding that installation. Below is a vicinity photo: ! s� At, 401-c. elV 41P Staff received several calls from residents of the apartment complexes on the south side of Canterbury Lane. Each of these calls addressed a similar issue: parked vehicles along the south side of Canterbury Lane blocked the visibility of drivers as they attempted to exit their driveways onto Canterbury Lane. Staff visited the site, checked sight distance, and found that the parked vehicles did indeed block driver visibility enough to be a safety issue. To address this issue, NO PARKING zones were established in March, 2009 on both sides of the driveways, as shown on Figure 1. Note that the aerial photo was taken before parking was disallowed. Technical Analysis This analysis was conducted based on standards from the publication A Policy on Geometric Design of Highways and Streets, published by the American Association of State Highway and Transportation Officials (AASHTO). The length of necessary sight distance is calculated based on the prevailing speed of traffic on the street. While the speed limit on Canterbury Ln is 25mph, the prevailing speed of traffic is estimated (based on field observation and common practice) at 30mph. Based on this prevailing speed, the stopping sight distance is calculated to be 200 feet, and the design intersection sight distance is calculated to be 335 feet. It is common practice to use the intersection sight distance (335 feet) for new intersections, but use the shorter stopping sight distance (200 feet) for cases like this, recognizing that existing conditions constrain the amount of sight distance that can be provided and that it is reasonably safe if the stopping sight distance is provided. Sight distance is measured from a hypothetical driver's eye 3.5 feet high and 8 feet back from the front bumper of the vehicle. While the standard calculation places the driver's eye 14.5 feet from the edge of the travel lane, 10 feet may be used in lower -speed cases, such as this one, to account for drivers pulling closer to the travel lane. It is typically assumed that drivers will commonly `nose out' into a parking lane in order to see approaching traffic. The calculation uses an approaching vehicle height of 4.25 feet. From these standards, we calculate a minimum sight distance of 200 feet from a hypothetical driver's eye 10 feet back from the travel lane. These measurements are used to plot a sight distance triangle showing the critical area for driver visibility. These triangles are shown on Figure 2 (note that the aerial photo was taken before parking was disallowed). Any object in the triangle will block visibility if it is tall enough to disrupt the driver's line of sight. Figure 3 shows the view of a driver pulling out from the Maple Tree Apartments driveway. The driveway intersects Canterbury at an acute angle. This skew means that most drivers are somewhat looking over their shoulder in order to see traffic. While the standard measuring procedure doesn't account for this, it does make it more difficult for drivers pulling out of this driveway. This accentuates the need to preserve good sight distance, and thus reinforces the need for a NO PARKING zone to maintain adequate sight distance. The result of the technical analysis is that NO PARKING zone was established for 75 feet on either side of the driveway. On the east side of the driveway, another apartment complex driveway is 130 feet southeast of the Maple Tree driveway. 130 feet south of that driveway is 109` Avenue. Each driveway is busy enough that sight distance issues are significant, so it is necessary to maintain a clear sight distance triangle for each. As Figure 4 shows, these sight triangles overlap to the point where it is necessary to disallow parking from 75 feet west of the Maple Tree driveway to 109` Avenue. Public Comments We have received the most comments about the view to the west from the driveway to the Maple Tree apartments. The NO PARKING zone extends 75 feet (about three car lengths) west of this driveway. Apartment residents said they were hoping for more visibility, but accept the current posting as enough to be safe. Complaints have been received recently from residents of the new condominiums (north of Canterbury) that they need to be able to park on Canterbury. The condominium developer says that they provided adequate parking, but their residents still need to be able to park on Canterbury Lane. Evaluation The technical analysis confirmed that the NO PARKING zone is as small as possible, and could not be made smaller without compromising safety. One potential option would be to shift the roadway striping to move the available legal parking areas to the north side of the street, along the condominium property. The amount of available parking would still need to be limited to preserve sight distance from driveways, but it may be possible to allow another vehicle or two to park. However, there would be costs and driver confusion associated with the shift, and it would place the parking (and associated sight distance issues) on the side of the road with faster downhill traffic, which would decrease traffic safety. For these reasons, staff recommends against this option. ...,.... Lbw Figure '� NO - �� °' °' PARKING NO I , ANY � � PARKING ANY Sri ti TIME r ` fill, ' = TIME I I ° c . ; its 1 1 Change single I l a rremiow , ,.Ak; �'., 1 I l . ` , to double arrow � mos =1„ 4 vr -- 404 ,411146%*,, A i i - .4., ,, , .."' '4‘.4 '- s \ wA• -,. . — MIMI ' PARKING ,. i o . w, ANY ` TIME .= 9 4--- ° � �a.a i Duel w a! - ' * w e r • a te"". ii ' '. :11 ,, : .,, .., iin 4411110 v ,. , 10 am u „ m . . . . .., ,,,,, ova: t ,t. �., -tee � � wm ' 4 > :, 4 c 0. Figure 2: Maple Tree Apartments Driveway Sight Triangles =I e W *-1' ' 3 $ 3 a z j Drivers Eye Vw (Sight Triangle to West ,� � t al ad ,,-,,,,,,,,,,,„,..,. � N o Parking Zone 1 ., R ¢ �& P / la. -iiiik 4 , , , „.... .„. �� b' 6 .may � .. °" 3 . b, . - Figure 3: Driver's eye view ex Maple tree Apts dr ' The White car is parked 3 feet past the beg of the No `�•' a R � Parking zone. The person in the orange vest represents the Vi a , • left front of a vehicle 200 feet from the driveway. - � ` °"" I. If . s » S t h y' .1 r ! r x C s . t -, . 044..,.. , ''''''' „ ' 's , .,..,,, ,7 ,, I L, , ,„;, *!;.,.. , 4-- : : 0 1 .;:.,", — .r . ' ' 1 1 ... : ' : f: : _ , *7 , '':!..■ ._:-- Y' .F _ —v"p. mk..."§ ,.+4 „ d` ML^H ' � , _ _ � Y ^ ..- T o . , f - /fm° 'r' a fw r - y , `K. .,:',04 _ S * . ' 'fir.,..... - _ w i 1 .. - 411111 T .re . � s c y s' _ a.. .ems '�F !I, � fi x, % pfi ., _, ....., 4 `r ''Y M ." — , ' ' ''''':oir;.. •. . ,.....—. ,..„..,....,... , .,,,, k.— . ,, : ,,,.,.:, , z _ 411.4 .„,:,,,,,,..1 , , ,,,,, . , z \ -. ,''= Figure 4: Canterbury Lane — Effect of Combined Sight Triangles resulting in a NO PARKING zone from 75 feet west of the Maple * r4 Tree Apartments driveway to 109 Avenue ° ' 174 - 1 a d 4 w " *° '• 0 ' e •i w . .. - 'r vu ... , .: 111. , y .. k .• 0 a,. e " +c , ��6 s. r' }P Agenda Item # y, 1 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Approve an updated employment agreement for the City Manager extending the term of the agreement for 2 years and incorporating amendments and additional changes made to the terms of the Agreement into the body of the document. Prepared By Craig Prosser Dept Head Approval: City Mgr Approval: (`e ISSUE BEFORE THE COUNCIL Should the Council approve an updated Employment Agreement for the City Manager? STAFF RECOMMENDATION Approve the updated Agreement. KEY FACTS AND INFORMATION SUMMARY The current Employment Agreement for the City Manager is set to end on July 31, 2009. Under the terms of the Agreement, it will now be extended on a year - to-year basis unless the City Manager or the City Council requests changes. The City Manager has requested that the term of the Agreement be extended for a two year period to July 31, 2011 while retaining the year - to-year extension provisions thereafter. The City Manager has also recommended incorporating two amendments that have been previously approved by Council into the body of the updated Agreement for easy reference, and also has recommended incorporating changes to the deferred complensation provisions of his compensation package approved by Counil in August of 2007 into the body of the Agreement. Finally, the City Manager has suggested a number of smaller "house- keeping" changes to bring the Agreement up to date. OT HER ALTERNATIVES CONSIDERED Do not extend the term of the Agreement, but allow a year -to -year extension as provided in the current Agreement. Terminate the Agreement and sever the City's relationship with the City Manager. CITY COUNCIL GOALS None, or All ATTACHMENT LIST Memo from the City Manager to the Tigard City Council dated June 25, 2009. Marked version of the proposed update to the City Manager's Employment Agreement. FISCAL NOTES There is no additional cost to the updated Agreement beyond those already resulting for the current Agreement and compensation package. 1 1 S MEMORANDUM T I GARD TO: Mayor Craig Dirksen and the Tigard City Council FROM: Craig Prosser, City Manager d RE: City Manager Contract Extension DATE: June 25, 2009 I have attached a marked version of the changes to my Employment Agreement that we discussed Tuesday night in Executive Session. This marked copy is for you to review to make sure that you agree with all the changes. Please let me know via e -mail no later than Wednesday, July 1 if these changes are acceptable to you. If they are, I will prepare an Agenda Item Summary to put the approval of this revised Agreement on the Consent Agenda for July 14. I have prepared the following summary of changes to help in your review. Please note that formatting issues and page numbers will be corrected once I prepare a clean copy of this document. 1. Cover Page — Changed date to reflect the updated agreement. 2. Table of Contents — Changed name of Section 5 per Amendment #1 (June 12, 2007). Page numbers will be fixed in the clean copy. 3. Page 1, Introduction — a. Changed the date to reflect the date of approval of the updated Agreement. b. Inserted language to clarify that this is an extension of the previous Agreement and to highlight the primary changes. 4. Page 1, Section 1: Term — Changed date to reflect the two year extension and made a conforming change in the body of the section. 5. Page 2, Section 3: Compensation — a. Subsection A — I inserted my current salary (and removed the retroactive clause) for clarity and ease of reference. b. Subsection C — Changed date as approved by Amendment #2 (October 23, 2007) c. Subsection D — I updated the list of comparable cities to match the City's official comparators as approved by Council following the Classification and Compensation Study we completed last year. 6. Page 3, Section 5: Leave Benefits — Inserted the language approved in Amendment #1 (June 12, 2007) 7. Page 4, Section 7: Retirement — Created a new subsection A to address retirement plan contributions only and a new subsection B to address deferred compensation. Subsection B incorporates the City's current contribution to my deferred compensation account as approved by Council on September 11, 2007. 8. Page 6, Section 11: Resignation — I clarified that we are all sure what my sex is. 9. Page 6, Section 14: Outside Activities — A grammatical correction, changing "nor" to or. 10. Page 8, Section 19: General Provisions — Subsection C, Changed the effective date to July 14, 2009. Please let me know if these changes are acceptable. 'hl l l l l �l_' I I .` City g of Tigard T I GARD CITY MANAGER EMPLOYMENT AGREEMENT 20052009 CITY MANAGER EMPLOYMENT AGREEMENT TABLE OF CONTENTS INTRODUCTION 111 SECTION 1: TERM 111 SECTION 2: DUTIES AND AUTHORITY 111 SECTION 3: COMPENSATION 22 SECTION 4: HEALTH, DISABILITY AND LIFE INSURANCE BENEFITS 22 SECTION 5: • _ e • , _ _ _ , ! . _ -LEAVE BENEFITS 333 SECTION 6: VEHICLE ALLOWANCE 433 SECTION 7: RETIREMENT 433 SECTION 8: PROFESSIONAL AND CIVIC MEMBERSHIPS AND TRAVEL 433 SECTION 9: TERMINATION 544 SECTION 10: SEVERANCE 655 SECTION 11: RESIGNATION 655 SECTION 12: PERFORMANCE EVALUATION 655 SECTION 13: HOURS OF WORK 655 SECTION 14: OUTSIDE ACTIVITIES 655 SECTION 15: INDEMNIFICATION 655 SECTION 16: BONDING 766 SECTION 17: OTHER TERMS AND CONDITIONS OF EMPLOYMENT 766 SECTION 18: NOTICES 766 SECTION 19: GENERAL PROVISIONS 866 SECTION 20: ARBITRATION 877 City Manager Employment Agreement Introduction This Agreement, made and entered into this September 13, 2005July 14, 2009, by and between the City of Tigard, Oregon, a municipal corporation, (hereinafter called "Employer ") and Craig Prosser, (hereinafter called "Employee ") an individual who has the education, training and experience in local government management, —. This Agreement updates and extends the September 13, 2005 Agreement by extending the termionation date to July 31, 2011, incorporating two previously approved amendments to the September 13, 2005 Agreement, and updating terms of employment implemented without formal contract amendments. b Both Parties agree as follows: Section 1: Term This agreement shall remain in full force in effect from September 13, 2005, until July 31, 2(1092011, or until terminated by the Employer or the Employee as provided in this agreement. If not previously terminated as provided in this agreement, the term of this agreement, and the period of Employee's employment shall be automatically extended from year to year for additional periods of one year each following expiration of the initial four year-ternaJuly 31, 2011 unless either party gives written notice to the other not less than ninety (90) days before the expiration of the initial or any extended term, that this agreement shall be terminated or renegotiated. The giving of such notice terminates the agreement at the end of the initial term or extended term in which such notice is given. Section 2: Duties and Authority Employer agrees to employ Craig Prosser as City Manager to perform the functions and duties specified in the Charter and Municipal Code of the City of Tigard and to perform other legally permissible and proper duties and functions assigned by City Council. These duties and functions include, but are not limited to: A. Guiding, managing and directing the day -to -day administrative operations, consistent with the goals and priorities established by the Mayor and City Council; B. Providing strategic research, recommendations and management leadership to the Mayor and City Council on budgets, programs, policies and services; C. Appointing, supervising, disciplining and removing appointive personnel, except appointees of the Mayor or City Council; D.Acting as chief budget and fiscal officer of the City and submitting the annual budget and capital program to the Mayor and City Council; 1 E. Supervising the administration of and assuming responsibility for the enforcement of all laws and ordinances executed within the City; F. Serving as the chief purchasing and business agent of the City; G.Preparing and presenting information and recommendations to the Mayor and City Council regarding the operations and policies of the City; H.Policy advice to elected officials, and open communication with the community so as to foster responsive and courteous public service. The Council shall meet with Employee as determined necessary by the Council for the purpose of setting goals and priorities for Employee's performance. In performing the services contemplated by this Agreement, the Employee shall faithfully observe and comply with all federal, state and local laws, City Charter, ordinances and regulations applicable to the service to be rendered under this Agreement. Section 3: Compensation A. Base Salary: The Employer agrees to pay the Employee an annual base salary of $ 3044138,920.20, retroactive to August 1, 2005, payable in installments at the same time that the other management employees of the Employer are paid. B. Employee's annual base salary shall be automatically amended to reflect any cost of living adjustments that are provided by Council to management employees of the City. C. March August 1, 2006, and on an annual basis thereafter, consideration shall be given to increased compensation based upon Employee's satisfactory performance of Employee's duties and functions, and satisfaction of the goals and priorities established by the Council. Such increased compensation may come in the form of cost of living and /or performance adjustments to Employee's base salary, performance bonuses, or both. D. The Employer will look to the following cities for guidance in determining appropriate compensation provided to employee: Albany, Beaverton, Gresham, Hillsboro, Lake Oswego, Milwaukie, Oregon City, Sherwood, Tualatin, xrt l -West Linn, and Wilsonville, Oregon. Section 4: Health, Disability and Life Insurance Benefits A. The Employer agrees to provide the same health and welfare benefits for the Employee and his dependents, and to contribute towards the cost of such benefits, to the same degree that it provides and contributes to all other management employees of the City. In the event Employee is required to contribute toward the premium cost of such benefits, Employee agrees to the deduction of such amounts from his paycheck. 2 B. The Employer agrees to provide and to contribute towards the cost of a standard life insurance policy for the Employee to the same degree that it provides and contributes to all other management employees of the City. C. The Employer agrees to put into force and to contribute towards the cost of long term disability coverage for the Employee to the same degree that it provides and contributes to all other management employees of the City. D. The Employer shall make a monthly contribution to the Employee's VEBA account in the same amount or at the same rate as made for the management employees of the City. E. The Employer shall contribute up to $1,000 per year, based upon submittal of actual billings by the Employee for Life Insurance, Long Term Care Insurance, or both, as selected by the Employee. The Employee shall name the beneficiary of the insurance policy(ies). Section 5: • • • -, - - - , • - • - - • -Leave Benefits The Employee shall accrue leave benefits pursuant to the Paid Time Off Policy, No. 19.0, of the Management, Supervisory, and Confidential Employees Personnel Policies of the City of Tigard, with the following exceptions: A. Paid Time Off shall accrue at a rate based on twenty -two years of service as of the date of this agreement, and shall continue to increase according to the accrual schedule in the Policy as it currently exists or as it may be adjusted in the future. B. The Employee shall accrue an additional two days of Paid Time Off above the levels provided in the Policy in recognition of the additional management leave currently provided to the Employee above the management leave provided to other management employees of the City. C. Except as otherwise stated in this Section, the Employee is entitled to accrue all unused leave without limit. In the event the Employee's employment is terminated, either voluntarily or involuntarily, the Employee shall be compensated for all Paid Time Off accrued prior to the date of termination. Employee shall not be eligible to receive any cash or retirement credit for unused Medical Leave Bank leave. continue to accruc vacation at thc 20 year service level. At the commencement of B. Upon signing of this agreement, thc Employee shall receive a total of five (5) days of 3 C. Exccpt as otherwise stated in this Section, the Employee is cntided to accrue all unused leave without limit. In the event the Employee's employment is terminated, cithcr to receive any cash or retirement credit for unused nick leave. Section 6: Vehicle Allowance The Employer agrees to pay to the Employee, during the term of this Agreement and in addition to other salary and benefits herein provided, the sum of $4,020 per year, payable bi- weekly on regular paydays of the City, as a vehicle allowance to be used to operate and maintain a vehicle. The Employee shall be responsible for paying for liability, property damage, and comprehensive insurance coverage upon such vehicle and shall further be responsible for all expenses attendant to the operation, maintenance, repair, and regular replacement of said vehicle. The Employer shall reimburse the Employee at the IRS standard mileage rate for any business use of the vehicle beyond a fifty -mile radius of the City Administrative building. Section 7: Retirement A. The Employer agrees to pay an amount equal to the City's retirement plan contribution and deferred compensation contributions as arc is made for all other management employees in equal proportionate amount each pay period. B. The Employer agrees to match any employee contributions to a City- approved deferred compensation plan up to 5% of employee salary. Section 8: Professional and Civic Memberships and Travel The Employer agrees to budget for and to pay for professional dues and subscriptions of the Employee necessary for continuation and full participation in national, regional, state, and local associations, and organizations necessary and desirable for the Employee's continued professional participation, growth, and advancement, and for the good of the Employer. Eligible professional organizations include the International City Managers' Association, the Government Finance Officers' Association, and such other organizations as may be approved from time to time by the City Council. The Employer agrees to budget for and to pay for travel and subsistence expenses of the Employee for professional and official travel, meetings, and occasions to adequately continue the professional development of the Employee and to pursue necessary official functions for the Employer, including but not limited to the ICMA Annual Conference or the GFOA Annual Conference, the League of Oregon Cities, and such other national, regional, state, and local governmental groups and committees in which the Employee serves as a member, as may be approved from time to time by the City Council. 4 The Employer agrees to budget for and to pay for travel and subsistence expenses of the Employee for short courses, institutes, and seminars that are necessary for the Employee's professional development and for the good of the Employer, as may be approved from time to time by the City Council. The Employer acknowledges the value of having the Employee participate and be directly involved in local civic clubs or organizations. Accordingly, the Employer shall pay for the reasonable membership fees and /or dues to enable the Employee to become an active member in local civic clubs or organizations, as may be approved from time to time by the City Council. Section 9: Termination For the purpose of this agreement, termination shall occur when: A. The majority of the governing body votes to terminate the Employee at a duly authorized public meeting. B. If the Employer, citizens, or the legislature acts to amend any provisions of the City Charter pertaining to the role, powers, duties, authority, responsibilities of the Employee's position that substantially changes the form of government, the Employee shall have the right to declare that such amendments constitute termination. C. If the Employer reduces the base salary, compensation or any other financial benefit of the Employee, unless it is applied in no greater percentage than the average reduction of all depaitinent heads, such action shall constitute a breach of this agreement and will be regarded as a termination. D. If the Employee resigns following an offer to accept resignation, whether formal or informal, by the Employer, then the Employee may declare a termination as of the date of the suggestion. Written notice of a breach of contract shall be provided in accordance with the provisions of Section 18. 5 Section 10: Severance In the event Employee is terminated by the City Council during such a time that Employee is willing and able to perform Employee's duties under this Agreement, then in that event Employer agrees to pay Employee a lump sum cash payment equal to six (6) months aggregate salary. Employer will also continue, at its expense, Employee's health and welfare and life insurance benefits for 6 months, or until Employee is professionally reemployed, whichever comes first. In the event Employee is terminated for gross negligence or misconduct that is deemed detrimental to the best interests of the City, Employer shall have no obligation to pay any of the severance payments or benefits provided in this paragraph. Section 11: Resignation In the event that the Employee voluntarily resigns hiss -her position with the Employer, the Employee shall provide a minimum of 30 days notice unless the parties agree otherwise. Section 12: Performance Evaluation The Employer shall annually review the performance of the Employee in August subject to a process, form, criteria, and format for the evaluation which shall be mutually agreed upon by the Employer and the Employee. The process at a minimum shall include the opportunity for both parties to: (1) prepare a written evaluation, (2) meet and discuss the evaluation, and (3) present a written summary of the evaluation results. The final written evaluation should be completed and delivered to the Employee within 30 days of the evaluation meeting. The date during which the annual performance evaluation must be conducted may be adjusted by mutual consent of the parties. Section 13: Hours of Work It is recognized that the Employee must devote a great deal of time outside the normal office hours on business for the Employer, and to that end the Employee shall be allowed to establish an appropriate work schedule. Section 14: Outside Activities The employment provided for by this Agreement shall be the Employee's sole employment. Recognizing that certain outside consulting or teaching opportunities provide indirect benefits to the Employer and the community, the Employee may elect to accept limited teaching, consulting or other business opportunities with the understanding that such arrangements shall not constitute interference with or a conflict of interest with his or her responsibilities under this Agreement. Section 15: Indemnification 6 The City agrees to defend, hold harmless, and indemnify the Employee from any and all demands, claims, suits, actions, and legal proceedings brought against Employee in his individual capacity, or in his official capacity as agent and employee of the City, as to any actions of Employee within the scope of his employment. The City agrees to pay premiums on appropriate insurance policies through the City's normal insurance program and through the Public Officials Liability Insurance Program of the International City Management Association. Section 16: Bonding The Employer shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance. Section 17: Other Terms and Conditions of Employment The Employer, only upon agreement with the Employee, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of the Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this Agreement, the City of Tigard Charter or any other law. Except as otherwise provided in this Agreement, the Employee shall be entitled to the highest level of benefits that are enjoyed by depattinent heads of the Employer as provided in the Charter, Code, Personnel Rules and Regulations or by practice. Section 18: Notices Notice pursuant to this Agreement shall be given by depositing in the custody of the United States Postal Service, postage prepaid, addressed as follows: (1) EMPLOYER: Mayor City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 (2) EMPLOYEE: Craig Prosser 1199 Larch St. Lake Oswego, Oregon 97034 Alternatively, notice required pursuant to this Agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of personal service or as the date of deposit of such written notice in the course of transmission in the United States Postal Service. 7 Section 19: General Provisions A. Integration. This Agreement sets forth and establishes the entire understanding between the Employer and the Employee relating to the employment of the Employee by the Employer. Any prior discussions or representations by or between the parties are merged into and rendered null and void by this Agreement. The parties by mutual written agreement may amend any provision of this agreement during the life of the agreement. Such amendments shall be incorporated and made a part of this agreement. B. Binding Effect. This Agreement shall be binding on the Employer and the Employee as well as their heirs, assigns, executors, personal representatives and successors in interest. C. Effective Date. This Agreement shall become effective on September 13, 200SJuly 14, 2009. D. Severability. The invalidity or partial invalidity of any portion of this Agreement will not affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the remaining provisions shall be deemed to be in full force and effect as if they have been executed by both parties subsequent to the expungement or judicial modification of the invalid provision. Section 20: Arbitration The parties agree that any dispute about the validity, interpretation, effect or alleged violation of this Agreement by either Employee or the City must be submitted to final and binding arbitration pursuant to the then effective arbitration rules of Arbitration Service of Portland, Inc. or the American Arbitration Association, whichever organization is selected by the party who first initiates arbitration by filing a claim in accordance with the filing rules of the organization selected. The parties agree that the prevailing party will be entitled to recover its reasonable attorneys' fees, costs, and damages from the losing party that may be incurred as a result of the arbitration claim. The parties agree that judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. IN WITNEES WHEREOF, the CITY OF TIGARD, OREGON has cause this Agreement to be signed and executed and the EMPLOYEE has signed and executed this Agreement, both in duplicate, on the date first written above. Craig Dirksen, Mayor Craig Prosser, City Employee 8 Agenda Item # LI S Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Budget Amendment to Recognize the Edward Byrne Grant Revenue in the Amount of $86,099 for the Police Department � Prepared By: Chief Bill Dickinson Dept Head Approval: G�/L'4� /"� City Mgr Approval: t /1 ISSUE BEFORE THE COUNCIL Should the City Council approve a budget amendment to appropriate grant revenues in the amount of $86,099 for the Police Department to acquire an e- tickefing system. STAFF RECOMMENDATION Approve budget amendment KEY FACTS AND INFORMATION SUMMARY The Police Depaitment was recently awarded a grant from the Department of Justice that will be used to acquire an e- ticketing system that will be used primarily by the motorcycle officers. The system will initially include four handheld units with the related software and printers. The intent is to begin reviewing proposals by various vendors in the very near future. This grant revenue was not anticipated in the FY 2009 -10 Adopted Budget. Under Oregon Budget Law, the City can recognize this new revenue and appropriate the funds without going through a supplemental budget process. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS N/A ATTACHMENT LIST Resolution and Exhibit A FISCAL NOTES Recognize new revenue in the City's General Fund in the amount of $86,099 and appropriate the funds to be used by the Police Department to acquire an e- ticketing system. Agenda Item # V. 6 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Reappointment of Board Members David Burke and Cecilia Nguyen, Appointment of Scott Hancock as Board Member and Appointment of John Storhm and Grace Amos as Alternates to the Tigard Library Board (� Prepared By: Alison Grimes Dept Head Approval: City Mgr Approval: v\ ISSUE BEFORE THE COUNCIL Approve reappointment of David Burke and Cecilia Nguyen for four (4) year terms beginning July 1, 2009 and ending June 30, 2013; appointing Scott Hancock as a Board Member for the term beginning July 1, 2009 through June 30, 2013 and appointing two (2) Alternates, John Storhm and Grace Amos, whose terms are effective July 1, 2009 through June 30, 2011. STAFF RECOMMENDATION Approve reappointments of current Board members, new Board member and Alternates. KEY FACTS AND INFORMATION SUMMARY Reappoint David Burke and Cecilia Nguyen, current Board members; appoint Scott Hancock to fill a vacant position as Board member and appoint Grace Amos and John Storhm to the positions of Alternates. The Board member terms run from July 1, 2009 through June 30, 2013 and the Alternate positions run from July 1, 2009 through June 30, 2011. OTHER ALTERNATIVES CONSIDERED None. CITY COUNCIL GOALS N /A ATTACHMENT LIST — Biographical information Resolution. FISCAL NOTES None. Agenda Item # V/ , 7 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Approve Application to the Department of Justice for a Strategic Enhancement Mentoring Program Grant Prepared By: Chief Bill Dickinson Dept Head Approval: /4/14/14) City Mgr Approval: ISSUE BEFORE THE COUNCIL Should the City submit an application to the Department of Justice for strategic enhancement mentoring grant and receive up to $500,000 over a three year period? STAFF RECOMMENDATION Approve the grant application. KEY FACTS AND INFORMATION SUMMARY The Department of Justice is soliciting grant applications that are proposing a research and evidence -based enhancement to mentoring programs based on specific strategies. The City's Police Department has prepared an application that is based on a strategy that would deliver enhanced activities and programs to the Department's existing youth mentoring program. To be eligible, applicants must: • Demonstrate a pre - existing youth mentoring program that will be enhanced and /or expanded. •. Identify, as the target population, youth (younger than 18) who already have come or are at risk of coming into contact with the juvenile justice system. • Identify its primary program strategy to enhance the mentoring services as one of the following; 1. Involving the parents and families of mentoring participants in mentoring activities and providing or coordinating services for them. 2. Adding or enhancing the structured activities or opportunities for the mentor and mentoring participants. 3. Adding or enhancing the training and support available to mentors. • Identify and demonstrate partnerships with organizations that will collaborate to provide enhanced mentoring services (family service coordination, structured activities, and /or mentor training) to their target population, as set forth in memoranda of understanding, letters of support, statements of work, etc. • Develop a strategic plan for the entire project period or enhance an existing plan to provide the additional services to mentoring participants. The Tigard Police Department has identified the primary program strategy would be the "adding or enhancing the structured activities or opportunities for the mentor and mentoring participants." The objective of the strategy would be to improve the ratio of mentors to students and recruit and keep mentors who can establish a more lasting relationship with each of the students. There would also be enhanced training of the mentors. Although this would be the primary emphasis for use of these grant funds, the overall youth program offered by the Tigard Police includes components that involve parents and families and the training of mentors . OTHER ALTERNATIVES CONSIDERED NONE CITY COUNCIL GOALS N/A ATTACHMENT LIST None FISCAL NOTES Receive up to $500,000 in federal funds over a three year period with no City matching fund required. Agenda Item # Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Approve Application to the Department of Justice for a Gang Prevention Youth Monitoring Program Grant " ' ^ � Prepared By: Chief Bill Dickinson Dept Head Approval: !/� I City Mgr Approval: V ISSUE BEFORE THE COUNCIL Should the City submit an application to the Depaitinent of Justice for a gang prevention grant and receive up to $500,000 over a three year period? STAFF RECOMMENDATION Approve grant application. KEY FACTS AND INFORMATION SUMMARY The Department of Justice has announced a grant opportunity for the funding of mentoring programs that offer a mixture of core services and engage youth with activities that enable them to practice healthy behaviors within a positive pro - social peer group. The Department of Justice is looking for a program that would "develop and strengthen protective factors against gang involvement and other problem behaviors and be based in a school or community setting." The Police Department has already established a comprehensive youth program in partnership with the Tigard - Tualatin School District, Tigard Youth Advisory Council, Tigard Turns the Tide, Boys and Girls Club, and the Oregon Department of Human Services. This program consists of eleven service delivery components that have proven to be successful in the areas of drug and alcohol education and prevention, gang resistance, physical and sexual abuse of children, mentorship, career development, and school resource officers. This grant would help in sustaining the after - school program and the summer camp program in case the GREAT Grant funding is not continued through the Department of Justice next year. If the GREAT funding is continued, the additional funds would be used to enhance the structured activities and increase the ratio of mentors to students. OTHER ALTERNATIVES CONSIDERED NONE CITY COUNCIL GOALS N/A ATTACHMENT LIST N/A Agenda Item # Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Consider Authorizing Submission of an Energy Efficiency and Conservation Block Grant to Install a New Energy Star Roof on the Permit Center Prepared By: Dennis Koellermeier Dept Head Approval: ( ' City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall the Council authorize submission of an Energy Efficiency and Conservation Block Grant to install a new Energy Star roof on the Permit Center? STAFF RECOMMENDATION Staff recommends the Council authorize submission of the grant application. KEY FACTS AND INFORMATION SUMMARY • Staff submitted an Energy Efficiency and Conservation Block Grant in June 2009. • Under the grant, the City of Tigard may be entitled to $230,500 to improve energy efficiency and conservation. Projects that qualify for grant money include updating facilities with newer, energy efficient technology. • The existing roof on the Permit Center is failing. A recent report by a roofing specialist states that the roof has deteriorated to the point that the insulation's effectiveness, or R- value, is nearly zero. • If awarded, the grant money would be used to replace the existing roof with a new Energy Star compliant roof. The new roof system will carry an R -value of 20.5 and will result in an estimated 13 percent energy savings. • The Energy Efficiency and Conservation Block Grant does not require any matching funds. • Copies of the grant application are available upon request. OTHER ALTERNATIVES CONSIDERED Should the Council choose not to approve grant submission, the grant application would be withdrawn and the new roof would likely be put on hold unless other funding is identified. CITY COUNCIL GOALS None ATTACHMENT LIST None FISCAL NOTES Under the grant, the City of Tigard may be entitled to $230,500. In conjunction with the roofing specialist, the City of Tigard has obtained an estimated bid of $226,000 to replace the existing roof with the Energy Star compliant roof. The grant allows for ten percent, or an additional $22,600 in administrative costs, bringing the project total to $248,600. Although no matching funds are required, the City will have to absorb a portion of the administrative costs ($18,100) that exceed the grant award. The City did not budget for the grant. If received, a budget amendment will be required. • Agenda Item # � g • 0 Meeting Date 7 -14 -09 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Garrett Street Sidewalks — IG CG 2008 #1, & 2009 L.T. goal Prepared By: Duane Roberts Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Should Council approve an IGA accepting $142,000 in CDBG grant dollars for Garrett Street Sidewalk in -fill? STAFF RECOMMENDATION Authorize the Mayor to sign the IGA. KEY FACTS AND INFORMATION SUMMARY Last year, Council adopted a resolution authorizing staff to submit a request for CDBG funds to finance sidewalk in -fill along one side of Garrett Street. The City's project proposal subsequently was selected for funding. A boiler plate IGA accepting the grant funds is attached. The improvements will provide a safe, secure, and convenient pedestrian route to services, shopping opportunities, and TriMet and school bus stops. The sidewalk infill also will help retain neighborhood character and livability. Legal review of the IGA is in progress. OTHER ALTERNATIVES CONSIDERED N/A CITY COUNCIL GOALS 2008 Goal 1 and 2009 Long Term Goal: "Pursue opportunities to reduce traffic congestion in Tigard." ATTACHMENT LIST Attachment 1: IGA Accepting CDBG Funds FISCAL NOTES The City has been awarded $142,000 for closing sidewalk gaps. The local in -kind contribution would be in the form of administrative overhead and design and construction management services. No City hard dollars are involved. 1 I: \LRPLN \Council Materials \2009 \7 -14 -09 AIS Garrett Street IGAdoc AGREEMENT between WASHINGTON COUNTY and CITY OF TI -ARD This Agreement, entered into this / day of � , , ' , a_, between Washington County, a municipality of the State of Orego hereinafter referred to as the "County "), and the City of Tigard, (hereinafter referred to as the "City "): RECITALS - A. The County is an urban county applicant for Block Grant funds under the Housing and Community Development Act of 1974 (the Act), 42 USC 301 et seq as amended, and the National Affordable Housing Act of 1990, and will receive Block Grant funds for the purpose of carrying out eligible community development and housing activities under the Acts and under regulations promulgated by the Department of Housing and Urban Development (HUD) at 24 CFR Part 570; B. The County and various cities within the County, including the City, have agreed to cooperate in the undertaking of essential community development and housing activities; C. The County desires to have certain services performed by the City as described within this Agreement for the purpose of implementing eligible activities under the Act and HUD regulations; D. It is appropriate and mutually desirable that the City be designated by the County to undertake the aforementioned eligible activities, so long as the requirements of the Act, HUD regulations, state law and local law are adhered to, as provided for herein; E. The purpose of this Agreement is to provide for the cooperation between the County and the City, as the parties in this Agreement, in implementing such eligible activities in the manner described above; F. The parties are authorized and empowered to enter into this Agreement by ORS 190.010 et seq., by the Constitution of the State of Oregon; and G. Therefore, in consideration of the payments, covenants, and agreements hereinafter mentioned and to be made and performed by the parties hereto, the parties mutually covenant and agree as provided for in this Agreement. Ccfnr_4.2006 Page 1 of 27 CITY OF Ti o4j WASHINGTON COUNTY gn ture Chairman, Board of County Commissioners Signature — G,6 eor Recording Secretary r At 1 .. • Dat- / Date APPROVED AS TO FORM Attorney for the Washington County Office of Community Development Ccfnr 4.2006 ti Page 2 of 27 INDEX TO CONTRACT AGREEMENT PART I. GENERAL CONDITIONS 1. Scope of Agreement and Applicability to Terms and Conditions of this Agreement 2. Scope of Services 3. Commencement and Termination of Projects 4. Administration 5. Operating Budget 6. Compensation and Method of Payment 7. Interest in Property 8. Funding Alternatives and Future Support 9. Amendments 10. Assignment and Subcontracting 11. Hold Harmless and Indemnification 12. Conflict of Interest 13. Default and Suspension 14. Enforcement 15. Appeal 16. Termination 17. Prohibition on the Use of Debarred Contractors 18. Attorney Fees and Costs 19. Extensions Ccfnr 4.2006 Page 3 of 27 PART II. FEDERAL, STATE AND LOCAL PROGRAM REQUIREMENTS 1. Procurement Standards 2. Environmental Review 3. Nondiscrimination 4. Property Management 5. Labor Standards 6. Acquisition and Relocation 7. Architectural Barriers 8. Nonparticipation in Political Activities 9. Nonsubstitution for Local Funding 10. Public Information 11. Applicability of Laws Under This Agreement 12. Certification Regarding Lobbying 13. Certification Regarding Use of Excessive Force Part III. EVALUATION AND RECORD KEEPING 1. Evaluation 2. Audits and Inspections 3. Records 4. Retention of Records PART IV. SPECIAL CONDITIONS Ccfnr 4.2006 N_ Page 4 of 27 PART V. EXHIBITS A. Project Description, Scope of Activities and Anticipated Accomplishments B. Authorized Signature Card C. Budget Summary Ccfnr_4.2006 Page 5 of 27 PART I. GENERAL CONDITIONS 1. SCOPE OF AGREEMENT AND APPLICABILITY TO TERMS AND CONDITIONS OF THIS AGREEMENT A. This Agreement shall consist of the signature page, the general and special conditions; the federal, state and local program requirements; the evaluation and record keeping requirements; each and every project exhibit incorporated in the Agreement; all matters and laws incorporated by reference herein; and any written amendments made according to the general conditions. This Agreement supersedes any and all former agreements applicable to projects attached as exhibits to this Agreement. B. Depending upon the specific nature of the project, services or purposes for which Block Grant funds are being provided pursuant to this Agreement, certain terms and conditions contained herein may be made inapplicable by their express citation in Part IV, Special Conditions. Except as so expressly excluded, all terms and conditions contained herein have full application, force and effect. 2. SCOPE OF SERVICES A. The City shall perform and carry out in a satisfactory and proper manner the services set forth in Exhibit A attached hereto which specifies work to be performed. The Agreement may be amended from time to time in accordance with the general conditions for the purpose of amending the scope of work or for any other lawful purpose. B. Any conflict or dispute that may arise with regard to any aspect of CDBG activities for the project shall be resolved by the County's interpretation of the specifications contained in the original project proposal, the current Program Policies, and the County's Office of Community Development CDBG Procedures Manual. Any such determination made by the County shall be final. 3. COMMENCEMENT AND TERMINATION OF PROJECTS A. Upon release of project - related funds by HUD pursuant to 24 CFR Part 58.70, the County shall furnish the City with written notice to proceed. No work on the project shall occur prior to the receipt of written notice to proceed from the County. B. All project funds shall be obligated and expended within the project year unless the County and the City agree to an amendment extending project activities beyond the Project Year. For the purposes of this Agreement, Ccfnr_4.2006 Page 6 of 27 "Project Year" shall mean the period from August 4, 2009 through August 3, 2010. C. Any property acquired or improved in whole or in part with CDBG funds shall be used to meet one of the national objectives set forth in 24 CFR 570.208 for a period of twenty (20) years or until August 3, 2030 unless otherwise modified in writing by the parties to this contract. 4. ADMINISTRATION A. The City shall appoint a liaison person who shall be responsible for overall administration of Block Grant funded project(s) and coordination with the County's Office of Community Development. The name of the liaison person shall be specified in writing and submitted to the County's Office of Community Development. The City shall also designate one or more representatives who shall be authorized by the City to sign the Voucher Request and any other forms which may be required. The names of these representatives shall be specified in Exhibit B. B. This Agreement is subject to and supplemental to the Agreement of Intergovernmental Cooperation entered into between the County and participating municipalities. 5. OPERATING BUDGET A. The City shall expend the funds received from the County under this Agreement in accordance with the budget summary submitted by the City to, and approved by, the County. Such budget summary is attached to this Agreement as Exhibit C. No line item expense in the approved budget shall be changed without a budget revision approved by the County's Office of Community Development. The budget revision shall specifically state the reasons for the requested increase and a justification for the corresponding decrease in another line item. Budget revision(s) must be approved by OCD before any costs are incurred by the City. B. The difference between the approved budget amount on a budget line item and a lower or higher bid or quote, in any line item, shall be reported to the County. Excess funds generated by a lower bid or quote shall be considered surplus. The City may submit a budget revision requesting the use of any such surplus, which shall be approved or denied at the discretion of the OCD. Ccfnr_4.2006 Page 7 of 27 C. Matching funds identified in Exhibit C shall mean all funds from non -CDBG sources, including in -kind contributions of staff and materials, other grant sources, charitable contributions, volunteer labor, donated materials and services, and similar items of value to the project. Matching funds shall be used for project purposes, and shall be included within the scope of Audits and Inspections conducted under Part III, Section 2 of this Agreement. Increases in matching funds shall be reported to County and the Operating Budget shall be revised accordingly by the OCD. D. No later than 90 days from the date the County approves the proposed list of activities, which includes this project, the City shall submit to the County's Office of Community Development written evidence that substantiates the matching funds pledged by the City are available. The availability of pledged funds means all approvals, guarantees, or third party commitments from subrecipients or cosponsors, have been received and will enable the City to officially obligate those matching funds. In the event the City fails to submit such evidence or the evidence is deemed by the County to be unacceptable, the County may exercise its termination options under Part I Section 14 of this agreement. 6. COMPENSATION AND METHOD OF PAYMENT A. Subject to the availability of funds from HUD, the County shall reimburse the City for the services specified in Exhibit A. Reimbursement shall be requested, by the City by submitting a Community Development Voucher Request (OCD Form 2) and a Program Accomplishments reporting form (OCD Form 3); the forms are to be signed by the City's authorized representatives in a manner prescribed by the County. B. The County will make payment to the City within two (2) weeks or as soon as practicable after said invoice is received and approved by the Washington County Office of Community Development. 7. INTEREST IN PROPERTY A. Real Property - In accordance with HUD Regulation 24 CFR, 570.503(b)(8), upon expiration or termination of this agreement the City shall transfer to the County any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. Real property under the City's control that was acquired or improved in whole or in part in excess of $25,000 will be used to (1) meet its original national objective for the time period specified in Part 1 Section 3.0 of this agreement; or (2) disposed of in a manner that results in reimbursement to the County in the amount equal to the current fair market value less any portions attributable to expenditure of non -CDBG funds for acquisition of, or improvement to, the property. Ccfnr_4.2006 Page 8 of 27 B. Personal Property - Any personal property on hand at the time of the expiration of the project year of this Agreement shall be disposed of in accordance with 24 CFR 85.32. C. Program Income (1) The City shall record the receipt and expenditure of program income as defined in 24 CFR 570.500(a) of the financial transactions of the project(s) funded under this Agreement. Program income shall be reported with each voucher request and substantially disbursed for the benefit of the project(s) funded by this Agreement in accordance with the principles of 24 CFR 570.504 (b)(2)(i) and (ii). Program income which is not used to continue or benefit such project(s) shall revert back to the Block Grant Fund for reallocation by the County. (2) The City may retain program income provided it is used in accordance with regulations in 24 CFR 570.504, and pursuant to adopted local CDBG program policies. The County shall determine whether income is being used to continue or benefit a project or projects authorized by this Agreement. (3) Program income on hand when the Agreement expires and received after the Agreement's expiration must be used by the subrecipient to meet its original national objective for the time period specified in Part I Section 3.C. of this Agreement. The County may transfer the program income to the City, upon its termination of urban county participation provided the City has become an entitlement grantee and agrees to use the program income in its own CDBG entitlement program. D. Appraisals, Promissory Note and Trust Deed (1) For any real property acquired, constructed or rehabilitated with CDBG funds, the City shall provide the County with an appraisal of the property. The appraisal shall be conducted by a certified appraiser whose services shall be paid for by the City. The purpose of such an appraisal is to: (a) conform to any federal real property acquisition requirements, and /or (b) to establish a baseline figure for the purpose of entering into a promissory note and trust deed as specified below. The appraisal shall be conducted within 45 days of notification to do so by the County. (2) City shall execute a Promissory Note and Trust Deed for any facility constructed, acquired or rehabilitated with Community Development Block Grant funds. The Promissory Note and Trust deed shall be executed at such time as required by the County. Ccfnr_4.2006 Page9of27 (3) City agrees to comply with all agreements, covenants and restrictions contained in the Promissory Note and Trust Deed, and all applicable federal, state and local regulations during the terms of the Promissory Note and Trust Deed. (4) City agrees to pay all escrow fees including all costs associated with the recording of Trust Deed or other legal instruments necessary for the County to protect its interest in the project. 8. FUNDING ALTERNATIVES AND FUTURE SUPPORT A. The County makes no commitment to future support and assumes no obligation for future support of the activities contracted for herein, except as expressly set forth in this Agreement. B. Should anticipated sources of revenue not become available to the County for use in the Community Development Program, the County shall immediately notify the City in writing, and the County will be released from all contracted liability for that portion of the Agreement covered by funds not received by the County. 9. AMENDMENTS This Agreement shall be modified by the parties only upon written amendment. 10. ASSIGNMENT AND SUBCONTRACTING A. The City shall not enter into any contracts assigning any interest under this Agreement without the written approval of the County. Such consent shall be requested 15 days prior to the date of any proposed assignment. B. The County shall assume no liability for acts and omissions of contractors or subcontractors employed or hired by the, City. 11. HOLD HARMLESS AND INDEMNIFICATION The City agrees to defend, save, hold harmless and indemnify the County, its commissioners, employees and agents for any and all claims, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising out of or resulting from City's own negligence, performance of or failure to perform the obligations of this Agreement and any agreement resulting from this Agreement. Ccfnr_4.2006 Page 10 of 27 12. CONFLICT OF INTEREST A. Interest of Officers, Employees, or Agents - No officer, employee, or agent of the County or City who exercises any functions or responsibilities in connection with the planning and carrying out of the Block Grant Program, or any other person who exercises any functions or responsibilities in connection with the Program, shall have any personal financial interest, direct or indirect, in this Agreement and the County and City shall take appropriate steps to assure compliance. B. Interest of Subcontractor and Their Employees - The City agrees that it will incorporate into every subcontract required to be in writing and made pursuant to this Agreement the following provision: The Contractor covenants that no person who presently exercises any functions or responsibilities in connection with the Block Grant Program, has any personal financial interest, direct or indirect, in this Contract. The Contractor further covenants that he presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of his services hereunder. The Contractor further covenants that in the performance of this Contract no person having any conflicting interest shall be employed. Any interest on the part of the Contractor or his employees must be disclosed to the City or the • County. 13. DEFAULT AND SUSPENSION A. Each of the following events shall constitute a default on the part of the City: (1) Material noncompliance with the terms of this Agreement, the Award, any and all applicable state or federal laws and regulations; (2) Mismanagement or improper use of Award funds; (3) Failure to obligate required funds or to provide work or services expressed by this Agreement; (4) Failure to submit reports, supplying incomplete or inaccurate reports required by Part III herein. Ccfnr_4.2006 Page 11 of 27 B. Each of the following events shall constitute a default on the part of the County: (1) , Material noncompliance with the terms of this Agreement, the Award, any and all applicable state and federal laws and regulations; (2) Failure to provide funding for services rendered as required by this Agreement and law. 14. ENFORCEMENT A. In the event the City is found in default under the terms of this Agreement the County may: (1) Withhold any or all of any pending or future payments until the default is cured; (2) Suspend all or part of this Agreement or Award herein; (3) Prohibit the City from incurring additional obligations of funds until the County notifies the City in writing that the default is cured; (4) Disallow or deny both the use of funds and matching credit of the activity or action not in compliance; (5) Take any and all other legal or equitable remedies available. B. Any costs attributed to the program which were lawfully incurred prior to any suspension or termination will be considered properly incurred. Any costs attributed to the program during or after any suspension or termination are specifically not allowed without express written consent by the County. _ 15. APPEAL In the event the County takes an action to enforce the terms of this Agreement, the Award or to enforce compliance with applicable state and federal law, the City may appeal such action in the manner provided in this section as follows: (1) The County shall provide the City with written notice of the default and the right to cure, if any; (2) The City may pursue an informal appeal by contacting the Manager of the Office of Community Development. Ccfnr 4.2006 Page 12 of 27 (3) The City may appeal the informal decision of the Manager by submitting a written objection of the enforcement action directly to the Community Development Policy Advisory Board (PAB). (a) The PAB may consider oral argument, written testimony and any other such evidence it considers relevant to a determination. (b) The PAB shall consider all information and reach a determination based upon the record submitted and prepare a written finding. (c) The City shall have the opportunity to provide oral testimony if a hearing is conducted. If a formal hearing is not held the City shall have the opportunity to submit written objections, arguments and other material relevant to its position. (d) The findings of the PAB are final and no further appeal is allowed. 16. TERMINATION A. This Agreement shall terminate upon any of the following events: (1) Termination following default as defined previously; (2) The failure by the County to provide funding for services rendered as required by this Agreement; (3) The unavailability of Block Grant funds from either the federal government or through the County. B. This Agreement will terminate upon thirty days written notice by the County in the event funding is no longer available. C. Upon termination of this Agreement, any unexpended balance of Agreement funds shall remain with the County. The regulations relating to reimbursement of Block Grant funds shall be applicable to the City for expended funds in accordance with HUD Regulation 24 CFR, 570.503(b)(8) and Part I, Section 7 herein. D. The City shall reimburse the County for any and all funds expended in violation of the terms of this Agreement, state or federal law. Ccfnr_4.2006 Page 13 of 27 17. PROHIBITION ON THE USE OF DEBARRED CONTRACTORS CDBG funds shall not be used directly or indirectly to employ, award contracts to, or otherwise engage, the services of, or fund any contractor or subrecipient during any period of debarment, suspension, or placement in ineligibility status under the provisions of 24 CFR Part 24. The City shall not make any award at any tier to any party which is debarred, suspended or excluded from participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension." 18. ATTORNEY FEES AND COSTS This Agreement shall be governed by the laws of the State of Oregon and federal law. Any action or suit commenced in connection with this Agreement shall be in the Circuit Court of Washington County. The prevailing party, either in Circuit Court or on appeal, shall be entitled to reasonable attorney fees and costs and disbursements as awarded by the Court. 19. EXTENSIONS If in the determination of the Office of Community Development (OCD) a time extension is necessary or appropriate, an extension of the term of this Agreement for an additional period may be granted to the City by the County's Office of Community Development provided the City requests such an extension, in writing, at least two (2) weeks prior to the last expiration date contained in this Agreement. Additional extension(s) may be granted by the OCD Program Manager in case of extenuating circumstances. 20. The terms, conditions, representations, obligations and warranties set forth in this Agreement shall survive the termination or expiration of this Agreement. • • Ccfnr_4.2006 Page 14 of 27 PART II. FEDERAL, STATE AND LOCAL PROGRAM REQUIREMENTS 1. PROCUREMENT STANDARDS A. In awarding contracts pursuant to this Agreement, the City shall comply with all applicable requirements of local and state law for awarding contracts, including but not limited to procedures for competitive bidding, contractor's bonds, and retained percentages. In addition, the City shall comply with the requirements of the 24 CFR Part 85.36 relating to bonding, insurance and procurement standards; and with Executive Order 11246 and the regulations issued pursuant thereto (41 CFR Chapter 60) regarding nondiscrimination bid conditions for projects over $25,000. B. The City agrees to submit copies of all contracts, agreements, plans, specifications and change orders related to the project to the County's Office of Community Development in a timely manner. No plan specification or change order shall be used or implemented if it increases the total project cost without approval from the Office of Community Development. C. The City shall make available to each contractor bidding on any activity under this Agreement a listing of minority business enterprises (MBEs). 2. ENVIRONMENTAL REVIEW A. The County retains environmental review responsibility for purposes of fulfilling requirements of the National Environmental Policy Act as implemented by HUD Environmental Review Procedures (24 CFR Part 58). The County shall require the City to furnish data, information and assistance for the County's review and assessment in fulfillment of the County's responsibilities under 24 CFR, Part 58. B. The City shall not proceed with the acquisition of real property or any construction activities under this Agreement until satisfaction of all applicable requirements of the National Environmental Policy Act. C. Other Environmental Compliance Requirements: Ccfnr_4.2006 ._ Page 15 of 27 (1) Historic Preservation. The City shall meet the historic preservation requirements of the National Historic Preservation Act of 1966 (Public Law 89 -665) and the Archeological and Historic , Preservation Act of 1974 (Public Law 93 -291) and Executive Order 11593, including the procedures prescribed by the Advisory Council on Historic Preservation in the regulations at 36 CFR Part 800. Activities affecting property listed in or found to be eligible for inclusion in the National Register of Historic Places will be subject to requirements set forth in HUD Environmental Review Procedures at 24 CFR Part 58. (2) National Flood Insurance. The City shall not receive Community Development Block Grant funding for acquisition or construction for use in any area that has been identified as having special flood hazards and is not participating in the National Flood Insurance Program, as provided by Section 3(a) and 202 (a) of the Flood Disaster Protection Act of 1973 (42 USC 400(a) and 4106) and the regulations thereunder (44 CFR Chapter 1, Subchapter B, and 24 CFR, Section 570.605. (3) Air and Water Pollution. The City shall comply with the provisions of the Clean Air Act, as amended (42 USC Section [1857] 7401 et seq.) and the regulations issued thereunder (40 CFR Part 15) and the Water Pollution Act, 33 U.S.C. 1251 et. seq. (4) Lead -Based Paint Poisoning. Pursuant to 24 CFR, 570.608 the City shall comply with the HUD Lead -Based Paint Regulations (24 CFR Part 35) issued pursuant to the Lead -Based Paint Poisoning Prevention Act, as amended, (42 USC Section 4851 et seq.) requiring prohibition of the use of lead -based paint whenever funds under this Agreement are used directly or indirectly for acquisition, construction, rehabilitation, or modernization; elimination of immediate lead -based paint hazards in residential structures; and notification of the hazards in residential structures; and notification of the hazards of lead -based paint poisoning to purchasers and tenants of residential structures constructed prior to 1978. (5) Endangered Species Act. The City shall comply with the provisions of the Endangered Species Act of 1973, as amended (16 USC Section 1531 et seq.), particularly Section 7 of the regulations thereunder (50 CFR Part 402). • Ccfnr_4.2006 Page 16 of 27 3. NONDISCRIMINATION A. General. The City shall comply with all federal, state and local laws prohibiting discrimination on the basis of age, sex, familial status, race, creed, color, national origin, or disability. These requirements are specified in Section 109 of the Housing and Community Development Act of 1974 "as amended "; Civil Rights Act of 1964, Title VI (42 USC 2000d et seq.); Civil Rights Act of 1968, Title VIII (42 USC 3601 et' seq.); Executive Order 11063, as amended by Executive Order 12259; Executive Order 11246 and the regulations issued pursuant thereto (41 CFR Chapter 60); Section 3 of the Housing and Urban Development Act of 1968 (12 USC 1701u); and Section 504 of the Rehabilitation Act of 1973, (29 USC 794); Americans With Disabilities Act (ADA) (42 USC 12101); and the Age Discrimination Act of 1975 (42 USC 6101 et seq.). Specifically, the City is prohibited from taking any discriminatory actions defined in the HUD regulations at 24 CFR 570.602 and 24 CFR Part 6 and shall take such affirmative and corrective actions as required by the regulations at 24 CFR Part 6. These requirements are summarized in the following paragraphs: (1) Program Benefit. The City shall not discriminate against any resident of the project service area by denying benefit from or participation in any Block Grant funded activity on the basis of race, color, sex, national origin, disability, age, and familial status. (Civil Rights Act of 1964, Title VI; Civil Rights Act of 1968, Title VIII; Section 109, Housing and Community Development Act of 1974; Age Discrimination Act 1975; Americans With Disabilities Act (ADA) (42 USC 12101); Section 504, Rehabilitation Act of 1973.) (2) Fair Housing. The City shall take necessary and appropriate actions to prevent discrimination in federally assisted housing and lending practices related to loans insured or guaranteed by the Federal Government. (Civil Rights Act of 1968, Title VIII, as amended; Executive Order 11063, as amended by Executive Order 12259.) (3) Employment. (a) In all solicitations under this Agreement the City shall state that all qualified applicants will be considered for employment. The words, "Equal Opportunity Employer" in all advertisements shall constitute compliance with this Section. (b) The City shall not discriminate against any employee or applicant for employment in connection with the Agreement because of age, sex, familial status, disability, race, creed, color or national origin, except when there is a bona fide occupational limitation. The City shall not refuse to hire, employ or promote, or bar, discharge, dismiss, reduce Ccfnr_4.2006 Page 17 of 27 in compensation, suspend, demote, or discriminate in work activities, - terms or conditions because an individual has a physical or mental disability in any employment in connection with this Agreement unless it can be shown that the particular disability prevents the performance of the work involved. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of ' pay or other forms of compensation, and selection for training. (Executive Order 11246 as amended; and Section 504 of the Rehabilitation Act of 1973; Americans With Disabilities Act (ADA) (42 USC 12101); and the Age Discrimination Act of 1975.) (c) This Agreement is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 USC 170Iu), as amended, the HUD regulations issued pursuant thereto at 24 CFR Part 135, and any applicable rules and orders of HUD issued thereunder prior to the HUD authorization of the funding approval. (4) Persons With Disabilities. As required by 24 CFR, Part 8.51 the City shall conduct a self - evaluation and take corrective action to ensure reasonable accommodation in programs and services to persons with disabilities. The City shall provide County with a completed self- evaluation checklist, in the form set forth in County's CDBG Procedures Manual. (5) Contractors and Suppliers (a) No contractor, subcontractor, union or vendor engaged in any activity under this Agreement shall discriminate in the sale of materials, equipment or labor on the basis of age, sex, familial status, race, creed, color, or national origin. No contractor, subcontractor, union or vendor engaged in any activity under this Agreement shall refuse to hire, employ or promote, or bar, discharge, dismiss, reduce in compensation, suspend, demote or discriminate in work activities, terms or conditions because an individual has a physical or mental disability in any employment in connection with this Agreement unless it can be shown that the particular disability prevents the performance of the work involved. Such practices include upgrading, demotion, recruiting, transfer, layoff, termination, pay rate, and advertisement for employment. (Executive Order 11246 as amended; and Section 504 of the Rehabilitation Act of 1973; and the Age Discrimination Act of 1975.) (b) To the greatest extent feasible, the City shall purchase supplies and services for activities under this Agreement from vendors and contractors whose businesses are located in the area served by the Ccfnr_4.2006 Page 18 of 27 Block Grant funded activities or owned in substantial part by project area residents. (Section 3, Housing and Community Development Act of 1968, as amended.) B. In the event of noncompliance by the City with any nondiscrimination provisions of this Agreement, the County shall have the right in whole or in part to cancel this Agreement in accordance with Part I, Section 14. 4. PROPERTY MANAGEMENT The City, as a subgrantee, agrees that any property, equipment, or supplies purchased wholly or in part with program funds shall be managed under the same guidelines applicable to the County, pursuant to 24 CFR Part 85. 5. LABOR STANDARDS A. The City shall require that project construction and subcontractors pay their laborers and mechanics at wage rates in accordance with the Davis -Bacon Act, as amended (40 USC sections 276(a)- 276(a)(5), and that they comply with the Copeland "Anti- Kickback" Act, as amended (40 U.S.C. 276(c) and the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) as further prescribed at 29 CFR Parts 1, 3, 5, 6 and 7; provided that this section shall not apply to rehabilitation of residential property designed for residential use by less than eight units, or to rehabilitation of rental property consisting of less than twelve units. B. A copy of the current Davis -Bacon wages must be included in all construction bid specifications and /or contracts over $2,000. C. If the Project constitutes a public work as defined in ORS 279C.840, unless the Project is otherwise exempt, City shall require and ensure that all of its agreements with and between contractors and subcontractors contain provisions: (a) requiring compliance with ORS 279C.840; (b) stating the existing state prevailing wage rate and, if applicable, the federal prevailing rate of wage required under the Davis bacon Act (40 U.S.C. 276a) that may be paid to workers in each trade or occupation required for public works employed in the performance of the contract either by the contractor or subcontractor or other person doing or contracting to do the whole or any part of the work contemplated by the contract; (c) requiring that workers not be paid less than the specified minimum hourly rate of wage in accordance with ORS 279C.838; (d) stating that a fee is required to be paid to the Commissioner of the Bureau Ccfnr_4.2006 Page 19 of 27 of Labor and Industries as provided under ORS 279C.825 pursuant to the administrative rule of the commissioner; and (e) requiring the contractor and every subcontractor to have a public works bond filed with the Construction Contractors Board before starting work on the project unless exempt under ORS 279C.836(7) or (8). 6. ACQUISITION AND RELOCATION A. Any acquisition of real property by a unit of government for any activity assisted under this Agreement shall comply with the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 amended as Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (hereinafter referred to as the Uniform Relocation Act) (42 USC 4601 et seq.) and the Regulations at 24 CFR Part 42 as amended effective April 2, 1987. B. Any displacement of persons, business, nonprofit organizations or farms as a result of acquisition of real property assisted under this Agreement shall comply with Title II of the Uniform Act and the regulations at 24 CFR Part 42. The City shall comply with the regulations pertaining to, costs of relocation at 24 CFR Section 570.606 and the Washington County CDBG Program Policies. 7. ARCHITECTURAL BARRIERS Any facility constructed or altered pursuant to this Agreement shall comply with design requirements of the Uniform Federal Accessibility Standards (UFAS). 8. NONPARTICIPATION IN POLITICAL ACTIVITIES The City shall comply with the provisions of the Hatch Act (5 USC Chapter 15). 9. NONSUBSTITUTION FOR LOCAL FUNDING The Block Grant funding made available under this Agreement shall not be utilized by the City to reduce substantially the amount of local financial support for community development activities below the level of such support prior to the availability of funds under this Agreement. 10. PUBLIC INFORMATION All written materials (reports, brochures, promotional or informational items), news releases, and other public notices produced by or for the City shall acknowledge the source of funding as being derived from the Department of Housing and Urban Ccfnr_4.2006 Page 20 of 27 Development and provided through the Washington County Community Development Block Grant Program. 11. APPLICABILITY OF LAWS UNDER THIS AGREEMENT To the extent applicable to the City's acceptance and use of funds under this Agreement, the City shall comply with the policies, guidelines and Uniform Administrative Requirements of OMB Circulars A -87, A -133, and 24 CFR, Part 85 (implemented at 24 CFR, Part 570.502). 12. CERTIFICATION REGARDING LOBBYING The City certifies, by affixing its authorized signature(s) to this agreement that, to the best of the City's knowledge and belief: A. No Federal appropriated funds have been paid or will be paid, by or on behalf of the City, to any person for influencing or attempting to influence an officer or employee of any agency a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the entering into this cooperative agreement, and the extension, continuation, renewal, amendment, or modification of this cooperative agreement. B. If any funds other than Federally appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (Available through the Office of Community Development.) C. The City shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 13. CERTIFICATION REGARDING USE OF EXCESSIVE FORCE The City in accordance with Section 519 of Public Law 101 -144, 1990 HUD Appropriations Act, certifies by affixing its authorized signature(s) to this agreement that the City will not use excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in nonviolent civil rights demonstrations. Ccfnr 4.2006 Page 21 of 27 PART III. EVALUATION AND RECORD KEEPING 1. EVALUATION The City agrees to participate with the County in any evaluation project or performance report, as designed by the County or the appropriate federal agency, and to make available all information required by any such evaluation process. 2. AUDITS AND INSPECTIONS A. The records and documents with respect to all matters covered by this Agreement shall be subject at all times to inspection, review or audit by the County, federal or state officials so authorized by law during the performance of this Agreement and during the period of records retention specified in this Part III at paragraph 4. B. The City shall be responsible for meeting the audit requirements established in the U.S. Office of Management and Budget Circular A -133. Upon request of the County's Office of Community Development, the City shall be required to provide audit information relative to any project or activity funded under the terms of this Agreement. 3. RECORDS In the event the City sponsors multiple projects, each project shall be maintained under a separate file system and kept in a manner recommended by the County. As required by HUD regulations, the City shall compile and maintain records as indicated: A. Financial Management - Such records shall identify adequately the source and application of funds for activities within this Agreement in accordance with the provisions of 24 CFR Part 85.20. These records shall contain information pertaining to grant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays, and income. B. Citizen Participation - Narrative and other documentation describing the process used to inform citizens concerning the amount of funds available, the ranges of project activities undertaken, and opportunities to participate in funded Block Grant projects. Ccfnr_4.2006 Page22of27 C. Relocation - City recordkeeping must comply with the Uniform Act implementing regulations at 24 CFR Part 42. Indication of the overall status of the relocation workload and separate relocation record for each person, business, organization, and farm operation displaced or in the relocation workload must be kept. D. Real Property Acquisition 1. If the City acquires real property by exercising its power of eminent domain, City acquisition files must contain the following records: (a) Identification of property and property owners. (b) Official Determination to Acquire - A citation of the action that constitutes the official determination to acquire, the date of the action, and the applicable CDBG project number. (c) Notice of Intent to Acquire the Property - A copy of the notice (including owner's rights), citation of the date of transmittal to owner, and evidence of receipt by the owner. If tenants are involved, then a general notice must also be issued to all affected tenants. (d) Preliminary Acquisition Notice - A citation of the date of transmittal to the owner and evidence of receipt by owner. (e) Invitation to Accompany Appraiser - Evidence that owner was invited to accompany each appraiser on his inspection of the property. (f) Appraisal Reports - A copy of each appraisal report, including reviewer's report, on which determination of just compensation was based. (g) Determination of Just Compensation - A copy of the resolution, certification, motion or other document constituting the determination of just compensation. (h) Purchase Offer - A copy of written purchase offer of just compensation, including all basic terms and conditions of such offer, and a citation of the date of delivery to the owner. This date is the initiation of negotiations and triggers the relocation requirement of making a "Notice of Displacement ". (i) Statement of the Basis for the Determination of Just Compensation - A copy of the statement and an indication that it was delivered to the owner with written purchase offer. Ccfnr 4.2006 Page 23 of 27 (j) Purchase Agreement, copy of recorded Deed, Declaration of Taking, Title Report, Title exceptions - A copy of each such document and any similar or related document utilized in conveyance. (k) Settlement Cost Reporting Statement - A signed copy of the statement. (I) Purchase of Price Receipt - Evidence of owner receipt of purchase price payment. (m) Copy of any appeal or complaint and City response. 2. If the City opts not to exercise its power of eminent domain and acquires real property through voluntary acquisition, City acquisition files must contain the following records: (a) Identification of property and property owners. (b) Letter sent to Seller (prior to City making an offer on the property) which states: 1. Federal CDBG funds may be used on this project. 2. The Buyer has the power of eminent domain but will not use its power of eminent domain to purchase the property. 3. Seller is not eligible for benefits under the URA under this type of voluntary acquisition. 4. The current appraised value of the property, or other indication of fair market value approved in advance by the County. The seller must sign, date, and return the letter, thus documenting receipt. (c) Appraisal Reports - A copy of each appraisal report, including reviewer's report, on which determination of just compensation was based. (d) Purchase Agreement, copy of recorded Deed, Declaration of Taking, Title Report, Title exceptions - A copy of each such document and any similar or related document utilized in conveyance. (e) Purchase of Price Receipt - Evidence of owner receipt of purchase price payment. (f) Either: 1. Documentation that no tenants were affected by the sale; or 2. Copy of General Information Notices sent to tenants and evidence of delivery of said notices. Ccfnr_4.2006 Page 24 of 27 (g) Evidence that the property is not part of a designated project area where substantially all the properties in the area will be purchased within a specified timeframe. The documentation must also show that the City does not require a specific site for the program or activity; instead, the documentation must show that the City is willing to consider alternative sites. E. Equal Opportunity - The City will maintain racial, ethnic, and gender data showing the extent to which these categories of persons have participated in, or benefitted from, the activities carried out under this Agreement. The City shall also maintain data which records its affirmative action in equal opportunity employment, and its good faith efforts to identify, train, and /or hire lower- income residents of the project area and to utilize business concerns which are located in or owned in substantial part by persons residing in the area of the project. F. Labor Standards - Records shall be maintained regarding compliance of all contractors performing construction work under this Agreement with the labor standards made applicable by 24 CFR Part 570.605. G. Miscellaneous Records - The City shall maintain such other records as may be required by the County and /or HUD. 4. RETENTION OF RECORDS As required in 24 CFR 85.42, required records shall be retained for a period of four (4) years following the date of the submission of the final grantee performance report in which the activity is covered, except as follows: A. Records that are the subject of audit findings shall be retained for four (4) years or until such audit findings have been resolved, whichever is later. B. Records for Real Property and Equipment shall be retained for four (4) years after its final disposition. The retention period starts from the date of disposition, replacement, or transfer at the direction of the County. Equipment is defined in 24 CFR Part 85.32 and real property is defined in 24 CFR Part 570.505. C. Records for any displaced person shall be retained for four (4) years after such person has received final payment. Ccfnr_4.2006 Page 25 of 27 PART IV. SPECIAL CONDITIONS 1. The City shall execute this agreement no later than 30 days following the date of the County's . letter of transmittal. 2. At least five (5) days prior to soliciting bids the City shall make available to the County's Office of Community Development, a draft copy of the Bid Specifications' (including drawings, if applicable). At a minimum, the draft specifications shall include : the date of bid solicitation; date of bid opening or final date of phone solicitations, as applicable; proposed work activities; and anticipated award date. In addition, the City will provide a written construction cost estimate and a projected start of construction. 3. Within ten (10) days after the Pre - construction Conference, the City shall make available to the Office of Community Development a copy of the following documents: Final Bid Specifications (including drawings, if applicable); all signed contract documents between the City and the Contractor; the City's Notice to Proceed; all required bonds obtained by the contractor; and a graph illustrating the work activities and projected schedule for each of the activities. 4. On, or about, the first working day of each month, the City shall submit to the Office of Community Development a written Monthly Progress Report on the construction /rehabilitation activities. The report shall indicate the Progress Report #; Date of Report; CDBG Project Name & #; Contact Person; Phone #; and Reporting Period. In addition the report shall contain a narrative description of activities accomplished during the past month; activities anticipated to be accomplished in the next month; percentage of construction /rehabilitation activities completed to date; and estimated date — end of construction. Finally, the City shall provide the Office of Community Development with a one (1) month "Rolling Schedule" of work activities. 5. In accordance with Part I, Paragraph 1.B., the following covenants are deemed not applicable and are expressly deleted: Ccfnr_4.2006 Page 26 of 27 PART V. EXHIBITS A. Project Description, Scope of Activities and Anticipated Accomplishments B. Authorized Signature Card C. Budget Summary Ccfnr_4.2006 Page 27 of 27 PROJECT DESCRIPTION, SCOPE OF ACTIVITIES AND ANTICIPATED ACCOMPLISHMENTS • 2009 -2010 CDBG Program Year Project Number and Title: CDBG Project #1123, Tigard, Garrett Street Sidewalks II. Description of: Project, Activities, Anticipated Accomplishments, Low and Moderate or Other Target Group Beneficiaries. A. Nature and Purpose of the Project: Construction of sidewalks and associated storm drainage facilities on one side of Garrett Street to current city standards. This section of the street contains many "gaps" along the street creating hazards for both pedestrians and drivers. B. Proposed Location or Impact Area(s): Along the west -side of Garrett Street between Highway 99W and SW Ash Avenue, Tigard, OR C. Duration/Timing of the Project: August 4, 2009 — August 3, 2010 D. Number of Low and Moderate Income or Target Group Beneficiaries: 193 Low to Moderate - income persons will be served. E. Component Activities (CDBG vs. Others): CDBG = $141,790 City = $24,770 F. Quantitative Projections for CDBG Component Activities (in units, linear feet, square feet, etc.) for all acquisitions, construction, reconstruction, rehabilitation, etc.: Construct 795 lineal feet of new in -fill sidewalks and associated storm drainage facilities along the west -side of Garrett Street. EXHIBIT A S /con08 /0102 KC scope Project No. /1 Z3 Project Year Funded Oy l rT AUTHORIZATION SIGNATURE CARD Project Name /i' J J x' 66 Applicant's Name C/7 di /17 4 cc/ Address /3/ 2 City, State, Zip r 0 7 a Telephone Number ,3 — 7/e J Z_ 1' ' SIGNATURE OF INDIVIDUALS AUTHORIZED TO SIGN FINANCIAL DOCUMENTS: Any TWO signatures required to sign any financial document NAME SIGNATURE VAW NI(C KiCt `(0) A MI P7/ 77 ---- L, _g_ • IrSM \ ilk& ipieror r <'Os I certify that the signatures above are of the individuals authorized to execute financial documents. ISO / 1 0 9' / Ls� to Signat - of Authorized Official Title of 'I thorized 'J; icial EXHIBIT B JUN 8'200g PrcjectNo..1t123 Project Year (funded) 09/10 BUDGET SUMMARY Community Development Block Grant Project Title Garrett Street Sidewalks Legal Name of Entity City of Tigard Address 13125 SW Hall Boulevard City Tigard State Oregon Zip 97223 I. BUDGET LINE ITEMS: A. PERSONNEL SERVICES: 2r" Sa . +.- . uv. 4 �'`'�." ?r �,�`.,rf .�u, �,.. i " ;,s , _ . .4 o:42 3 • 4 '� i , �T � #� �` 6$ � ,-. s f w �^ S ! i 'n. • i, $s „"�' Y "' tr 4 .. .. #� ., -Re c`Fk 1 Project Planner $3,200 $0 5. Subtotal $3,200 $0 6. Extra Help /Overtime 7. Fringe Benefits 8. TOTAL PERSONNEL COSTS $3,200 $0 B. MATERIALS &.SERVICES: M Ce = ° . . ' . 9. Office Supplies $200 $0 10. Operating Supplies 11. Communications 12. Travel and Training 13. Legal & Public Notices $100 $0 14. Professional Services $21,270 $0 15. Construction Contracts $141,790 $141,790 16. Other: Specify 17. TOTAL MATERIALS & SERVICES $163,360 $141,790 S \cdforms \bgtsum .doc EXHIBIT C 18. Capital Outlay: . Quantity Item 19. Real Property Acquisition: $0 $0 20. TOTAL CAPITAL OUTLAY $0 I $0 _ $166,560 $141,790 II. SOURCES OF PROJECT FUNDING 1. Federal 2. State 3. Local Cash 4. County 5. In -Kind Service & Supply $24.770 6. Other (detail) 7. Subtotal $ $24,770 8. Community Development Block Grant $141,790 9. TOTAL PROJECT COST $166,560 III. AUTHORIZATION _ Lc'V 1 Cn 1 C - 'c: -i;: - 46._11 IA _ it &A Date Au orizz • Signature for Proj4 t L/ - 7 ai +_�-y� ,ts Date utho Signature for Project COUNTY USE ONLY Reviewed and approved by Washington County Office of Comm ' Development on -/- 5 , 20 _ By y Signature Agenda Item # . / / Meeting Date 7/14/09 COUNCIL AGENDA ITEM SUNIMARY City Of Tigard, Oregon Issue /Agenda Tide Approve Workers' Compensation Insurance for Volunteers c..)? Prepared By Loreen lvnlls wept head Approval: ' City Mgr Approval: ISSUE BEFORE THE COUNCIL Should the City continue to provide Workers' Compensation Insurance to volunteers to protect them if they are injured during their volunteer work time? STAFF RECOMMENDATION Approve resolution to provide workers' compensation benefits to City volunteers 7/1/09 through 6/30/10. KEY FACTS AND INFORMATION SUMMARY • Protect City volunteers by providing Workers' Compensation Insurance for them when they volunteer • • Workers' Compensation Insurance is less costly and provides more benefits than health insurance • City Council places high value on volunteers and the volunteer program and has provided this coverage for several _ years to protect volunteers if they are injured during volunteer work • Oregon law requires cities decide whether Workers' Compensation Insurance will be provided to volunteers (ORS 656.031) • City County Insurance Services requires Council adopt a resolution to declare provision of volunteer workers' comp coverage OTHER ALTERNATIVES CONSIDERED • Provide health care coverage, accidental death & dismemberment insurance or no coverage at all rather than Workers' Compensation Insurance for volunteers. Health & accidental death/dismemberment insurance coverage is more expensive and would provide less coverage for volunteers than Workers' Comp. Not providing any coverage for injuries is not in keeping with Council's past practice. CITY COUNCIL GOALS N/A ATTACHMENT LIST • Resolution & Exhibit A - List of volunteer opportunities and assumed wages used to calculate insurance benefits. FISCAL NOTES Workers' Compensation Insurance premiums for volunteers are in the 09/10 fiscal year budget. This is about $10,000 annually. Agenda Item # �. / v2 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Approve Standard Utility Franchise Agreement with Electric Lightwave LLC Prepared By: Loreen Mills '? Dept Head Approval: City Mgr Approval: a ISSUE BEFORE THE COUNCIL Should the City Council approve a Standard Utility Franchise Agreement with Electric Lightwave LLC? STAFF RECOMMENDATION Approve resolution which grants a standard utility franchise to Electric Lightwave LLC. KEY FACTS AND INFORMATION SUMMARY • Electric Lightwave had a Tigard franchise from 1993 to 2003 and it expired in 2003. • TMC 15.06.060 allows utility providers to sign a standard utility franchise agreement which Council can approve by resolution. • Electric Lightwave has now requested a standard utility non - exclusive franchise. They have signed the standard agreement as adopted by Council and meet the requirements of TMC 15.06.060. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS None ATTACHMENT LIST Resolution granting a non - exclusive utility franchise FISCAL NOTES The City receives approximately $32,000 annually from Electric Lightwave. This figure is not anticipated to change with the granting of the franchise. Agenda Item # ' 1 .3 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Wetland Mitigation Site Deed Restriction on City Property Prepared By: G Berry Dept Head Approva g f City Mgr Approval: ISSUE BEFORE THE COUNCIL Should City Council approve a wetland mitigation site deed restriction? STAFF RECOMMENDATION That City Council, by motion, approves and authorizes the City Manager to sign the proposed deed restriction. KEY FACTS AND INFORMATION SUMMARY • The construction contract for the construction of Wall Street at the Library was awarded by the Local Contract . Review Board on May 22, 2007. The project is subject to a Department of State Lands permit (Attachment 1) which requires the City to plant a specified City-owned area adjacent to the street with wetland plants and ensure their survival for five years. Article 29 of the permit requires a recorded deed restriction which would prohibit any sort of development within the planted area. • The wetland mitigation site does not impact the existing Fanno Creek Trail that is in the vicinity of the Fanno Pointe condominiums and Wall Street. The easement that was dedicated for the trail is entirely outside the area proposed in the deed restriction. • Council approval of the attached proposed deed restriction (Attachment 2) is requested to comply with the permit requirement. OTHER ALTERNATIVES CONSIDERED None considered. CITY COUNCIL GOALS Promotes the 5 -Year Goal of "Implement Comprehensive Plan" by advancing Water Resources Goal 6.2 "Ensure land use activities protect and enhance the community's water quality." ATTACHMENT LIST Attachment 1: Department of State Lands Permit. Attachment 2: Proposed Deed Restriction with Exhibits A, B, C and D. FISCAL NOTES The permit also requires a qualified wetland biologist to monitor and annually report on the success of the wetland plants for five years. The City does not have anyone with these credentials in- house, thereby requiring the services of a qualified consultant. $2,200 is being budgeted for each of the five years for a consultant to provide the monitoring and prepare the annual report. i \eng\prep\streets \wall st dal permit may 09Mdsl deed restriction ais doc Attachment 1 • rtrnent.of State Lands Permit No.: • 31719-RF 'MODIFICATION a Summer StreetNE, Suite 0 Permit Type. Removal OR .97301-1279 Waterway : Wetland/ Pinebrook Cr. 503-378-3805 FER 10 RS County Washington Expiration Date: January 27, 2007 $ C Corps No 200300137 , • crnror TIGARD . IS AUTHORIZED IN. ACCORDANCE - MTH ORS 196.800 TO 196.990. TO PERFORM THE OPERATIONS ATTACHE D coPy QF THE PPt..I SUBJECT TO THE SPECIAL, •• CONDITIONS :LISTED ON A TTACHMENT A AND - TO THE , FOLLOWING GENERAL CONDITIONS: , , . - ,.,• 1. This :permit *does not authorize trespass ori.the.landS,of others. The permit holder shall obtain all necessary access permits or rights7ofway : before ...entering lands Owned..bY,another.. 2. This perrnit 'does not authorize any work that is not in compliance with local zoning or other local, state; or rfederat;regulation. pertaining to the operations authorized by this permit. The permit holder is responsible for obtaining theJlecessary approvals and perrnitsbefore• proceeding under this pemiit. . '; •• 1- 3. All work doneAinder Ahisperrnit must ,00mply Oregon - Adrninistrative .Rules, Chapter 340; Standards OfthialityfOr Public Waters:ofOregon.. Specific proviSions for this project are set forth on AttaohrnentA . , .• : 4. Violations of the terms and conditions of this permit are: subject to administrative end/or legal action' whiCh may result in. revocation' of the•permit ordamages. Th'e'pennit holder is responsible for the activities of all contractors or other bperat6rsinVolvecl in *brk done at the site or under this permit. 5. A copy of thelDermit. shall be available at-•the Work site wheneVer operations authorized by the permit are being conducted. ' ' 6. Employees of the Department 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 unde thi perm t: • . 7. Any permit holder Who!Objects to the:•COnditibriS' of this perrnit may request a hearing from the Diredtor, in writing, viiithini*ehty•One(21 calendar daS'of the date this permit was issued. 8. In issuing this permit; the IDepartertent of 'State' LandS no. representation regarding the quality Or adequacy of the permitted project design, materials, construction, or maintenance, except 16 approve the project s design and materials, as set . forth in the permit application, as satisfying the - resource PraieCtiOn scenic SafOijr: public access requirements of ORS Chapters 196, 390 and related administrative rules. 9. Pem-iittee shall defend and hold harrnless,the,State of Oregon,. and it officerS, agents, and employees from any clairri,_stiit:,6rAdtion'for darnage or personal injury or death arising out of the.desi0,:material maintenance of the permitted improvements. _ • NOTICE: If removal Is frOrn . state-owned t subrrierged and submersible land, the -applicant must comply with teasing :and;royalty:prOViSiOns,Of Oks.,...27.4.30. if the 1:ifejedt,.invoives .creation of new lands by filling' on state-crWhedOtoi,Twgedor submersible lands yothmust,comply'with ORS 274.905 - 274.940: This perrnit.d0 'relieve the ,permittee, of an obligation :to secure appropriate leases from the Department of §t*P1-4n.ds,,tb pOnduCt,ectivities on state-owned - submerged Or .submersible lands. Failure to comply lvVith these 1 may result in civil or criminal:. liability. For more information about thee requirements, please contact the Department of State Lands, 503-378-3805. Michael Morales, W Region Managec Wetlands & Waterways Conservation Div _ Oregon Department of State Lands „ ?,.. ( Fthruar - Authorized signature Date issued ATTACHMENT A Permittee: City of Tigard Special Conditions for Removal/Fill Permit No. 11719-RF. PLEASE READ AND BECOME FAMIUAR. WITH CONDITIONS OF-YOUR PERMIT. This project may be site inspected by the Department of State Lands as part of our monitoring program. The Department has the right to stop or modify the project at any time if you are not in compliance with these conditions: A copy of this permit shalt be availableat the work site whenever autherized operations are being conducted. 1. Thisperrnit-authorizes the placement of up to 2949 cubid yards of gravel and native soil in T2S, R1W; Sections 1 and 2, Tax Lots 2S101 800, 1100, 1200, 1201, 1202, and 28102D0 100, 200, 300, 9000 in Pinebrook Creek and wetlands, Tigard, Washington County, as outlined in the attached permit application, map and drawings, received April 2004 and as Modified in correspondence and revised application dated November 28, 2005. 2. This permit also authorizes removal and fill activities necessary to complete the required compensatory mitigation. -- 3. In stream fill or removal activities in the permit area shall be conducted between July 1 and September 30, unless otherwise coordinated with ODFW and approved in writing by ODSL. 4. Prior to any site grading, the surveyed boundaries of wetland mitigation area and the, avoidedvyetlands shall be surrounded by brightorange construction fencing at all times 'during, construction of the project.. There Shall be no heavy equipment in this area except during mitigation construction. - :„ • . • . , • 4 5. No removal, of vegetation or heavy equipment operating or traversing shall occur outside the designated construction foot 6. If any archaeological resburceS and/or artifacts are uncovered during excaVation, alt conStructiori activity shall inunediately Cease. The State Historic Preservation Office shall be ContaCted (Phone: 503 - 7: During trenching orexcavation, the top layer Of soil shall be separated from the rest of tile excavated material and Put back 'on i60 when'ttie trenah Or pit is back-filled . If the native Underlying:Saila are not used aS bedding 'Material • and acoarser; non-native:sailor nth& 'Material i,Preventhfiye measures such as clay or concrete plugsshaff be u 'cktiat tindergrOUnd hydraulic piping dOes not occur and'doikater the site adikdot vsietirsds -7 - Attachment A • State Application No. 31719 - RF Page 3 of 6 8. All temporaiily disturbed areas shall be returned to original, ground contours at project completion. • 9, TURSIDITY/EROSlON CONTROLS: The authorized workshall not'cause turbidity of affected waters to 'l0% • over riaturar`background turbidity 100 feet downstream of the fill point. For projects:proposed iin with no discernible gradientbreak, (gradient of 2% Or less), monitoring shall take place at 4 hour intervals •and the turbidity ;standard.rnay-he exceeded for a. maxlmuni of one monitoring intervals per 24 work_period- provided all "practicable c ontrol measures have been implemented:. This turbidity standard .exceedance intervals 'applhes::only to coastal; l owlands :an''d'floodplains,;valley •bottoms and ot low -lying and/or relatively :flat land. '' ' :.For projects iri all`other areas, the turbidity.standard;can be exceeded fora rnaxirnum of 2 •hours (limited provided .alt practicable, erosion control • measures have been implemented. These projects may also be subject to additional reporting;.requirements. Turbidity shall be monitored during active in- water.work periods. Monitoring points shall, be at an undisturbed site (representafive background) 100 feet . upstream. from the turbidity causing activity {i:e., f)l or.,discharge, point), - 100 feet downstream from the fill point; and.at the.pointof fill. A.turbidimeter is. recommended; however ; visual gauging= is acceptable: Turbidity that -is visible over background,is considered an.exceedance:of:the standard. Practicable erosion control measures: which, shall be implemented, as appropriate, include but are not limited to the following: • a) All exposed,soils :shall be,stabiliied,,during and after construction in order to prevent erosion and sedimentation. .. . b) Waste - ,materials and spoils shall be placed in: any upland location and shall be= suitably stabilized to - prevent. erosion. • c) Place fill in the water using methods that avoid disturbance to the - •aximum practicable extent (e.g. placing fill'with a machine rather than :,.end- dumping from. a.truck):. ' • . d) Prevent all construction materials'and debris kart' entering waterway; e) .Use filter bags, sediment fences, sediment traps or catch basins, silt curtains, leave strips. or berms, Jersey barriers, sand .bags, or ether . measures sufficient prevent moverneht of soil; f) Use impervious materials,. to' cover when unattended or, during rani event; g) Erosion control measures shall be inspected and maintained daily to ensure their continued effectiveness; h) Use a gravel staging area and construction access; • • Attachment A - -._ State Application No. 31719 =RF Page4of6 i) Fence off planted areas to protect from disturbance and/or erosion; and j) .FIag or fence off wetlands adjacent to the, construction area. Erosion control measures shall be maintained as necessary to ensure their continued, effectiveness, until soils become stabilized, All erosion .contral.structures shalt be removed when project is complete .and soils are - stabilized and vegetated. 10_HAZARDOUS, TOXIC AND WAS E.MATERIALS. Petroleum products, — chemicals, fresh cement, sandblasted material, and chipped paint or other • .deleterious waste materials shalt not be altowed,to enter waters of the state. No wood treated with. leach able preservatives shall be placed in the waterway. Machinery refueling is to occur off- site'or in 'a confined designated area to prevent spillage into waters of the state.' Projeat=related spills into' water of the state or onto land with a potential.to.enteter waters of the state . shall be to the Oregon Emergency Response Systern (OERS) at 1- 800€52 -0311. 11: Culverts shall meet Oregon Department of Fish and Wildlife requirements for fi sh passage: 12: Issuance of this permit is contingent upon acquisition :af the required permits and approvals from the City of Tigard. 13: When listed species are the authorization holder must comply with the Federal °Endangered Species Act. If previously unknown' listed species are encountered during. the project, the authorization holder shall contact the appropriate agency as soon as possible.. ' . 14.The permit holder shall notify the Department'in writing of any operating conditions imposed by other required,perrnits that would be .inconsistent with the approved plan of operation. The Department will review'these requirements and if appropriate to ensure compliance'withstate regulations, • require modification of the approved work plan and /or revise;the conditions of this perrnr. 15. The pernnittee is responsible for canying -out the end conditions of this permit unless the permit is transferred' to another.party as by the Department. . . 16.The Department of State Lands retains the.authority:to temporarily halt or modify the, project in case of unforeseen darnage;tb natural resources_ • • ' Attachment A State Application NO. 31719-RF Page 5 of 6 MITIGATION , 17.0n-site coMpensatory mitigation for the unavoidable loss Of 0.30 acres, being 0.25 acres of palustrine emergent and , palustrine scrub/shrub (rhierine • impounding), 0.04 acres of palustrine open' Water (riverine impounding), and 0.01 acres of palustrine emergent (riverine impounding) wetlands, shall consist of wetland Mitigation, of a total of 0.08 acres creation of palustrine emergent (riverineimpounding), 0.26 acres enhancement palustrine forested and palustrine scrub/shrub (riverine impounding) and 0.09 acres enhancement palustrine emergent : (riverine 'irripai.inding); and 020 acres of .Jestoration of palustrine forested and palustrinetchibtshrtib (nve ne impounding)., • .. • — , • „ ri 18 Mitigation shall be completed prior to or conCurrent:with the completion of the wetland 'fill project. • 19.The mitigation site Shall b,e constructed inaccordarice with the mitigation plan included with the revised permit application received November 28, 2005. . , MONITORING 20.The permittee shall monitor the mitigation site to determine success for a minimum period of 5tyears.:fThe annual monitoring report is due by November 30 of each year and shall include' the folloviing information: o PerMit:nuriter • Perrnitiee'iname • • Project name • Impact and mitigation site location map(s). O / brief n that describes maintenance activities and recommendationsio:meet success cntena • Documentation that the successcriteria listedin condition(s) is being met. • Photos from fixed photo points. o Other information necessary or required t� dociiment'cOnipliande with mitigation plan. 21 .me monitoring period will start when the permittee has demonstrated that hydrology has been established and •initial plantings have been accomplished. Failure to submit 'a monitoring report at the above date may result in an extension of the monitoring period, and/or enforcement action. * • Attachment A Application No. 31719 Page of 6 22.Hydn3logy will be monitored during the early growing season then annually for the first two years, and determined adequate for the proposed niftigation plant community. If hYdrology is deteriPined td beinadequate, adjustments in grading will be done to improve hydrology. 23.Ari as.built survey shall be provided to the Department of State Lands within -- 60 days of mitigation Site grading. • • SUCCESS CRITERIA To be deemed successful, the mitigation areas including buffers shall meet the following success critena. 24.A minimum of 0.57 acres of wetlands, being 0.08 acres of creation, 029 acres of enhancement, and of 0.20 acres of restoration, shall meet the hydrolOgy criteria specified in the 1987 U.S. Army Corps:of Engineers Wetland Delineation Manual. 25.There shall be*80% survival of planted trees and shrubs for the duration of the monitodng cietriod. 26.There shall be 30% cover of planted and native recruits of herbaceous species after the first year of planting, 60% after the third year, and 80% after the fifth Year. . , 27.1bere shall be no 'more than 20% cover of non-native species: (Reed canary • grass, purple loosestife, blackberry, etc). 28.The Department retains the authority to extend the mitigation-monitoring. period and require corrective action in the event the success criteria are not accomplished for two consecutive years within the Monitoring Oetiad. 29 The mitigation site shall be protected in igi'petuity by:recOrding died restrictions approved by the Department. There shall be no We. tend impacts until the approved Deed Restrictions are reCorded:WithWaShingiOn County - and a copy has been sent tattle Department. Modification Isst.r0: February 8, 2006 .1:1AttnehmentAmTsILASIRE Removal Fin Petra W31710-RF Modified 2.82006.doc Attachment 2 After recording return to: CITY OF TIGARD ATTN: CITY RECORDER 13125 SW Hall Blvd TIGARD, OR 97223 WETLAND MITIGATION SITE DEED RESTRICTION THIS DECLARATION is made'this day of 2009, by CITY OF TIGARD, OREGON ( "Declarant "). RECITALS A. WHEREAS, Declarant is the owner of one tract of real property located in the City of Tigard, Washington County, Oregon described in Exhibit "A" attached hereto and by this reference incorporated herein and referred to as the "Property ", with a graphic depiction of the Property set forth in Exhibit "B" attached; and B. WHEREAS, Declarant has constructed certain wetland improvements located on the Property to be maintained in accordance with the Permit approved by the Oregon Department of State Lands ( "Department "), which wetlands are described in Exhibit "C" and graphically depicted in Exhibit "D" attached. NOW, THEREFORE, the Declarant declares that, subject to all existing covenants and encumbrances, the Property shall be held, transferred, sold, conveyed and occupied subject to the covenants and restrictions set forth in this Declaration. ARTICLE 1 DEFINITIONS 1.1 "Declaration" shall mean the restrictions and all other provisions set forth in this Wetland and Mitigation Site Deed Restriction. 1.2 "Declarant" shall mean and refer to City of Tigard, Oregon. 1.3 "Permit" shall mean the final document approved by the Department for wetland mitigation relating to the Wetlands Area which sets forth the telius and conditions of construction, operation and long -term management of the Wetlands Area. 1.4 "Property" shall mean and refer to the real property subject to this Declaration. • 1.5 "Wetland Area" shall mean that portion of the Property designated as wetlands in, and subject to, the Permit as described in Exhibits "C" and "D" attached. ARTICLE 2 PROPERTY SUBJECT TO THIS DECLARATION 2.1 The Property that is subject to the terms of this Declaration is located in the City of Tigard, Washington County, Oregon and is more particularly described in Exhibit "A" attached and incorporated herein. ARTICLE 3 OWNERSHIP OF PROPERTY 3.1 Declarant currently owns and maintains the Property. ARTICLE 4 USE RESTRICTIONS AND MANAGEMENT RESPONSIBILITIES 4.1 The Wetlands Area of the Property shall be used and managed for wetland mitigation purposes in accordance with the Permit. Declarant and all users of the Property are subject to the following covenants and restrictions of record affecting the Wetlands Areas of the Property: 4.1.1 There shall be no removal, destruction, cutting, trimming, mowing, alteration or spraying with biocides of an vegetation in the Wetlands Area, except for the purpose of invasive species control, nor any disturbance or change in the natural habitat of the Property; 4.1.2 There shall be no agricultural, commercial, or industrial activity undertaken or allowed in the Wetlands Area; 4.1.3 Signs shall be installed on the Property adjacent to the Wetlands Area requesting no entry into the Wetlands Area. 4.1.4 There shall be no filling, excavating, dredging, mining or drilling, removal of topsoil, sand, gravel, rock minerals or other materials, nor any dumping of ashes, trash, garbage, or of any other material, and no changing of the topography of the land of the Wetlands Area in any manner, except in accordance with state and federal wetland permitting requirements. 4.1.5 There shall be no construction or placing of buildings, mobile homes, advertising signs, billboards, or other advertising material, or other structures in the Wetlands Area. ARTICLE 5 RESOLUTION OF DOCUMENT CONFLICTS 5.1 In the event of any conflict between this Declaration and the Permit, the permit shall control. IN WITNESS WHEREOF, the undersigned being Declarant herein, has executed this instrument this day of , 2009. City of Tigard Approved by Tigard City Council: By: City Manager STATE OF OREGON ) ss: County of ) This instrument was acknowledged before me on , by Craig Prosser as City Manager of the City of Tigard, Oregon. Signature of Notarial Officer My Commission Expires: EXHIBIT "A" A tract of land in the SE 1/4 of the SE 1/4 of Section 2, Township 2 South, Range one West, of the Willamette Meridian, Washington County, City of Tigard, Washington County, Oregon, said tract more particularly described as follows: All of Lot 1 Edgewood and the easterly portion of Lot 2 Edgewood owned by the City of Tigard. • LOT 1 EDGEWOOD fa - PU J ./ SW WALL ST. „ -ANNO POINTE CONDOMINIUM 3 0 ° E_ (/) o o Q = C� MITIGATION RESERVE AREA LOT 2 EDGEWOOD 35700 SQ. FT. / 1 =I 0 0 0 C O o 0 CAPITAL CONSTRUCTION AND EXHIBIT "B FIGURE TRANSPORTATION DIVISION 3125 S.W. ON 722. BLVD. WALL STREET WETLAND � 1 TIGARD, OREGON 97223 VOICE: 503- 639 -4171 FAX: 503- 624 -0752 FILE NO AciAtiv" WKM1X77CARD- OR.GOV MITIGATION RESERVE AREA EXHIBIT "C" Wetland Mitigation Site Deed Restriction A tract of land in the SE 1/4 of the SE 1/4 of Section 2, Township 2 South, Range one West, of the - Willamette Meridian, Washington County, City of Tigard, Washington County, Oregon, said tract more particularly described as follows: Beginning at the Northeast corner of Fanno Point Condominum Stage 2, Recorded as Document Number 2003201148 of the Washington County Records being on a non - tangent curve to the right; Thence along the northerly line of said Condominium and said curve to the right with a radius of 510.00 feet, a central angle of 2° 28' 03" , (a chord which bears S 78° 27' 51" W, 21.96 feet) and a length of 21.96 feet; Thence N 18° 11' 12" W, leaving the north line of said Condominium, a distance of 18.81 feet; Thence N 23° 14' 28" W a distance of 5.81 feet; Thence S87 39' 27" E a distance of 244.59 feet; Thence S 77° 09' 30" E a distance of 54.56 feet; Thence S 87° 39' 27" E a distance of 17.29 feet; Thence S 70° 41' 58" E a distance of 26.83 feet; Thence S 14° 51' 28" W a distance of 76.00 feet; Thence S 20° 02' 10" W a distance of 26.01 feet; Thence N 85° 19' 13" W a distance of 249.37 feet to the easterly line of Fanno Point Condominum Stage 2; Thence N 13° 13' 37" E, along said easterly line, a distance of 29.36 feet; Thence N 33° 04' 26" W, along said easterly line, a distance of 73.82 feet to the point of beginning; ALSO INCLUDING Beginning at the Northeast corner of Fanno Point Condominum Stage 2, Recorded as Document Number 2003201148 of the Washington County Records being on a non - tangent curve to the right; Thence along the northerly line of said Condominium and said curve to the right with a radius of 510.00 feet, a central angle of 2° 28' 03" , (a chord which bears S 78° 27' 51" W, 21.96 feet) and a length of 21.96 feet; Thence N 18° 11' 12" W, leaving the north line of said Condominium, a distance of 18.81 feet; Thence N 23° 14' 28" W a distance of 27.71 feet; TO THE TRUE POINT OF BEGINNING; Thence N 23° 14' 28" W a distance of 8.73 feet to a point of curve of a curve to the left; Thence along said curve to the left with a radius of 491.00 feet, a central angle of 10° 46' 51" (a chord which bears N 68° 08' 49" E, 92.25 feet) and a length of 92.39 feet; Thence S 55° 03' 25" E a distance of 48.16 feet; Thence S 87° 01' 48" E a distance of 43.50 feet; Thence S 70° 41' 58" E a distance of 66.01 feet; Thence N 87° 39' 27" W a distance of 227.59 feet to the true point of beginning. Containing a total of 35700 square feet more or less } LOT 1 EDGEW❑ ❑D _J IAOr n _J SW WALL ST. = ANN❑ P❑INTE C ❑ND❑MINIUM 3 I I 1 1 I I I _ I I j MITIGATI ❑N RESERVE AREA I I I LOT 2 EDGEW❑ ❑D 35700 SQ, FT, I 1 1 I I I I I CAPITAL CONSTRUCTION AND EXHIBIT "D" TRANSPORTATION DIVISION FIGURE 13125 S O RE OREGON BLVD. 97223 WALL STREET WETLAND i ;. AGARD, OGON VOICE: 503 -639 -4171 FAX 503- 624 -0752 FILE NO T•IGA www. naARD- OR. cov MITIGATION RESERVE AREA Agenda Item # �e / Meeting Date July 14. 2009 LOCAL CONTRACT REVIEW BOARD AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Authorize the City Manager to Negotiate and Sign a Three Year Municipal Lease with Panasonic Finance Solutions Prepared By: Chief Bill Dickinson Dept Head Approval: Gt/9 City Mgr Approval: ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD Should the City Council authorize the City Manager to negotiate and sign a municipal lease with Panasonic Finance Solutions providing for the financing of the replacement and upgrading of the mobile data computers (MDC's) in police vehicles over a three year period with no interest charges? STAFF RECOMMENDATION Authorize the City Manager to negotiate and sign the three year municipal lease with Panasonic Finance Solutions. KEY FACTS AND INFORMATION SUMMARY Funds are included in the FY 2009 -10 Adopted Budget for the replacement and upgrade of the mobile data computers that are in the majority of the Police Department vehicles. The budget is for the first year payment under a three year, no interest municipal lease with Panasonic Finance Solutions. Upon the end of the lease, the City will have the option to purchase the 36 units and related equipment for $1. Estimated cost per year is $68,000 which includes hardware, software, maintenance agreement, and mounting equipment for the vehicles. The new computers are the Panasonic Toughbookl9 and will provide the Police Depaitlnent with greater operability/interoperability. For example, the new units are configured to have internal global mobile internet and be wireless. This will eventually allow officers to have remote access to their desktops and write reports in the field and then transmit them to their supervisors. The current units are stationary in the vehicle, but the new units will have docking stations so that officers can actually remove them from the vehicle and use them outside their vehicles at various locations no matter what the need might be. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS N/A ATTACHMENT LIST N/A Agenda Item # 1 - pi, 4 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue/Agenda � Title Award bid for Audiometric Services Prepared By rald Smalling e t Head Approval: C City Mgr approval: e'le ISSUE BEFORE THE COUNCIL Shall the LCRB award the bid for Audiometric Services? STAFF RECOMMENDATION Award the bid to Industrial Hearing services, Inc. for a five -year service period at $2,300 per year. KEY FACTS AND INFORMATION SUMMARY • The City is required by Oregon OSHA to provide audiometric (hearing) testing and training for employees exposed to hazardous noise levels as part of their work. This typically includes police and public works employees. • The current contract for this service expired 6/30/09. • The City received one bid for on -site services from Industrial Hearing Services, Inc. (the City's current service provider). • This firm has provided excellent service to the City since 2003 and they are fully qualified to continue to Provide mobile, on -site audiometric testing and training services. Services can be provided outside normal business hours. OTHER ALTERNATIVES CONSIDERED • Send employees to an off -site medical clinic for testing. This was determined to not be cost effective due to the increased time employees would be away from work and it also required more overtime costs with testing only available during regular business hours. CITY COUNCIL GOALS N/A ATTACHMENT LIST N/A FISCAL NOTES The cost for this service is $2,300 per year and $11,500 for the life of the five -year contract. Adequate funds for this service are included in the 09/10 budget. I:A Risk \Occupational I- lealth \Audiometric Services Contract \Agenda Item Summary- Audiometric Scrvices.docx Agenda Item # i. / G / , G Meeting Date July 14, 2009 LOCAL CONTRACT REVIEW BOARD AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Award of Contract for Application of Slurry Seal on various City Streets under the FY 2009 -10 Pavement Major Maintenance Program ce 2 Approval: By: V annie Nguyen Dept Head Approval: A C_ City Mgr pp royal: ISSUE BEFORE THE LOCAL CONTRACT REVIEW BOARD Shall the Local Contract Review Board, by motion, approve a contract award for Application of Slurry Seal on various City streets under the FY 2009 -10 Pavement Major Maintenance Program? STAFF RECOMMENDATION Staff recommends that the Local Contract Review Board, by motion, approve a contract award to Asphalt Maintenance in the amount of $83,016.53 and authorize an additional amount of $8,000.00 to be reserved for contingencies and applied as needed as the project goes through construction. The total amount committed to the project is therefore $91,016.53. Staff planned to expend $120,000 for slurry seal this fiscal year. As the bids came in better than expected, staff proposes to take advantage of the low prices by adding additional streets to the project to bring the contract amount up to the planned $120,000. Work for the additional streets will be paid for at the unit bid prices submitted in the contract. KEY FACTS AND INFORMATION SUMMARY • The yearly Pavement Major Maintenance Program (PMMP) has proven to be successful in protecting the City's investment in the street infrastructure. The program involves minor and major maintenance techniques that generally include slurry seal and overlay. • This year's program is divided into two phases: Phase I (this project) is the application of Slurry Seal on various City streets. Slurry seal has been used in cities and counties across the county to protect streets that start showing signs of cracking and raveling. It seals the raveled pavement and fills the cracks to prevent entry of moisture into the base. Phase II is the installation of pavement overlay, which will be done under a separate contract. • The Slurry Seal project was advertised for bids on June 10, 2009 in the Daily Journal of Commerce and on June 18, 2009 in the Times. The Bid documents were also mailed on July 9, 2009 to 4 contractors who had submitted bids on City projects. A project addendum was issued on June 24, 2009 to remove an item from the Bid schedule. • Bids were publicly opened on June 30, 2009 at 9:30 AM and the bid results are: Asphalt Maintenance Eugene, OR $83,316.53 (lowest bid) Blackline Vancouver, WA $84,047.00 Intermountain Slurry Seal Vancouver, WA $126,126.00 Engineer's Estimate Range $113,000 to $125,000 • Asphalt Maintenance submitted the lowest bid of $83,316.53 but did not acknowledge Addendum No.1. However, according to Tigard Local Contract Review Board Rule No. 30.085C, the City can accept this bid because this intended correct bid was clearly evident. The item that was required by Addendum No. 1 to be deleted was bid by Asphalt Maintenance at the price of $300. This item will be subtracted from the total bid of $83,316.53, resulting in the new lowest bid $83,016.53. • Asphalt Maintenance has agreed to lower the bid to $83,016.53 by removing the bid item from its proposal. Staff has determined that Asphalt Maintenance's bid is reasonable and recommends approval of the contract award to this lowest bidder. • Although the bid is approximately $30,000 less than the low number in the Engineer's estimate range but is relatively close to the second lowest bid. These two bids suggest that the lower cost is a more accurate representation of the true cost and that the project estimate is high. • Upon Council approval of the contract and after the Notice to Proceed has been issued, the contractor will have 45 calendar days to complete the work. OTHER ALTERNATIVES CONSIDERED None CITY COUNCIL GOALS This low cost project meets Goal No. 12, "Transportation ", of the Comprehensive Plan, by making street maintenance a priority as required by the Plan. ATTACHMENT LIST Project Location Map FISCAL NOTES The budgeted amount of $766,000 from the Street Maintenance Fee Fund is sufficient to award a contract of $83,016.53 to Asphalt Maintenance and to provide a contingency amount of $8,000.00 for a total project commitment of $91,016.53. FY 2009 -2010 PAVEMENT MAJOR MAINTENANCE PROGRAM SLURRY SEAL [ J 5CN0��5 FERR • • a sr.18ni.1 0 t ra�r:cv• vaaiu.�• �M „, y c',:`• z- ■ R ED l� r R ,,, p 0' ti Y CEDAR____. 0, ,,,, acra '•I i C G CI% v WAY • WOOD / e :, > $ a v . r - y,_. , 2 ., VENTUR r; VENTURA CT 1\ :.. t , ¢ k F A va.uh1 A PL � � r rooiaori /fyi000iararwoaa,/ VENTURA DR _ 1 r 1 1 / ' 4 ") 6.7,,,,„7„'A .,� „„'4„ N 11 Ili ” % GS y <,, COTTONWOOD LN % ._ I I LANDAU sr •: Sr ,... 1 / - _ f S P ENN �r�� /� _ rvro..v. MA A e ft Loam Sr • r h APLELE4F ST w 'Q ,r, /•Iz7/a7Y1aR9 viii / /,, k s �p r _ :U7LI9 a •••• PL ^ NORTH DAKOTA. Q Q y e x OAK ST G 2 w C - I y trGlbrrG.rgc�.7 groom, ammo- EDGE MILLV/EW CT Q Q ` n OAK sr 9 "° • WATER '" , ,,zrr,i,,,,iri% // - BURLHE7GM5 DR ° ! - I OAK ST / Q i :�I o, /oiior F �11 - o R 11..c /�,( R �Z D h P/ivF .ti/ PA NE 5 SUMMER sr , - Act- or' 1 I 1 1 I 1 1 1 1 1 PINE ST 1 I ` TIGARD sr NORTHEAST TIGARD DR MER NE ,..a:.: I' .o ,R , r PROJECT AREA CT yam,,,,,,,,, -,r i i r r. e _I LI ...v. guar 1 r :cn ra:r •i�a CT ,,, ,,% KELSO f . 4 RCHIL i i n' NORTHWEST TIGARD r. ..�. PROJECT AREA i J� 79TH AVE, Agenda Item # Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Consider Adopting the City of Tigard's Park System Master Plan �Q Prepared By: Dennis Koellermeier Dept Head Approval: _ City Mgr Approval: V� ISSUE BEFORE THE COUNCIL Shall the Council adopt the City of Tigard's Park System Master Plan? STAFF RECOMMENDATION Adopt the Park System Master Plan. KEY FACTS AND INFORMATION SUMMARY The Park System Master Plan provides an analysis of current park, open space, and recreation opportunities and makes recommendations for future needs. These recommendations are important guidelines for future fiscal planning. In October 2008 the Council completed an update of the Comprehensive Plan including a section on parks, trails, and open space. The updated Park System Master Plan supports the Comprehensive Plan. In 2008 an update of the Park System Master Plan was begun. To gage the community's opinions on needed parks, trails and open space, the following has been conducted: • A formal scientific telephone survey. • A questionnaire was offered to the general public. • A community questionnaire was offered at the City's Balloon Festival booth. • Informal meetings were held with recreation group providers and individual stakeholders. • A public visioning workshop was held September 8, 2008 with the Parks & Recreation Advisory Board (PRAB). • MIG, the consultant working with staff on the Park System Master Plan, compiled the results of the public input. • The PRAB held a January 26, 2009 meeting on the Park System Master Plan. • The PRAB meeting on May 18, 2009 discussed the planning framework and the recommendations of the Park System Master Plan. • Two technical advisory group meetings were held to compile the existing facilities, maintenance and staffing requirements. • Staff kept the public informed of the Park System Master Plan process by posting information on the City's web page. • The Draft Park System Master Plan was presented at a joint Council /PRAB meeting on June 16, 2009. OTHER ALTERNATIVES CONSIDERED The Council could choose not to adopt the plan and give staff direction on how to proceed with preparing for the 2010 bond measure for parks, open spaces and trails. CITY COUNCIL GOALS Council Goal 3. Prepare for 2010 Bond Measure for Parks, Open Spaces and Trails a. Complete Parks Master Plan Council 5 Year Goals: Implement Comprehensive Plan ATTACHMENT LIST 1. Resolution A. Final City of Tigard Park System Master Plan FISCAL NOTES There are no costs associated with the adoption of the Park System Master Plan; however, the plan does provide cost estimates for implementation of the plan recommendations. EXHIBIT A M 146 G MEMORANDUM to Tigard City Council from Ryan Mottau, Project Manager, Park System Master Plan Update re Explanation of Changes to Draft PSMP Document date 7/1/2009 During and following the joint meeting of the City Council and the Park and Recreation Advisory Board, a number of comments and suggested changes were submitted. This memo outlines those suggestions as well as the modifications that were made to the previous draft plan provided for the joint meeting. A revised document is available electronically that includes the following changes: • Acknowledgements: Michael Fruedenthal was added to the list of PRAB members • Chapter 1, page 4 — Corrected text in fourth paragraph clarifying projects since the last plan. • Chapter 2, page 23 — Updated table 2.3 to reflect the Library classes serving all age groups. • Chapter 2, page 23 — Generalized the entry in Table 2.3 under After School /Summer Camps to recognize the variety of non - profits that offer this type of program. • Chapter 6, page 57 — Added a potential sports complex (P13) as an alternative to fitting new sports fields into Cach and Fowler community park sites. No location is indicated for this site and it may need to be outside the city limits inside the Urban Growth Boundary. • Chapter 7, page 82 (80 in the prior draft) — Recreation program recommendations: the text has been modified to clarify that the $100,000 cost is the recommended City contribution, not the total budget of the recreation program. The total budget will depend both on the programs offered and resulting user fees. • Chapter 8, pages 87- 88.(85 -86 in prior draft) — Priority I projects: The Scholl's Ferry pedestrian overpass was downgraded to a priority II project due to the advance work that will be needed to line up regional trail partners. PLANNING I DESIGN 1COMMUNICATIONSI MANAGEMENTITECHNOLOGY 815 SW 2ND AVENUE, SUITE 200 I PORTLAND, OREGON 97204 -3022 1 PHONE 503. 297 -1005 I FAX 503-297-3195 I www.migcom.com Offices in Berkeley, Fullerton & Pasadena, CA I Eugene, OR I Raleigh, NC MIG Memo 7/1/09 Explanation of changes to Draft PSMP Document • • In addition to these changes, several questions did not result. in changes to the document. We have provided our response to each, including the reasons for not making changes, where applicable. These include: • Is the Summer Creek Trail included? - The Summer.Creek trail segment is part of proposed trail corridor T5. • • Should the previous pilot recreation program that did not pass the budget committee be mentioned? — While the approach was informed by previous efforts, we decided to fociis'on how to moveforward. . • Specific mention of trail from 135 -to Gaarde? — This segment might become part of proposed trail corridor T9 but the specifics are at a level of detail that is too fine for a • system =wide plan. • • Potential location for a park.at P6.- This is the kind of information that will benefit the implementation of this plan greatly but is very specific and, preliminary for inclusion in a system -wide plan. • Correcting typos — We are always scanning for corrections and will do one more complete edit`to the document after adoption to ensure that we deliver the cleanest final document possible. If there are any mistakes, please pass that information on to City ; staff ; : ; • Bound copies of the final plan — To ensure that the adopted plan reflects any minor last minute changes, the fmal,plan hard copies will be produced and distributed following the adoption of the plan. If additional comments arrive or further clarification is'needed, I will be available at the July 1`4 Council meeting to .discuss the final draft of the Park System Master Plan and will answer any questions that may arise. • • Page 2 Agenda Item # ( Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Sensitive Lands Permit Requirements (DCA2008- 00005) to remove criterion 18.775.070.B.5, which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood. Prepared By: Gary Pagenstecher Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Should the Council approve a Development Code Amendment to Section 18.775.070.B.5, removing a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead, require that pedestrian /bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat? STAFF RECOMMENDATION It is recommended the City Council approve the proposed Development Code Amendment as amended and recommended by the Planning Commission. KEY FACTS AND INFORMATION SUMMARY Currently, the Tigard Development Code, Section 18.775.070.B.5, stipulates that within the floodplain, "plans for the pedestrian /bicycle pathway indicate that no pathway be below the elevation of an average annual flood." It became apparent through the City's design development process for Lower Fanno Creek Park that strict implementation of this criterion would severely limit where trails could be located, as most of Lower Fanno Creek Park between Hall Blvd. and Main St. in Downtown Tigard would likely be below that elevation. On February 23, 2009, the Planning Commission held a public hearing to consider the Community Development Department request (DCA2008- 00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove criterion 18.775.070.B.5. The Commission received substantial public comment on the proposal principally concerned with wildlife protection and water quality. The Commission decided to continue the hearing and directed staff to prepare an options analysis. On April 6, 2009, the Planning Commission resumed the hearing and discussed the options analysis (April 6, 2009 Memo) prepared by staff with additional input from the interested parties. The Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain "where practicable" to achieve project objectives, requiring a natural resource assessment, and changing the elevation to "ordinary high water ". Public testimony clearly favored siting and designing pathways that avoid impacts to wildlife habitat and water quality and opposing the removal of the elevation standard. The Planning Commission approved (5 -1) a motion to recommend that City Council approve Option 3.c, which replaces the elevation standard with the requirement for a wildlife assessment. On May 12, 2009, City Council held a public hearing to review the matter. Council heard additional public testimony and after some discussion decided to continue the hearing to a time certain (July 14), pending revised findings to address any new information. This Supplemental Staff Report contains revised findings for the proposed code amendment as recommended by the Planning Commission and addresses the new information submitted at the May 12, 2009 Council Hearing. Potential conflicting goals in the Comprehensive Plan and criterion in the Development Code for floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. The proposed code amendment is legislative and would apply to all floodplains within the City. OTHER ALTERNATIVES CONSIDERED The April 6, 2009 Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain where practicable to achieve project objectives, requiring a natural resource assessment, and changing the elevation to "ordinary high water ". CITY COUNCIL GOALS The proposed amendment does not directly relate to City Council's 2009 or Five Year Goals. However, the addition of a criterion for the protection of wildlife for paths proposed in the floodplain would update the code to be consistent with new Comprehensive Plan policies that support habitat protection (Comprehensive Plan Goal 8.1, policies 6 and 17 and Goal 8.2, policy 2). ATTACHMENT LIST Attachment 1: Ordinance Exhibit A: Proposed Code Text Changes Attachment 2: Draft City Council Meeting Minutes for May 12, 2009 Attachment 3: Staff Report to the Planning Commission dated June 29, 2009 FISCAL NOTES There is no fiscal impact anticipated for this action. However, at the time the City initiates pathway development in the floodplain, the additional cost of a wildlife assessment would be expected. CITY OF TIGARD, OREGON TIGARD CITY COUNCIL ORDINANCE NO. 09- AN ORDINANCE AMENDING THE TIGARD COMMUNITY DEVELOPMENT CODE SECTION 18.775.070.B.5, REMOVING A CRITERION WHICH PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE AVERAGE ANNUAL FLOOD AND, INSTEAD; REQUIRE THAT PEDESTRIAN /BICYCLE PATHWAYS WITHIN THE FLOODPLAIN INCLUDE A WILDLIFE ASSESSMENT TO ENSURE THAT THE PROPOSED ALIGNMENT MINIMIZES IMPACTS TO SIGNIFICANT WILDLIFE HABITAT (DCA2008- 00005). WHEREAS, the City's Planning Division has requested to amend Chapter 18.775 — Sensitive Lands of the Tigard Development Code to remove a criterion which prohibits pathways located within or adjacent to the floodplain to be below the elevation of the average annual flood and, instead; require that pedestrian /bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; and WHEREAS, notice was provided to the Department of Land Conservation and Development 45 days prior to the first evidentiary public hearing; and WHEREAS, the Tigard Planning Commission held public hearings on February 23, 2009 and April 6, 2009, and recommended approval of the proposed amendment, as amended to require a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; and WHEREAS, notice of the public hearings was published in the Tigard Times Newspaper at least 10 business days prior to the public hearings; and WHEREAS, the Tigard City Council has considered applicable Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; any federal or state statutes or regulations found applicable; any applicable Metro regulations; any applicable Comprehensive Plan Policies; and any applicable provisions of the City's implementing ordinances; and WHEREAS, the City Council has found the following to be the only applicable review criteria: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal [FEMA] or state statutes or regulations; Applicable METRO regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard Comprehensive Plan Goals [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances [TDC Chapters 18.380, 18.390 and 18.775]. ORDINANCE No. 09- Page 1 WHEREAS, the Tigard City Council held public hearings on May 12 and July 14 2009 to consider the proposed amendment; and WHEREAS, the Tigard City Council has determined that the proposed development code amendment is consistent with the applicable review criteria, and that approving the request would be in the best interest of the City of Tigard. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The specific text amendment attached as "EXHIBIT A" to this Ordinance is hereby adopted and approved by the City Council. SECTION 2: The findings in the June 29, 2009 Supplemental Staff Report to the City Council, Minutes of the February 23, 2009 and April 6, 2009 Planning Commission hearings, and the Minutes of the May 12th and July 14`" 2009 Council hearings are hereby adopted in explanation of the Council's decision. SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only, this day of , 2009. Catherine Wheatley, City Recorder APPROVED: By Tigard City Council this day of , 2009. Craig Dirksen, Mayor Approved as to form: City Attorney Date ORDINANCE No. 09- Page 2 EXHIBIT A DCA2008 -00005 SENSITIVE LANDS PERMIT REQUIREMENTS This text amendment employs the following formatting: [Bold italics] — Text to be added [laugh] — Text to be removed 18.775.070 Sensitive Land Permits A. Permits required. An applicant, who wishes to develop within a sensitive area, as defined in Chapter 18.775, must obtain a permit in certain situations. Depending on the nature and intensity of the proposed activity within a sensitive area, either a Type II or Type III permit is required, as delineated in Sections 18.775.020.F and 18.775.020.G. The approval criteria for various kinds of sensitive areas, e.g., floodplain, are presented in Sections 18.775.070.B — 18.775.070.E below. B. Within the 100 -year floodplain. The Hearings Officer shall approve, approve with conditions or deny an application request within the 100 -year floodplain based upon findings that all of the following criteria have been satisfied: 1. Land form alterations shall preserve or enhance the floodplain storage function and maintenance of the zero -foot rise floodway shall not result in any encroachments, including fill, new construction, substantial improvements and other development unless certified by a registered professional engineer that the encroachment will not result in any increase in flood levels during the base flood discharge; 2. Land form alterations or developments within the 100 -year floodplain shall be allowed only in areas designated as commercial or industrial on the comprehensive plan land use map, except that alterations or developments associated with community recreation uses, utilities, or public support facilities as defined in Chapter 18.120 of the Community Development Code shall be allowed in areas designated residential subject to applicable zoning standards; 3. Where a land form alteration or development is permitted to occur within the floodplain it will not result in any increase in the water surface elevation of the 100 -year flood; 4. The land form alteration or development plan includes a pedestrian /bicycle pathway in accordance with the adopted pedestrian/bicycle pathway plan, unless the construction of said pathway is deemed by the Hearings Officer as untimely; •5. -• - -= - -.. •. ... . -• • - -- • • - of an avorago annual flood; Pedestrian /bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habita4 6. The necessary U.S. Army Corps of Engineers and State of Oregon Land Board, Division of State Lands, and CWS permits and approvals shall be obtained; and 7. Where land form alterations and /or development are allowed within and adjacent to the 100 -year floodplain, the City shall require the consideration of dedication of sufficient open land area within and adjacent to the floodplain in accordance with the comprehensive plan. This area shall include portions of a suitable elevation for the construction of a pedestrian /bicycle pathway within the floodplain in accordance with the adopted pedestrian /bicycle pathway plan. ATTACHMENT 2 Excerpt: Council Meeting Minutes of May 12, 2009: 8:40:26 PM 8. LEGISLATIVE PUBLIC HEARING — PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA2008- 00005) TO REMOVE CRITERION THAT PROHIBITS PATHWAYS LOCATED WITHIN OR ADJACENT TO THE FLOODPLAIN TO BE BELOW THE ELEVATION OF THE ANNUAL AVERAGE FLOOD (18.775.070.B.5) REQUEST: To remove Section 18.775.070.B.5 of the Sensitive *Lands Permit requirements which reads: "5. The plans for the pedestrian /bicycle pathway indicate that-3.o pathway will be below the elevation of an average annual flood; ". Removal of this =section \ allow pathways to be installed in areas which would benefit the public's access to and educational appreciation of ecological areas. On April 6, 2009, the Planning Commission recommended the City Council replace the subject section with "Pedestrian /bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the pro osed alignment mi in nines 1m acts to significant wildlife habitat" LOCATION: C ityw i deCOMPREHENSIVE PLAN DESIGNATION: All City Comprehensive PIanD,esigrnations. ZONE: All City Zoning Districts. APPLICABLE REVIEW CRITERiAThe Statewide Planning Goals and Guidelines adopted under Oregon \ Revised Statutes Chi4ter-197; [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5 Natural Resources, Scenic and Historic Areas, and Open • Spaces; Goal 7, Areas Subject to Natural I-Iazards; and G a1 8 , .y Recreational Needs]; any federal [FEMA] or state statutes or ?regulation ound applicable; any applicable ME IRO regulations; [Metro Code Sections 3.07.310, Urban Growt Management Functional Plan; and Title 3, Water Quality andy,Flood Managernt]; any ps plicable Comprehensive Plan Policies; [Goal 1 Public ,Iiii olveinent; Goal 2 Land Use Planning; oal 7 Hazards; Goal 8, Parks, Recreation, Trails = nd OpeSpace]; and any applicable provisions of the City's implementing ordinances [TDC4$1 =30 18k380 18.390 and 1804 8:40:551P1VI a. City Attdrney Rari reviewed the hearing procedures. City Attorney Ramis added ‘ vs there might beman?iss s the City Council to resolve this evening, he asked the = City Councilgtliat when itelirects the staff to prepare the final ordinance that they give staff some additional time to prepare the final version of the ordinance with findings for the Council's consideration. This might require a continuance ofktl e hearing. b. Declarations or Challenges: None 8:44:55 PM ae � c. Mayor Dirksen opened the public hearing. d. Associate Planner Pagenstecher presented the staff report. • This application was brought forward by the Community Development Department. 11Page • The standard in question prohibits trails to be below the average annual flood. It was perceived that this might prohibit trail alignments for the Fanno Creek Park plans. o The proposal was brought to the Planning Commission. Substantial public comment was received with the primary issues being wildlife protection and water quality protection. • There were a number of comment letters from agencies and interested parties. • The Planning Commission decided this should be aired more broadly to address the issues raised. o Staff developed an options paper (include'd th? City Council meeting packet) to provide for wildlife protections in heu of the elevation standard. • The option (3.c) recommended by the PlanningtCo removes, as originally proposed, average annual flood elevation andVeplaces‘iti a wildlife assessment requirement. This pertains to floodplainsethroughout the whole City. k VV 8:47:39 PM Buehner referred to the 'corrnrriunication!received today from the Oregon Department of Fish and Wildlife. She saielshe understands their concern, but it does not appear that they were aware we were ttg to include a wildlife assessment. Associate Planner Pa g ensteeher said he had i' co yersation with Fish and Wildlife Habitat Biologist Mischa Conntne and he notedPthat she referenced the wildlife assessment in her letter. Thule t rdoes not comme t on'the efficacy of the standard that currently exists and does not give an3Neredit to a wildlife assessment requirement. Associate Planner Pagenstecher said he believes the Department has a general stance against incur=sions into sensitive areas -7 Council rO3uehner recalled a hearing a number of years ago regarding the Maplecrest subdivisio fine offthe proposals was,'to build a path to a bridge that the developer would build 'over ,ai'creek` yandwhave its continue to an existing path on the other side. ,qConcerns were Praised regardu g ADA issues. Associate Planner Pagenstecher said • ADA issues were ottraised for this application. The trail for Maplecrest was a small • neighborh trail ii a riparian area, but not in a floodplain. The trails to be • accommodatedin the floodplain are regional trails (in this case, the Fanno Creek trail), , which has a standard design of 12 -foot widths rather than a three -foot wide soft path. 'qhe main question is can you balance access to nature and recreation with resource (wildlife) protection? CouncilorBuehner referred to an area of the trail in Beaverton that floods regularly. Has thisssue come up in the context of their portion of the Fanno Creek trail? Associate Planner Pagenstecher said he has not consulted with Beaverton but added that Tigard Public Works staff members say that inundation occurs on average six times a year for one to several days. This represents an inconvenience, but people generally stay away when the areas are flooded. The maintenance associated with those inundations has not been a significant issue. 8:52:22 PM Councilor Henderson asked about barring access during times of flooding and if there was any special construction needed for the sensitive areas? Associate Planner Pagenstecher said this proposal does not address the questions. Usually, as Councilor Henderson indicated, people use common sense and stay away from flooded areas. 8:53:42 PM Council President Wilson said the intent of the wildlife analysis, as he understands it, is to try to minimize negative impacts to wildlife. He said he assumed an analysis would not be done until there was a project proposal. The intents not to stop the project, but to determine whether impacts could be minimized. Heeited a potential example of a typical conflict along Fanno Creek with beavers and tendency to raise the water level. There is an inherent conflict between humaniise and the use of by animals. At vim .: some point, the space will need to be shared. Council President Wilson said he is not sure what the intent of the wildlife assessment,is. ;The statedintent is to minimize; at some point someone has to make a value ,judg ent -- who makes this decision and on what basis? 8:55:42 PM 1 . Associate Planner Pagenstecher agreed with�Council President Wilson in that this is a balancing act. The proposed options go to tliNiuestion that if you have a program such as a regional trail that is��generally aligned with, a floodplain and you have other standards that require develgpiazentto provide easements #for trails and floodplains, then a trail access is called 'for. can design around the wildlife habitat; the important thing is to know what wildlife°°resource exists there. Currently we do not have any regulatory tools to ensure wildlife protection. Council President Wilson respondedto Ass d a te Planner Pagenstecher s explanation observing that, apparently, this i s$aresource the decisionmakers but it does not necessarily impose any particiilarpproval cn eria; it is simplyyinformation that the decision makers can use Associate P1‘ Pagenstecher affirmed that the designer could use the information to change_alignmenr accordingly, of use certa construction techniques; i.e., permeability 4 11 br ain ele ated boardwalk to address those particular wildlife habitats. 4 ,04,,, \N Public Test 1 4- 4% Eric Lindstrom, 6801 SW Canyon Crest Drive, Portland OR 97225 testified. Mayor v xDirksen adz Mr. Lindstrom the City Council received his comments given to the Planning Commission. Mr. Lindstrom acknowledged his comments are on re =and said he needs to address what has been "put on record." He has exception to make to one of the major points regarding tonight's proposal. He said, "It states categorically that this change in the code will not impact negatively... the wildlife protection in that region... and that's categorically not true." This will affect sensitive areas because it brings pathways into areas that are not currently allowed. He asked the City Council to recognize that while this is being brought to the City Council as a problem related to a plan that the City is advancing, there are other properties coming online over the next several years this proposal will affect. Mr. Lindstrom said it was interesting there is a proposal that - - -- -- - jlPag e cannot be implemented because "it runs into its own code." He said the proposal to change the code does not make sense to him and does not sound like a good process. 9:00:23 PM Mr. Lindstrom commented that this ordinance would apply to the property from Bonita Road to Durham Road. He said the City Council would be opening a "Pandora's box" in that area even if a recreational problem is solved "here." A serious watershed problem might be created downstream in Tigard. He said he is hoping the City Council will send this back to the P arming Commission and planners and ask them to come up with a more creative process to allow the City to implement as much of its plan as needed whilea the same time preserve the standard that is "serving you so well in ;the st of your watershed resources." 9:01:22 PM • John Frewing, 7110 SW Lola Lane, Tigard, OR advised he � sen°t` in written comments to the City Council this 'afternoon *that he will summarize and make additional comments. He said Council Pres m dent Wilson raised a good point: How do you balance the desire to have people interact with natural areas of the City and at the same time protec tievwildlife? The City has not done a general citywide plan determining what areas shouldbbekdedicated to fish =wildlife and areas dedicated to people /recreation. He saihe s - cal of the Forest Service because they try to do all activities in every acre and he • concerned that the City is using that same approach: There needs to beplan to zonefor areas of wildlife and areas of recreation andsegregate thes areas. Previous comments noting concern for wildlife stemmedzfrom the fact there would be additional trails. We are carving up the `wildlife areas into small pieces'National and regional studies have found that the siz the e of ceofnatural area is key to making it successful for wildlife. For that reason;Ar. Frewi sayskhe thi ng nks there needs to be a different approach to �� trail l cat i on in the City of Tigard. Mr. Frew rig, clarifiedf comments he sent in earlier. He said this change in regulation has not been coordinated with Metro. Coordination is called for in Tigard's Comprehensive Plan and coordination is defined in state law and state rules \quiring acted agencies be given an opportunity to review and to incorporate their comments. Metro has regulations dealing with this type of application. Metr6 Title 13, Nature in Neighborhoods, calls for protection of sensitive lands including those in the 100 -year floodplain. In Tigard and Washington County, Title 13 says that the Tualatin Basin Partners developed an alternative scheme for Nature in Neighborhoods. There are additional requirements in Title 13 for every jurisdiction in the Metro area. One of these additional requirements states that the cities shall have clear and objective standards for protection of these sensitive lands including significant habitat areas. Mr. Frewing said he did not think a wildlife assessment was a clear and objective standard and needs more study and clarification. Mr. Frewing referred to 18.775.050 M regarding non - residential construction in 100 -year floodplains, there is a requirement that the base elevation /floor of any structure shall be above the 100 -year floodplain. Any structure below that level shall be water proofed and made flood resistant. He said he thinks this section calls for trails to be above the 100 -year floodplain and this is the reasonable standard rather than the annual average flood or the more general call for a wildlife assessment. • Sue Beilke, 11755 SW 114 Place, Tigard, OR advised she is a Board member of Fans of Fanno Creek. The Fans have many memb s who work hard to protect and restore natural resources. She said they believe that removal of this part of the Code should not occur for a number of reaso s One section of the Code addresses annual average flood and they hav �e not received a good definition of average annual flood. The answer from stafftwas that t it is about the same as a second year flood. She advised that she an'd Mr. Frewing ha7 done quite a bit of investigation into what they thought would be the. average annuahflood. She said this information is contained on. thetmaterial distributed to the City _Council. They got this data from the Durham Road gauge, whichis actual hard data` 9:09:28 PM Ms. Beilke referred to theVCFS of Fanno CreekS-4They have information that the annual average flood is in reasi g which makes sense due to what has happened with urban development. This willmaffect where tr are placed. If this section of the Code is removed, there is the potentialyto'puttrails in areas where we would not necessarily-want them. She referred to the problem of annual flooding and bank A, >. erosio Sher'ei d Attachmen , of her material , which is a picture of Fanno Creek `� t C Traiethat has to be removed at�a great cost to the City. She believes this piece of the traailhis curre fitly in the average annual flood and referred to photographs ke support hg her, position. q . Councilor Buehner said this is one of the reasons that Clean Water Services is =�goineto remeander the creek and significantly reduce the 4 ''°_ ;. . odd \o'f flooding in this area The City is cognizant of this situation. This project will sign ficcantly change the dynamics of what will happen in the park. t 9:11:22 PM *t, Ms. Bielkeieferred to comments in the packet from Facilities /Parks Manager I Martin that there are no costs to trail maintenance. She contended there are many Ncosts and,:her photos represent an example of a huge cost to the City. The trail is nottgoing to be replaced there. There are other costs to trails. For example, asphalt erodes resulting in stream bank. Many times, in average annual floods, people go around the trail, step on the adjacent ground, trample plants and compact the soils. This type of situation results in costs that we have to pay for as part of maintenance of trails and this has not been addressed. 5 Page 9:12:09 PM Ms. Bielke referred to the staff's statements regarding why this part of the Code was put into place (Page 3 of her comments). 9:12:41 PM Ms. Bielke disagrees with staff when they refer to some new policies in the Comprehensive Plan that removal of this section of the Code would meet. You cannot pick and choose your policies. There are new policies in the Code that removal of this section of Sensitive Lands Code would not meet. For example, Policy 6 states that the City shall acquire and man ew some open spaces to solely �' q �� P P Y provide protection of natural resources. Policy 17,nother new policy) is that the City shall maintain and manage its parks and open space resources in ways that will preserve, protect, and restore natural resources�`�`includg`rare or state and federally listed species. She said she does not think we` have do' n a'n adequate analysis of s how removal of this section of the Code would address those policies and how it would affect our natural resources. y We need to make sure we are meeting all of our policies in our Comprehensive Plan 9:14:09 PM Ms. Bielke commented on the wildlife assessment. She agreed with Mr. Frewing's comment that a wilrllifetassessment needs to e4efined. There are questions that need to be addressed. Hertreeommendation is thatidora biological assessment as many other agencies do. This wouldainclude a reviewoof the habitat and the species that might be in the area and p and quantitative analysis regardinglow,gproject mightsimpact the habitat and the species. Another policy is neededin tle Comprehensive P1an to increase our baseline information on habitat g in Tigard. 9:15:29 " PM \ 44,s Ms. Bielke�asked the Ma or aridICouncil to have staff do further analysis before this 4 'section of th Sensitive Lands code. e. Staff Recommendation , Associate Planner Pagenstecher responded to Mr. Lindstrom's comments that the O report said that no impacts would result from removal of the standard. Staff 4 hstened carefully to public comment and included the wildlife assessment criteria in lieu(ofthat standard of elevation. Staff agrees that impacts will occur and should be m mimtzed. One could argue that it is not clear and objective, but it is also a . performance standard in that staff wants to minimize impacts to the wildlife resource. Mr. Pagenstecher said the City is not alone in protecting the resource. We rely on other agencies permitting processes; i.e. DSL and CWS. The City also has direction from the Comprehensive Plan and the Transportation System Plan to provide for a regional trail. The Development Code ensures that development provides for a pedestrian /bicycle pathway in accordance with adopted plans. There is a lot of support for including pathways in floodplains. As both Mr. Frewing and Ms. Bielke - -- -- - _ _ - 6 I I' a g e mentioned, we do not want to adversely impact natural resources anymore than we have to, so the issue is one of balancing these two things as our Comprehensive Plan seeks to accomplish. Staff thinks the Code amendment is more effective in protecting the resource than the previous Code criteria. We do not suffer any loss by taking out the elevation standard. Community Development Director Bunch noted Mr. Frewing's reference to 18.775 about habitable structures and the way they are to be sited to avoid flood damage. A pathway is not necessarily a habitable structure. Community Development Director Bunch concurred with Associate Planner agensttecher's statement that Tigard is not alone in the pathway siting "business' or the management of these resources. Clean Water Services is involved. W o plied with Title 13, Nature in the Neighborhood, with our Sensitive Lands . dinance ; e City undertook efforts to coordinate this post - acknowledgement plan amendment with the Oregon Department Land Conservation and De elopment, which pYro des a clearinghouse for comment. '�� :, 9:19:46 PM : Community Development Director Bur cho referred to the issue raised regarding Comprehensive Plan policies. This is the `op ortunity for the City Council, as the legislative body, to weighJhe policies that it, decides are applicable. The City Council can choose a policytoernphasize over others and decide which ones are •: N more important to the co unity= < n pathways, instanceowe have athwa Y s , recreation and wildlife habitat. Counciwill go °through the, make its decisions, and the staff will deyelop approprnaefindings. 9:20 39 PM City'Attorney Raniis pointed out'thatjat least one of the witnesses indicated that a portion of the testimony, offered was new. This is material that staff had not seen before andknot dis cussed previously in public hearings. If this is the case, the City � ouncii mightiwant to consider continuing the proceeding after giving some dire ribno staff *,,Then, those arguments and issues can be considered and r adequate findings prepared in response. Staff also needs to determine whether it ** needs to add the additional evidence. 9:21:18 pi ounciloritenderson concurred on the continuation. 9:2128 PM Council President Wilson referred to the Willamette Greenway as a statewide goal that requires a greenway trail. This has been in existence since 1973. He asked if staff knew the approximate date the City of Tigard's Sensitive Lands code was adopted. Associate Planner Pagenstecher advised the code was adopted in 2006 and was updated in 2007 for the Nature in Neighborhoods. Assistant City Manager Newton advised she was a City Planner when the first Comprehensive Plan was written. It was around 1983 that the first Development Code written and this included a Sensitive Land section. Council President Wilson said 18.775.080 B 5 71Page implies that a pedestrian /bicycle pathway was previously going to be required and this only speaks to where it would be required. 9:23:39 PM Community Development Director Bunch said staff members have reviewed the Development Code and numerous statements in the Code will be cleaned up. 9:24:17 PM Council President Wilson said that it appears that we have had the intent to put a trail on Fanno Creek for a long time. At some point 118:775.070 B.5 was probably inserted along with a number of other code provisions dealing with the floodplain. He said he thinks the argument could be made that this language is a mistake because it obviously prevents completing the plan. Mayor Dirksen said This isn't even a rule. It is a statement with regard to an existing plan- think it's ironic that No. 4 above it actually requires that any "lar dform alteration within the 100 -year floodplain have a pedestrian /bicycle pathway." Council Pr s dent Wilson agreed that the wording is contradictory: -'yHe, said We want to build another piece of it now, and we're recognizing... there's a He's not seeing that this language, as has been suggested from testirriony received, was put in the Code to protect wildlife. He said wildlife is an important concern. At some point, we need to have a conversation abut wildlife inside th ;City and what degrees of protection are appropriate. 9:26:28 PM V '0\: Mayor Dirksen asked about coordination withother planning partners and whether ; . there ; was a ne or a requirement for this Code language to be considered by Metro, anyone else before the City of Tigard could consider this change. Associate Planner *Pagenstecher advised the staff provided notice to DLCD, Metro and other the original intent toremove this section of Code. No comment was received. He added°thattwhen'the options analysis was done, staff contacted Metro *, todiscuss thi of trail design. Metro provided a useful trail handbook for this kingliituation t \design trails, alignments, and indicate techniques for minimum impact. ah 4s imphatly acknowledged there will be conflicts and that trails will be in sensitive areas. Metro did not say to Tigard that we should not put trails in Vt floodplain.sia there was an elevation that was relevant. Instead, they provided the ';;;;City with inn rrnation about design. 9 :28 20 :1PM Council President Wilson asked if there was any precise way to determine the elevation of average annual flood? Associate Planner Pagenstecher said that there is and that Ms. Beilke alluded to a calculation based on observed data in the field. Every reach of stream has variable data. Not all stream sections are measured at the same frequency. For this particular reach of Fanno Creek within the City, he said he did not know if specific measurements were taken. Associate Planner Pagenstecher said he thought there was about a dozen times they could average; however, that was not significant enough to make a determination. The consultants for us were tending to use the two -year flood as a proxy; DSL used this data as well. - - - -- — - - - - -- - 8P -age 9:29:44 PM Mayor Dirksen said he recommended that the City Council follow the City Attorney's suggestion to close the public hearing, continue the matter, and direct staff to produce findings based on what was heard tonight. Council would then consider an ordinance at a later date. 9:30:12 PM City Manager Prosser advised the first opportunity to bring this matter back to the City Council would be July 14, 2009. 9:31:20 PM City Attorney Ramis suggested that the proceeding be continued. It might be that that the staff will have additional information they might want to present. Therefore, he recommended against closing the hearing. This would not preclude the City Council from giving comments and direction. 9:31:40 PM Councilor Buehner requested if the hearing was continued that it be limited to the issues brought forward this evening. 9:32:03 PM After some discussion, City Attorney Ranus suggested the hearing be continued with the understanding that if the staff introduces new facts or language, there will be an opportunity for the public to address only the new material. 9:32:30 PM Councilor Buehner said "we have a long -range plan to provide for access for the public along Fanno Creek." This is supported by Metro and by all the cities in the region. She said she thinks this is a very important concept She acknowledged there are people who are concerned about protecting the natural habitat and want to keep people out of areas such as floodplains. Councilor Buehner is very concerned that we maintain an opportunity for the public to use the public parks provided for them and that they have paid for with their tax dollars. They should have an opportunity to see this "wonderful creek that we have that comes through this community... and I want to make sure that our citizens are aware that we are trying to protect their rights to have the opportunity to use the park, while at the same time being sensitive to protecting the park. We are spending very large sums of money to restore the park and the creek the way it was before it was fouled up many, many years ago. There is a middle place. We don't have to keep the public totally out of its own public park." 9:34:23 PM Mayor Dirksen, with the City Council's permission, announced he would continue the hearing to the date certain of July 14, 2009, for the purpose of reviewing staff findings and potential comment on any new information. 9:34:48 PM (break) I:\ ADM \CATHY \CCM \2009 \Excerpts \draft minutes - code amendment sensitive lands ph 5- 12- 09.docx 9 1Page ATTACHMENT 3 Hearing Date: July 14, 2009 Time: 7:30 PM (Continued from Ma 12, 2009 SUPPLEMENTAL STAFF REPORT TO THE • CITY COUNCIL FOR THE CITY OF TIGARD, OREGON TIGARD SECTION I. APPLICATION SUMMARY CASE NAME: SENSITIVE LAND PERMIT REQUIREMENTS CASE NO.: Development Code Amendment (DCA) DCA2008 -00005 PROPOSAL: As recommended by the Planning Commission, remove criterion 18.775.070.B.5 for pathway development in the floodplain which reads "The plans for the pedestrian /bicycle pathway indicate that no pathway will be below the elevation of an average annual flood," and instead, require that "pedestrian /bicycle pathways within the floodplain include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat." APPLICANT: City of Tgard OWNER: NA 13125 SW Hall Blvd. Tigard, OR 97223 APPLICANT'S Gary Pagenstecher, Associate Planner AGENT: 13125 SW Hall Blvd. Tigard, OR 97223 ZONE: All City Zoning Districts within the floodplain LOCATION: Floodplain, Citywide. APPLICABLE REVIEW CRITERIA: The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197 [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces; Goal 7, Areas Subject to Natural Hazards; Goal 8, Recreational Needs]; Applicable federal [FEMA] or state statutes or regulations; Applicable METRO regulations [Metro Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management, and Title 13, Nature in Neighborhoods]; Applicable Tigard comprehensive plan policies [Goal 1, Public Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; Goal 8, Parks, Recreation, Trails, and Open Space]; Applicable provisions of the City's implementing ordinances ['I'll 18.380, 18.390, and 1 8.775]. SECTION II. STAFF RECOMMENDATION It is recommended the City Council approve the proposed Development Code Amendment as amended and recommended by the Planning Commission and with any alterations as determined through the public hearing process. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 1 OF 16 SECTION III. BACKGROUND INFORMATION Currently, the Tigard Development Code, Section 18.775.070.B.5, stipulates that within the floodplain, "plans for the pedestrian /bicycle pathway indicate that no pathway be below the elevation of an average annual flood." It became apparent through the City's design development process for Lower Fanno Creek Park that strict implementation of this criterion would severely limit where trails could be located, as most of Lower Fanno Creek Park between Hall Blvd. and Main St. in Downtown Tigard would likely be below that elevation. The average annual flood elevation is calculated from recorded stream flow data for any given reach of stream. As this data is not readily available, a proxy of the 2 -year flood elevation (see Figure, Lower Fanno Creek Park Existing and Proposed Trail Alignment with 2 year Inundation Extents) shows that the majority of the existing trails are below the 2 -year flood elevation. The Sensitive Lands Chapter of the development code otherwise requires development plans within the floodplain to provide for pedestrian /bicycle pathways at a suitable elevation within the floodplain in accordance with the adopted pedestrian /bicycle pathway plan (18.775.070.B.4/7). The Park System Master Plan includes the adopted pedestrian /bicycle pathway plan, which contains general alignments of the regional Fanno Creek trail throughout the City's floodplain. Past decisions permitting trails in the floodplain show that the elevation criterion has been unevenly implemented, sometimes not included in the findings and at other times included, but without findings of fact with respect to the annual average flood calculation. The purpose behind the criterion (although without legislative history) is thought to pertain to facilities maintenance. However, according to the Tigard Public Works Department (see Public Works comments on page 15 of this report), inundation has not been a significant maintenance problem for existing paths within the floodplain. In addition, staff reviewed other Portland area floodplain development codes and found that no other jurisdiction employs this, or similar, elevation criteria for pathway development within the floodplain. On February 23, 2009, the Planning Commission held a public hearing to consider the Community Development Department request (DCA2008- 00005) to amend the Sensitive Lands Chapter of the Tigard Development Code to remove criterion 18.775.070.B.5. The Commission received substantial public comment on the proposal principally concerned with wildlife protection and water quality. The Commission decided to continue the hearing and directed staff to prepare an options analysis. On April 6, 2009, the Planning Commission resumed the hearing and discussed the options analysis (April 6, 2009 Memo) prepared by staff with additional input from the interested parties. The Memo included six options that range from retaining criterion 5, to removing it altogether, including three options with amended language to allow paths within the floodplain "where practicable" to achieve project objectives, requiring a natural resource assessment, and changing the elevation to "ordinary high water ". Public testimony clearly favored siting and designing pathways that avoid impacts to wildlife habitat and water quality and opposing the removal of the elevation standard. The Planning Commission approved (5 -1) a motion to recommend that City Council approve Option 3.c, which replaces the elevation standard with the requirement for a wildlife assessment. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO "1 J-fE CITY COUNCIL PAGE 2 OF 16 On May 12, 2009, City Council held a public hearing to review the matter. Council heard additional public testimony and after some discussion decided to continue the hearing to a time certain (July 14), pending revised findings to address any new information. This Supplemental Staff Report contains revised findings for the proposed code amendment as recommended by the Planning Commission and addresses the new information submitted at the May 12, 2009 Council Hearing. At the hearing, Eric Lindstrom, John Frewing and Sue Bielke provided additional written and oral comment, which staff has addressed below. SECTION IV. PUBLIC COMMENT Eric Lindstrom Mr. Lindstrom said, "It [Staff Report] states categorically that this change in the code will not impact negatively...the wildlife protection in that region...and that's categorically not true." This will affect sensitive areas because it brings pathways into areas that are not currently allowed. He asked the City Council to recognize that while this is being brought to the City Council as a problem related to a plan that the City is advancing, there are other properties coming online over the next several years this proposal will affect (e.g., from Bonita Road to Durham Road). Mr. Lindstrom said it was interesting there is a proposal that cannot be implemented because "it runs into its own code." He said the proposal to change the code does not make sense to him and does not sound like a good process. He said he is hoping the City Council will send this back to the Planning Commission and planners and ask them to come up with a more creative process to allow the City to implement as much of its plan as needed while at the same time preserve the standard that is "serving you so well in the stewardship of your watershed resources." Staff Response: The original staff report was conclusory in its assertion that removal of the criterion would not adversely affect the protection of sensitive habitat. It is reasonable to believe that some adverse affect may occur with construction of new trails in the floodplain. Additional trails are planned to complete the regional Fanno Creek trail, including the segment between Bonita and Durham roads. The degree of adverse impact will be a function of how well the alignment and design of the trails adequately addresses wildlife habitat protection. Under the current proposed development code amendment, a wildlife assessment would be required to inform the alignment and design of future trails in the floodplain. The background section of this Staff Report describes how ineffectual the elevation criterion has been with respect to its conflict with other standards requiring paths within the floodplain, its limited utility for facility maintenance, and the unavailability of data establishing the average annual flood. With the Options Analysis Memo staff has substantively addressed creative ways to achieve balance between resource protection and recreation access. Option 3.c includes a wildlife assessment requirement in lieu of the elevation criterion, to explicitly address wildlife protection when building trails in the floodplain. Sue Beilke Ms. Beilke argues for retaining the elevation criterion to reduce potentially substantial costs of trail maintenance. She worries that without the elevation criterion there is the potential to put trails in areas where there is a problem of annual flooding and bank erosion in addition to adverse impacts to wildlife habitat. Ms. Beilke provides Durham Road gauge annual average flood data to demonstrate the data is available to implement the standard. SENSITIVE LANDS PERMIT REQUIREMEN'T'S DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 3 OF 16 Ms. Bielke takes issue with staff's analysis with respect to the new policies in the Comprehensive Plan, for example, Goal 8, Policy 6 states that the City shall acquire and manage some open spaces to solely provide protection of natural resources; Policy 17 states the City shall maintain and manage parks and open space resources in ways that will preserve, protect, and restore natural resources including rare or state and federally listed species. Ms. Bielke supports the wildlife assessment requirement although believes it needs to be defined. She recommends doing a biological assessment as many other agencies do. This would include a review of the habitat and the species that might be in the area and perform a qualitative and quantitative analysis regarding how a project might impact the habitat and the species. Ms. Bielke believes another policy is needed in the Comprehensive Plan to increase our baseline information on habitat in Tigard. Staff Response: The background section of this Staff Report describes how ineffectual the elevation criterion has been, as mentioned above. Other standards, such as CWS Design and Construction Standards, and site conditions, such as the dynamic nature of stream morphology over time, contribute to trail alignment and design considerations. The elevation criterion is an absolute that currently does not allow for any flexibility with trail alignment. Many of the trails within the floodplain are likely below the average annual flood. In some cases, for example when trails must cross the creek, maintaining the average annual flood would not be possible unless elevating it, which presents other problems. Availability and variability in the average annual flood data (as shown in Ms. Beilke's written comments) also show the difficulty in establishing a functional measurement for the Durham Road reach of Fanno Creek or other reaches where no gauge data has been recorded. Ms. Beilke identifies the Comprehensive Plan goals and policies that contribute to the protection of significant natural resources without addressing the goals and policies that encourage access to natural areas to provide a diverse recreation experience for the public. This staff report (pages 9 through 11) identifies the applicable Comprehensive plan goals and policies and concludes that a balance must be found in implementing competing goals. Staff has proposed a performance standard "a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat" where the wildlife assessment would include an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path, and recommended mitigation measures to minimize impacts. Staff believes that these three steps are implicit in the proposed standard. To ensure adequacy of the wildlife assessment, any wildlife assessment submitted with an application would be subject to ODF &W review, public comment, a public hearing, and a Hearings Officer review and decision. Ms. Bielke believes another policy is needed in the Comprehensive Plan to increase our baseline information on habitat in Tigard. Goal 5.1, Policy 10 of the City's Comprehensive Plan states: "The City shall complete a baseline inventory of significant natural resources and update or improve it as necessary, such as at the time of Comprehensive Plan Periodic Review, changes to Metro or State programs, or to reflect changed conditions, circumstances, and community values." The Comprehensive Plan also includes action measures i through vii that Council could prioritize to implement Policy 10. John Frewing Mr. Frewing said the proposed code amendment has not been coordinated with Metro. Mr. Frewing said he did not think a wildlife assessment was a clear and objective standard, as required by Metro, and needs more study and clarification. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCI]., PAGE 4 OF 16 Mr. Frewing referred to 18.775.050.M regarding non - residential construction in 100 -year floodplains and suggested that this section calls for trails to be above the 100 -year floodplain and this is the reasonable standard rather than the annual average flood or the more general call for a wildlife assessment. Mr. Frewing commented that there needs to be a different approach to trail location in the City of Tigard, with an effort to determine what areas should be dedicated to fish /wildlife and areas dedicated to people /recreation. He stated that national and regional studies have found that the size of the piece of natural area is key to making it successful for wildlife. Staff Response: Notice was provided to DLCD, Metro, and others of the original intent to remove this section of the Code; no comment was received. Additionally, staff contacted Metro to discuss the issue of trail design. Metro provided a useful trail handbook, Green Trails, Guidelines for Environmentally Friendly Trials, for trail design, alignment, and techniques to minimize impacts. The handbook acknowledges that sometimes trails will be in sensitive areas and offers methods to address conflicts. Metro's Urban Growth Functional Plan (3.07.1330.C) requires that "the comprehensive plan and implementing ordinances relied upon by a city or county to comply with this tide shall contain clear and objective standards." The proposed wildlife assessment criterion could not have been relied upon by the City of Tigard for compliance with the Nature in Neighborhoods program because the code amendment for compliance was adopted by Council in December 2006 (Ord. 06 -20). Mr. Frewing's reference to 18.775.050.M refers to nonresidential construction in floodplain areas and the way they are to be sited and designed to avoid flood damage. The standard refers specifically to "floor" elevation and, as such, would indicate habitable structures. The standard is not applicable to pathways. The suggestion of a new approach to identify areas dedicated to fish /wildlife warrants consideration and echoes Ms. Beilke's desire for a baseline inventory analysis to facilitate such an approach. The Draft Parks and Recreation Master Plan Update (May 2009) identifies the "open space" park type as including areas set aside solely for the protection of natural resources such as fish and wildlife habitat. The draft plan does not identify the amount of open space that is dedicated to this limited use and instead appears to be oriented to providing access to maximize the utility of the limited park lands available. The draft plan finds that an additional 70 acres of public open space will be required to meet a service level of 4.25 acres /1,000 persons by 2028. Ensuring adequate open space areas set aside solely for the protection of natural resources will be a work in progress as the updated master plan is implemented. SECTION V. APPLICABLE CRITERIA, FINDINGS AND CONCLUSIONS Tigard Development Code Section 18.380.020, Legislative Amendments to this Title and Map, states that legislative zoning map and text amendments shall be undertaken by means of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment would apply to all City zoning districts throughout the City. Therefore, the amendment will be reviewed under the Type IV legislative procedure as set forth in the chapter. This procedure requires public hearings by both the Planning Commission and City Council. Section 18.390.060.G establishes standard decision - making procedures for reviewing Type IV applications. The recommendation by the Commission and the decision by the Council shall be based on consideration of the following factors: 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CPTY COUNCIL PAGE 5 OF 16 Findings and conclusions are provided below for the five listed factors on which the recommendation by the Commission and the decision by the Council shall be based. STATEWIDE PLANNING GOALS AND GUIDELINES Statewide Planning Goal 1— Citizen Involvement: This goal outlines the citizen involvement requirement for adoption of Comprehensive Plans and changes to the Comprehensive Plan and implementing documents. FINDING: This goal has been met by complying with the Tigard Development Code notice requirements set forth in Section 18.390. A notice was mailed to all identified interested parties and the notice was additionally published in the Tigard Times newspaper prior to the hearing. After the Planning Commission public hearing, additional notice will be published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. Statewide Planning Goal 2 — Land Use Planning: This goal outlines the land use planning process and policy framework. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. The Development Code implements the Comprehensive Plan. The Development Code establishes a process and standards to review changes to the Comprehensive Plan. As discussed within this report, the Development Code process and standards have been applied to the proposed amendment. Statewide Planning Goal 5 - Natural Resources, Scenic and Historic Areas, and Open Spaces This goal seeks to protect natural resources and conserve scenic and historic areas, and opens spaces. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 5 — Natural Resources and Historic Areas, and policies is discussed later in this report. Statewide Planning Goal 7 - Areas Subject to Natural Hazards This goal seeks to protect people and property from natural hazards. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 7 - Hazards and policies is discussed later in this report. SENSI'T'IVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL, PAGE 6 OF 16 Statewide Planning Goal 8 - Recreational Needs This goal addresses the recreational needs of the citizens of the State and visitors, and where appropriate, to provide for the siting of necessary recreational facilities including destination resorts. FINDING: The Department of Land Conservation and Development (DLCD) has acknowledged the City's Comprehensive Plan as being consistent with the statewide planning goals. Consistency with the City's Comprehensive Plan Goal 8 - Parks, Recreation, Trails, and Open Space Statewide and policies is discussed later in this report. CONCLUSION: Based on the findings above and the analysis provided under the Comprehensive Plan section of this report, staff finds that the proposed text amendment is consistent with applicable Statewide Planning Goals. APPLICABLE FEDERAL OR STATE STATUTES AND REGULATIONS The Federal Emergency Management Agency (FEMA) has jurisdiction over development in the floodplain. The purpose of FEMA and related statutes is to ensure that a floodplain management program is in place so that Flood Insurance Requirements are met. FINDING: One of the purposes of the Sensitive Lands Ordinance (18.775) is to `B) implement comprehensive plan and floodplain management program." The standards contained in the floodplain section effectively implements FEMA Flood Insurance Requirements. The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance requirements, which among other standards ensures that the "zero rise" in the floodplain is maintained. The "zero rise" requirement, which remains in the ordinance, ensures that any construction or improvement within the floodplain will not result in any increase in water surface elevation of the 100 -year flood. The Department of State Lands (DSL) in conjunction with the Army Corps of Engineers regulate the waters of the state and wetlands, respectively. FINDING: Another cited purpose of Sensitive Lands Ordinance (18.775) is to "A) Maintain integrity of rivers, streams, and creeks ". The Department of State Lands regulates Waters of the State, and the Corps of Engineers regulates wedands. These organizations require separate permits, and these permit requirements are not affected by removal of Section 18.775.070.B.5. CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment would not affect consistency with any applicable federal or state statutes or regulations. APPLICABLE METRO REGULATIONS Title 3 (Metro Code Sections 3.07.310 — 3.07.370) — Water Quality, Flood Management The goal of the Stream and Floodplain Protection Plan (Title 3) is to protect the region's health and public safety by reducing flood and landslide hazards, controlling soil erosion and reducing pollution of the region's waterways. Title 3 specifically implements the Oregon Statewide Land Use Goals 6 and 7 by protecting streams, rivers, wetlands and floodplains by avoiding, limiting or mitigating the impact on these areas from development. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 7 OF 16 Title 3 contains performance standards to protect against flooding. The standards limit development in a manner that requires balanced cut and fill and requires floor elevations at least one foot above the flood hazard standard. The areas subject to these requirements have been mapped and adopted by the Metro Council, specifically, the FEMA 100 -year floodplain and the area of inundation for the February 1996 flood. Title 3 also contains performance standards related to streams, rivers and wetlands. The purpose of these standards is to protect and allow enhancement of water quality. The water quality areas are rivers and streams with a protected vegetated corridor width depending on the slope of the stream and the number of acres drained by the stream. Typically, the vegetated corridor is 50 feet wide. The performance standards require erosion and sediment control, planting of native vegetation on the stream banks when new development occurs and prohibition of the storage of new uses of uncontained hazardous material in water quality areas. FINDING: In 2002, the City of Tigard adopted Comprehensive Plan and Code Amendments to comply with Title 3 of Metro's Urban Growth Management Functional Plan, which outlines water quality and flood management requirements for the region. The adopted standards were based on a unified program developed by local governments in the Tualatin Basin and implemented through the Clean Water Services District's (CWS) Design & Construction Standards, which provides for vegetated stream corridor buffers up to 200 feet wide and mandating restoration of corridors in marginal or degraded condition. In addition, Clean Water Services, local cities, Washington County, Metro, and Tualatin Hills Park and Recreation District, partnered on a parallel effort to develop the CWS Healthy Streams Plan (HSP), an updated watershed plan designed to enhance the functions of the Tualatin Basin surface water system and address the Clean Water Act and Endangered Species Act (ESA). The purposes of the City's Sensitive Lands Chapter 18.775.010 include: "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." Item "D" clearly implements Title 3 of the Metro Urban Growth Management Functional Plan. The elevation criterion for paths in floodplains in Section 18.775.070.B.5 is not a part of the CWS Design and Construction Standards (DCS), which are intended to implement Metro Title 3. The CWS DCSs explicitly allow trails in the floodplain and provide standards for their location and design. The removal of section 18.775.070.B.5 of the Sensitive Lands Chapter would not affect compliance with Metro Title 3. Title 13 (Metro Code Sections 3.07.130 - 3.07.1370) - Nature in Neighborhoods The purpose of this title is to conserve, protect and restore a continuous ecologically viable streamside corridor system that is integrated with upland wildlife habitat and the surrounding urban landscape. FINDING: City Council adopted a code amendment in December 2006 (Ord. 06 -20) implementing Metro's Nature in Neighborhoods program. the City adopted the Significant Habitat Areas Map and voluntary habitat friendly development provisions that seek to protect the wildlife habitat identified within the community. The provisions include an opportunity for low impact development practices that can reduce impacts to the identified resources. Compliance with Metro's program did not require standards for trial location or design. Removal of the elevation criterion will not affect consistency with Title 13. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUB] ,iC FIEARING, STAFF REPORT' TO TFIE CITY COUNCIL PAGE 8 OF 16 CONCLUSION: Based on the analysis above, staff finds that approval of the proposed text amendment is consistent with Metro's Urban Growth Management Functional Plan, Title 3, Water Quality and Flood Management and Title 13, Nature in Neighborhoods. APPLICABLE TIGARD COMPREHENSIVE PLAN GOALS and POLICIES Comprehensive Plan Goal 1: Citizen Involvement Goal 1.1 Provide citizens, affected agencies and other jurisdictions the opportunity to participate in all phases of the planning process. FINDING: The City has mailed notice of the Planning Commission hearing to interested citizens and agencies. The City published notice of the February 23, 2009 Planning Commission hearing. After the Planning Commission public hearing, additional notice was published prior to the City Council hearing. Two public hearings are held (one before the Planning Commission and the second before the City Council) at which an opportunity for public input is provided. With these public involvement provisions, the proposed zone change is consistent with the applicable Citizen Involvement policies. Comprehensive Plan Goal 2: Land Use Planning Goal 2.1: Maintain an up -to -date Comprehensive Plan, implementing regulations and action plans as the legislative foundation of Tigard's "land use planning program. Policy 12 states "the City shall provide a wide range of tools such as design standards ... that encourage results such as ... protection of natural resources." FINDING: Staff believes that the proposed code amendment requiring a wildlife assessment will better protect wildlife resources than the elevation standard proposed to be replaced. The Background section of this Staff Report describes how ineffectual the elevation criterion has been with respect to its conflict with other standards requiring paths within the floodplain, its limited utility for facility maintenance, and the unavailability of data establishing the average annual flood. A wildlife assessment requirement would have the potential to identify and protect natural resources and provide a tool to help balance competing goals of resource protection and recreation access. Comprehensive Plan Goal 5: Natural Resources and Historic Areas Goal 5.1 Protect natural resources and the environmental and ecological functions they provide and, to the extent feasible, restore natural resources to create naturally functioning systems and high levels of biodiversity. Policy 1 states "the City shall protect and, to the extent feasible, restore natural resources in a variety of methods to: C) maximize natural resource function and services including fish and wildlife habitat and water quality and D) result in healthy and naturally functioning systems containing a high level of biodiversity." Policy 2 states "the City shall demonstrate leadership in natural resource protection through the use of sustainable building practices and low impact development strategies, to the extent feasible, on all City projects." SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT 7'O "1'FIE CITY COUNCIL PAGE 9 OF 16 Policy 4 states "the City shall actively coordinate and consult with landowners, local stakeholders, and governmental jurisdictions and agencies regarding the inventory, protection, and restoration of natural resources. FINDING: Pathways located within the floodplain may adversely affect wildlife habitat. The proposed code amendment would replace an ineffective elevation standard with a requirement to provide a wildlife assessment to minimize adverse impacts to wildlife habitat. The proposed amendment would provide path alignment flexibility to implement competing recreation goals, but in a way that would maximize wildlife habitat biodiversity, consistent with Policy 1. City - sponsored path development projects within the floodplain often involve design and natural resource consultants to help design the alignment of proposed pathways (e.g., Fanno Creek Park & Plaza Master Plan). This process involves a literature search and employs the most current best management practices to ensure the City has the capacity to provide leadership in natural resource protection, consistent with Policy 2. With the proposed code amendment requirement for a wildlife assessment, pathway development projects in floodplains would involve a wildlife biologist to prepare the assessment, be reviewed by ODF &W through the City's standard notification process, be subject to public notice and comment, a public hearing, and a Hearings Officer review and decision, consistent with Policy 4. Comprehensive Plan Goal 7: Natural Hazards To protect people and property from natural hazards FINDING: Applicable policies under this goal include landslides, and flooding. The City uses steep slopes to define sensitive lands in the Community Development Code and has special requirements for development in these areas. The City coordinates with several agencies to mitigate the risk of flooding. The FEMA designated floodplain is used to administer the national flood insurance program (NFIP). The Sensitive Lands Chapter of the Tigard Community Development Code ensures compliance with FEMA and the national flood insurance program. The proposed text amendment does not impact floodwater flows and storage areas, and therefore, does not conflict with FEMA or Comprehensive Plan policies regarding flooding. Comprehensive Plan Goal 8: Parks, Recreation, Trails, and Open Space Goal 8.1 Provide a wide variety of high quality park and opens spaces for all residents, including both: A) developed areas with facilities for active recreation; and B) undeveloped areas for nature - oriented recreation and the protection and enhancement of valuable natural resources within the parks and open space system. Policy 4 states "the City shall endeavor to develop neighborhood parks (or neighborhood park facilities within other parks, such as a linear park) located within a half mile of every resident to provide access to active and passive recreation opportunities for residents of all ages." Policy 6 states "the City shall acquire and manage some open spaces to solely provide protection of natural resources and other open spaces to additionally provide nature - oriented outdoor recreation and trail - related activities." Policy 17 states "the City shall maintain and manage its parks and open space resources in ways that preserve, protect, and restore Tigard's natural resources, including rare, or state and federally listed species, and provide `Nature in the City' opportunities." SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 10 OF 16 FINDING: The proposed develeopment code amendment, removing the elevation criterion, will provide greater flexibility to construct trails in areas needed to provide access to active and passive recreational opportunities, consitent with Policy 4. The Draft Parks and Recreation Master Plan Update (May 2009) identifies the "open space" park type as including areas set aside solely for the protection of natural resources such as fish and wildlife habitat. The draft plan does not identify the amount of open space that is dedicated to this limited use and instead appears to be oriented to providing access to maximize the utility of the limited park lands available. The draft plan finds that an additional 70 acres of public open space will be required to meet a service level of 4.25 acres /1,000 persons by 2028. Ensuring adequate open space areas set aside solely for the protection of natural resources will be a work in progress as the updated master plan is implemented. However, the proposed develeopment code amendment, removing the elevation criterion, will provide greater flexibliltiy in the design of access to nature - oriented outdoor recreation and trail- related activities, consistent with Policy 6. The removal of criterion 18.775.070.B.5 and the construction of trails below the average annual flood does not, in itself, result in trails being built in areas to the detriment of natural resources including rare, or state and federally listed species. Clean Water Services (CWS) Design and Construction Standards(Section 3.05.7 and 8) implemented through the Tigard Development Code provides protection to sensitive habitats by maintaining a required buffer for trails located within the vegetated corridor. The siting of trails in natural resource areas containing listed species is subject to the review and recommendations of Oregon Department of Fish and Wildlife. If designed correctly, trails can serve to protect sensitive flora and fauna by serving as a way to channel pedestrians away from them. The proposed code amendment would require a wildlife assessment that would enable this protection to occurr, consistent with Policy 17. Goal 8.2 Create a Citywide network of interconnected on- and - off -road pedestrian and bicycle trails Policy 1 states "the City shall create an interconnected regional and local system of on- and off -road trails and paths that link together neighborhoods, parks, open spaces, major urban activity centers, and regional recreational opportunities utilizing both public property and easements on private property." Policy 2 states "the City shall design and build greenway trails and paths to minimize their impact on the environment, including on wildlife corridors and on rare, and state or federally listed species." FINDING: The removal of criterion 18.775.070.B.5 would provide the flexibility to construct trails in areas that would otherwise be prohibited. A wildlife assessment requirement would have the potential to identify and protect natural resources and provide a tool to help balance competing goals of resource protection and recreation access, consistent with Policies 1 and 2. CONCLUSION: Based on the analysis above, staff finds that the proposed text amendment is consistent with Comprehensive Plan Goal 1, Citizen Involvement; Goal 2, Land Use Planning; Goal 5, Natural Resources and Historic Areas; Goal 7, Hazards; and Goal 8, Park, Recreation, Trails, and Open Space. APPLICABLE PROVISION OF THE CITY'S IMPLEMENTING ORDINANCES TDC 18.380 Zoning Map and Text Amendments The purpose of this chapter is to set forth the standards and process governing legislative and quasi - judicial amendments to this title and zoning district map. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 11 OF 16 • FINDING: Section 18.380.030 requires that zoning map and text amendments be undertaken by means of a Type IV procedure, as governed by Section 18.390.060G. The proposed text amendment is a Type IV procedure as defined in this Section and has been processed in accordance with Type IV procedures per 18.390.060.G. TDC 18.775 Sensitive Lands The purposes of the City's Sensitive Lands Chapter 18.775.010 include: "A) Maintain integrity of rivers, streams, and creeks, B) implement comprehensive plan and floodplain management program, C) implement Clean Water Services (CWS) Design and Construction Standards for the Tualatin Basin, D) implement the Metro Urban Growth Management Functional Plan, E) implement Statewide Planning Goal 5 (Natural Resources), F) Protect Public health, safety, and welfare." FINDING: The purposes of the Sensitive Lands Ordinance are implemented by the standards included in the chapter. The elevation standard in criterion 18.775.070.B.5 does not contribute to implementation of any of the five listed purposes. It is likely that the criterion was included in the code to address facility maintenance with respect to any adverse affects of annual inundation of pathways. This issue is addressed by the Public Works comments on page 15 of his report. Pedestrian use of the trail system where pathways have been constructed below the average annual flood elevation is not considered a public safety concern. People would not have access during the time of inundation. There is no flash flooding that occurs in the area so that persons using a trail would not be stranded or overcome by a flood event. Therefore, the proposed amendment allowing the siting of trails in areas within the average annual flood is consistent with the purposes of the Sensitive Lands Chapter (18.775). TDC 18.390 Decision Making Procedures The purpose of this chapter is to establish a series of standard decision - making procedures that will enable the City, applicant and all interested parties to reasonably review applications and participate in the local decision - making process in a timely manner. FINDING: The proposed text amendment was completed in compliance with all procedural requirements of Section 18.390. Two public hearings were noticed and scheduled, one before the Planning Commission and one before Council. Notice has been provided 10 days prior to hearing dates to the required parties. The Staff Report addresses the required decision - making considerations of Section 18.3909.060 which include: 1) The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2) Any federal or state statutes or regulations found applicable; 3) Any applicable METRO regulations; 4) Any applicable comprehensive plan policies; and 5) Any applicable provisions of the City's implementing ordinances. CONCLUSION: Based on the analysis above, the proposed text amendment is consistent with the applicable provision of the City's implementing ordinances. SECTION VI. STAFF ANALYSIS Code Construction and Analysis Section 18.775.070.B (Sensitive Lands Permits Within the 100 -year Floodplain) includes seven approval criteria for development within the 100 -year floodplain subject to Hearings Officer review. The criteria are designed to ensure maintenance of the floodway (1 and 3), restrict uses in certain zones (2), ensure agency permitting (6), and provide for a pedestrian /bicycle pathway (4, 5, and 7). SENSI'1'NE LANDS PERMIT` REQUIREMENTS NTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO THE CITY COUNCIL PAGE 12 OF 16 Of the three pathway criteria, criterion 4 ensures development plans include a timely pathway improvement in accordance with the adopted pedestrian /bicycle pathway plan; criterion 5 restricts the elevation of a pathway to be higher than the average annual flood; and criterion 7 assures dedication of open land area of a suitable elevation for the construction of a pathway within the floodplain in accordance with the adopted pedestrian /bicycle plan. The potential conflict with criterion 5 arises for several reasons: a) the adopted pedestrian /bicycle plan is often too generalized to provide guidance in siting pathways, and b) to achieve the elevation requirement within the floodplain for planned pathways could require filling, boardwalks, or re- siting outside the floodplain or in portions of the floodplain that exceed the average annual flood. Pathways crossing a creek are particularly problematic. To make sense of this potential conflict, a reasonable reading of criterion 5 would be to apply it "where practicable." This may explain the way in which the criterion has been implemented in past decisions. Discussion To support the practicable application of criterion 5, other standards and programs must be considered. The City relies on other agency development standards such as Corps /DSL and CWS when developing pathways within the floodplain. In addition, the City has direction from the Comprehensive Plan and the Transportation System Plan to provide for a regional trail. There is public support for including pathways in floodplains as evidenced in the planning processes for these plans. The Development Code ensures that development provides for a pedestrian /bicycle pathway in accordance with adopted plans. Public comment clearly favors siting and designing pathways that avoid impacts to wildlife habitat and water quality. As both Mr. Frewing and Ms. Bielke mentioned, we do not want to adversely impact natural resources anymore than we have to when providing pathways per approved plans. Potential conflicting goals and policies in the Comprehensive Plan and criterion in the Development Code for natural resource and floodplain management hinge around the notion of striking a balance between natural resource protection and recreational use. As discussed earlier, the effectiveness of the elevation criteria is questionable with respect to its intended purpose to minimize facility maintenance. Therefore, removing the criterion would avoid the sometimes troubling definition of "practicability." Replacing the elevation standard with the requirement for a wildlife assessment would address concerns for wildlife protection directly. Staff has proposed a performance standard "a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat" where the wildlife assessment would include an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path, and recommended mitigation measures to minimize impacts. Staff believes that these three steps are implicit in the proposed standard. To ensure adequacy of the wildlife assessment, any wildlife assessment submitted with an application would be subject to ODF &W review, public comment, a public hearing, and a Hearings Officer review and decision. The Planning Commission supports Option 3.c (below) to minimize potential adverse impacts to natural resources of planned park pathway improvements within the floodplain. The proposed criterion revision would allow flexibility to balance resource protection goals with community recreation goals as pathways are developed in the future, pursuant to the Park System Master Plan. The proposed development code amendment is an opportunity for the City Council, as the legislative body, to weigh the policies that it decides are applicable. The City Council can choose a policy to emphasize over others and decide which ones are more important to the community. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC I -ILr \RING, STAFF REPORT TO THE, CITY COUNCIL PAGE 13 OF 16 SECTION VII. ALTERNATIVES TO APPROVAL The following options range from retaining criterion 5 as is (Option 1), to removing it altogether (Option 4), including two options with amended language to allow paths within the floodplain where practicable and when consistent with adopted plans (Option 2) and then, additionally, subject to a natural resource assessment (Option 3). Option 1— retain criterion: The plans for the pedestrian/ bicycle pathway indicate that no pathway will be below the elevation of an average annual flood; Pros: Retaining the existing language would be the most restrictive and would limit pathway alignment to upland areas. Strict application of the standard would preclude path alignments in the floodplain and related habitat areas preserving the quality of the habitat to its maximum extent. Cons: Potentially inconsistent with other standards in the section (4 and 7) which require any proposed development within or adjacent to the floodplain to provide a pathway in accordance with the adopted pedestrian /bicycle plan. Option 1 would limit the City's ability to meet its Comprehensive Plan goals for trail connectivity and access to nature- oriented recreation in Fanno Creek Park and other locations. Option 1 does not provide any siting flexibility with respect to the presence, absence, or quality of habitat at any location. Option 2 — revise criterion: The plans for the pedestrian/ bicycle pathway indicate that no pathway will be below the elevation of an average annual flood, where practicable to achieve project objectives; Pros: Addition of the practicability clause would allow siting flexibility for certain path alignments below the average annual flood when upland routes are not otherwise available considering cost and design feasibility and project objectives. Trail connectivity and access to natural areas for nature- oriented recreation would be possible. Option 2 would be consistent with other standards in the section (4 and 7). Cons: Although some flexibility is obtained for locating trails, the standard may preclude preferred alignments to meet other objectives. Option 2 does not directly address habitat protection which is the primary concern of the public comment. Option 3 — revise criterion: a. Pedestrian/ bicycle pathways within the floodplain shall be sited above the elevation of the average annual flood, where practicable, and shall include a resource assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; or b. Pedestrian / bicycle pathways within the floodplain shall be sited above Ordinary High Water, where practicable, and shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; or c. Pedestrian/ bicycle pathways within the floodplain shall include a wildlife assessment to ensure that the proposed alignment minimizes impacts to significant wildlife habitat; SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT '1'0 THE CITY COUNCIL PAGE 14 OF 16 Pros: a. The practicability clause allows the City to balance park development with resource protection. Trails could be located within the floodplain consistent with the adopted pedestrian /bicycle plan. The requirement for a natural resource assessment implements Comprehensive Plan policies which support habitat protection (Comprehensive Plan Goal 8.1, policy 17 and Goal 8.2, policy 2). The habitat assessment would also complement CWS standards for trail location within vegetated corridors. b. The elevation standard, if kept, would be more easily implemented if changed to "OHW" from "average annual flood" (In March 2009, DSL changed their elevation reference for determining applicability of the removal /fill law from the 2 -year flood elevation to OHW) c. Removing the elevation standard would not in practice, diminish trail protection or increase maintenance (PW memo) and because existing TDC wetland and CWS vegetated corridor protections are in place to guide trail alignments. Cons: Additional cost to the applicant for a natural resource assessment. Option 4 — remove criterion: Pros: Trails could be located within the floodplain below the average annual flood elevation consistent with an adopted pedestrian /bicycle plan. Cons: Does not address resource protection policies referenced in the Comprehensive Plan or concerns expressed by the public. SECTION VIII. ADDITIONAL CITY STAFF & OUTSIDE AGENCY COMMENTS The City of Tigard Long Range Division was notified of the proposed code text amendment but did not comment. The City of Tigard Engineering Department reviewed the applicant's proposal and had no objection to the proposal. The City of Tigard Public Works Department, Steve Martin, Park and Facilities Manager reviewed the applicant's proposal and provided the following comment: The question of the maintenance on the Fanno Creek trail and flooding came to my attention. It should be noted that, with the exception of a bridge that needs to be lengthened to get the footings further outside of the stream banks, flooding has only a small impact on the maintenance of the trails along Fanno Creek. The flood waters inundate the trail a few times each year, usually for less than a day, though occasionally for a couple days. My estimate is that flooding occurs roughly 6 times or less each year. SENSITIVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC HEARING, STAFF REPORT TO TI -IE CITY COUNCIL PAGE 15 OF 16 The maintenance after the flooding is usually confined to the occasional sweeping, or shoveling of the trail where it is lower than the surrounding landscape. In those places the sediment will settle, while in most areas, the sediments flow over the asphalt and leave a light dusting that quickly dissipates. After most of the flood events, no special action is taken because there is not much sediment left on the trail. The edge of the trail is mowed for pedestrian safety and this results in a mowed buffer of 2 to 3 feet of low vegetation, usually field grass. The short flood times do not seem to cause much erosion in these areas, especially when the vegetation is thick. As a side note, in some parks we have noticed erosion in planting areas where the grass and vegetation are not allowed to grow, such as around trees or light posts. The maintenance of the asphalt trail in the flood areas does not seem to be much different from the trails that are not in the flood zones. The same problems are seen on the trails regardless of the trail location. Spalding, sinkholes, and cracking of the trail are the most common problems, and occur as commonly on trails out of the flood zone as on trails in the flood zone. The most important factors in the longevity of the trail seem to be if the trail was properly installed and the grade of asphalt. We spend many times more hours on both litter and vegetation maintenance along trails than cleaning up after high water. The City of Tigard Arborist reviewed the proposal and had not objections to it. The Division of State Lands, Oregon Department of Fish and Wildlife, US Army Corps of Engineers, METRO, and DLCD were notified of the proposed code text amendment but provided no comment. June 29, 2009 PREPARED BY: Gary Pagenstecher DATE Associate Planner June 29, 2009 APPROVED BY: Dick Berwersdorff DATE Planning Manager SENSPI'IVE LANDS PERMIT REQUIREMENTS DCA2008 -00005 7/14/09 PUBLIC I- IEARING, STAFF REPORT "1"0 THE CITY COUNCIL PAGE 16 OF 16 \ \-. \ K ' '-) 74 /C. , \ - X /, -,.- -- ._„.......... N\-\\ r ,' , z , .‘-s < e\ , \ / \ , \ . �' / / may . ` \ `� \ \ i i p, \ \ .. • , \ / , ., \ ; - �. ` \ \ \C • % \ LEGEND `1� „ \� �\ - i/ •, \') /; i !� \ '\ \ "\ •'\ - - -- - -- Existing Trail Alignment • � = =t � � /�/ / i ;' \ \ \ uMU ■ Proposed Trail Alignment / _\ � / \ � � / i y � r'; \ ' i ` �A V ' Extent of 2 Year Flood i , .6 / / .4 __,* ` • • •• ', / < 4, ?:,.,--------------:'v'4',, 4,,,,/ \ (7: \,.-"*. / , \„ \ ..---- '-----.1., . . *P IV / ,/ .„•,' ....., , a .- K ,,,, \ \ ., ) -'''' \ \ \\ \ .X le'7H s f r:' % % ? m / i \ ” ^. ` A. � :� / j am • r? ,. .\ \, . � `C .\„ \( \ /� �/ / �� : � 1 / � �� /� � 1 tee, NORTH • , 2/\:\,/, /\ � '\ / iii% . % ' / / /� / y%� + G / //% , %/ , ,- ,• / . 0 i /' -/ / � / / f j�� Lower Fanno Creek Park • \ \ \ , j� / /�� / / ��f \ Existing and Proposed Trail Alignment ,_(_. ., �` "=' `/ ` j�� / / '� • �� / % /�� / °� / / � � , with 2 year Inundation Extents ' 3P tY \ .. \ Walker Macy r 1 - - - -- - - - -4- -- / \ �' ,._...,._r 03.10.09 Agenda Item No. Li, Meeting of 1 y C7q • 11 I • MEMORANDUM TIGARD TO: Mayor Craig Dirksen and Members of the City Council FROM: Ron Bunch, Community Development Director; Gary Pagenstecher, Associate Planner RE: Update to the Comprehensive Plan DATE: July 9, 2009 The City Attorney's office prepared the attached supplemental findings to support the City's proposal to amend Tigard Development Code 18.775.070 (DCA2008- 00005) to allow installation of pathways in floodplain areas. The supplemental findings specifically address the action's compliance with Statewide Planning Goal 5: Natural Resources Scenic and Historic Areas and Open Spaces. These findings enhance those provided in the staff report on pages 6, 9, and 10. The City Attorney's purpose in providing these findings is to ensure the record for DCA2008 -0005 contains a detailed rationale that the City's existing natural resource protection program is sufficient to protect resources that could be impacted by new pathways located in floodplains. Ron Bunch Community Development Director i4/A I: \CDADM \R ©N \City Council Material \7 -9-09 Memo to Council re Update to the Comp Plan.doc r:- Supplemental Goal 5 Findings for DCA2008 -00005 July 7, 2009 (For Supplemental Staff Report to the City Council, Page 6) OAR Chapter 660, Division 23 sets out "Procedures and Requirements for Complying with Goal 5." OAR 660 - 023 - 0010(5) defines "post - acknowledgement plan amendment" ( "PAPA ") to include "amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation." The Department of Land Conservation and Development ( "DLCD ") has acknowledged the City's Comprehensive Plan and implementing code as being consistent with the statewide planning goals. DCA 2008 -00005 is therefore a PAPA. A PAPA must apply Goal 5 if the PAPA would affect a Goal 5 resource. OAR 660 -023- 0250(3). As potentially relevant, DCA 2008 -00005 would affect a Goal 5 resource if it "amends a ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," or it allows new "conflicting uses." OAR 660 - 023 - 0250(3). DCA 2008 -00005 amends TDC 18.775.070(5), a provision of the Sensitive Lands chapter of the TDC. A stated purpose of the Sensitive Lands chapter is to "Implement Statewide Planning Goal 5." TDC 18.775.010(E). Therefore, DCA 2008 -00005 "amends a ... portion of an acknowledged plan or land use regulation [that was] adopted in order to protect a significant Goal 5 resource," and Goal 5 must be applied pursuant to OAR 660 - 023-0250(3)(a). Tigard Comprehensive Plan Chapter 5, Natural Resources and Historic Areas, protects the Goal 5 resources of fish and wildlife habitat, wetlands, streams, groundwater, and historic and cultural resources. These protections are implemented through the Sensitive Lands regulations at TDC 18.775. DCA 2008 -00005 would allow the establishment of pedestrian pathways in the floodplain. Subsequently proposed pathways could impact Goal 5 resources within the floodplain that were not previously subject to the impact of pathways. However, the existing program to protect these Goal 5 resources remains sufficient to protect those resources and remains in compliance with Goal 5, for the following reasons: 1) DCA 2008 -00005 limits new conflicting uses. OAR 660 - 023 - 0010(1) defines conflicting use, in pertinent part, as a use "that could adversely affect a significant Goal 5 resource." DCA 2008 -00005 allows the establishment of pathways in floodplains, but limits such pathways to locations which are suitable for minimizing the impact onto significant wildlife habitat, as is ensured by the mandatory wildlife assessment. The wildlife assessment ensures the protection of Goal 5 resources within the floodplain by requiring an inventory of sensitive habitat and species in the project area, an analysis of the impacts of the proposed path, recommended mitigation measures to minimize impacts and ODF &W review, and public comment. The extent to which a pathway established in the floodplain conflicts with the Goal 5 resources will be necessarily minimal. 1 2) DCA 2008 -00005 does not result in significantly different effects on any Goals resources. The current, acknowledged Sensitive Lands regulations permit conflicting uses which have potentially similar impacts to pathways. Uses that are permitted outright to be located within the floodplain include Community Recreation (excluding structures) and farm uses (excluding structures). TDC 18.775.020(B)(2),(3). Such uses pose similar potential impacts to Goal 5 resources, and unlike the pathways allowed by DCA 2008- 00005 do not require a Sensitive Lands permit to be obtained. In adopting the Sensitive Lands program, the City has already considered and made key decisions regarding the relative importance of Goal 5 resource sites and a range of conflicting uses. DCA 2008- 00005 allows pathways that have similar impacts to the currently allowed conflicting uses, and are subject to additional requirements such as the wildlife assessment. It is evident that the proposed PAPA limits conflicting uses and does not result in any significantly different effects on Goal 5 resources. Furthermore, pathways allowed by DCA 2008 -00005 remain subject to the additional protections of the Sensitive Lands regulations, which further limit impacts on Goal 5 resources. Such applicable regulations include requirements to obtain a Sensitive Lands permit (18.775.020(G); 18.775.070), engage in interagency coordination (18.775.030(C)), compliance with the general provisions for floodplain areas (18.775.040), and where applicable, compliance with the general provisions for wetlands (18.775.050). Additionally, pathways would remain prohibited in locally significant wetlands and along the Tualatin River, Fanno Creek, and South Fork of Ash Creek without an accompanying Environmental Social, Economic and Energy Analysis ( "ESEE ") prepared in accordance with OAR 66- 023 -040. TDC 18.775.090(A); 18.775.130. Based on the above, it is found that DCA 2008 -00005 presents the same kind of conflicting uses contemplated and allowed under the current Sensitive Lands regulations and Goal 5 resource protection program, and that the existing protections under the Sensitive Lands regulations is still sufficient to protect the Goal 5 resources within the floodplain. 2 AGENDA ITEM No. 6 Date: July 14, 2009 yO,� 4 TESTIMONY G� A(‘ SIGN- UP SHEETS -9,1) 4 ' Please sign on the following page(s) if you wish to testify before City Council on: LEGISLATIVE PUBLIC HEARING: CONTINUATION OF MAY 12, 2009 PUBLIC HEARING - PROPOSED DEVELOPMENT CODE AMENDMENT REGARDING SENSITIVE LANDS PERMIT REQUIREMENTS (DCA 2008 - 00005) This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly awiilable to all members of the public. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Due to Time Constraints City Council May Impose A Time Limit on Testimony I /Adm/Cathy /CCSignup /Leg. PH Development Code Amendment DCA 2008 -00005 PUBLIC TESTIMONY LIMITED TO NEW INFORMATION PRESENTED SINCE THE MAY 12, 2009 PUBLIC HEARING AGENDA ITEM No. 6 July 14, 2009 PLEASE PRINT This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly aziilable to all members of the public. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Proponent - (Speaking In Favor) Opponent - (Speaking Against) Neutral Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Agenda Item # 7 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Tide Public Hearing for Proposed Development Code Amendment Regarding Tree Removal DCA2009- 00001, Council Goal #1b Prepared By: John Floyd Dept Head Approval: �C C/ City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall Council approve the Planning Commission's recommendation to adopt the Development Code Amendment (DCA2009- 00001) to update the Tree Protection Chapter? STAFF RECOMMENDATION Modify the Planning Commission's recommendation of March 16, as recommended by staff in Attachment 4, and adopt Development Code Amendment DCA2009 -00001 to update the Tree Removal Chapter (18.790). KEY FACTS AND INFORMATION SUMMARY This code amendment would resolve an existing problem regarding the interpretation and application of the Tree Removal chapter. As presently administered, applicants submitting for land use approval are required to identify all trees on site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees can be removed so long as they are appropriately mitigated (excepting those located in sensitive lands which have additional regulations, unchanged in this application). This practice does not prioritize protection over removal wherever possible, as required in Section 18.790.030 of the Tigard Community Development Code. This practice is also in conflict with the purpose statement of the Tree Removal Ordinance which recognizes the value of trees and calls for their preservation. That said, the code is not clear as to how an applicant can demonstrate compliance with the City's stated preference. This lack of clarity generated a Director's Interpretation in 2008 by the previous Community Development Director, which was intended to guide the administration of Chapter 18.790 during development application review. Shortly after issuance, the Home Builders Association of Metropolitan Portland (HBA) appealed this interpretation to the City Council. The appeal was successful and the Council overturned the interpretation on the grounds that it was more appropriately addressed through a code update. Coinciding with their ruling, Council directed staff to address this issue through updates to the development code. In response to this direction, staff has prepared a series of text amendments to the Tree Removal chapter of the Tigard Development Code (18.790). The objective of the proposed text changes is to ensure that consideration for tree protection was given during the design process of development projects, and under the supervision of a certified arborist. By giving this consideration, the applicant would be able to demonstrate conformance with the City's stated preference for tree protection over removal wherever possible. I: \LRPLN \Council Materials \2009 \7 -14-09 AIS CC Public Hearing DCA2009- 00001.docx 1 The primary mechanism to achieve tree preservation would be the submittal of a narrative by the project arborist that responds to eight standard questions. The intent of this narrative is to ensure that the arborist has been consulted by other design professionals (i.e. civil engineers, architects, landscape architects) during the design process to inform design decisions rather than being brought in to salvage what is left. It is not intended to allow the arborist to overrule licensed professionals in their areas of expertise or other aspects of the building or development code, nor to limit the development potential, just to ensure that trees are saved where it is reasonable and safe to do so. Because applicants for land use approval must be provided with "clear and objective" development regulations, the amendments have been structured to provide this through defined questions and reliance on the project arborist rather than staff. Other text changes would codify existing administrative practices and ISA standards to ensure uniformity and ease of use in the future. A draft of the amendments was presented to the Tigard Tree Board for review and comment on December 4, 2008. Recommended changes and public comments received at that meeting were incorporated by staff and presented to the Planning Commission at a workshop on February 23, 2009. Following the February workshop, additional refinements to the proposed text amendments were made in response to correspondence submitted by the public; advice from the City attorney; and by the Planning Commission on March 16, 2009. This recommendation by the Planning Commission was originally schedule for consideration by the Council on May 12, but was continued to July 14 without any deliberation on the matter. Additional suggestions recommended by staff and the city attorney are discussed in an attached memorandum included as Attachment 4. OTHER ALTERNATIVES CONSIDERED 1. Accept the Planning Commission recommendation without modification, and adopt DCA2009- 00001. 2. Remand to the Planning Commission to hold additional hearings and deliberations for future consideration at City Council. CITY COUNCIL GOALS Goal 1: Implement Comprehensive Plan b. Update Tree Code to meet Comprehensive Plan In support of Council Goal 1b, the proposed Development Code Amendments would implement the following policies of the Comprehensive Plan: Policy 2.1.14: Applicants shall bear the burden of proof to demonstrate that land use applications are consistent with applicable criteria and requirements of the Development Code, the Comprehensive Plan and, when necessary, those of the state and other agencies. Policy 2.2.1: The City shall maintain and periodically update policies, regulations, and standards to inventory, manage, preserve, mitigate the loss of, and enhance the community's tree and vegetation resources to promote their environmental, aesthetic, and economic benefits. Policy 2.3.1: The City shall develop and implement standards and procedures designed to minimize the reduction of existing tree cover, with priority going to native trees and non -native varietals that are long lived and /or provide a broad canopy spread. I: \LRPLN \Council Materials \2009 \7 -14-09 AIS CC Public Nearing DCA2009- 00001.docx 2 Policy 2.3.6: The City shall, in order to preserve existing trees and ensure new trees will thrive, allow and encourage flexibility in site design through all aspects of development review. Policy 6.1.6: The City shall encourage the maintenance and improvement of open spaces, natural resources, and the City's tree canopy to sustain positive contributions to air quality. Policy 6.2.3: The City shall encourage the use of low- impact development practices that reduce stormwater impacts from new and existing development. Policy 6.2.4: The City shall protect, restore, and enhance, to the extent practical, the natural functions of stream corridors, trees, and water resources for their positive contributions to water quality. ATTACHMENT LIST Attachment 1: Ordinance Approving Development Code Amendment DCA2009 -00001 Exhibit A: Tigard Development Code Amendment Attachment 2: Staff Report Presented to the Planning Commission on March 16, 2009 Attachment 3: Planning Commission Meeting Minutes — March 16, 2009 Attachment 4: Memorandum to Council dated June 29, 2009 Attachment 5: Email from Councilor Wilson dated May 4, 2009 Attachment 6: Email from John Frewing dated May 12, 2009 Attachment 7: Letter from Phillip E. Grillo dated May 12, 2009 Attachment 8: Letter from Alan DeHarpport dated May 18, 2009 FISCAL NOTES N/A I: \LRPLN \Council Materials \2009 \7 -14 -09 AIS CC Public I- Iearing DCA2009- 00001.docx 3 QTY OF TIGARD, OREGON TIGARD QTY COUNCIL ORDINANCE NO. 09- AN ORDINANCE ADOPTING DEVELOPMENT CODE AMENDMENT DCA2009 -00001 TO UPDATE CHAPTER 18.790 OF THE TIGARD DEVELOPMENT CODE PERTAINING TO TREE REMOVAL WHEREAS, the City has proposed an amendment to the Tigard Community Development Code pertaining to tree removal; and WHEREAS, the Tigard Planning Commission held a public hearing, which was noticed in accordance with City standards, on March 16, 2009, and recommended approval of the proposed DCA2009- 00001 bymotion on a vote of 6 to 1 (2 absent); and WHEREAS, on May 12, 2009 and July 14, 2009, the Tigard City Council held a public hearing, which was noticed in accordance with City standards, to consider the Commission's recommendation on DCA2009- 00001; and WHEREAS, on July 14, 2009, the Tigard City Council adopted DCA2009 -00001 by motion, as amended, pursuant to the public hearing and its deliberations; and WHEREAS, Council's decision to adopt DCA2009 -00001 is based on the findings and conclusions found in the City of Tigard staff report dated March 9, 2009, and the associated record, which are incorporated herein by reference and are contained in land -use file DCA2009- 00001. NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: Tigard Community Development Code is amended to include new text and to rescind existing text as shown in "EXHIBIT A" ; and SECTION 2: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor, and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only, this day of , 2009. Catherine Wheatley, City Recorder ORDINANCE No. 09- Page 1 of 2 APPROVED: By Tigard City Council this day of , 2008. Craig Dirksen, Mayor Approved as to form: City Attorney Date ORDINANCE No. 09- Page 2 of 2 Exhibit A DCA2009 -00001 Recommended Amendments to Tigard Development Code 18.790 (Tree Removal) Changes in Red: Tigard Planning Commission recommendation of March 16 Changes in Green: Suggested changes in response to April 21 Council Workshop, City Attorney, and correspondence from Councilor Wilson Sections: 18.790.010 Purpose 18.790.020 Definitions 18.790.030 Tree Plan Requirement 18.790.040 Incentives for Tree Retention 18.790.050 Tree Removal on Sensitive Lands 18.790.060 Violations and Replacement Standards 18.790.010 Purpose A. Value of trees. After years of both natural growth and planting by residents, the City now benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the community, help clean the air, help control erosion, maintain water quality and provide noise barriers. B. Purposes. The purposes of this chapter are to: 1. Encourage the preservation, planting and replacement of trees in the City; 2. Regulate the removal of trees oft sensitive lands in the City to eliminate unnecessary removal of trees; 3. Provide for a tree plan for developing properties; 4. Protect sensitive lands from erosion; 5. Protect water quality; 6. Provide incentives for tree retention and protection; and 7. Regulate commercial forestry to control the removal of trees in an urban environment. C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. 18.790.020 Definitions A. Definitions. The following definitions apply to regulations governing the preservation and removal of trees contained in this chapter exclusively: 1. "Canopy cover" means the area above ground which is covered by the trunk and branches of the tree; 2. "Commercial forestry" means the removal of ten or more trees per acre per calendar year for sale. Tree removal undertaken by means of an approved tree removal plan under Section 18.790.030 is not 1 Exhibit A considered commercial forestry under this definition; 3. "Hazardous tree" means a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property; 4. "Practicable" means reasonably capable of being done or accomplished with the available means or resources; 5. "Pruning" means the cutting or trimming of a tree in a manner which is consistent with recognized tree maintenance practices; 6. "Removal" means the cutting or removing of 50 percent (50 %) or more of a crown, trunk or root system of a tree, or any action which results in the loss of aesthetic or physiological viability or causes the tree to fall or be in immediate danger of falling. "Removal" shall not include pruning; 7. "Tree" means . - - _ .... . - , . _ ... - , . - - • - • - •- - .. - - . . • - ... . any standing woody plant having a trunk which is six inches or more in caliper size when measured 54 inches (4 '/2 feet) above mean ground level at the base of the trunk. If a tree splits into multiple trunks above ground, but below 54 inches, the trunk is measured at its most narrow point beneath the split, and is considered one tree. If the tree splits into multiple trunks below ground, each trunk shall be considered one tree; 8. "Sensitive lands" means those lands described at Chapter 18.775 of the title. B. General rule. Except where the context clearly indicates otherwise, words in the present tense shall include the future and words in the singular shall include the plural. 18.790.030 Tree Plan Requirement A. Tree Plan Required: A tree plan for the planting, removal, and protection of trees prepared and signed by a certified arborist and /or landscape architect shall be provided for any lot, parcel, or combination thereof of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible practicable. B. Plan Requirements. In order to determine that the City's preference for tree protection has been incorporated into the project design, tThe tree plan shall include the following: 1. Identification of the location, size , condition, and species of all existing trees. , - . . .. - - • - In addition to trunk locations, the plan shall include the approximate edge of canopy for each tree or group of trees including offsite trees which overhang the project site; 2. Identification of a program to save retain existing trees or to mitigate tree removal over 12 inches in caliper as measured to the nearest tenth of an inch. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two- thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; 2 Exhibit A d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed and the reason for their removal; 4 A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction • - - .. . • • - - • . - • • - • • • : : ; - owner, including offsite trees whose canopies overhang the project site. 5. A narrative and site plan demonstrating how the following design and construction techniques will be utilized to the extent practicable. The format of the narrative must address each technique with a "yes" or "no" answer, followed by a written explanation as to how the plans have included said techniques, or why said techniques are not practicable. The accompanying site plan shall include the location of all existing trees in relation to the the location of proposed grading, lot lines, and improvements. a. Does the project protect and retain existing non - hazardous trees that are not likely to become a hazard during or soon after development given their existing condition, ability to withstand unavoidable development related impacts, proximity to proposed land uses and structures, and susceptibility to windthrow? b. Do grading plans avoid soil compaction within the driplines of existing trees to be preserved, the removal of existing soil within driplines, or the placement of new soil within the driplines of existing trees to be preserved? c. Are infrastructure improvements such as stormwater facilities, utilities, sidewalks, and other improvements located outside of the driplines of existing trees? d. Are lot layouts and building locations configured so that roads and driveways - _ . • . - - . • . _ . . • : , and building footprints are located outside of the driplines of existing trees? e. Are parking lot improvements located outside of the driplines of existing trees? If no, can parking spaces be reduced to a number consistent with minimum parking stall requirements? f. Does the site plan locate required open space and landscaping in areas that contain existing trees? g. Does the project utilize lot size averaging and /or the reduction of lot width and depth to preserve trees, as allowed per 18.790.040A(2) and (3); h. If the project cannot avoid disturbance within the driplines of existing trees, does the protection program identify compatible construction techniques that will be used to prevent or reduce harm to existing trees (i.e. tunneling for utilities, no — dig pavement installation, use of retaining walls to limit disturbance) to a level that the health and longevity of the trees will not be significantly impacted? 6. A mitigation plan signed by the project arborist and /or landscape architect that includes the location, species, spacing, and planting specifications for the replacement trees and /or the amount of caliper inches that will be compensated through fees in lieu of planting. 3 Exhibit A C. Subscqucnt Prior tree removal. Trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. E. Approval Criteria. The approval authority may approve, approve with conditions, or deny a tree plan based on the following approval criteria: 1. The tree plan contains all content requirements set forth in sections 18.790.030(A) through (C), including the signature of a certified arborist on all documents, attachments, and amendments and an answer of "yes" on all questions required in section 18.790.030(b)5; -and F. Modifications to approved Tree Plans. Approved tree plans may be modified in the following manner. 1. Major Modification(s) to Approved Tree Protection Plans A. Determination request. An applicant may request approval of a modification to an approved tree protection plan or existing development by: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification addressing the changes listed in subsection B below. B. Evaluation criteria. The Director shall determine that a major modification(s) will result if one ermftre of the following changes are proposed, whichever is greater. Thcrc will be: 1. The total number of trees being removed increases by 10% or more, as defined by the whole of the original project; or 2. The total number of caliper inches being removed increases by 10% or more; C. When the determination is made. Upon determining that the proposed modification to the tree protection plan is a major modification, the applicant shall submit a new development application in accordance with the original project approval. 2. Minor Modification(s) to Approved Tree Protection Plans or Existing Development 4 Exhibit A A. Minor modification defined. Any modification which is not within the description of a major modification as provided in Section 18.790.030.F.1 shall be considered a minor modification. B. Process. An applicant may request approval of a minor modification as follows: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification. C. Approval criteria. A minor modification shall be approved, approved with conditions or denied following the Community Development Director's review based on finding that: 1. The proposed development is in compliance with all applicable requirements of this title; and 2. The modification is not a major modification. 18.790.040 Incentives for Tree Retention A. Incentives. To assist in the preservation and retention of existing trees, the Director may apply one or more of the following incentives as part of development review approval and the provisions of a tree plan according to Section 18.790.030: 1. Density bonus. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% bonus may be applied to density computations of Chapter 18.715. No more than a 20% bonus may be granted for any one development. The percentage density bonus shall be applied to the number of dwelling units allowed in the underlying zone. This bonus is not applicable to trees preserved in areas of floodplain, slopes greater than 25 %, drainageways, or wetlands that would otherwise be precluded from development; 2. Lot size averaging. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter 18.400, lot size may be averaged to allow lots less than the minimum lot size allowed by the underlying zone as long as the average lot area for all lots and private open space is not less than that allowed by the underlying zone. No lot area shall be less than 80% of the minimum lot size allowed in the zone; 3. Lot width and depth. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter 18.400, lot width and lot depth may be reduced up to 20% of that required by the underlying zone; 4. Commercial /industrial /civic use parking. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan for commercial, industrial or civic uses listed in Section 18.765.080, Minimum and Maximum Off -Street Parking Requirements, a 1°/0 reduction in the amount of required parking may be granted. No more than a 20% reduction in the required amount of parking may be granted for any one development; 5. Commercial /industrial /civic use landscaping. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% reduction in the required amount of landscaping may be granted. No more than 20% of the required 5 Exhibit A amount of landscaping may be reduced for any one development. B. Subsequent removal of a tree. Any tree preserved or retained in accordance with this section may thereafter be removed only for the reasons set out in a tree plan, in accordance with Section 18.790.030, or as a condition of approval for a conditional use, and shall not be subject to removal under any other section of this chapter. The property owner shall record a deed restriction as a condition of approval of any development permit affected by this section to the effect that such tree may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this section should either die or be removed as a hazardous tree. The form of this deed restriction shall be subject to approval by the Director. C. Site development modifications granted as incentives. A modification to development requirements granted under this section shall not conflict with any other restriction on the use of the property, including but not limited to easements and conditions of development approval. D. Design modifications of public improvements. The City Engineer may adjust design specifications of public improvements to accommodate tree retention where possible and where it would not interfere with safety or increase maintenance costs. 18.790.050 Tree Removal on Sensitive Land Areas A. Removal permit required. Tree removal permits shall be required only for the removal of any tree which is located on or in a sensitive land area as defined by Chapter 18.775. The permit for removal of a tree shall be processed as a Type I procedure, as governed by Section 18.390.030, using the following approval criteria: 1. Removal of the tree must not have a measurable negative impact on erosion, soil stability, flow of surface waters or water quality as evidenced by an erosion control plan which precludes: a. Deposits of mud, dirt, sediment or similar material exceeding 1/2 cubic foot in volume on public or private streets, adjacent property, or into the storm and surface water system, either by direct deposit, dropping, discharge or as a result of the action of erosion; b. Evidence of concentrated flows of water over bare soils; turbid or sediment -laden flows; or evidence of on -site erosion such as rivulets on bare soil slopes where the flow of water is not filtered or captured on site using the techniques of Chapter 5 of the Washington County Unified Sewerage Agency Environmental Protection and Erosion Control rules. 2. Within stream or wetland corridors, as defined as 50 feet from the boundary of the stream or wetland, tree removal must maintain no less than a 75% canopy cover or no less than the existing canopy cover if the existing canopy cover is less than 75 %. B. Effective date of permit. A tree removal permit shall be effective for one and one -half years from the date of approval. C. Extension. Upon written request by the applicant prior to the expiration of the existing permit, a tree removal permit shall be extended for a period of up to one year if the Director finds that the applicant is in compliance with all prior conditions of permit approval and that no material facts stated in the original application have changed. D. Removal permit not required. A tree removal permit shall not be required for the removal of a tree which: 6 Exhibit A 1. Obstructs visual clearance as defined in Chapter 18.795 of the title; 2. Is a hazardous tree; 3. Is a nuisance affecting public safety as defined in Chapter 7.40 of the Municipal Code; 4. Is used for Christmas tree production, or land registered with the Washington County Assessor's office as tax- deferred tree farm or small woodlands, but does not stand on sensitive lands. E. Prohibition of commercial forestry. Commercial forestry as defined by Section 18.790.020 A.2., excluding D.4. above, is not permitted. 18.790.060 Violations and Replacement Standards A. Violations. The following constitute a violation of this chapter: 1. Removal of a tree: a. Without a valid tree removal permit; or b. In noncompliance with any condition of approval of a tree removal permit; or c. In noncompliance with any condition of any City permit or development approval; or d. In noncompliance with any other section of this title. 2. Breach of a condition of any City permit or development approval, which results in damage to a tree or its root system. B. Remedies. If the Director has reason to believe that a violation of this chapter has occurred, then he or she may do any or all of the following: 1. Require the owner of the land on which the tree was located to submit sufficient documentation, which may include a written statement from a qualified arborist or forester, showing that removal of the tree was permitted by this chapter; 2. Pursuant to Section 18.390.050., initiate a hearing on revocation of the tree removal permit and /or any other permit or approval for which this chapter was an approval standard; 3. Issue a stop order pursuant to Section 18.230 of this title; 4. Issue a citation pursuant to Chapter 1.16 of the Municipal Code; 5. Take any other action allowed by law. C. Fines. Notwithstanding any other provision of this title, any party found to be in violation of this chapter pursuant to Section 1.16 of the Municipal Code shall be subject to a civil penalty of up to $500 and shall be required to remedy any damage caused by the violation. Such remediation shall include, but not be limited to, the following: 1. Replacement of unlawfully removed or damaged trees in accordance with Section D below; and 2. Payment of an additional civil penalty representing the estimated value of any unlawfully removed or damaged tree, as determined using the most current International Society of Arboriculture's Guide for Plant Appraisal. D. Guidelines for replacement. Replacement of a tree shall take place according to the following guidelines: 1. A replacement tree shall be a substantially similar species taking into consideration site characteristics; 2. If a replacement tree of the species of the tree removed or damaged is not reasonably available, the 7 Exhibit A Director may allow replacement with a different species of equivalent natural resource value; 3. If a replacement tree of the size cut is not reasonably available on the local market or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be determined by dividing the estimated caliper size of the tree removed or damaged by the caliper size of the largest reasonably available replacement trees. If this number of trees cannot be viably located on the subject property, the Director may require one or more replacement trees to be planted on other property within the City, either public property or, with the consent of the owner, private property; 4. The planting of a replacement tree shall take place in a manner reasonably calculated to allow growth to maturity. E. In lieu -of payment. In lieu of tree replacement under Section D above, a party may, with the consent of the Director, elect to compensate the City for its costs in performing such tree replacement. F. Exclusivity. The remedies set out in this section shall not be exclusive. 8 ATTACHMENT 2 Agenda Item: 5.2 Hearing Date: March 16, 2009 Time: 7:00 PM STAFF REPORT TOTHE , PLANNING" COMMISSION . 4 FOR THE CITY OF TIGARD % OREGON SECTION I. APPLICATION SUMMARY FILE NAME: CODE AMENDMENT TO CLARIFY CONTENT REQUIREMENTS OF TREE PLANS FILE NO.: Development Code Amendment (DCA) DCA2009 -00001 PROPOSAL: To amend Chapter 18.790 (Tree Removal) of the Tigard Development Code to clarify how an applicant for development is to demonstrate compliance with the City's stated preference for tree protection over removal wherever possible. APPLICANT: City of Tigard OWNER: N/A 13125 SW Hall Blvd Tigard, OR 97223 ZONE: All City Zoning Districts COMP PLAN: All City Comprehensive Plan Designations LOCATION: Citywide. APPLICABLE REVIEW CRITERIA: Community Development Code Chapters 18.380, 18.390, and 18.790; Comprehensive Plan Policies 1.1.2, 1.1.3, 1.2.1, 1.2.6, 2.1.2, 2.1.14, 2.1.24, 2.2.1, 2.2.6, 2.3.1, 2.3.6, 6.1.6, 6.2.3, 6.2.4, and 6.2.5; Metro Functional Plan Tides 1, 2, and 3; and Statewide Planning Goals 1, 2, and 6. SECTION II. STAFF RECOMMENDATION Staff recommends that the . Planning Comrr is"sion ,find in., favor to amend the. Tree Removal regulations as proposed by the applicant, with any alterations; as determined through the.public hearing process and make a final, recommendation to the Tigard City Council. ` - _ DCA2009 -00001 PAGE 1 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION SECTION III. BACKGROUND INFORMATION History Historically, applicants submitting for land use approval have been required to identify all trees on site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed so long as they were appropriately mitigated. This practice does not prioritize protection over removal wherever possible, as required in Section 18.790.030 of the Tigard Community Development Code. This practice is also in conflict with the purpose statement of the Tree Removal Ordinance which recognizes the value of trees and calls for their preservation. That said, the code is not clear as to how an applicant can demonstrate compliance with the City's stated preference. This lack of clarity generated a Director's Interpretation in 2008 by the previous Community Development Director, which was intended to guide the administration of Chapter 18.790 during development application review. Shortly after issuance, the Home Builders Association of Metropolitan Portland (1 appealed this interpretation to the City Council. The appeal was successful and the Council overturned the interpretation on the grounds that it was more appropriately addressed through a code update. Coinciding with their ruling, Council directed staff to address this issue through updates to the development code. In response to Council direction, staff has prepared a series of text amendments that clarify and expand the submittal requirements to better enable an applicant to clearly and objectively comply with this community preference. A draft of the amendments was presented to the Tigard Tree Board for review and comment on December 4, 2008. Recommended changes and public comments received at that meeting were incorporated by staff and presented to the Planning Commission at a workshop on February 23, 2009. Following the February workshop, additional refinements to the proposed text amendments were made in response to correspondence submitted by the public and on advice from the City attorney. Proposed Changes The proposed changes to Chapter 18.790 are as follows (also found in Exhibit A), with deleted text as strikeouts and added text bolded and underlined): 18.790 - Tree Removal 18.790.010 Purpose 18.790.020 Definitions 18.790.030 Tree Plan Requirement 18.790.040 Incentives for Tree Retention 18.790.050 Tree Removal on Sensitive Lands 18.790.060 Violations and Replacement Standards 18.790.010 Purpose A. Value of trees. After years of both natural growth and planting by residents, the City now benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the community, help clean the air, help control erosion, maintain water quality and provide noise barriers. B. Purposes. The purposes of this chapter are to: 1. Encourage the preservation, planting and replacement of trees in the City; 2. Regulate the removal of trees on- sensitit°c lands in the City to eliminate unnecessary removal of trees; 3. Provide for a tree plan for developing properties; DCA2009 -00001 PAGE 2 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMJMISSION 4. Protect sensitive l'finebi from erosion; 5. Protect water quality; 6. Provide incentives for tree retention and protection; and 7. Regulate commercial forestry to control the removal of trees in an urban environment. C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets, utilities, and other needed or required improvements within the development. 18.790.020 Definitions A. Definitions. The following definitions apply to regulations governing the preservation and removal of trees contained in this chapter exclusively: 1. "Canopy cover" means the area above ground which is covered by the trunk and branches of the tree; 2. "Comrnercial forestry" means the removal of ten or more trees per acre per calendar year for sale. Tree removal undertaken by means of an approved tree removal plan under Section 18.790.030 is not considered commercial forestry under this definition; 3. "Hazardous tree" means a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property; 4. "Practicable" means reasonably capable of being done or accomplished with the means at hand and circumstances as they are. 5. "Pruning" means the cutting or trimming of a tree in a manner which is consistent with recognized tree maintenance practices; 6. "Removal" means the cutting or removing of 50 percent (50 %) or more of a crown, trunk or root system of a tree, or any action which results in the loss of aesthetic or physiological viability or causes the tree to fall or be in immediate danger of falling. "Removal" shall not include pruning; 7. "Tree" means : - ; - - .. - - - - - - ' - - - - - a.• :. • - any standing woody plant having a trunk which is six inches or more in caliper size when measured 54 inches (4 1 /2 feet) above mean ground level at the base of the trunk. If a tree splits into multiple trunks above ground, but below 54 inches, the trunk is measured at its most narrow point beneath the split, and is considered one tree. If the tree splits into multiple trunks below ground, each trunk shall be considered one tree; 8. "Sensitive lands" means those lands described at Chapter 18.775 of the title. B. General rule.. Except where the context clearly indicates otherwise, words in the present tense shall include the future and words in the singular shall include the plural. 18.790.030 Tree Plan Requirement A. Tree Plan Required: A tree plan for the planting, removal, and protection of trees prepared and signed by a certified arborist shall be provided for any lot, parcel, adjacent road right -of -way, or combination thereof of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible practicable. B. Plan Requirements. In order to determine that the City's preference for tree protection has been incorporated into the project design, tIhe tree plan shall include the following: 1. Identification of the location, size , condition, and species of all existing trees, including trees DCA2009 -00001 PAGE 3 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING CO11'IVIISSION designated as significant by the city within 25 feet of the affected lot or parcel (as estimated by the project arborist if permission to enter is not granted by adjacent property owner); 2. Identification of a program to :,ave retain existing trees or to mitigate tree removal over 12 inches in caliper as measured to the nearest tenth of an inch. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two- thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed and the reason for their removal; 4 A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction; 5. A narrative and site plan demonstrating how the following design and construction techniques will be utilized to the extent practicable. The format of the narrative must address each technique with a "yes" or "no" answer, followed by a written explanation as to how the plans have included said techniques, or why said techniques are not practicable. The accompanying site plan shall include the location of all existing trees in addition to the the location of proposed grading, lot lines, and improvements. a. Does the project protect and retain existing non - hazardous trees that are not likely to become a hazard during or soon after development given their existing condition, ability to withstand unavoidable develo . ment related im .acts . roximi to ro . osed land uses and structures and susceptibility to windthrow? b. Do grading and construction plans avoid soil compaction within the driplines of existing trees to be preserved, the removal of existing soil within driplines, or the placement of new soil within the driplines of existing trees to be preserved? c. Are infrastructure improvements such as stormwater facilities, utilities, sidewalks, and other improvements located outside of the driplines of existing trees? d. Are lot layouts, road and driveway configurations, building locations, and building footprints that are located outside of the driplines of existing trees? e. Are parking lot improvements located outside of the driplines of existing trees? If no, can parking spaces be reduced to a number consistent with minimum parking stall requirements? f. Does the site plan locate required open space and landscaping in areas that contain existing trees? g. Does the project utilize lot size averaging and /or the reduction of lot width and depth to preserve trees, as allowed per 18.790.040(2) and (3); h. If the project cannot avoid disturbance within the driplines of existing trees, does the protection program identify compatible construction techniques that will be used to prevent or DCA2009 -00001 PAGE 4 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION reduce harm to existing trees (i.e. tunneling for utilities, no — dig pavement installation, use of retaining walls to limit disturbance) to a level that the health and longevity of the trees will not be significantly impacted? 6. A mitigation plan signed by the project arborist that includes the location, species, spacing, and planting specifications for the replacement trees and /or the amount of caliper inches that will compensated through fees in lieu of planting. C. Subsequent Prior tree removal. Trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. D. Peer Review. In questions of adequacy, the Planning Director or approving authority may, at their discretion, subject a tree plan to peer review by a third -party certified arborist under contract to the City. The findings and recommendations of the third -party certified arborist shall be incorporated into the tree plan by revision or condition of approval. E. Approval Criteria. The approval authority may approve, approve with conditions, or deny a tree plan based on the following approval criteria: 1. The tree plan contains all content requirements set forth in sections 18.790.030(A) through (C), including the signature of a certified arborist on all documents, attachments, and amendments; and 2. The tree plan supports a finding that protection is preferred over removal wherever practicable; and 3. In cases where the Tree Plan has been peer reviewed, the recommendations of the third -party arborist have been incorporated into the tree plan through revisions by the original certified arborist, or condition(s) of approval; and 4. Tree removal on sensitive lands shall also comply with requirements set forth in 18.790.050. 18.790.040 Incentives for Tree Retention A. Incentives. To assist in the preservation and retention of existing trees, the Director may apply one or more of the following incentives as part of development review approval and the provisions of a tree plan according to Section 18.790.030: 1. Density bonus. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% bonus may be applied to density computations of Chapter 18.715. No more than a 20% bonus may be granted for any one development. The percentage density bonus shall be applied to the number of dwelling units allowed in the underlying zone. This bonus is not applicable to trees preserved in areas of floodplain, slopes greater than 25 %, drainageways, or wetlands that would otherwise be precluded from development; 2. Lot size averaging. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter 18.400, lot size may be averaged to allow lots less than the minimum lot size allowed by the underlying zone as long as the average lot area for all lots and private open space is not less than that allowed by the underlying zone. No lot area shall be less than 80% of the minimum lot size allowed in the zone; 3. Lot width and depth. To retain existing trees over 12 inches in caliper in the development plan for any DCA2009 -00001 PAGE 5 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION land division under Chapter 18.400, lot width and lot depth may be reduced up to 20% of that required by the underlying zone; 4. Commercial /industrial /civic use parking. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan for commercial, industrial or civic uses listed in Section 18.765.080, Minimum and Maximum Off - Street Parking Requirements, a 1% reduction in the amount of required parking may be granted. No more than a 20% reduction in the required amount of parking may be granted for any one development; 5. Commercial /industrial /civic use landscaping. For each 2% of canopy cover provided by existing trees over 12 inches in caliper that are preserved and incorporated into a development plan, a 1% reduction in the required amount of landscaping may be granted. No more than 20% of the required amount of landscaping may be reduced for any one development. B. Subsequent removal of a tree. Any tree preserved or retained in accordance with this section may thereafter be removed only for the reasons set out in a tree plan, in accordance with Section 18.790.030, or as a condition of approval for a conditional use, and shall not be subject to removal under any other section of this chapter. The property owner shall record a deed restriction as a condition of approval of any development permit affected by this section to the effect that such tree may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be considered invalid if a tree preserved in accordance with this section should either die or be removed as a hazardous tree. The form of this deed restriction shall be subject to approval by the Director. C. Site development modifications granted as incentives. A modification to development requirements granted under this section shall not conflict with any other restriction on the use of the property, including but not limited to easements and conditions of development approval. D. Design modifications of public improvements. The City Engineer may adjust design specifications of public improvements to accommodate tree retention where possible and where it would not interfere with safety or increase maintenance costs. 18.790.050 Tree Removal on Sensitive Land Areas A. Removal permit required. Tree removal permits shall be required only for the removal of any tree which is located on or in a sensitive land area as defined by Chapter 18.775. The permit for removal of a tree shall be processed as a Type I procedure, as governed by Section 18.390.030, using the following approval criteria: 1. Removal of the tree must not have a measurable negative impact on erosion, soil stability, flow of surface waters or water quality as evidenced by an erosion control plan which precludes: a. Deposits of mud, dirt, sediment or similar material exceeding 1/2 cubic foot in volume on public or private streets, adjacent property, or into the storm and surface water system, either by direct deposit, dropping, discharge or as a result of the action of erosion; b. Evidence of concentrated flows of water over bare soils; turbid or sediment -laden flows; or evidence of on -site erosion such as rivulets on bare soil slopes where the flow of water is not filtered or captured on site using the techniques of Chapter 5 of the Washington County Unified Sewerage Agency Environmental Protection and Erosion Control rules. 2. Within stream or wetland corridors, as defined as 50 feet from the boundary of the stream or wetland, tree removal must maintain no less than a 75% canopy cover or no less than the existing canopy cover if the existing canopy cover is less than 75 %. B. Effective date of permit. A tree removal permit shall be effective for one and one -half years from the date of approval. DCA2009 -00001 PAGE 6 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION C. Extension. Upon written request by the applicant prior to the expiration of the existing permit, a tree removal permit shall be extended for a period of up to one year if the Director finds that the applicant is in compliance with all prior conditions of permit approval and that no material facts stated in the original application have changed. D. Removal permit not required. A tree removal permit shall not be required for the removal of a tree which: 1. Obstructs visual clearance as defined in Chapter 18.795 of the title; 2. Is a hazardous tree; 3. Is a nuisance affecting public safety as defined in Chapter 7.40 of the Municipal Code; 4. Is used for Christmas tree production, or land registered with the Washington County Assessor's office as tax- deferred tree farm or small woodlands, but does not stand on sensitive lands. E. Prohibition of commercial forestry. Commercial forestry as defined by Section 18.790.020 A.2., excluding D.4. above, is not permitted. 18.790.060 Violations and Replacement Standards A. Violations. The following constitute a violation of this chapter: 1. Removal of a tree: a. Without a valid tree removal permit; or b. In noncompliance with any condition of approval of a tree removal permit; or c. In noncompliance with any condition of any City permit or development approval; or d. In noncompliance with any other section of this title. 2. Breach of a condition of any City permit or development approval, which results in damage to a tree or its root system. B. Remedies. If the Director has reason to believe that a violation of this chapter has occurred, then he or she may do any or all of the following: 1. Require the owner of the land on which the tree was located to submit sufficient documentation, which may include a written statement from a qualified arborist or forester, showing that removal of the tree was permitted by this chapter; 2. Pursuant to Section 18.390.050., initiate a hearing on revocation of the tree removal permit and /or any other permit or approval for which this chapter was an approval standard; 3. Issue a stop order pursuant to Section 18.230 of this title; 4. Issue a citation pursuant to Chapter 1.16 of the Municipal Code; 5. Take any other action allowed by law. C. Fines. Notwithstanding any other provision of this title, any party found to be in violation of this chapter pursuant to Section 1.16 of the Municipal Code shall be subject to a civil penalty of up to $500 and shall be required to remedy any damage caused by the violation. Such remediation shall include, but not be limited to, the following: 1. Replacement of unlawfully removed or damaged trees in accordance with Section D below; and 2. Payment of an additional civil penalty representing the estimated value of any unlawfully removed or DCA2009 -00001 PAGE 7 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION damaged tree, as determined using the most current International Society of Arboriculture's Guide for Plant Appraisal. D. Guidelines for replacement. Replacement of a tree shall take place according to the following guidelines: 1. A replacement tree shall be a substantially similar species taking into consideration site characteristics; 2. If a replacement tree of the species of the tree removed or damaged is not reasonably available, the Director may allow replacement with a different species of equivalent natural resource value; 3. If a replacement tree of the size cut is not reasonably available on the local market or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be determined by dividing the estimated caliper size of the tree removed or damaged by the caliper size of the largest reasonably available replacement trees. If this number of trees cannot be viably located on the subject property, the Director may require one or more replacement trees to be planted on other property within the City, either public property or, with the consent of the owner, private property; 4. The planting of a replacement tree shall take place in a manner reasonably calculated to allow growth to maturity. E. In lieu -of payment. In lieu of tree replacement under Section D above, a party may, with the consent of the Director, elect to compensate the City for its costs in performing such tree replacement. F. Exclusivity. The remedies set out in this section shall not be exclusive. Proposal Discussion The City acknowledges that tree removal is sometimes necessary to accommodate the needs and aspirations of the Community. This acknowledgement is embedded in both the zoning of properties for particular types and intensities of development, as well as in the preamble to the Tree Removal Chapter (18.790.010) itself. At the same time the community has expressed a desire to save viable trees when it is reasonably possible to do so, and has embedded that value in the Tree Removal Chapter and the goals and policies of the recently updated Comprehensive Plan. The proposed changes strike a balance between these two competing demands and are expected to provide the following changes to improve tree preservation and the clarify of the development review process. 1. The purpose statement would be amended to remove any explicit references to sensitive lands. This chapter addresses, through various sections, tree removal on both sensitive and non- sensitive lands and staff wishes to make clear that it is not the intent of this section to protect Goal 5 resources. 2. The definitions section would be amended to better define split trunk trees, a source of much debate during development review. 3. The phrase "protection is preferred over removal wherever possible" would be amended to read "wherever practicable." The intent is to bring the terminology of this chapter closer in line to that of the Comprehensive Plan, which demonstrates a preference for "practicable" over "possible" as it implies situational appropriateness and reasonableness in the face of competing priorities, as opposed to an absolute concept regardless of the other circumstances. 4. The content requirements of the tree plan would require an expansive view and more detail on individual trees, the preservation strategies considered, and the reason for a tree's removal. It would also require that tree plans be signed by an arborist who would self - certify the plan. These requirements have been introduced for two reasons. First, if the plan is going to be self- certifying there must a sufficient level of detail for the strength of the determination to be readily apparent. DCA2009 -00001 PAGE 8 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION Second, to answer the questions the certifying arborist will have to be in closer consultation with the remainder of the design team. 5. Approval criteria have been added to clarify how and when a tree plan may be approved. 6. Subchapter names have been changed to better communicate the structure and requirements of this chapter. SECTION IV. SUMMARY OF REPORT Applicable criteria, findings and conclusions • Tigard Community Development Code (Title 18) o Chapter 18.380 o Chapter 18.390 o Chapter 18.790 • Applicable Comprehensive Plan Policies o Chapters 1, 2, and 6 • Applicable Metro Standards o Title 1, 2, and 3 • Statewide Planning Goals o Goals 1, 2, and 6. City Department and outside agency comments SECTION V. APPLICABLE CRITERIA AND FINDINGS CITY OF TIGARD COMMUNITY DEVELOPMENT CODE (TITLE 18) Chapter 18.380: Zoning Map and Text Amendments Chapter 18.380.020 Legislative Amendments to the Title and Map A. Legislative amendments. Legislative zoning map and text amendments shall be undertaken by means of a Type IV procedure, as governed by Section 18.309.060G Findings: The proposed text amendments to the Tigard Development Code would be applied to development throughout the City of Tigard; and therefore, the application is being processed as a Type IV procedure, Legislative Amendment, as governed by Section 18.390.060G. Chapter 18.390: Decision - Making Procedures Chapter 18.390.020. Description of Decision - Making Procedures B.4. Type IV Procedure. Type IV procedures apply to legislative matters. Legislative matters involve the creation, revision, or large -scale implementation of public policy. Type IV matters are considered initially by the Planning Commission with final decisions made by the City Council. Findings: The proposed amendments to the Tigard Development Code will be reviewed under the Type IV procedure as detailed in Section 18.390.060.G. In accordance with this section, the amendments will initially be considered by the Planning Commission on March 16, 2009 with City Council making the final decision. Chapter 18.390.060.G. Decision - making considerations. The recommendation by the Commission and the decision by the Council shall be based on consideration of the following factors: 1. The Statewide Planning Goals and Guidelines adopted under Oregon Revised Statutes Chapter 197; 2. Any federal or state statutes or regulations found applicable; 3. Any applicable Metro regulations; 4. Any applicable comprehensive plan policies; and 5. Any applicable provisions of the City's implementing ordinances. DCA2009 -00001 PAGE 9 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION Findings: As indicated pursuant to the findings and conclusions that address applicable Statewide Planning Goals, Metro Regulations, comprehensive plan policies, and other chapters of the Tigard Development Code, the amendment is consistent with this criterion. Chapter 18.790: Tree Removal Chapter 18.790.010 Purpose B. Purposes. The Purposes of this chapter are to: 1. Encourage the preservation, planting and replacement of trees in the City; 3. Provide for a tree plan for developing properties; Findings: The proposed text amendments to 18.790.030 are consistent with the overall stated purposes of Chapter 18.790, including the encouragement of tree preservation and the provision of a tree plan. CONCLUSION: Based on the analysis above, staff finds that the proposed text amendments satisfy the applicable review criteria within the Tigard Community Development Code and recommends the Planning Commission forward these proposed amendments to the City Council with a recommendation for adoption. CITY OF TIGARD COMPREHENSIVE PLAN POLICIES: A review of the comprehensive plan identified the following relevant policies for the proposed amendments: Policy 1.1.2: The City shall define and publicize an appropriate role for citizens in each phase of the land use planning process. Policy 1.2.1: The City shall ensure pertinent information is readily accessible to the community and presented in such a manner that even technical information is easy to understand. Policy 1.2.6: The City shall provide opportunities for citizens to communicate to Council, boards and commissions, and staff regarding issues that concern them. Finding Consistent with Chapter 18.390 of the Tigard Development Code (Decision- Making Procedures), two public hearings will be held where public comment will be received by the Planning Commission and City Council. Public notice of these hearings will occur through a combination of direct mailings to affected agencies and interested parties, and publication on the City's website and in a newspaper of general circulation. In addition, the proposed amendments are available for viewing on the City's website or at City Hall. Policy 1.1.3: The City shall establish special citizen advisory boards and committees to provide input to the City Council, Planning Commission, and City staff. Finding The proposed amendments were presented at a regular meeting of the Tigard Tree Board on December 4, 2008 whereupon board members and attending citizens considered the changes and provided comments. The Tree Board unanimously agreed that the proposed amendment should proceed through the legislative process. Policy 2.1.2: The City's land use regulations, related plans, and implementing actions shall be consistent with and implement its Comprehensive Plan. Finding As demonstrated in findings above and below, the proposed amendments are consistent with the Comprehensive Plan. Policy 2.1.14: Applicants shall bear the burden of proof to demonstrate that land use applications are consistent with applicable criteria and requirements of the Development Code, the Comprehensive Plan and, when necessary, those of the state and other agencies. DCA2009 -00001 PAGE 10 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION Finding The existing text of Chapter 18.790 of the Tigard Development Code establishes a stated preference for tree preservation over removal, but does not set forth a procedure or criteria through which an applicant can demonstrate proof that such a preference has been considered and incorporated into the project design. The proposed amendment would resolve this ambiguity by establishing clear and objective submittal requirements and approval criteria that would enable an applicant to demonstrate proof of compliance with the City's stated preference. Policy 2.1.24: The City shall establish design standards to promote quality urban development and to enhance the community's value, livability, and attractiveness. Finding. The proposed amendments to reinforce the City's preference for tree protection over removal, and replacement where removal is necessary, are consistent with this policy. The stated objectives of this chapter are to protect the contribution of existing trees in Tigard, including their contributions to the aesthetic beauty of the community, cleaning of the air, erosion control, maintenance of water quality and the provision of noise barriers. All such services contribute to the community's value, livability, and attractiveness. Policy 2.2.1: The City shall maintain and periodically update policies, regulations and standards to inventory, manage, preserve, mitigate the loss of, and enhance the community's tree and vegetation resources to promote their environmental, aesthetic and economic benefits. Finding The proposed amendment is an update of Chapter 18.790 whose purpose is to preserve community trees. The update does not change the purpose of the chapter, but addresses known deficiencies in submittal requirements and approval criteria that do not enable an applicant to clearly and sufficiently demonstrate a preference for tree protection in land use applications. The amendments would also specify content requirements for tree mitigation plans that govern the planting of new trees to replace those removed. Policy 2.2.6: The City shall establish and enforce regulations to protect the public's investment in trees and vegetation located in parks, within right -of -ways and on other public lands and easements. Finding: The proposed amendments would require the inclusion of trees within 25 feet of the affected parcel, and not just those within the parcel boundaries. The purpose of this requirement is to ensure the preservation of off -site trees, where practicable. Such offsite trees could include, where applicable, those located in public right of ways, open spaces, and other public lands. Policy 2.3.1: The City shall develop and implement standards and procedures designed to minimize the reduction of existing tree cover, with priority going to native trees and non - native varietals that are long lived and /or provide a broad canopy spread. Finding: The proposed amendment is consistent with this policy as it will clarify and strengthen the effectiveness of an existing chapter of the development code whose purpose is to minimize tree removal as a result of a development application. Policy 2.3.6: The City shall, in order to preserve existing trees and ensure new trees will thrive, allow and encourage flexibility in site design through all aspects of development review. Finding. The proposed amendment is consistent with this policy in that it will require the applicant to consider and address the practicability of flexible design approaches including the use of lot size averaging and /or the reduction of lot width or depth when tree removal is a possibility. Policy 6.1.6: The City shall encourage the maintenance and improvement of open spaces, natural resources, and the City's tree canopy to sustain positive contributions to air quality. Finding The proposed amendment is consistent with this policy as it will clarify and strengthen the effectiveness of an existing chapter of the development code whose purpose is to minimize tree removal as a result of a development application. DCA2009 -00001 PAGE 11 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION Policy 6.2.3: The City shall encourage the use of low- impact development practices that reduce stormwater impacts from new and existing development. Finding The text amendments would require an applicant to demonstrate in both narrative and plan form that low impact development practices had been considered and incorporated into the tree plan, where practicable. These techniques are set forth in section 18.790.030.B.5(a) through (f) of the proposed text amendments. Policy 6.2.4: The City shall protect, restore, and enhance, to the extent practical, the natural functions of stream corridors, trees, and water resources for their positive contributions to water quality. Policy 6.2.5: The City shall require measures to minimize erosion and storm run -off from development sites during and after construction. Finding. The proposed amendments will allow the City and applicant to more clearly and efficiently protect and restore the natural functions of trees, to the extent practicable. Trees perform a variety of natural functions, including the reduction of erosion and the absorption of storm water, and the proposed amendments will more effectively preserve and /or replace their natural functions to the extent practicable. CONCLUSION: Based on the analysis above, staff finds that the proposed amendment satisfies the applicable policies contained in the City of Tigard Comprehensive Plan. APPLICABLE METRO REGULATIONS: Metro Urban Growth Management Plan Title 1— Requirements for Housing and Employment Finding This section of the Functional Plan facilitates efficient use of land within the Urban Growth Boundary (UGB). Each city and county has determined its capacity for providing housing and employment that serves as their baseline and if a city or county chooses to reduce capacity in one location, it must transfer that capacity to another location. Cities and counties must report changes in capacity annually to Metro. The amendments will not reduce the number of dwelling units or reduce employment capacity, they will only ensure that the minimum number of trees are removed during construction. Therefore, this text amendment does not reduce the City's housing and employment capacity. Title 2 — Regional Parking Policy Finding. The Metro 2040 Growth Concept calls for more compact development to encourage the efficient use of land, promote a higher proportion of non - automobile trips, and protect air- quality. In addition, the federally mandated air quality plan adopted by the state relies on the 2040 Growth Concept fully achieving its transportation objectives. This title establishes regionwide parking policies that set the minimum and maximum number of parking spaces that can be required by local governments for certain types of new development. By not creating an over supply of parking, urban land can be used most efficiently. The proposed amendments will ensure that land is used for the preservation of existing trees rather than extra parking spaces, where practicable and consistent with minimum parking requirements. Title 3 — Water Quality Finding. The purpose of Title 3 is to protect the region's health and public safety by reducing flood and landslide hazards, controlling sod erosion and reducing pollution of the region's waterways. Title 3 specifically implements the Oregon Statewide 1,and Use Goals 6 and 7 by protecting streams, rivers, wetlands and DCA2009 -00001 PAGE 12 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION floodplains by avoiding, limiting or mitigating the impact on these areas from development. The proposed amendments are consistent with Title 3 in that it will ensure that only the minimum number of trees are removed during development, wherever they occur within City limits, and with that will occur a reduction in erosion and other water quality and storrnwater management benefits whether inside the boundaries or upland of water resources. CONCLUSION: Based on the analysis above, staff finds that the proposed amendment satisfies the applicable Metro regulations. THE STATEWIDE PLANNING GOALS AND GUIDELINES ADOPTED UNDER OREGON REVISED STATUTES CHAPTER 197 Forty -five day advance notice was provided to DLCD on January 30, 2009, 45 days prior to the first scheduled public hearing as required. In addition, the Tigard Development Code and Comprehensive Plan have been acknowledged by DLCD. The following are the applicable Statewide Planning Goals that are applicable to this proposal: Statewide Planning Goall — Citizen Involvement: This goal outlines the citizen involvement requirement for adoption of Comprehensive Plans and changes to the Comprehensive Plan and implementing documents. Finding: This goal has been met by complying with notice and hearing requirements set forth in the Tigard Development Code. A minimum of two public hearings will be held, first the Planning Commission followed by a final decision by the City Council. Public notice of the Planning Commission public hearing was sent to the interested parties list and published in the March 2, 2009 issue of The Oregonian (in accordance with Tigard Development Code Chapter 18.390). Notice will be published again prior to the City Council public hearing. The notices invite public input and included the phone number of a contact person to answer questions. The notice also included the address of the City's webpage where the entire draft of the text changes could be viewed. Statewide Planning Goal2 — Land Use Planning: This goal outlines the land use planning process and policy framework. The Comprehensive Plan was acknowledged by DLCD as being consistent with the statewide planning goals. Findings: The proposed amendment to the Tigard Comprehensive Plan is being processed as a Type IV procedure, which requires any applicable statewide planning goals, federal or state statutes or regulations, Metro regulations, comprehensive plan policies, and City's implementing ordinances, be addressed as part of the decision - making process. Notice was provided to DLCD 45 days prior to the first scheduled public hearing as required. All applicable review criteria have been addressed within this staff report; therefore, the requirements of Goal 2 have been met. Statewide Planning Goal 6 :•Air, Water, and Land Resources Quality To maintain and improve the quality of the air, water, and land resources of the state. Findings: The proposed amendment is consistent with this goal as the proposed changes are intended to protect water quality and other natural functions of existing or replacement trees. By clarifying submittal requirements, including the use of low impact development techniques, the City will minimize impacts from future development. CONCLUSION: Based on the analysis above, staff finds that the proposed amendment is consistent with Statewide Planning Goals. DCA2009 -00001 PAGE 13 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION SECTION VI. ADDITIONAL CITY STAFF COMMENTS The City of Tigard's Building Division, Engineering Division, Current Planning Division, and Public Works Department has had an opportunity to review this proposal and did not respond. CONCLUSION: Based on no response from City staff, staff finds the proposed amendment does not interfere with the best interests of the City. SECTION VII. OUTSIDE AGENCY COMMENTS The following agencies /jurisdictions had an opportunity to review this proposal and did not respond: City of Durham City of Beaverton City of King City City of Lake Oswego City of Portland City of Tualatin Washington County, Department of Land Use and Transportation Tualatin Valley Fire & Rescue Metro Land Use and Planning Oregon Department of Land Conservation and Development Oregon Department of Transportation Oregon Department of Environmental Quality Oregon Department of Fish & Wildlife The following agencies /jurisdictions had an opportunity to review this proposal and had the following comments: Clean Water Services: Recommended the inclusion of any and all relevant provisions of the current intergovernmental agreement between the City of Tigard and Clean Water Services, and the relevant provisions of the current Design and Construction Standards. Findings: The proposed amendments do not conflict with the current intergovernmental agreement or the current Design and Construction standards. CONCLUSION: Staff finds the proposed amendment meets all requirements of these agencies and does not interfere with the best interests of the City. SECTION VIII. CONCLUSION The proposed changes comply with the applicable Statewide Planning Goals, Metro regulations, the Tigard Comprehensive Plan, and applicable provisions of the City's implementing ordinances. Therefore, Staff recommends that the Planning Commission recommend approval of the Tree Removal Chapter Amendment to the Tigard City Council as determined through the public hearing process. DCA2009 -00001 PAGE 14 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION ATTACHMENTS: 1. PROPOSED AMENDMENT TO CHAPTER 18.790 THE TIGARD DEVELOPMENT CODE. 2. LETTER FROM CLEAN WATER SERVICES March 9, 2009 PREPARED BY: John Floyd DATE Associate Planner March 9, 2009 APPROVED BY: Ron Bunch DATE Community Development Director DCA2009 -00001 PAGE 15 OF 15 3/16/2009 PUBLIC HEARING STAFF REPORT TO PLANNING COMMISSION ATTACHMENT 3 CITY OF TIGARD PLANNING COMMISSION Meeting Minutes March 16, 2009 1. CALL TO ORDER President Inman called the meeting to order at 7:03 p.m. The meeting was held in the Tigard Civic Center, Town Hall, at 13125 SW Hall Blvd. 2. ROLL CALL Commissioners Present: President Inman; Commissioners Anderson, Doherty, Fishel, • Hasman, Muldoon, Vermilwea, and Alternate Commissioner Gaschke Commissioners Absent: Commissioners Caffall, and Walsh Staff Present: Ron Bunch, Community Development Director; Dick Bewersdorff, Planning Manager; Todd Prager, City Arborist; John Floyd, Associate Planner; Gary Pagenstecher, Associate Planner; Doreen Laughlin, Planning Commission Secretary 3. COMMLTNICATIONS — None. 4. CONSIDER MEETING MINUTES 2-23-09 Meeting Minutes: There was a motion by Commissioner Muldoon, seconded by Commissioner Hasman to approve the 2-23-09 Planning Commission meeting minutes as submitted: The motion to approve the minutes as submitted passed unanimously on a recorded vote, the Commissioners voted as follows: AYES: Commissioner Anderson, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, Commissioner Vermilyea, and Commissioner Muldoon (5) NAYS: None (0) ABSTAINERS: Commissioner Fishel (1) ABSENT: Commissioner Caffall, and Commissioner Walsh (2) 5. PUBLIC HEARINGS 5.1. COMPREHENSIVE PLAN AMENDMENT (CPA) 2008-00013/ZONE CHANGE (ZON) 2008-00007/ PLANNING COMMISSION MEETING MINUTES — March 16, 2009 — Page 1 of 9 LOT LINE ADJUSTMENT (MIS) 2008-00016/MINOR MODIFICATION (MMD) 2008-00026 - JACKSON BUSINESS CENTER & DURHAM ELEMENTARY SCHOOL COMPREHENSIVE PLAN & ZONING MAP AMENDMENT- PUBLIC HEARING OPENED President Inman read from the Quasi-Judicial Hearing Guide. There were no abstentions or conflicts of interest from the Commissioners. No ex-parre contacts were reported. No one challenged the jurisdiction of the Commission. Commissioner - Muldoon reported a site visit. Gary Pagenstecher presented the staff report an behalf of the City. [Staff reports are available for review at the City one week prior to public hearings.] Staff recommends that the Planning Commission recommend APPROVAL to City Council of the proposed Comprehensive Plan Amendment and Zone Change. Also recommended for APPROVAL are the Lot Line Adjustment and Minor Modificadon, subject to proposed conditions of approval. QUESTIONS BY COMMISSIONERS There was a question about condition number 2 which states the applicant shall apply for a variance to the buffer standards, or submit a revised landscape plan that shows landscaping consistent with the standards for buffering and screening, subject to review and approval by the City Arborist and the Project Arborist. Pagenstecher referred the question to the applicant. APPLICANT'S PRESENTATION Michelle Symant, a planner for WRG Design, spoke on behalf of the applicant. She addressed the question about condition number two. She said they had spoken with the project arborist regarding the question and he'd recommended two particular types of trees that will work within the space constraints given. She said thcv would submit the revised landscape plan to the City Arborist for his review. She anticipates it will work out fine and they probably \von't require seeking the variance but they'd like to leave that in should the City Arborist decide those trees won't work. It would leave the option to apply for a variance in the future. She noted the area is essentially a 3000 sq ft strip that requires this Comprehensive Plan zone change/lot and adjustment/Minor Modification — a whole series of things for the replacement of 10 parking spaces. She noted some of the conditions applied to requirements to save the Sequoia trees with placement of the parking spaces. She said that will happen. QUESTIONS OF APPLICANT — None PLANNING COMMISSION MEETING MINUTES — March 16. 2009-- Page 2 of 9 President Inman noted that no one had signed up either as a proponent or an opponent to the application. She asked if anyone present in the audience would like to speak either in favor or in opposition. There was no one present who wished to do either. PUBLIC TESTIMONY CLOSED DELIBERATIONS/MOTION After a short period of deliberation, there was a motion by Commissioner Vermilyea, seconded by Commissioner Fishel, as follows: "I move the Planning Commission forward a recommendation of approval to the City Council of application CPA2008-00013/ZON2008-00007 as sec forth in the staff report, as well as Lot Line Adjustment 2008-00016, subject to the conditions of approval set forth in the staff report; and Minor Modification 2008-00026; also subject to the conditions of approval set forth in the staff report." The motion passed unanimously on a recorded vote, the Council voted as follows: AYES: Commissioner Anderson, Commissioner Doherty, Commissioner Fishel, Commissioner Hasman, Commissioner Inman, Commissioner Muldoon and Commissioner Vermilyea ( NAYS: None (0) ABSTAINERS: None (0) ABSENT: Commissioner Callan and Commissioner Walsh (2) 5.2 DEVELOPMENT CODE AMENDMENT (DCA) 2009-00001 - Tree Removal Code Update- On behalf of the City, John Floyd, Associate Planner, distributed a revised copy of the Draft Amendments (Exhibit A). He said staff is proposing additional changes (indicated in green) because of the public comment they'd received. Six parries had submitted comments prior to the workshop: Jeff Caincs, Karen Estrada, John Frewing, Phil Grillo/NBA, Sue Beilke, and Greg Berry of the City of Tigard Engineering Department. (Exhibit B) Copies were distributed to the commissioners for their review. As a reminder. Floyd said the scope of this amendment had been defined narrowly by Council, and, as such, staff recommends that the Commission Limit its review to the submittal requirements and not other issues such as mitigation. PLANNING COMMISSION MEETING MINUTES— March 16. 2009— Page 3 of 9 • From the comments received, Floyd addressed the major concerns: HBA 0 Request for Continuance. On Friday the HBA submitted a request for a 30 day continuance. The basis for this request vas to allow their attorney additional time to review the material and suggest additional revisions which may result in the 1-113A abandoning intent to appeal a Comprehe-nsive Plan Amendment to .1.,,UBA. Staff recommends that the continuance be denied for the following reasons: o The H13A has been aware of these amendments for some time; this issue Was not sprung on them. • They were present at the Tree Board meeting in December. • They sub.rnitted comments at the February 23 workshop. • They were invited by email and at the workshop to meet with staff prior to the hearing. • The language released last week was substantially the same as that considered at the workshop. o The PC is nor the final hearing body. The commission can recommend these changes to Council who can consider their comments and, if they so choose, remand it back to the Planning Commission. o The LUBA appeal of our Urban Forest Comp Plan Amendment should be treated as a separate item as a Code Amendment.. Staff has made tentative plans to meet with the I-113A and their attorney in approximately 2 weeks, whereupon we vill be discussing the Comp Plan appeal, and the Codc Amendment under consideration tonight. Jeff Caines: O Concerned with thc word practicable. As stated earlier, Staff proposes to change the phrasing from "wherever possible" to ` practicable", with the meaning of practicable defined. This term introduces a degree of reasonableness to the code rather than an absolute (i.e. anything is possible with enough engineering), as was done in the Comprehensive Plan, and is consistent with the 'purpose statement which recognizes that trees may have to be removed as a result of development. What is being asked of an applicant is a reasonable attempt at preservation, which will be defined by the applicant themselves as thcy work_ with thcir arborist. O Concern with inventorying trees off-site. "file intent of this requirement is to protect trees off-site, and not to increase mitigation obligations. To address this concern, staff recommends the following changes: o Remove references to off-site trees in section 18.790.030.A and B(1), and reinstate the 25' rule in 18.790.03013(4). The revised language would therefore require ". protection program defining standards and methods thai will be used by ibe applicant to protect trees Burins and after construction, including those within 25 of the affected lot (as estimated,by the project arbor if permission to enter is not granted by adjacent property owners)". PLANNING COMMISSION MEETING MINUTES — March 16, 2009 — Page 4 of 9 • Preliminary grading and upfront mitigation plans. Staff has introduced a revisions procedure for Major and Minor modifications, you will find it under Section 790.030.F and marked in green. • Approval Criteria. Staff has prepared the approval criteria in concert with the City Attorney. That said we do recommend a slight change in language in criteria #4 to change "shall also comply" to "complies". • Final Thoughts. Mr. Caines wants to ensure that any code changes are workable and that those charged with implementing the code are included in the crafting of it. For the record, this code was developed in concert with current planning staff and the City :Attorney, in addition to the normal circulation around other city departments and external agencies. Karen Estrada • Wants the code to increase the mitigation requirement. from one year to rwo years prior to application — and require the removal of downed trees. • o The short answer is that these issues are beyond the scope of tonight's changes. o Staff is sympathetic to her concerns as we know that developers and property owners frequently clear-cut or substantially defoliate their properties to avoid mitigation fees, and continue to do so to this day, but mitigation is within thc Council's scope for this amendment. John Frewing • Many of John's comrnents are out of scope or were addressed in responses to Jeff Caines. • Editorial Changes. Staff appreciates Mr. Frewing's attention to detail and recommends the implementation of the following grammatical errors: o [Comment 2] Reinstate the words "on...lands" in 18.790.010.13(2) o [Comment 1 l] Removed the words "that are" in 790.030.B.5.(d) o {Comment 12] Insert the word "be" before "compensated" in 790.030.13.6 • [Comment 9] Content of plans. Mr. Frewing is concerned that one sheet would show trees while another shows the proposed improvements. In response, staff recommends the following changes to 790.030.13.(5): "The accompanying site plan shall include the location of all existing trees in addition relation to the location of proposed grading..." • [Comment 10] Construction Plans. This was also noticed by Mr. Caines. Recommend the replacement or the word "construction" with "staging area" or removal of this word altogether. • [Comment 11] Goal 5 impacts. This amendment is not intended, nor will it affect, the City's Goal 5 resource protection program. It merely clarifies submittal requirements to achieve the stated purposes set forth in 790.010.B1-7 (i.e. water quality, erosion, aesthetic beauty, etc...). PLANNING COMMISSION MEETING MINUTES — March 16, 2009 Page 5 of 9 Sue Bei lke / Fans of Fanno Creek • The letter makes a lot of good points about the value of trees to Goal 5 resources, but, as stated before, Goal 5 resource protection is not the subject. of this amendment. • We recommend that Ms. Beilke and Fans of Fanno Creek stay interested in our code amendments, particularly the upland tree grove inventories that are planned for our 2009/10 fiscal year. Greg Berry/ Ci - of Tiqard En:!'neering • o The City of Tigard Engineering Department requests that language regarding "adjacent right of way" be removed to ensure that the City retains authority of tree removal in the public right of way to ensure public improvement standards arc adhered to. • Planning Deparuncnt staff finds that the engineering department would not be hindered by the proposed language. The language only obligates an applicant to save trees where practicable in the design process — not to override engineering standards or other requirements of City Code. In conclusion, Sta ff. recommends the Planning Cornmission adopt DCA2009-00001 as proposed in attachment 1, as amended through. the public hearing process, and subject to the findings contained in the staff report. QUESTIONS BY COMMISSIONERS The definition of practicable — is that definition consistent with the Comp Plan? Yes - word for word. PUBLIC TESTIMONY — IN FAVOR John Frewing, 7110 SW Lola Lane, Tigard, OR 97223 signed up to speak both in favor and against. He distributed a 3r set of comments (included in Exhibit B). He was advised by President Inman to choose a side and that if he wanted to speak on both sides, his time would be divided into two, rather than giving him twice as much time. Frewing said he was speaking both in favor and against different parts of the subject. Frewing touched on some of his comments addressed in his written testimony. He spoke about fish and wildlife. He believes it's a legitimate content requirement to ask an applicant to tell how they have managed (or addressed) fish and wildlife 'natters in their tree retnoval He said the word "hazardous tree" makes no provision for saying "if I cut off the rotten limb, the tree is just fine." Hazardous tree should be defined as one which cannot be pruned or otherwise treated to become non-hazardous. That would result in saving another tree. He believes some arborists may be trying to get another job from the same developer and so will call a lot of trees hazardous which could be trimmed or somehow managed so that they don't become hazardous. So he doesn't like the definition of hazardous. He also noted that the standard proposed for 790.030E.2 is so vague as to be meaningless, and will undoubtedly lead to unnecessary conflict. He suggested that, instead, it read "The required plan for all the 'trees on the site clearly shows PLANNING COMMISSION MEETING MINUTES — March 16, 2009 — Page 6 of 9 evidence of site development decisions where alternatives are possible and a choice has been made which favors tree protection over tree removal wherever practicable." QUESTIONS AND COMMENTS BY COMMISSIONERS There vas a general question about the age of trees and comments about hazardous aces. Jeff Caines, 8196 SW Hall Blvd., #232, Beaverton, OR 97219 went over his comment letter (Exhibit B). In addition, he asked what is the role and liability of the project arborist on both sides. He believes the City atborisr should also have to sign off on the plans. • QUESTIONS BY COMMISSIONERS There was a general question about set PUBLIC TESTIMONY — IN OPPOSITION — None. QUESTIONS OF STAFF As to the set-back question, the City Arborist, Todd Prager, answered — "25 feet is a good place to start." There vas a bit of a discussion regarding set-backs. Can you speak to the third party review and how that would work? Planning 'Nlanager, Dick Bewersdorff, answered — "Basically, if our arborist and their arborist can't agree, then third arborist is hired and that arborist makes the decision and we go with that. The applicant \vould pav for the arborist." Corrunissioner Vermilyea suggested changing the definition of practicable to \Xiebster's definition which is "reasonably capable of being done or accomplished with available means or resources. Vermilyea had a second comment with respect to page 4. E. Approval Criteria #2. Pie said he likes John Frewing's language change. He said it's a lot more functional than what's \yritten. Who determines the definition of practicable? "The applicant would determine it." PUBLIC HEARING CLOSED PLANNING COMMISSION MEETING MINUTES — March 16: 2009 — Page 7 of 9 DELIBERATIONS • President Inman summed up the revisions thus far: 1. Section 18.790.030.E.3 striking "original certified arborisr" and changing it to "a certified arborist." 2. Section 18.790.020.A.4 Commissioner Vermilyea's definition of practicable to be reasonably capable of being done or accomplished with "available means or resources" - and striking the rest. 3. Section 18.790.010.E.-4 "lands" should not be stricken but "sensitive" should. 4. Section 18.790.030.E.2 "the tree plan demonstrates that the applicant has affirmable attempted to protect, as opposed to remove, trees on project site." "Where practicable" will not be included. 5. So far as the Home Builders Association suggesting a continuation - No one thought it was a good idea to continue the meeting to another date. 6. "Hazardous Tree" definition. Consensus was to incorporate this into their mitigation discussion. MOTION Commissioner Vermilvea made a motion: "I move the Planning Commission forward a recommendation of approval to the City Council of application DCA2009-00001 as set forth in .Arrachment 1 as amended tonight ar this hearing, which supersedes prior versions." Commissioner Hasman seconded the motion. The motion passed on a recorded vote, the Council voted as follows: AYES: Commissioner Anderson, Commissioner Doherty, Conunissioner Fishel, Commissioner Hasrnan, Commissioner Inman, and Commissioner Vermilyea (6) NAYS: Commissioner Muldoon (1) ABSTAINERS: None (0) ABSENT: Commissioner Caffall and Commissioner Walsh (2) PLANNING COMMISSION MEETING MINUTES — March 16. 2009 — Page 8 of 9 • Commissioner Muldoon stated his opposition due to the Fact that he didn't like the age of the tree definition and he didn't like the last amendment. ffhis will go to the City Council on May 12, 2009.] PUBLIC HEARING CLOSED 6. OTHER BUSINESS The next public hearing will take place on April 6th and will include the HWV 99W Plan, the Sensitive Lands Permit (continued), & an Urban Forestry Master Plan update. Commissioner Vermilvea informed the commission that he will be teaching a class at PCC Rock Creek starring in a few weeks and those classes are on N4ondays. He will miss about 4 meetings frorn the 31. of March thru the first part of 'June. He will let Doreen Laughlin know the exact dates. President Inman said she would have to miss the May 4th meeting. 7. ADJOURNMENT President Inman adjourned the meeting ar 9:00 p.m. ) Doreen Laughlin, 'Planning Commasion Secretary Presidentiodie Inman PLANNING COMMISSION MEETING MINUTES - March 16, 2009 - Page 9 of 9 Draft 4��D^l��t� to Section �Q �� (Tree ��7� �� u^ = TDC �, ^x �u,'�� \� Removal) Sections: 18J90010 Purpose 18'790.020 Definitions 10.790.0]0 Tree Plan Requitement 18.790.O40 Incentives for Tree Retention 18.790.050 es.4 Tree ioa an Sens Lands 18.790.060 Viol„fition,s andFirolxtnocnz .7 18.790'010 Purpose A. Value of trees. After cars ofboth natural rowth and plauiing 6y residents, the City now benefits from a large number of trees. These !secs of varied types add to die 'aesthetic beauty of the cuMMu/11 help clean the mir, help control erosion, maintain water quality and provide noise barriers. B. Purposes. The purposes of this chapter are to: 1. Encourage the preser,xtioa, planting and replacement of trees in the [icy; 2. Regulate. the rernoval of trees o;i sreflsizet i:inds in rhe Ciry to elim unnecessar rernoval of trees; S. Provide for a crcc plan for developing properties; 4. Protect sensitive, from erosion; . 5. Protect water quality; 6. Provide incendves for trec retention and protecflon; and 7. Regulate commercial forestry to control the removal o[ozcs in an urban environment. C. Recognize need for exceptions. The City recognizes dhuc, notwithstanding these purposes, at the time o[ dcrclopooeuc it may be necessary to remove certain trees in order to accommodate structozes, streets, utilities, and other needed or required u within the development. 18.790.020 Definitions A. Definitions. The following definitions apply ro/cgn|udous governing the preservation and removal of trees contained. in this chapter exclusively: 1. "Canopy cover" means the arca above ground which is covered bv die trunk and branches of rhe tree; 2. "Commercial forestry" means the removal of ten or more trees per acre per calendar year for sale. Tree removal undertaken by means of an approved tree removal plan under Section |8.79U.0JOixnot considered commercial forestry under this 6cGotion; 3. "Hazardous trec" means a occ which by reason of disease, infestation, age, or other condition presents u known and immediate hazard to persons or io public or privalc property; 4. "PraiJicable" means reasonably capable filheirp done or accomplished with the m«ao`s�� hand and drcuinstances as they are. 5. "Pruning" means the cutting ozojooningn[x cccc in x manner which is consistent with rcco izcJ Draft Amendments 1 D[A2009'00001 March I6'2OO9 � �conmui,counccpuuoccs; 6. "Removal" means the cutting or removing of 50 percent GU%\ or more of a crown, trunk or root syaernuEuocc,orun7ucdoon/hicbzesu|rsiocbc\ossufxcschc6cozp|`yuiologic:lviub the tree vo fail orbciu immediate danger oFfalling. "RemoruY' shall not include pruning; 7. ^Tzcc'' means '.z,.� ��.� "-_w .., .�^;*~ ,,_''. - ,r}ici ^ ''L: `----�` c:6n�zsizc z~ ' °~~- .' �-= S Land inches or catiorLs ,, level the bgse of mhuve.gJc:Pc,ty t Ili2}(31V is iyie,:temrcc.1 ruoi;Ln£r beneath the i r.1�� itonsidered one n:e. the sp6ts Li;no fi 11 below oTonu /[kild:iii�11he � 8. ''Scosi6rc lands" means those lands dcscnihed a Chapter 18.775 of the nirle. B. General rule. Except where the context clearly indicates otherwise, words in the present tense shall 'include the airure and words in the singular shall include die plural. 1O.79V.0JO Tree Plan Requirement A. Tree Plan Drou�c6:/\ tree plan for die planting, removal, and protection of trees pzcpurcd leclby a certified xdbodsc shall be provided for any lot, parcel, or cocnbMution tc6eje.g_f which a development application for a subdivision, pnzti6ou, site development review, planned development or conclitiouu] use is GlcJ. Protection is preferred over removal wherever practicable. B. Plan Requirements. |n order to determine that the Otv's preference for tree prqtec1ionhas been_ incornotated into the proiect design, tThe tree plan shall include the following: 1. Identification o[ the location, oizc � condition, and species nEuUezis� trees- feet-t54-die aff**-ted4tit ;' - *�4� 2. lJeudficu6ouoFx program oz:sti-yr retain existing trccs or to mitigate trecrcmuvx over 12 inches in caliper as measured to the nearest tenth o{ �zY inch. Mitigation must follow the replacement guidelines ofEccd m Section l0�79O�O60D,�n accordance the 6�Uon�n��ndnodvundsbxUhccxc|usi'c of rrees required by other development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program io accordance with Section |&79O.O60T)ofun net loss o[trees; b. Retcnrion of from 25% to 50% of existing trees over 12 inches in caliper requires thar rwo-thirds of the nrccs tn6c removed 6oniri rcJiuoccorJuocc",ic6Scctioni8.7YU.U c. Retention of from 50%ru75%of exisning I:rees over 12 inches in caliper rc9uircs nhan 50 percent of the trees to he rernoved he rnir.igared nn accordancc widi Section 18.790.060[); d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification o[ all zzccs which are proposed ,u6e removed and the reason for thcirrentiovaY; 4 /\ protection program defining smu6urdsuoJooed`ocior6ur`rillhcoycdbyr6cuppUmn/cnpnorcr trees during and after construction inclyJigc within 25 feet of die. affected -lot paIcc|)�� Draft Amendments 2 D[A2009-00001 March 16, 2009 r. iS 1;011 pi:al:T:71J ir,117 cieitri.onstuailig ho:ix the fo_llf,,r,vitg cleFiytt and, coicon t.....ettniglics will be utilized the erterit The formai cif 711e tict. address. each tech with a 'yes" ,5,17 azys joiloweti In written expint3ation as to notv ?litns have included sqidix,chniq W:5. of vtr techniqut. Art Lht accom_pau vinpi., site phY J 1(i cif all exit'diqg cice ITO 1 prQp.osecLgTzdirkp lot irriptigvejnentf,.. eectp__Nte . et and rictit lon-liazardoos Om. 1 hazatti 5007,10 4.:1t existinp to "vil.hso- Lavil7='oitk-tbit-jevft)ti rcdated imp. i DQifl rfl eo-ftsctroction_plaris Itv Did .5,0it Cprap3tqiOn 1J11LL ‘ 1L1» Tr .troes, to 11 the roil of existiti(t soil within or the ,01, nem: soil within tb.ei titial.inc.6 of exi.;iitric flees to be nreiserved? c. Are infrostruenuie inaproveimenrs such as, s torrilwa ter facilitacti, ties. t. improvements located outside of thc dripjines of e:is-.kiting trees,? d. Are lot layout,,,roaci, and driveway confi:ettrations. building locations,and footprints located outside of the driplines qz g trees? c, Are piar.1 located outside., of the dri_plines of e.xisiting. 11'9? If r. can 1_)arkin2: spaces be reduced to a nunaner consistent with ininiriruul_parkins stall re:mph ents? f. Does the siteplan Ictoate revireci op_etk sciace_a_nd landscapiro iQarcaJJT contain e.xistinoi g, Does the proicet utilize lot 1 averaginti anciior the reduction ()Hot width anti datIpth co_ presrl. trees, as allowed. per 18.790,040Af2) attd (3).; h, if the Iirniect cannot avoid disturbance within the driplines of existitv„:; ireei:; does the_ protection proFtrairtidentif comp_atible construction technilities char iiiIie used to_ prevent oc redtcce harrn to existing trr2tis tynelinlY for utilities. — digpavenient installation. use walk to Iiirit diStilit):AnCe) to t ftvel that the health and_ longevity of the trees, %%ill not be ificantiv 6. 1 p_liari signed by the pect arborist that includes the loentibpeeies„. stracit2 apcl_planiting_specificarions for tile ,.replacernent stces and/or the amount of caliper inchesi that be corapen_satert itirottgh lees in lieu, of plantiiw. C. Prior tree rcmoi-al. Trees removed within the period of one year prior to a development applicarion listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. D. Peer Review, In questions of ittlevia._c_v__,„ the Plat Directo r. or approving_atithcrity.nta.v.. at Draft Amendments 3 DCA2009-00001 March 16, 2009 • slibjet'l a !tee co riri tineler C.,()Llt. Lc', the The finriir,,5-s reCt,InIrrieliciltiorJE. th;-- ttif: :pt ioS2r4it of E.. Au:TA:oval tr.,Irt tja, The A:; E ih A Si tr,et: Dian bas,erl followirto :7,:porovai cni Cr: I,:e(ro-i:c.c.TnentS Se.1 Fce;C! .iti,.,, 7.:), (1, iJJ 7:d' a cetrificri arri.orii41 on 2,i1 arte. atro.e.ridrnenfsLarti 2. The tsee pia31 pa 1 Land. .3. In CL'iSC6 Veht.'re_Llit rte. Plan hqs ell. peer reviz.fse-,,e.d, el arbt)ri.5,r have, been. irlcorvgrateci into tl tree 111,24 through revisir)ry the rs,t r cnc:t i(spfj aiA mad 4, Tree rernov1 oruiensi 'ties v;ith t.s set fort F. o':ificiz ik3,790,Q50,. zo ;Approved T[ i ;_rce cy‘or.: tro.)clifieri the. :‘1:3's01 :f40(litiCa■i0itiS) to Approved 'Free Proo..:ction Plans 1.11..q.centitinkimi request. :kn iln reeple:ti 1 1[w:royal of a ,t1c,:ii/ientfcal 711_ sin :tpririlVed j) jJkI 11 or e.: develop:mem by: 1: Providing, the Director with three copies of Crie prosLos,ed iccd ti protection plane atal 2.A narrative .o inclivaity the rationale for rite proposed noir:idle-at:oh addressinf chariEt,c.is fisted in subsection 13 befoyL F:\ ILC 1 The Director shall delermitte major ifiildirk`:iiitiW v■ ifoite r ijr the following ciu n oo s 7 art propsesed. There Nvill he: I. The ta rIuu, irees bii retrio\ eri increases Ifv 10% or inr).1 as defined 1)■• whole of ILIC origin oject: i.ir 2. The totill number of caliper inches beino inti 1)v 10°4 or more: c. NVheti the detcrniirlatiOa is r110.de. Upon cieiernlirlinfT that the pl000sed plod ificalion fl) - 121 . r..?tee.tion plan is a for inodilication, the applicant shail 11).thit I11%v development a ,rilicaiion in accordance with the on:11 projerl opprovfil, 2. :‘linor ..trgfilicati0 nr.„ A I) PrO ■ ed Tree Proteeion or Existirt. modification defined. Any tnoclilicai 1011 ■dijcil is {lot ¶ 111EhC desciiption •,1 Ina mortification as pr(Wiiiell in Section 18:790,030.F. / shall be consiriereci minor niodifictition. 1.3.yrocess. An pill ica ntav request 1 1111r0V;11 of a rninor ittorlific-atiott as follows: Draft Amendments 4 DCA2009 March 16, 2009 |. Providing the Director with three ,t/Pies cif .the l.ronnsed ftOk: r)i]orroi '/ j0! /an: :31Id ya.Iutievhieh indicatcu,ire rationale -,pr)va|etcria. minor mod ificntiqn sbiU tn: angro ccnd !/e«ieti ir,Uv��o..4 the CiLrnintioip/D*vel!tln!eni Dieedus re io52,/�� The rtIottosoi!lclw)meril in comp|ntiter eitiet :xtt `Th '- � � 10.790.040 Incentives for Tree Retention 6 Incentives. To assist in the preserTation and retenrion of exisring trees, the Director may apply one or more of the following incentives as part of development review approval and the provisions of a tree plan xccozJinrro Section 18.790.030: 1. Density bonus. For each 2% of canopy co''er provided by exlsrwg trces cwer 12 inchcs in caliper that d and incorporated d 1% be cod u � ur�pr,s�rrr m� mcorpomtc into development bonus may c c a�ry computations of Chapter '18.7l5. No more than aZO% bonus may bcgrao/cd for any one development. The percentage denstry bonus shall be applied to the number of dwelling units allowed in the underlying zone. This bonus is oocapplicobic to trees preserved in areas of floodplain, slopes greater than 25%, 6ouinugemuvs, or wetlands that would otherwise be precluded from development; 2. Lot size averaging. To retain existing trees over 12 inches in caliper in the development plan for any land division under Chapter l8.400,lot size may be averaged to allow Iots less than the minirnum lot size allowed by the underlying zone as loug as the average lot area for all lots and private open space is not less than that allowed by the underlying zone. No lot area shall be lcss rhan 80% of rhe rninirnuni lot size allowed in the zone; 3. Lot width and depth. To retain existing trecs over '12 inches in caliper in the development p6o{orauy land division under Chapter 18.400, lot width and lot depth may be reduced up to 20% of that required by the underlying zone, 4. Commercial/industrial/civic use parking. For each 2%oF canopy cover provided hrexisting trees over12 inches in caliper that are preserved and incorporated into a development plan for commercial, industrial or civic uses listed in Section 18.763.080. Minimum and Maximum {]8f-Street Parking Rrquirwncn/n.x 'l% reducrion in rhe aniount of requixed parking may be granted. No mure than 20% reduction io The required amount of 'parking may be granted for anv one developrnent; 5. Commczcix|/iuJuucriul/ciricosclandscaping. For each 2%o[ canopy cover provided bvexisting trees over 12 inches in caliper that are preserved and incorporated into a development plan, a l% reduction in the required amount n[ landscaping may bcgranted. No more than 20% of the reuiied ozoou/1r landscaping may 6creduced For any one development. B. Subsequent removal of a tree. Any occ preserved or retained in accordance with this section may thereafter be removed only for the reasons set out in a Erect plan, in accordance with Section 18.790.030, or as a condition of approval for a conditional use, and shall not be subjecr to removal under any other section of this chapter. The property owner shall record a deed restriction as a condirion of approval of any development permit affected by this section to the effect that such tree may be removed only if the tree dies or is hazardous according to a ce,b6c6 arborist. The deed restriction may be removed or will bc Draft Amendments 5 D[A2009'00001 March 16, 2009 considered invalid if a rree preserved in accordance with this section should either die or be removed yax hazardous tree. The form of this deed restriction shall be subject to approval by the Director. C. Site development modifications granted as inIentires._A modification CO development requirements granted under this section shall not conflict with any other restriction on the use of the property, including but nor Urnited to easements and conditions uf development approval. D. Design modifications of public inopnorcnocuo. The [icy Engineer nay adjust design specifications of public rorcmrorxooxcconnmoduotrcecctcotiou*6erepox ible and where ir would not interfere with ,safety or increase MAW oceuuucCCOSTS. 18.790.050 /on Se-n5i rive J::“.36 A. Removal pczrnitzccuirrd. Tree rccnvro|pcznio shall be required only for the removal of tree which is located on or in a sensitive land aiea as defincd b Chaprcr 18.775. The permit for removal ofutree shall processed Tv 1 procedure, governed Section 18.390.030, the following s be as Type pu`cc uzc,xs�orccoc y c�oon uou�� oppcorai � criteria: 1. Removal of the tree must not have a measurable negative / xcr on erosion, soil sru6iliry, flow of surface waters or water gua6ty as evidenced by an erosion control plan which precludes: a. Deposits of mud, dirr, sediment or similar material exceeding | /l cubic foot in volume on public or private streets, adjacent propertv, or into the storm and surface water oysoro, either by direct deposit, dropping, discharge or as a result of the action of erosion; b. Evidence of concenrrated flows of water over bare soils; turbid or sedimentladen flows; or evidence of on-sire erosion such as rivulets on bare soil slopes where the flow of water is not filrered or caprurcd on site using the techniques of[6uprcc5v[c6cYyus6inAoou[ouorTijniGc6 Sewerage Agency 6ur�oonnunml Protection and Erosion Control rules. 2. Within stream or wetland corridors, as defined as 50 feet from the boundary of the stream or wetland, tree removal must noxintai000 less than a75% canopy cover o«oo less than the existing canopy cover if the existing canopy cover is less than 75%. D. Effective date of pennit. A tree removal permit shall be effective for one and one-half years from die dare of approval. C. Extension. Upon written request by the applicant prior to the cxpU:utioo of the existing permit, a tree removal permic shall be extended for a period of up to one year if die Director finds that the applicant is in compliance with all prior conditions of permit approval and that on material facts stated in chc original application have changed. D. Rccunru|pc,nnit nncreqv�rJ. .\ tree removal permit shall not be required for the removal of a tree which: 1. Obstructs visual clearance oo defined iu Chapter l8.7V6of the ride; 2. I's �cc� � , 3. Is a nuisanceaffecting public safctv as defined in Cha1jtcr 7.40 of the Municipal Code; 4. Is used for Christmas tree pcoducdon or land registered with the Washington County Assessor's office as tax-deferred rree fami or small woodlands, but does not stand on sensitive lands. Draft Amendments 6 D[A2009'0000I March 16, 2009 E. Prohibition of commercial forestry. Commercial forestry as defined by Section 18.790020 ,\.2, exctuth.ng D. 4. above, is nor permied. 1Q.790Oh8TU��oJ�r-r�4elcivfilViola toad ~Re'p�ii. A. Violations. The following constitute c violation o[this chapter: |. Removal ofxtree: a. Without valid tree removal permit; oc b. lia noncomphancc with aoy condition of approval of a rrec removal perrnir; or c. In nonconapbance with anv condition of anv City permit oz development approval; or 6. In noncompliance with an other sccrion of th.is rjtje. 2. Breach oFx condition ofany City permit u/ development. approval, which results iodxnoage tms tree or its root system. B. Remedies. If the Director has reason to believe that a violation of this chapter has occurred, then he or she mav do anv or all of he following: 1. Require the owner of the land on which the tree was located to submit sufficient documentation, which may include written smccnocot from oqouUGcd arhorist or forester. showing that removal of Jzrtree was permitted by this chapter; 2. Pursuant to Section 18.390.050., initiate a hearing, on revocation of the tree removal perrnit and/or any other pernni, or approval. for which this chapter was an approval standard; 3. issue a stop order pursuant ro Section 18.2]0oF dais ride; 4. Issue a citation pursuant CO Chapter 1.16 of the Municipal Code; 5. Take any other action allowed bvlaw. C. Fines. }Jnur66oraod��g any other provision o[ this title, any party found robcio violation oF this chapter pursuanr. to Secuon 1.16 of the Municipal Code shall he subjecr ro a civil penalty of up ro S500 and shall be required to remedy any damage caused by the violation. Such rcoxcdbdoo shall include, but not be hmited to, the following: 1. Replacement o[ unlawfully removed or damaged trees in accordancc with Scction 1) hclow; and 2. Payment of an additional civil penalty representing the estimated value of any unlawfully removed or damaged tree, as determined using the most curtent International Society of Arboriculture's Guide for Plant Appraisal. \ . D. Guidelines |�o for replacement. K �n o c oof tree shall take | according o» the following � cu c cs rccp c�nnc r� cp c ro , x you x �� ccucconu � u'�� 1. .6 replacement tree shall 6cx substantially similar species taking into consideration sire characrcrisrics; 2. If a replacement tree of the species of the tree removed or damaged is not reasonably available, the Director may allow replacement with u6i8ezcnt specics of equivalent natural resource valuc; 3. If a replacement tree of the size cur is nor reasonably available on the local marker or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be detcnnined by dividing the eau�oo/c6 caliper size oF the tree removed oc damaged 6y the caliper size oE the largest reasonably Draft Amendments 7 D[A2009-00001 March 16, 2009 available replacement trees, |F this number of trees cannot 6c viably located ou the subject property, the Director M2Y require one or more replacement trees to be planted on other property within the City, cirhc/pnbGc property or, with the consent o[ the un/ucz,p6vxoproperty; 4. The plan U of a replacement tree shall take place �o a manner reasonably calculated to aUow growth to maturity. E. To lieu-of payment. 7u lieu of tree replaccmcucunder Section D above, m party may, with rhc consent of the [)irecroz, elect to compensate the City for its costs in perforrning such tree p. F. Exclurivire. The reniedes ser our in this secuon shall not be excusivc Draft Amendments 8 D[A2009-00001 March 16, 2009 , ... • . t. , 1: ''' . . Exhibit B City of Tigard ::!•. '•- :;. - ;:::`::-,- • • Memorandum iT.1 GARD: • ,,, .,..maattiz,...aarrozaziawm-rva,ntrzfosma,&=zarammluvrAnravr.--24-.ezwami,rm,, -a.limnx:ne/r=zu , To: President iodic Inman and Members of the Planning Commission Frotn: John Floyd, Associate Planner Re: Public Comment for DCA2009-00001 (Free Removal Code Amendment) Date: March 13, 2009 Attached are written comments from the public regarding DCA2009-00001 (Tree Removal Code .Amenciment), scheduled for a public hearing before Planning Corru 00 Monday, March 16. As of Friday morning, the correspondence received includes the following: 1. Email and attached Memorandum from Jell Caines (March 10, 2009) 2. .Letter from Karen Estrada (March 11, 2009) 3. Email from John Frewing (March 11, 2009) 4. Email from John Frewing (March 12, 2009) 'Ihe themes of the comments vary, and staff will address them at the hearing on Monday night. As a reminder, the proposed amendments are the result of very specific council direction to implement an overrurned director's interpretation through a code amendment. The proposed language does not address other aspects of the tree code such as mitigation or incentives, which will he the subject of future code amendments. Staff urges the Planning Commission to review these comments thoroughly before the hearing to ensure efficient and productive deliberation, As always, if you have any questions please do not . hesitate to conuact me at 503-718-2429 or iohnfl@tigard-or.gov. John Floyd From: Jeff Caines tjeffcaines ohnakonm/ Sent: Tuesday, March 10, 2009 5:16 PM To: John Floyd Subject: Tree Code Comrnent5 Attachments: Tigerd_Tnee_Cummenta[1]doc • John: Here are my comments for the Tigard tree code. If you wanL, we can discuss my comments prior to the hearing and l could revise my comments based on our coriversation, Thank you for your time. ]effCaines, AI[P 503'585-1660 Cell MEMORANDUM To: City of Tigard Planning Commission From: Jeff Caineo.A|CP CC: Date: March 12, 2009 • Re: Proposed Tree Code Amendments Below are my coinrncnts on the proposed tree code amendments that are being considered, To surnmarize, in order for the code N work for the benefit o[all parties, it is itnporlant to take the • proposed language through x"x\ress''test; meaning that Staff should revicw the proposed code language against a p jec( that is currently being reviewed. From Ihb^^streso'`teo. the question o["hnvcuo this new code language be applied by the City or the &pplicon\?^Honcnu|d the applicant / properlv owner complete the new requirements? What is the benefit to the City and the citizens it serves? Specific Comments: |XJ9O.020—Dcfini1ionn: The term "Practicable" seems too broad. Who will determine what is reasonably capable of being done or accomplished? is it du{[ the developer, the properiv owner or the neighbors or an interest group? Just about any type of development can occur or can be accomplished "with the means at hand and circurnstances as they are." At what point does a project or a condition of approval become practicable verse impracticable? This definition is left up to the changing \\'inds of interpretation, |D79O.O]0— A. Tree Plan Required: "Signed": What is the intent nFhaving u"signcd" tree plan by (hcnrhorint? Is it the assumption that the City puts a liability on dhourbo6m as they would for an engineer or landscape architect? "Adjacent ROW": The right o[way belongs to the public and not to a private individual. The trees might be surveyed in to the project, but the trees in the public right of way should not be counted against the development because of the standards put on the applicant by the City. Trees in the area for dedication should be included in this group as well. B. Plan Requirements: • 1: Condition of all trecs within 23 feet of the affected lot or parcel" This isurequirement that Staff needs to ask itself, how can this be carried out? How can an arborist look at a tree within 25-fee and make a determivation as to the condition of the isee'? Without an up-ctose inspection of each tree, an orbohul may not be able to make a proper evaluation. There may he complications to tree plans if thc uohodst will not sign the plan because they are singing the conditions or trees that have not been property evaluated. Thbp|on requirement should be addressed and explained by the City's uzhohxt as to how this requirement should be carried out using properxrborig evaluation methods? 2:"asnneasurednudeoeu/ex tenth of an inch'. [ find that measuring 10 the nearest 0O" may bc extrcrne. Tree eva may be considered more ofan a than a science what sorne actors are considered; meaning. that dUffercnt people may measure the tree not in the exact same spot on the tree based on ground elevation. } find that keeping to the standard the City has used for many years suffices. Has the orborisrcommunity adopted new standards (n.g, American National Standards Institute (ANSI) standards or the international Society ofArboris|s (ISA) standards)? 5: Attempting to write. a narrative at the preliminary stage of the project is a challenge. The xuhuopicxaddresoitemxdhalouncm|ybedctennincddohngiheconstruc(iondocomertytu8cn[ the development or only once the project is build out completely. For example, grading and construction plans are produced after the preliminary plan has been approved. 11 is impossible to state if the construction plans avoid grading and soil compaction of the trees until the Engineering Departinent has reviewed he plan set with the required details. Also attemptirig to utilize other factors such as lot averaging or width/depth reduction does not appear to carry any incentives. 6: Mitigation Plan: A mitigation plan is for applications. b is . � � ocur impossible to produce an accurate mitigation plan until the majority of the development has occurred. The City required that. all trees that ,may be removed during construction be identified in the preliminary stages o[the project. This policy is bascd in a Hearings Officer decision. Therefore, the trees that are identified on u tree removal plan may or may not be removed once the project. is complete. Therefore, the number of trecs or inches required for mitigation (including the fee io lieu) will Ultimately change. |n addition, ifa mitigation p|auis submitted to the City for review, the City should sign off on the mitigation plan by stamping approved with the City arborist's signature. The City should be required to review and approve a mitigation plan. All orher departments i.e.. Planning, Engineering, Building including all inspectors are required 10 sign offon plans and inspections. The City arborist should be no exception. [). Peer Pzpicv': Who will make the final decision as lo whether tree plan is adequate or not? tithe "Director or deciding authority" has the ability to send the plan to a third party for u peer review, *U/ the applicant have thc same right? Will thc City pay this person or will the applicant have 10 pay for the third party peer review? What if the number nf plans being reviewed by the third party becomes common practice? W.hat becomes of the authority ty of the City Arborisi? • E. Approval Criteria: 2. The tree plan supports finding that protection is preferred over removal wherever practicable; • R is not puose of the app1ican LO make findings that the tree plan, as submitted, preferred protection over tree removal. It is the role orthe reviewing authority to make findings that the proposed tree plan meets the standards set forth in the development code. If the City wanted to protect trees, the reviewing body would allow great latitude in building design, infrastructure. adjustrnents and lot configuration. 3. In cases where the Tree. Plan has been peer reviewed, the recommendations of the third-party arborist have been incorporated into U/c tree plan Unough revisions by the original certified urhoriocorcondhioo(s)of approval; and 1his is not an approval criterion. This is a statement to ensure that the recommcndations of the third party pccr rcview have been incorporated in the staff report. The staff report cornes after the City has reviewed the project against thc Development Code, How can one state that an action is based on a future event has taken place? • FinuThought: �ouAh The tree code under review is an important document that should not be taken lightly. Trees are an irnporlanl part of every city. The need hetween toexaodthebui|donvinonmcn(mustbcin balance for any city to thrive and be fmitfuL Before the city o[Tigard adopts any new development code standards, is would be wise to ask ifthe current planning staff has had the full opportunity to reiew the code and bring up different scenarios that norinaily arise with development applications. It is the current planners and front counter staff that have to apply the new code language. It would benefit all pariles 10 get feedback from ibc staff that will implement the new eode to ensure that there is a pragmatic soludon to any new adopted code language. Plcase add me auo party ofrecord for this Development Code Amendment. Thank you for your time, I look forward testifying in front of the Planning Commission on March 16, 2009. March 11.200S To: Tigard Planning Cornmission As | am unable to attend the Public Hearing, | am submitting comments in writing. I believe the amendments presented show that a great deal of thought has been given to the Tigard comnnunhy It appears to me, however, the main focus is or trees for larger developments, especiatly those in sensitive lands. The ^infiU development in existing neighborhoods ia not necessarUy specifically lly addressed, nor the clearing of trees on such parcels or on private property, whether for inimediate construction or not, am speaking mainly of properties capabte of providing one to four building sites, containing multiple trees, and surrounded by existing homes. 1. The current provision under 18.790.030 Tree Plan Requirement Section C states that °trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan abuve." This provision has been used to avoid complying with the plan because of the relative!y short time period in a property developrnent inc. |wou(d recornmend that it be increased to two years. If the purpose of tree removal is NOT to avoid complying with the tree plan, then a change will not impact a developer or resident owner. 2. There is no requirement for removal of trees that have been cut down on unoccupied property. They can stay indofinite|y, and where that might not be an issue for one tvee, it creates a � devaluation of surrounding property and a reduction in the quality of the environment when 10 or 20 trees have been cut down. Both ofthese 'gaps" have allowed those who are not interested iri the neighborhood as a home, but only as an investment, to create eyesores waiting for development or building, untended lots subject to the collection of trash and to spoii the aesthetic quality of the environment. ! worked with the real industry for years and the majority ofdeve|operehaveanintonest(nnoton|y making a profit, but in creating an attractive setting because it increases their chances of doing so. In • the meantime, particularly as developing property for building does not mean immediate construction is taking place, those who have already invested their money and time in their neighborhood----the surrounding residents----see the quality of their environment and the value of their properties decrease, Any changes will not affect what has already happened to my property, pictures of which | previously nen1, but until it happens to you, you don't realize the impact of regulations. It has been personally difficult for rn to speak out, but 1 look at the resu?ts oLt my window every clay, and i not me, then who. I feel a sense of responsibility to all of us who have put in the effort and money to own and improve our homes and live in this community to say that, we who live here also need our investment protected. My hope is that these concerns will find root in consideration of additional amendments. Respectfully submitted, • _ � ^ -6 4 -- Karen Estrada 9269 SW North Dakota Tigard, OR 97223 John Floyd From: jfrewing Ufrewi ) Sent: VVednamnay, March 11, 2009 3:12 PM To: John Floyd Co: David Walsh; Tony Tycer Subject: Frewing Comments on Proposed Tree Protection Reguiations John. • Pasted below are the comments 1 have currently prepared for the Planning Commission hearing on March 16 regarding TDC 18J90 revisions, |omemnUing thern to you on \Vcdncsday afleriioon, in the hope that you will email them m Planning Commission members immediately, so they will have adequate time to review and consider them, I have been told by Planning Commission members that it is hard for them to consider comments provided first at the public hearing itself; while that may be true, he Plawin Commission does have Ihe alternative of deferring action until all members can review all comments 1 have not yet reviewed Sectiort vn[ the uoK,x . .*ppUcuNcCrdoriaaodFimdings.ovdthismuygcnxmtemo,e.commcnufor`hrhomingonMurch}6 try to forward any additional cummnno l have on Friday afternoon, hoping to ninimize the comments which may be generated over the weckend and on Monday /ob/Frening John Frcw og Comments on Tigard Code Amendment: Tree Plans 3/11/09 | |othesame way that some section headings have been modified to more correctly summarize the section contents, the title ofChapter 18790 shoud be "Tree Prolection and Removal". 2 In 18J90.01OD.4. the word 'sensitive' should be deleted and Uhu word 'land' should he reinstated (note the singular use o[xnrd 'land'). This is editorial comment. 3 The definition o['/rec`, 18.790.020A.7, refers to caliper measurement 54 inches above mean ground level. . Back in )8.790.OW}D.I there io again again refercnce to trccs ofa certain caliper sizo;ho*rvcrdhiyupp|ioxto replacement trees. Two practical problems arise: is the size of rep ocome/t trees to be rneasured 54 inches above mean ground level, and are replacement trees really 'trees' (ie over six inches in caliper at 54 inches above mean ground Ievel)7 There should be added a definition ofcaliper measurernent or the wording nfthe replacernern tree requirement should be clarified, 3 The word `dhcJine` should be defined. It appears as a term describing some eoutent of tiie tree plan, eg )8.790.0]0R.5.h. Does this word refer to the dripline today or at full tree maturity What documentation of dripline rnust he part of the tree protection plan? 4 The word 'cronn` should bcdefined. h appears in the definition of removal'andhas sevcrai possible memnings — isitdhemcuourmd biomass, or the areal extent of branches (coincident with the canopy cover), or height above firs/ branches, or sum n[ branch diameters leaving u main stem or??? 5 The detinition of practicable' is not clear to someone seeking to comply with the rules — what is 'reasonably capable'? --what are the 'means at hand'? — what is meant by 'circumstances as they are'? Has this word and the proposed definition been used in other rcgulatory documents in Oregon? What has been the eNperiencc of such use? 1 would hope that staff could give some clarity to these questions at the 3/16/09 hearing. In my cnind. u better dcfinidon would either 1) revolve around a finding that some act is deemed 'practicable' when it is shown that a similar tree protection action has been recommended by some other government agency and actually performed in land use development elsewhere in thc metropolitan Portland area or 2) would conclude thai n tree proteciion action is 'practicable' ifit does not increase project c000|rucdonuostsinnxcoosofZ0Y6, which is a percentage of development cost variability caused by other natural features of site (eg slope, stream, soil conditions, etc) and is accommodated by development professionals quite regularly. Of course this latier approach would require some sho'ving by the development proponent regarding cost impact o[tree protection actions compared to cost vithout tree protection actinns. 6 [o 790.030«. l would ask that the word 'adjacent' be stricken from the listing ofcircumstances requiring tree plan, |fa city construction project, say for only u street, involves tree protection and removal, a trec p!an should he required, and Jhc word 'adjacent' is not applicable. The use of the word 'adjacent' seems to limit tree protections to at least a combination of a iot AND street. developinent. 7 Section 790.030B1 calls for identification o[ tree size. There are many ways ro measure tree SIZE; I believe staff means to ask for caliper at 4.5 feet, but others may think this refers to height, or spread of branches or other aspect of size. l suggest saying 'caliper at 4.5 feet' ifthat is meant 8 Section 790.03085 calls for the accompanying site plan' to include the. Iocation of irces in addition to the location. ofproposed grading, lot Unox, and improvements. Because the general rule is to consider singulars as plurals, this could be read to mean the accompanying site `plans' (plural). [ think this requirement (which is good) should require the tree location to be shown on the SAME site plan drawing which includes location of proposed grading, |o| lines and improvements. The current situation is such that these information items are provided, but on DIFFERENT such that the interference of �0:development �dh �� Ur�s � l pro � . u drawings � cm ncuo site with existing /sno readily apparent. 9 Tr e plan explanatory elements a) through h) in 790.0308.5 are worded in ways that a clear 'yes' or 'no' answer is difficult.. In most cases the answer will be `somewhat' or 'partially' or in some cases'. This problem can be resolved ifeach of thcse considerations would he preceded by Uie word 'all', as in 'does the p j:u protect and retain aH existing non-hazardous trees .... or as in 'do grading and construction plans avoid soii compaction within all driplines of or as in 'are all infrastructure improvements ''' The result rnighi. be more `no' answers, hu/!hcndc allows that with appropriate explanation. An alternative might be to ask if at least one' non-hazardous tree is protected, or at least one' dhp|Loejx protected from compaction or at least one' infrastructure improvement, etc., but such provision would not serve the purpose of showing a general • preference for tree protection over removal. |0 Reference to 'construction plans' in 790.0308ih is not clear. The plans submitted at the development h stage detail infrastructure construction, � [ b Udi ( U � available at this �cnn� �c m u building plans normally nn u»m c mstage. i l h 790.0308.5d the words 'that are' immediately before, the word 'located' should be stricken. This is an editorial comment. !2 In 790.0308.6. the word 'be' should he inserted immediately' before the word 'compensated'. This is an editorial comment. } ] The concept ofadding 'Approval Criteria' is excellent. However the standard proposed for 790.030E2 is so vague as to be rneaninJess and will undoubtedly lead to unnecessary conflict. Morcnvrr, its vaguencss is such that it will result in terribly inconsistent application — something to be avoided in writing regulations. And finaily, this criterion creates a circular line of rationale sueh ibat ically every plan will comply with it: Under existing practice, approval of an application requires a finding of compliance with approval choxia, and this approval criterion is simply that something in the plan support u finding ofapproval, If there is only one element of the plan cornplies with the content requirement, eg all the trees are identified on a plan, then it seems that one could End that the plan contains something that 'supports' a finding of approval. This cannot possibly be the meaning o[?lgxrd`o 'preference for protection over removal' regulation. The words ^supportxu finding' should be replaced by a more objective phrase. I would suggest that the standard might read The required plan 2 for all the trees on the site clearly shows evidence of site development decisions where alternatives art possible and a choice has been made which favors tree protection over iTee removal wherever practicable.' • 3 John Floyd From: jkewingUfrewinggte|eport.com} Sent: TnomUay, March 12. 2009 8:29 AM To: John Floyd Subject: Code Amendrnent for Tree Pans, Testirnony for 3/16/09 John, Pasted bciow are some supplcrnental cointnens on the proposed code amendrnent fcrooc plans. Please include their, in whatever you send to the Planning Commission as soon as possibIe These comments come from looking over the words again, and reflecdng 00 he several applications and decisions | have participated 0 over the pas five years, as well as LUBA decisions which in effect, give meaning m the Tigard regulations. have still not tzorten to Section V of the staff re.port, and will provide my comments on that area, as well as any other which arise in iz mvie°, as soon as l have hit more time mgo over them. Thanks John Frewing SUPPLEMENTAL COMMENTS ON TREE PLAN REGULATIONS 3/12/09 A. Hazardous trees are defined in terms of an 'immediate hazard to persons or to public or private property. This definition is circular because it uses the same word (hazard) to define the regulatory term (hazard). In effect the definition is saying that a hazardous tree means a tree which is a hazard — not too much help in darif the term. Is this what is called a tautology? | suggest that the definition be modified to define a hazardous tree as one which cannot be pruned, topped or otherwise managed to avoid immediate damage to per oosn/pub|icorp/iva\epnoperty. This begs a defiriition of immediate damage; | would clarify this phrase to state that it means damage nearly certain within the next rronth, if the tree 15 not pruned, topped or otherwise managed. Such changed definition is consistent with the Tigard policy of preference for tree preservation over removal and can result in the retention of important trees (and their canopy cover) within the city. However, note that a certified arborist is not an expert on damage to persons or to public or private property; a casualty insurance- • type professional should be used to make such judgment based on what part of or where an arborist might indicate a tree will likely fall. This addition should be part of the definition of a hazardous tree. 6 The content of a tree plan related to trees to be removed (18.790.030B.3) should require that the techniques considered to retain the tree along with their estimated costs, should be stated. C This proposal and the Tigard code itself leave out altogether any protection for trees (or whatever term should be used to describe woody stem plants less than 6 inches in caliper) of small size. It is precisely these trees which will grow most soon to perform the functions of trees in a forest. uch omission is contrary to the Tigard pohcy of preference for trce preservation over removal. Some requirement to preserve these smaller woody sterns should be employed in the code. D Practicable means possible, according to my dictionary. Staff should provide some history of how this term has been applied in real life land use proceedings applicable to Tigard (eg LUBA opinions). E How will city apply the 'means at hand' and 'circumstances as they are' terms? As wrtten, the deflnition of these terms might be read to be whatever the applicant thinks they might mean. Shouldn't there be words reserving this interpretation to the city? F 18.790.0308.5.a does not allow for pruning of trees at the start of development to make them viable 'save' trees; it should. Eliminate the word 'non-hazardous' in first line, eliminate 'existing' in second line. G 18.790.0308.5.e calls for potential reduction of parking spaces, but ignores a practicable alternative in most situations — perrneable pavement or perrneable pavement breaks. Such alternative should he pointed out. H In I8J9O.O3O8.6.O, the reference to code should be 18J9O.040A2 and .3. Editorial. I In 18.790.0308.6., the mitigation plan should include the size of replacement trees as well as the caliper inches to be provided. The mitigation plan, signed by the projec arborist, shouPd include a commitment and plans to monitor and maintain mitigation trees for three years to ensure establishment and probable success of mitigation. The applicant should sign such mitigation plan as well as project arborist, since Tigard is not likely to enforce mitigation against the projec arborist. The mitigation comrnitment should be documented as a Condition of Approval for the development; LUBA decisions have come back to the effect that a sirnple commitment in an application is not enforceable unless it is cited in a Condition of Approval. J 18.790.030C should be modified to specify a two year prior period for evaluation of tree removal outside development regulations. This wil! prov an additional incentive for persons contemplating site development to 'preserve rather then remove' trees in Tigard � K This proposal does not implement the City Council direction to preserve trees wherever 'possible', which were the words in the existing code and which were the words in the director's interpretation. Please consider reinstating this word as a standard for the preference for tree retention over removal. LRoquiro that the certified arborist working on the tree plan must have valid Tigard Business License. Include as penalty for tree removal contrary to plan the cancellation of Tigard license for the certified arborist. M Make the penalty for iliegaP tree removal a minimum of $50} not 'up to' $6O0.TD[lO.79O.OGU[. This is a proper irnplementation of the Tigard policy to encourage 'tree preservation over removal,' N At 18.790.030D, the term 'adequacy' is used. It is not clear what this term means. | suggest that examples be provided (ie professional judgment on tree condition, removal, etc.) at least in staff testimony, so as to provide a legislative basis for later interpretations. 0 In 18.790.030 at D and E.3, there exists a MANDATORY incorporation of the third party arborist findings into the tree plan or project conditions of approval. The city may not agree with what such third party arborist reports. I suggest that these two provisions include the parenthetical phrase regarding the third party report (as may be approved by the city). P At 18.790.030E, the first sentence should not refer to 'denying a tree plan', but should refer to denying 'an application with proposed tree plan' Q At 18.790.030E.1., the tree plan should include more than the arborist's signature, since much of the implementation and responsibility for compliance rests with the applicant and other contractors on site (eg z grading, excavation, surveying, equipment drivers unloacJing, etc), The appHcant should be required to sign the tree plan. R 18.790.030E.4. doesn't appear to be an approval criterion. Perhaps what is meant is that the application for development must include a commitment by applicant to meet 18.790.050 regarding tree removal on sensitive lands. Such commitrnent shoud be documented as a Condition of approval. S FoUovvup on comment 13 of 3/11/09. The issue of 'evidence supporting' was addressed in an earlier LUBA decision regarding the Tigard tree ordinance (Miller v City of Tigard, 46 LUBA 536i LUBA Z003'l3}(2/Z7/04). In the Miller decision, to meet the 'evidence supporting' phrase, the approval authority need only find that the record include something that a reasonable person would rely upon to adopt the land use decision. My comment is that the 'evidence supporting' phrase should apply to every tree and every tree plan requirement for a proposed development. T The Miller decision also noted shortcomings of the Tigard tree ordinance, "how the tree plan is implemented or enforced by the city', as it implements the 'preference for retention over removal' standard. LUBA found one shortcoming is that the Tigard rule 'does not provide any formal mechanism for amending a tree plan once a subdivision is approved' (Assignment of Error 1). The Tigard rule is sient on whether changes can be made to tree plans and how the city might go about approving such changes,' These shortcornings are an integral part of implementing the director's interpretation and should be addressed in this rule revision. U The tree pan requirements of 19.790.030 should, under the requirernent to identify trees, ensure that trees on the site which are to be removed should be clearly identified in the field, by colored tape or other rneans acceptable to the city. Such marking will allow meaningful participation by citizens to view the prospective impacts of a tree plan. John Frevving 7IlOSVV Lola Lane Tigard, OR 97223 jhewing@teleportzom 3 TIGARD TREE REGULATIONS — THIRD SET OF COMMENTS 3/16/09 Aa There has long been a requirement for submittal of a `mitigation plan', but this revision adds content requirements for that plan (030B.6.) My comment is that n individual development applications and reviews, much more than the several items mentioned in this code change are regularly requested — one important item NOT mentioned in this code change is when the required mitigation is to be done. If not specified and agreed upon in the dev&opment application/review, the mitigation ation may NEVER be done. Please add 'timing of mitigation work' to the content requirements of a mitigation plan. Other important elements of any mitigation plan include specification of existing conditions at the mitigation site, forest functions to be restored, maintenance plans (eg watering if necessary), remediar action for unsuccessful plantings, percent ground cover to be panted, etc.). Bb In the content requirements for the tree plan, there is great rehance on the 'dripline' as the outer bourdary of concerri for a tree protection zone. Six ofthe eight content requirements reference use of the dripline. The driptine is one standard which has been used, but other standards are also appropriate for some trees in sorne circumstances. This code provision should provide the city arborist the ability to specify something other than the dripline for a tree protection zone(TPZ), one which comes to mind is the TPZ defined by a 1-foot radius for each one inch of tree caliper diameter at 54 inches above mean ground level. Cc The 'director's interpretation included the caution 'failure to demonstrate that a preference has been given to tree preservation over tree removal may result in findings for denial of the development application.' This code change should indude such caution. Dd The applicable review criteria and staff report both omit any reference to review against the needs for fish and wildlife (Goal 5 resources) — either the provisions of the comp plan or the provisions of 18.775. 1 believe that the preservation of trees is an integral part of protecting and enhancing fish and wildlife resources — birds are not limited by a 'sensitive lands' map and rely alrnost exclusively on trees for nesting, roosting and feeding. It would be a reasonable requirement that the tree plan indicate how fish and wildlife resources are being addressed if trees are to be removed (eg don't cut down trees during nesting season). Please add such a content requirement for a tree plan as part of this code change. John Frewing ` MBA Home Builders Association of NletropolitanPortiand March 13, 2009 Jodie Inman. Commission President And Members of the Tigard Planning Commission City of Tigard 13125 SW Hall Blvd, Tigard, OR 97223 RE: Tree Code Amendments (DCA 2009-0001) Dear President Inman and Commissioners: I am writing on behalf of the Home Builders Assn. of Metro Portland to echo the request for continuance of this item as requested in the letter dated March 13. 2009 from Phillip Grillo. 1 too would hope that if given a bit more time we might be able to offer slight modification to the code language now being proposed that would make the referred to LUBA appeal moot and enable us to dismiss the appeal. Therefore, I respectfully request that the commission continue this item for 30 days. Sincerely, 77. / Ernie Platt Director of Local Government Affairs cc: John Floyd Associate Planner Phillip Grillo. Miller Nash 15555 SW Bangy Road 4 Suite 301 4 Lake Oswego, Oregon 97035 Phone: 503.684.1880 • Fax: 503.684.0583 4 www hornebuildersportiand.org 4 Stmnng for Affordatidny, Baianre and Choice 3400 U.S. Bancorp Tower 111 S.W. Fifth _Avenue Portia:1d, Orcguft 97204-3699 DFPC! 503224.585S rax 503.224.0153 Phillip E. Grillo phitgrillo@millernash.com (503) 205-2311 direct line March 13, 2009 Jodie Inman, Commission President and Members of the Tigard Planning Commission City of Tigard 13125 S.W. Hall Boulevard Tigard, Oregon 97223 Subject: Tree Code Amendments (DCA 2009-00001) Dear Commissioners: I am writing on behalf of the Homebuilders Association of Metro Portland ("HBA"). As you know, the HBA has been involved in the City's ongoing efforts regarding tree protection. The HBA has been diligently working with the City in an effort to balance the City's interest in tree protection with its responsibilities to also provide needed housing opportunities throughout the City. In that regard, HBA participated in the City's recently adopted comprehensive plan amendment process that led to the City's adoption of CPA 2008-00002 (Tigard's Urban Forest). As you know, the City's decision in CPA 2008-00002 has been appealed to LUBA (LUBA No. 2008-094). That appeal is currently on hold, while H BA and the City discuss possible revisions to the Tigard Tree Code that could make our appeal moot. As you know, the latest amendments to the Tigard Tree Code proposed by staff were recently released. I have not yet had an opportunity to fully review these revisions, or to meet with staff to discuss possible revisions. I am therefore requesting that the Planning Commission continue DCA 2009-00001 (Tree Code Amendments) for a period of at least 30 days,' to allow HBA to complete our review and meet \ vith City staff to discuss possible revisions. Hopefully, we will be able to reach an agreement with the City on reasonable amendments to the Tree Code that would allow us to dismiss our LUBA appeal. For all of these reasons, we ask that this PDXDOCS:1835205.1 038340-0004 Jodie Inman, Commission President March 13, 2009 Page 2 matter be continued for a period of 30 days. Thank you for your continued consideration. Respectfully submitted, Phillip E. Grillo cc: Tim Ramis, City Attorney John Floyd, Associate Planner Ernie Platt, Director of Local Government Affairs, I-IBA of Metro Portland PDXDOCS: 1835205.1 038390-0002 March \620M Tigard Planning Commission ��a uoom� on�rn/oxxon City o[Tigard RE: Development Code Amendment 2009'00001 / Tree Removal Code Amendment Dear Planni Commission members: We are writing to conunent on the proposed changes to the Tigard Tree Removal Code, Section 18.790. Fans of Fanno Creek is a local non-profit organization that wnrks with many citizens to improve the health of our watershed for citizens, and the fish, wildlife and habitats that are located in Tigard. We are especially concerned with the large numbers ofnative trees that liave been removed in Tigard rd in the past }O years, especially on such sites as Dorothy Gates property on SW 81 street, this was a 3 acre fully mature, wooded forest o[all native trees that was cicurcui/ It included a pair hawks � � �r nesting ov/ s that had nested here for years. Another clear ut was on the Senn property on SW 74 s1zoet, this was a mature western red cedar forest that was also clearcut and the developer further damaged any "trees to be retained on the tree p|an= to such an extent with his bulldozer that even these had to be cut down. 7� d longer afford to lose native �Aur can no on�ocu o oscnx /vc trees and every effort possible must be made to save all nf our remaining native trees whether they be single trees or part ofa grove or forest stand. Our cornmerits are as follows: • Applicable .Review Critieria (ARC) — Goal 5 is not listed as one nf the ARC but should be as it relates to protection and conservation of natural resources which includes "trees". It is a rnajor error to not list Goal 5 and how the proposed changes may affect trees including trees not located in Sensitive Lands. • 18790.010. A — Value ofTrees — This section needs to have added that "trees also are crucial in providing important wildlife habitat for a diverse assemblage of species in the city of Tigard." This will help to 1) meet Goal 5 requirements and 2) this is directly related to the Director's Interpretation to save trees rather than remove them untrees provide habitat for many species ofwildlife. • 18.790.020 Definitions — We recommend that trees should not be labeled "hnznrdous" if there is only a pari of the lree that poses uthreat, such as a dead limb. For example, several native trees in our neighborhood had dead tree limbs which were about to fall on property, and taking oftthe dead limb was sufficient in removing the ''hozard" the tree posed. Aec should not necessarily be a reason for a tree to be removed. Some native oaks in Tigard are over 150 years old but healthy, should someone be able to remove them just because they are old? We recommend that the "hazardous tree" definition be "a tree by which reason of disease. infestation, or other condition. whereby pruning of certain dead limbs for As it presently stands, the proposed changes to the Tree Removal Section of the Development Code fail to adequately address the need to protect and conserve native trees and forests as stated in the recently revised Tigard Comprehensive Plan, Natural Resources and Parks and Open Spaces Sections. We therefore request that the Planning Commission DENY the City of Tigard's recommended changes and work with citizens such as myself to rework this section of the Development Code to benefit native trees, forests and wildlife. Thank you for the opportunity to comment on the proposed changes to the Tree Removal Code. Sincerely, Sue Beilke, Wildlife biologist. Board member of Fans of Fanno Creek • City of Tigard 1: '00 Memorandum To: John Floyd, Associate Planner From: Greg Berry, Pro)ect Engineer Re: DCA 2009-00001 Tree Removal Date: 3 2009 Findings: Currently, the City Engineer decides whether trees within the right-of-way are to be removed. This authority is required to ensure compliance with the City's public improvement standards. The proposed amendment to 18.790.030A would instead require tree plans for trees within the right-of-way. As part of the land use permit process, results of the tree plan would be used to determine if a tree within the right-of-way should be retained or removed. Consequently, the City Engineer would no longer have authority over trees within the right-of-way. Recommendations: The proposed amendment to 18.790,030A should not include adding "adjacent right-of- way", eme c...ntrursrskiterl 2C09 ',Yawl tree wnove:Cuc ATTACHMENT 4 7 ; . " City of Tigard TIGARD Memorandum To: Mayor Dirksen and the Tigard City Council From: John Floyd, Associate Planner Re: Recommended Changes to Tigard Development Code Amendment DCA2009- 00001, and Staff Response to Recent Public Comment. Date: June 29, 2009 The intent of this memorandum is twofold. First, this memorandum suggests changes to the Planning Commission recommendation of March 16, 2009 for Council to consider. These suggestions are in response to input received from Council and the City Attorney. In addition, this memorandum contains staff responses to recent public comment on this item SUGGESTED CHANGES The language changes approved by the Planning Commission can be found as Exhibit "A" to Attachment "1 ", and are marked in RED FONT. Subsequent changes which are suggested by staff are also marked in GREEN FONT in Exhibit "A ", and result from the following: > Feedback received from City Council at the April 21, 2009 workshop. > Advice from the City Attorney's office. > Electronic Correspondence from Councilor Nick Wilson dated May 4, 2009 and included as Attachment 5 of this packet. Council Feedback In response to Council feedback received at the April 21, 2009 workshop, it is recommended that clarifying edits be made to the purpose statement and narrative question found in section 18.790.030.B.5(d). These changes have been incorporated into Exhibit "A" and as previously stated are marked in green. Consultations with City Attorney and Home Builders Association Following the Planning Commission's decision on March 16 of this year, Tigard staff and the City attorney met with the representatives of the Homebuilder's Association of Metropolitan Portland (HBA). As a result of issues raised at that meeting, the City Attorney's office has suggested additional language changes to ensure the proposed amendment complies with Statewide Planning Goal 10, and more specifically the requirement for a "clear and objective standards" approval track. Recommended changes include the following: 1 ATTACHMENT 4 ➢ Removal of peer review. Any decision to refer a project to peer review would be discretionary in nature. A project would therefore have to submit a narrative that answered "yes" to all questions listed in 18.790.030(B)5 or face denial. ➢ Amending the approval criteria: o Modifying Approval Criteria 1 to state that the narrative must answer "yes" to all 8 narrative questions in order to be approved. o Removal of Approval Criteria 2 through 4 In response, planning department staff has incorporated those changes into Exhibit "A ", also marked in green. Councilor Wilson On May 4 staff and the Council received correspondence from Councilor Nick Wilson regarding the Planning Commission recommendation of March 16. In that correspondence, Councilor Wilson suggested alternative language to that recommended by the Planning Commissions. These suggestions have been incorporated into Exhibit "A" and are also demarcated in green, with exceptions to this inclusion noted below. The rationale for the alternative language is as follows: ➢ Councilor Wilson's primary concern is with respect to the approval criteria. Feels that the new code allows the City to reject any development that it considers insufficiently protective of trees, and objects to it for the same reason that he objected to the proposal to give the City broad discretion to revoke business licenses. It gives the City almost dictatorial power to completely reject an application based on a subjective judgment. Staff Response: The intent of the amendment is to ensure that major design decisions have been made by a design team that includes the project arborist at all stages. The proposed amendment, including the suggestions marked in green, will not allow the city to reject an application if they can produce a tree plan written by a certified arborist or landscape architect, that states that all practicable measures have been taken to protect trees where reasonable to do so. In other words, the City's role is to ensure that the applicant has given consideration to tree protection during the design process. ➢ Believes that development code should be clear, concise, simple, fair, contain objective criteria, and be effective and efficient in accomplishing the public purpose for which they are written. The proposed revisions start to move away from these principles. Staff Response: The proposed language, with the additional suggestions demarcated in green, strives to meet these principals by allowing applicants to "self- certify" by answering a series of defined questions that ensure a clear, objective, and uniform manner through which tree protection is to be administered. ➢ If the intent is to inject some discretion into the development code and encourage developers to negotiate with staff in an effort to reduce the impact to trees, he believes there are better ways to do that, such as through the application of incentives or penalties. 2 ATTACHMENT 4 Staff Response: The intent of the amendment is not to insert discretion into the Tree Protection Chapter of the ordinance, only to clarify how an applicant can demonstrate compliance with the City's stated preference for tree protection in a clear and objective manner. ➢ Considers the developer /owner to be in the best position to make decisions regarding the fate of existing trees because he /she is the one making the big investment. Staff Response: The intent of the proposed amendment is not to dictate which trees are to be saved. Rather, it establishes a series of questions that must be answered to ensure that known and reasonable tree protection strategies have been considered and incorporated into the project design, where practicable and appropriate to the project site given existing conditions and the overall goals of the project. ➢ Recommends that landscape architects be allowed to review and sign plans in addition to certified arborists. Staff Response: Language to this effect has been incorporated into Exhibit "A" as one of the suggestions for Council to consider. ➢ Doesn't think it is standard practice to measure trees by tenths of inches and it seems extraordinarily "nit- picky." Staff Response: This language was inserted into the proposed amendment to address inconsistencies in how different tree plans record the size of trees. Some round up and others round down to the nearest inch or half inch. Because ISA measuring tapes already contain measurements to the nearest tenth of an inch, the proposed language change would not impose any additional burden upon project arborists and would ensure uniformity upon the inventory and mitigation process. ➢ Rather than estimating distances from the property line, recommends that the plan inventory and address trees whose canopies overhang the project site. Staff Response: Language to this effect has been inserted into Exhibit "A" as a suggestion for Council to consider. ➢ Suggests the narrative questions in 18.790.030.B.5 be put to a different use and thinks that in most cases it will be obvious whether these concerns were or were not addressed and will not have much effect. Suggests eliminating paragraph 5 as a submission requirement and instead moving the questions a. through h. as review criteria that the Planning Director will consider when deciding whether to pursue a Peer Review process. Staff Response: As discussed in an earlier part of this memorandum, staff recommends removal of the peer review process altogether. As a result this language change is not 3 ATTACHMENT 4 recommended and has not been incorporated into Exhibit "A" as one of the suggestions for Council to consider. ➢ Strongly suggests simplifying the peer review and modification processes. He finds both to be too difficult and time- consuming, and believes that developers will take out every tree if there is the slightest doubt about whether it can be saved. All decisions must have some flexibility and be made quickly after the start of construction. Staff Response: As discussed above, staff recommends removal of the peer review process altogether. As for the modification process, it is rare that modifications are found to be necessary after the start of construction. Typically, such modifications occur when construction documents are submitted for review when there is more than enough time for the Director to issue a minor modification to an approved plan. In addition, LUBA has chided the City of Tigard for not containing a minor modification process for Tree Plans. As a result, staff recommends the retention of modification procedures within the proposed amendment. That said, to expedite the review process the definition of a major modification has been adjusted to PUBLIC COMMENT Staff has received public comment from John Frewing, Phillip Grillo, and Alan DeHarpport. A brief summary of their comments, and staff responses, are listed below. John Frewing On May 12 the City received an email from John Frewing (Attachment 6). In this correspondence Mr. Frewing recommends further changes to the recommended language, specifically the expansion of the definitions of "hazardous tree" and "practicable ". ➢ Believes that in some instances, a hazardous tree can be rendered non - hazardous through the use of standard arboricultural practices (i.e. pruning, spraying, etc.). Recommends the insertion of additional language into the definition of "hazardous tree" to reflect this concept. Staff Response: Staff recommends against Mr. Fewing's suggestion as it strays outside the narrow scope of this amendment and is better addressed as part of a comprehensive examination of how the City addresses hazardous trees. This comprehensive examination is presently occurring through development of the Urban Forest Master Plan, presently in draft form and out for public comment, with recommendations for how the City should proceed with the development of a hazardous tree program. ➢ Mr. Frewing also questions the assigned responsibility for determining what is "practicable" in the question of tree preservation. More specifically, he is concerned that the city is relinquishing too much authority to the project arborist who determines what is practicable, 4 ATTACHMENT 4 and in his opinion renders the tree plan "meaningless ". Requests that the definition of practicable be expanded to include the phrase "as explained by the applicant and approved by city officials." Staff Response: Staff does not recommend the adoption of Mr. Frewing' suggested language. The result would be the placement of additional discretion in the hands of staff regarding when a Tree Plan can be declared adequate, and run counter to the requirement for clear and objective criteria as discussed on pages 1 and 5 of this memorandum. Phillip E. Grillo on behalf of the Home Builders Association of Metropolitan Portland On May 12, 2009 the City received a comment letter from Mr. Grillo, included as Attachment 7. Below is a summary of the comments outlined in this letter, as well as a staff response to the main points: ➢ Concerned that the proposed amendments contain new discretionary standards that violate the clear and objective standards requirement. Staff Response: As previously discussed on pages 1 and 2 of this memorandum, staff has responded to Mr. Grillo's concerns by proposing new language that amends the Planning Commission recommendation of March 16 to bring it into compliance with the clear and objective standards required by State Statute. ➢ Is concerned that amendments do not address Statement Planning Goal 5 and Title 13 of the Metro Urban Grown Management Functional Plan. Specifically, the proposed amendment will (1) reduce the development potential within the city "because much of the City's buildable lands inventory contains trees on sensitive lands "; (2) that the City is raising the level of protection of a Goal 5 resource (trees within sensitive lands) without following the requirements of Goal 5, including the requisite ESEE analysis; and (3) that by that protecting trees "wherever practicable" the amendment reduce development potential of developable lands within the city. Staff Response: (1) The buildable lands inventory is not affected by sensitive lands regulations as it only contains fully vacant or partially vacant parcels outside of sensitive lands areas. (2) Trees on sensitive lands are not being affected because the proposed amendment is limited to informational submittal requirements, and does not establish new protections for trees on sensitive lands. At present, trees in sensitive lands are subject to a permit requirement to ensure that erosion is properly addressed, but beyond the requirement for an erosion control plan there are no regulations to prevent their removal. (3) The proposed amendment does not require an applicant to reduce the development potential of the property in question. Rather, it clarifies and transfer an existing code preference and Director's interpretation into a clear and objective 5 ATTACHMENT 4 informational requirement that enables applicants to demonstrate how trees are being protected wherever it is reasonably capable of being achieved. This reasonable person standard allows the applicant considerable discretion in responding to the unique conditions and circumstances of the property, the type and condition of the existing trees affected by the project, the myriad of other code requirements applicable to land development and construction, and the program goals of the applicant. Alan DeHarpport On May 18 both staff and the City Council received a letter from Alan DeHarpport (Attachment 8) regarding the proposed code amendment and other related work the City is undertaking regarding tree management in Tigard. Those portions of the letter applicable to the proposed amendment are summarized as follows: ➢ "Instead of addressing...problems with the [tree protection] code, the proposed amendment simply attempts to codify the language in the Director's Interpretation currently under appeal by HBA" Staff Response: The scope of the Director's Interpretation is the result of Council direction which resolved the HBA appeal Mr. DeHarpport refers to in his letter. That appeal was decided by Council in favor of the HBA, and was coupled with a Council directive to implement the Director's interpretation through the legislative process. It was not intended to completely overhaul the code. The work is being performed through a separate process, which Mr. DeHarpport and HBA have withdrawn participation from as of the writing of this Memorandum. ➢ In several sections of the letter, Mr. Deharpport states a concern that the amendment does not conform to the requirement for clear and objective standards. Staff Response: This issue has been addressed in previous sections of this memorandum. ➢ States that the builder /developer community's chief concerns have always revolved around exempting specific areas from punitive mitigation requirements, and "despite multiple parties repeatedly raising these issues pertaining to mitigation standards and exemptions for infrastructure for nearly two years, the amendment does not address either of these primary areas of concern ". Staff Response: As stated above, the proposed amendment was never intended to address mitigation, only to clarify an existing ambiguity in the tree protection chapter regarding how an applicant is to demonstrate conformance with the City's stated preference for tree protection over removal. ➢ "Mr. Floyd's assurance in his February 20, 2008 email that [HBA] concerns will receive `full consideration' with the code amendment has not been fulfilled." Staff Response: While outside the scope of this amendment, it should be stated that the City is currently developing an Urban Forestry Master Plan, presently out for public comment, with completion of this work plan scheduled for Fall 2009. This master plan fulfills Comprehensive Plan Policy 2.2.11 and is intended to guide a comprehensive update of the City's policies, regulations, standards, and programs related to urban forestry. In developing this master plan, the HBA was 6 ATTACHMENT 4 granted a reserved seat on the Citizen Advisory Committee though has chosen to not to participate in the majority of the meetings. In addition, city staff scheduled in person interviews and solicited written comments from a variety of stakeholders involved in the development process including the HBA, the American Society of Landscape Architects, and the Pacific Northwest Chapter of the International Society of Arboriculture. The purpose of these interviews was to reveal detailed information on how Tigard's tree regulations and practices could be improved, and to provide an avenue for open -ended input into the Master Plan. This input has been used to create a list of recommended changes that will guide future code amendments and other tree related actions of the City. 7 ATTACHMENT 5 John Floyd From: Nick Wilson [Nick @atlas- Ia.com] Sent: Monday, May 04, 2009 1:33 PM To: John Floyd Cc: Todd Prager; Craig Prosser; Ron Bunch; Darren Wyss Subject: RE: Tree Ordinance John, Oops! I just realized that there is not much of a penalty if a developer has to go through the peer review process and then only mitigates at the rate that he would have had to mitigate anyway. See suggested changes below in green. My primary concern with the Recommended Amendments to the Tigard Development Code 18.790 (Tree Removal) is with respect to the approval criteria. The new code a llows City to reject any development that it considers insufficiently protective of trees. 1 object to it for the same reason that I objected to the proposal to give the City broad discretion to revoke business licenses. It gives the City almost dictatorial power to completely reject an application based an a subjective judgment. 1 believe that development code should be clear, concise, simple. fair, contain objective criteria. and be effective and efficient in accomplishing the public purpose for willed) they are written. The proposed revisions start to move away from these principles. If the intent is to inject some discretion into the development code and encourage developers to negotiate with staff in an effort to reduce the impact to trees. 1 believe that there are better ways to do that. f think that a simpler "peer review" process would be acceptable and potentially effective but the outcome should not be mandated. Rather. if the developer rejects the peer review design solution, then the developer might be required to pay a higher mitigation fee if those trees that would otherwise be retained are removed. t think that the City should be able to apply incentives or penalties for removal of trees but not to completely reject a project or to dictate specific design solutions. Sometimes it is entirely feasible to preserve trees with retaining walls, or steeper streets. or odd shaped lots, or constrained parking layouts, alternate building floor plans, or some combination of design changes. however many tree protection design solutions may be detrimental to the overall project in some way. And some trees are simply not worth protecting. A majestic 60' Oregon oak is worth investing far more effort to save than a 12" alder with a broken top. Ultimately someone must make a value decision about the tradeoffs. The developer /owner is in the best position to make those decisions because he/she is the one making the big investment. Sometimes a little creativity can result in a design that saves trees and improves the overall project. 1 think that should be the goal of a third party review process. 1 have made some line by line suggestions below, including a simpler peel' review process below (code language shown in plum color, commentary in blue). Line by line comments and suggestions. 790.020 A 7. T would suggest; splitting this definition in two. One definition for a `tree' and one for "diameter breast height (DRT-T)" so that you can .refer to "D1311" later (see my continent for 790.030 1 1.) as follows: 7 Trc;o grans any living standhur woody plant d'' Diameter Breast TTeigllt (DT.3TD or greater, 8 (or whatever if alphabetical). Diameter _Breast TTeight (P13TT) relbrs to the measurement oft he diameter el' a 11'ee 1/'nnk at 5-1 inches (1 . let) above moan ground level at the &Ise ol'the trunk. For trees that split into mull iple trunks above the ground but below ,5-1 inches. the measurement shall be measured at tics most. narrow point beneath sew split. For trees that split below the ground each trunk .shall tic considered ono tree. 790.030 13. 1. 1 would suggest adding the following sentence: 1 in addition to trunk locations. the plan shall include the approximate edge of'canopy lur• each tree or group of frees including offsite trees which overhang the project site. 790.030 A. I would suggest either 'reviewed and signed by a ccrrti'ed arborist " or "prpared and signed by a certified arborist andlorlandscape architect': Usually the tree protection plans are prepared by the landscape architect but with input by the arborist.. The reason is that landscape architects have training in both tree care and training to produce CAT) drawings and specifications for construction contracts. Arborists are more specialized in trees alone and therefore may have a deeper knowledge of trees but. they generally lack the ability to produce drawings and are less familiar with administering construction contracts. ideally it, would be a collaboration between the two but on small projects it could be an arborist alone. 790.030 13. 2. T don't think it is standard practice to measure trees by tenths of inches and it seems extraordinarily nit. 1 think it would he okay to round to the nearest inch but T would put thal, in paragraph 1. Identification of the location sire (I)1311) rounded to the nnarestinch, condition and species... 790.030 13. 4 1 would change this to "including offsite trees whose canopies overhang the project site." Since we have added language to have the surveyor pick up the edge of the canopies in 790.0301. 1. , we can simply address impacts under the canopies and don't need to get anyone's permission to do anything offsite. 790.0:30 13. 5 1 would suggest that these questions be put to a different use. .1 think that in most cases it will be obvious whether these concerns were or were not addressed. if you make the applicant go through the motions of vv-siring a narrative for each question, it could be largely make-work for consultants driving the project cost up but not necessarily having much effect. 1 would suggest eliminating paragraph 5 as a submission requirement and instead moving the questions a. through h. as review criteria that the Planning Director will consider when deciding whether to pursue a Peer Review process. See comment, on Peer Review below. 790.030 13. 5 Add "or landscape architect' Again, landscape architects are the specialists who produce planting plans, not arborists. 790.030 1). Peer review The Planning Director will review the Tree flan and will consider at a rninirn the following: a. Does Use project protect and retain existing non hazardous... 11'afer reviewing iecr'ing the tree plan. the Planning Director concludes that alterations to the project design could result in reduced impacts 10 frees, he may at his sole discretion. subject the plan to a third party review process by appropriate consultants under contract with the City ffthe third part)' consultants find that additional trees can be retained through an alternate design, the planning director shall present their findings to the applicant., The applicant may at his option. accept their reeom mendations and retain the trees. or re ject the renornmendaatiens and m1'140110 tcir' lhe, trees that could have b e en preserved Baia. ate ofs22lrmespael ;ca?hperm`ch according 10 18.790.0601) T would assume that the.reviow process would include a fee. Applicants would want to avoid going through this process because of the fee, mitigation costs, the additional time it, would take as well as the potential picking apart of the design. So T would anticipate that in most cases there would be some negotiations to avoid the process. The City might need to engage a variety of consultants depending on the expertise needed. They might; be an architect. a civil engineer, an arborist, landscape architect. electrical engineer, traffic engineer. or whatever depending on the situation. 790.030 F. lblodification 2 1 would strongly suggest simplifying the process. if the modification requirements are coo difficult and time - consurning, developers will take out every tree if there is the slightest doubt about whether it can be saved. In my experience, 1 have lost trees that. we thought that we could save and made every effort to save. 1 have also seen trees survive severe impacts unscathed. You don't always know how things are going to turn out. I think it, is better to try to save them even if you know you might be impacting them, rather than take there out. You never know when you might get lucky. lout, if the developer is penalized for trying. the tree will be condemned during the planning process and ultimately more trees will be lost. All construction contracts have a date for completion of the project that the contractor must adhere to Delays are very costly. In addition, when workers are idle or taken off the job it is very expensive. All decisions after the start: of construction must, be made very quickly. Sometimes changes must be made due to unforeseen circumstances such as the presence of rock or unsuitable soils that require alteration of trench locations. Sometimes roots are not where they are expected to he The changes to the plan must, be as simple as calling the city arborist to come out and give the okay within 24 hours or so. If you don't allow for this, developers will take everything out anywhere near where they are working because of the potential for delays involved in the mortification process. Thanks for considering these comments. T will also have some comments on the Urban Forest. Plan later. Nick Wilson Atlas Landscape Architecture :320 SW 6th Avenue, Ste. 300 Portland. OR 97204 (503) 224 - 5238 http://www.atlas-1a.com/ From: John Floyd [mailto:Johnfl @tigard- or.gov] Sent: Friday, April 24, 2009 5:07 PM To: Nick Wilson; Councilmail Councilmail Cc: Todd Prager; Craig Prosser; Ron Bunch; Darren Wyss Subject: RE: Tree Ordinance Councilor Wilson, Thank you for sharing your thoughts and expertise on this matter. I and other staff am very eager to hear your alternative language and technical comments, just let us know how we may be of assistance. Also, nothing was taken personally and we greatly appreciate the insights you bring to this subject. Have a great weekend. Regards, John From: Nick Wilson [mailto:Nick @atlas- la.com] Sent: Friday, April 24, 2009 10:15 AM To: Councilmail Councilmail; Craig Prosser Cc: John Floyd; Todd Prager Subject: Tree Ordinance 3 To my esteemed Council Colleagues, Regarding the tree ordinance discussion on Tuesday night, I was disappointed with myself that I was unable to convince at least two of you that the proposed ordinance is heading in the wrong direction. I attribute that to my inability to clearly articulate my objections. I generally read the Council Packets over the weekend prior to the meeting. A couple of clays was not enough time for me to develop a clear and compelling argument. But I am going to keep trying. You can expect a formal dissenting opinion from me when I have time to get to it. In the mean time I have been mulling over a potential alternative that might accomplish the same objective. For John and Todd, I appreciate your work and please don't take my objections personally. I will also forward you some technical concerns that I have with the ordinance that I briefly touched on during the meeting. Thanks! Nick Wilson Atlas Landscape Architecture 320 SW 6th Avenue, Ste. 300 Portland, OR 97204 (503) 224-5238 http_ / /www. atI as -I a. com/ r,c.a:s 4 ATTACHMENT 6 John Floyd From: Craig Prosser Sent: Tuesday, May 12, 2009 3:54 PM To: John Floyd; Ron Bunch; Cathy Wheatley Subject: FW: Testimony: Tree Removal FYI From: Craig Dirksen [mailto:craigd ©tigard - or.gov] Sent: Tuesday, May 12, 2009 12:46 PM To: Liz Newton; Craig Prosser; Councilmail Councilmail Subject: FW: Testimony: Tree Removal From: jfrewingJSMTP :JFREWING{a�TELEPORT.COM] Sent: Tuesday, May 12, 2009 12:43:58 PM To: Craig Dirksen Subject: Testimony: Tree Removal Auto forwarded by a Rule Mayor Dirksen and Councilors, Below is my testimony for tonight's public hearing on amending the TDC Chapter 18.790, Tree Removal. John Frewing TREE CODE UPDATE TO INCORPORATE INTERPRETATION OF 'PREFERENCE' TESTIMONY OF JOHN FREWING, MAY 12, 2009 While not giving up on the various comments which I have previously submitted, two things still concern me about the proposed change, where simple changes can resolve them and lead to a more meaningful tree removal ordinance for Tigard: A Definition of 'hazardous tree.' The Director's interpretation which sought to define how preference will be given to tree preservation includes clarification of 'tree', because such definition defines the scope of the tree plan and scope of city regulation. I believe that a tree can be a hazard to people or property as it stands today, but with corrective action, such as pruning, can be safe and an important asset to a residence and to the city as a whole. Because 'tree' was within the scope of the director's interpretation, 'hazardous tree' should also be within the scope of this change. I believe that the definition of 'hazardous tree' should read: "Hazardous tree means a tree, means a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property and which cannot be rendered non- hazardous by use of standard arboricultural techniques, eg spraying, pruning, fertilizing, etc. B Responsibility for determining 'practicable'. The essence of the entire Tigard code is that it sets rules for development, rules which use English language understandable to applicants and the public and which are used by city officials to determine compliance or not. The city should not give up its authority to apply the code words in determining compliance. The present code change calls for the use of certain design and construction techniques `to the extent practicable'. In deliberation of the Planning Commission (see bottom, page 7/9 of their March 16, 2009 minutes), it is written that the applicant would determine the meaning of 'practicable'. I am concerned that this notation in the legislative history makes the entire requirement for plan submittal meaningless. The city officials must retain the right and obligation to make their call on what is 'practicable'. Of course such determination by the city can be challenged, but to leave the determination entirely to the applicant means that whatever the applicant submits is acceptable; this should not be the case. This situation can be simply fixed in the present proposed ordinance by adding to the definition of 'practicable' the words "as explained by applicant and approved by city officials." Thank you. John Frewing 7110 SW Lola Lane, Tigard, OR jfrewing@teleport.com 2 • Attachment 7 3400 U.S. Bancorp Tower { I'm . FoRTIaN�, OREGON 111 S.W. Fifth Avenue SEAT1 LE, WASHINGTON GTOI 97204-3699 Portland, Oregon VANCOUVER, VASHINC,TON MILLER CENTRAL OREGON LER NASHI OFFICE 503.224.5858 , ,..x •.`T J FAX 503.224.0155 + 'V 1 ATTORNEYS AT LAW WWW.MILLERNASH.COM Phillip E. Grillo phil.grillo @millernash.com (503) 205 - 2311 direct line kf� arcfY May 12, 2009 hX BY HAND DELIVERY 4S Mayor Craig E. Dirksen and City Council Members City of Tigard 13125 S.W. Hall Boulevard = =y Tigard, Oregon 97223 1 F, Subject: Development Code Amendment Regarding Tree Removal <' (DCA 2009 - 00001) Dear Mayor Dirksen and Council Members: I am writing on behalf of the Home Builders Association of Metropolitan k Portland ( "HBA "). As you know, the HBA has been diligently working with the city in an effort to balance the city's interest in tree protection with its responsibilities to provide needed housing opportunities throughout the city, and to otherwise comply with state and regional legal requirements and policies. '; On April 3, 2009, we met with the city's planning staff and the city uF attorney to discuss our main concerns with the amendments recommended by the planning commission to City Council, dated March 16, 2009. We understand from i Mr. Floyd that as a result of Council's recent work session, that a new set of amendments may be in process. We have requested a copy of any new amendments, but ; so far have not seen anything responding to our concerns. . tT^y On April 3, we outlined several of our main legal concerns. Those concerns are as follows: 1. Clear and Objective Standards. The proposed tree code Yv ' amendments contain a significant number of new discretionary standards that violate :. � � the clear and objective standards requirement of the "needed housing rule in ORS 197.307 and ORS 197.830, as well as the requirements in Metro Title 13 that also �97.3 7 '�20.C.nR.F require clear and objective standards for habitat protection regulations. At our meeting 3, we ex on April explained our concerns to staff and shared with them a copy of a recent • q � p P 1 PDXDOCS:1847319.1 038340 -0004 ra PORTLAND oaccoN SEATTLE, wsru r; cro N '��` CENTRAL VANCOUVER, ON - MILLER NASH CENTRAL OREGON k := ,e ATTORNEYS AT LAW WWW.MILLERNASH.COM Mayor Craig E. Dirksen and City Council Members k Page 2 � 3" LUBA case, where this issue was extensively discussed in relation to the City of Eugene's code amendments that enacted new tree protection regulations: See HBA v. City of • Eugene, 41 Or LUBA 37o (2002). f�F4 Many of the amendments proposed in the March 16, 2009, draft create tree removal standards and procedures that are not clear and objective and therefore violate ORS 197.307 and Metro Title 13. As noted below, they also do not address and likely violate Statewide Planning Goals 5, 9, and 10. For example: A. Section 18.790.030 establishes a new discretionary standard "a`Fr that "Protection is preferred over removal whenever practicable." The term ° "practicable" is newly defined in Section 18.790.o2o(A)(4) as follows: "Practicable means reasonably capable of being done or accomplished with the available means or resources B. Section 18.790.030(B) has been extensively amended, adding a series of standards to determine whether the city's preference for tree r protection "whenever practicable" has been incorporated into the project design. These s standards require the applicant to provide a Tree Plan "narrative and site plan" • demonstrating how eight new design and construction techniques will be utilized "to the extent practicable" during development. These new design and construction techniques contain standards and procedures that are not clear and objective. See especially 5(a), subsections 5 (b), and (h). Other standards such as those in subsections 5(c), (d), and (e) are more clear and objective, but do not consider or address the consequences of moving, reducing, eliminating proposed improvements redesigning, movin � reducin � or eliminatin ro osed irn in an effort to preserve trees. In other words, these standards do not consider or address the impacts caused by these new tree removal standards on needed housing under Statewide g employment = Plannin Goal 10, or on and industrial land or on other economic resources protected under Statewide Planning Goal 9. Under this new standard, if it is ,�' "practicable" to preserve a portion of a site for trees, that portion of the site is no longer available to serve needed housing or employment needs. These impacts must be considered and weighed now, in order to comply with Goals 5, 9, and 10. fi = =? C. Section 18.790.030(D) creates a discretionary "peer review" process that the city "may" at its discretion use to judge the "adequacy" of the applicant's tree plan. If such "peer review" is used, it "shall" be incorporated into the tree plan by revision or condition of approval. This discretionary "peer review" process not only • violates the needed housing rule, because it does not provide clear and objective standards to judge the adequacy of peer review. It is simply another layer of Y'•s discretionary review. PDXDOCS:1847319.1 038340 -0004 ; PORTLAND, OuecOiJ SEATTLE, , .VASHIIVGTON VANCOUVER, wnsruniG cni MILLER NASHLLP CENTRAL OREGON ATTORNEYS AT LAW \VWW.MILLERNASH.COM Mayor Craig E. Dirksen and isY.nP23 City Council Members , u , P age 3 D. Section 18.790.030(E) contains the new approval criteria for tree plans. This section contains standards that are not clean and objective —see 1. especially subsections (E) 1, 2, and 4. sa 2. Goal .s. The proposed amendments to the Tree Removal chapter of the Tigard Development Code are likely to reduce the development potential for x residential, commercial, and industrial lands, because much of the city's Buildable E Lands Inventory contain trees on sensitive lands. (Compare the city's Buildable Lands Inventory with its Sensitive Lands Map.) Protecting trees "whenever practicable," as proposed in these amendments, will reduce the development potential on otherwise buildable residential, employment, and industrial lands, and will also reduce the redevelopment potential of lands already developed that contain trees on sensitive lands. One of the important functions of Goal 5 is its requirement to explain and justify why Goal 5 resources such as trees on sensitive lands are being protected relative to other identified economic, social, environmental, and energy ( "ESEE ") impacts. Because these proposed tree removal amendments increase the level of protection Ys afforded inventoried Goal 5 resources (i.e., sensitive land containing trees), the requirements of Goal 5 must be complied with, including but not limited to the requisite { ESEE analysis. Tigard's sensitive lands code (Chapter 18.775) is explicitly intended to $azt 4a address Goal 5 and implement the Metro Urban Growth Management Functional Plan. One of the express purposes of the tree code is to regulate removal of trees on sensitive lands and prevent erosion on sensitive lands. Under Metro's regulations, proposed tree code amendments, on sensitive lands are also subject to Metro Title 13, and its requirements for clear and objective criteria and protection of residential, commercial, } a and industrial development potential. Conclusion Our main concerns with the tree removal amendments proposed by staff and recommended by the planning commission are that these standards are not clear and objective, and fail to consider the development impact on residential, commercial, and industrial lands, thereby violating ORS 197.307, ORS 197.830, Statewide Goals 5, 9, and 10, and Metro Title 13. • We encourage City Council not to adopt these regulations. Instead, we ask that staff be directed to work with the HBA and other interested parties in an effort to create a more clear and objective tree removal process that is easier to understand and PDXDOCS:1847319.1 038340 -0004 • l PORTLAND, OREGON KEY SEATTLE. wnsHINC!ON • VANCOUVER, WASHING /ON }5r MILLER NASHL'P CENTRAL OREGON • - ATTORNEYS AT LAW WWW.MILLERNASH.COM �.rvM3' xo,.54 Mayor Craig E. Dirksen and City Council Members .Ub Page 4 • • • • administer, and does not significantly constrain the development of needed housing in employment and industrial lands in the City of Tigard. Respectfully submitte , Phillip E. G llo on behalf of the Home Builders Association • of Metropolitan Portland cc: Mr. Dave Nielsen Mr. Ernie Platt Mr. Alan DeHarpport Mr. Ken Gertz Vi • 4ti r s;E_ , ." rs • +rte . PDXDOCS:1847319.1 038340 -0004 Attachment 8 Alan DeHarpport 5740 SW Arrowwood Ln Portland, OR 97225 503 -709 -2277 - May 18, 2009 Mayor Craig Dirksen Councilor Nick Wilson, President Councilor Gretchen Buehner Councilor 1V1arland Henderson Councilor Sydney Webb City of Tigard 13125 SW Hall Blvd Tigard, OR 97223 Re: Development Code Amendment Regarding Tree Removal (DCA 2009 -00001) Mr. Mayor and Councilors, Thank you for continuing this controversial amendment at last Tuesday night's hearing. As you review the • materials submitted by City staff and RBA's legal counsel, Phil Grillo, you should also be aware of my frustration attempting to bring balance to the tree code for nearly two years, why I resigned from participation, and why HBA has chosen to pursue legal recourse to correct the situation. When I agreed to act as the HBA representative for the Urban Forest Comprehensive Plan Amendment I was optimistic that a balance could be struck between tree preservation and development and hopeful that mitigation standards and fee structures would be addressed in this proposed amendment after the CPA was approved. Instead of addressing these inherent problems with the code, the proposed amendment simply attempts to codify the language in the Director's Interpretation currently under appeal by HBA. This shows either a lack of understanding or a disregard for our State laws. ORS 197.307(6) states: "Any approval standards, special conditions and the procedures for approval adopted by a local government shall be clear and objective and may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay." I argue that a tree code that relies on the Director's discretion to determine the fees for mitigation and a peer review process (formerly at the Director's discretion in previous versions of the amendment) to determine whether or not a tree plan is "adequate" couldn't be less clear and less objective. The LUBA opinion regarding HBA of Lane County vs. City of Eugene referenced in Mr. Grillo's letter dated March 12, 2009 strongly supports this argument. The builder /developer community's chief concerns have always revolved around exempting specific areas that require infrastructural and structural development (streets and building pads) and the punitive nature of the mitigation requirements. The current fee in lieu of mitigation far exceeds actual cost to plant and maintain trees. On an eight -lot subdivision, City assurances required $106,000 based on the current fee in lieu of mitigation fee structure while my actual cost to plant the trees was between $17,000 and $1 The number of replacement caliper inches required to meet the code is excessive when one considers total inches at maturity of these mitigation trees. Despite multiple parties repeatedly raising these issues pertaining to mitigation standards and exemptions for infrastructure for nearly two years, the amendment does not address either of these primary areas of concern. The single written response to these concerns was received from John Floyd during the Urban Forest CPA process in an email on February 20, 2008 which states: "staff has not supported the central concern expressed by members of the HBA (specific exemptions from the current mitigation structure) as this matter is better addressed through a comprehensive evaluation and update of Tigard's tree codes and mitigation structures. Staff is not necessarily opposed to such exemptions, just their appropriateness to the current project under consideration. To insert specific code exemptions into the comprehensive plan without a full evaluation of their impact on the function and effectiveness of the development code, is inappropriate and may be counterproductive to the goals of both the homebuilders and the city at large. Staff is already planning for a Tree Code update in the coming year, as mandated by Council on May 22, 2007 via Resod-LA-ion-0-7- - - - - -- - -- 30. I can assure you that your proposed amendment will receive full consideration at that time" (emphasis added) . See enclosure dated Feb 20, 2008. In the past 15 months since receipt of John Floyd's email, I have sent numerous letters and emails and have included some for your review. Several MBA members have testified and written other letters and emails. None of these Letters or emails were discussed at any of the tree board meetings and citizen advisory committee meetings I attended. The meetings included educational agendas about tree preservation, ecology, and conservation, but there was no balance showing what happens on the ground when a site is developed, what the engineering code requires, what the planning code requires, or the perspectives of developers, civil engineers, and project arborists who testified at the public hearings and work sessions. Those potentially most affected -- developable property owners with trees - -have not been sought out to provide their views about the proposed amendment. When asked why this group of stakeholders who actually implement and must comply with the tree code was not sought out, the consensus from staff was the public process allows anyone to attend the public meetings and provide comments. Staff made great efforts to show the value of trees, conservation, ecology and sustainability without presenting the engineering, planning, and economic sides of the issue. No meeting minutes reflect any discussion of these issues, and there has been no further outreach from staff toward the development community, affected property owners, arborists, planners, or engineers. Mr. Floyd's assurance in his February 20, 2008 email that our concerns will receive "full consideration" with the code amendment has not been fulfilled. In my various other roles on committees and commissions at the local level with Washington County, City of Beaverton, and Clean Water Services real issues are discussed, both sides provide information about impacts, ideas are exchanged, and we have meaningful dialogue. Based on my experience throughout this process with Tigard, it has become evident that staffs invitation for me to become "involved" was merely perfunctory. Therefore, on April 10, 2009 I resigned from the Citizen Advisory Committee and sent the enclosed email to Todd Prager and John Floyd expanding on my frustration. • Finally, I want to address why the Portland Metro HBA is so concerned about the language in this amendment. By voting for a text amendment without clear and objective approval standards you would be directing City staff to "legislate from the desktop" by approving some applications and denying others based on a peer review opinion (formerly at the Director's discretion) of "adequacy." This is a really big deal. There would be no set standard for applicants to meet in order to obtain approval for a tree plan. Examples of clear and objective standards in other sections of Tigard's code include minimum lot area (7,500sf in an R4.5 zone), maximum building height (35 feet in most residential zones), or minimum allowed grading slopes (2:1 in the engineering design manual). Due to the obvious violations of ORS 197.307(6) the HBA Board of Directors unanimously voted to allocate legal fund resources toward challenging the proposed amendment. Our organization has the ability to continue pursuing legal recourse but would rather see us work together to get the needed changes made to the amendment. Specifically, there is no clear and objective numeric value in the code for fee in lieu of mitigation and the extreme number of caliper inches that must be replaced is excessive. These issues must be addressed and decreased to reasonable levels. In addition, HBA strongly opposes staffs recommendation to approve the proposed text amendment that clearly violates 197.307(6) by giving Peer Review the discretion to determine whether or not a tree plan is "adequate ". As Councilor Wilson stated in his email of May 4, 2009: "It [the proposed amendment] gives the City almost dictatorial power to completely reject an application based on a subjective judgment." I couldn't agree more and sincerely hope that reason will prevail in this process. Sincerely, • .de/GC Alan DeHarpport • From: gland ©roundstoneproperties.com To: Todd Prager Cc: Ernie Platt, John Floyd Date: Friday, April 10, 2009 9:18am Subject: RE: Planning Commission Update on Urban Forestry Master Plan Attach: Stakeholder Interview Notes, HBA formatted.doc (156.0 KB) Todd, John, and and Ernie, Here are my DRAFT edits. Ernie, you and Dave make the call on what the official HBAMP wording will be. Todd and John, I'm going to resign from the Citizen. Advisory Committee. I should have stepped down earlier and apologize for missing the last two meetings. I resign disappointed with the lack of attention focused on the common ground.those of us who live in homes all share. I feel that my continued involvement will be as fruitless as it would be divisive since it is evident the City's forestry plan is not considering proposing changes to balance tree preservation with the land development requirements. It is clear that the intent of this forestry plan is to continue penalizing property owners for removing trees if they choose to subdivide and develop their developable, treed property. • I've tried repeatedly to explain how difficult IL is Lo save trees and meet other sections the code such as streets and density, what developers are faced with when they lay out a site plan, why trees must be removed, why roads and building pads should be exempt, to shine the light on the bloated tree fund, and to explain why mitigation fees are counter - productive all in an effort to bring balance to the forestry plan update. I feel my efforts have not been taken seriously and have been largely dismissed by staff and the • pro- tree /anti - development sentiment felt at all meetings, worksessions, and hearings I have attended. It's • evident that staff has taken the anti-development view as the overall philosophy for Tigard's forestry plan update and text amendment. We had a great opportunity for real dialogue where staff, Tree Board, Planning Commission, and City Council could truly make an effort grasp the soils, grading, engineering, utilities, and planning issues, but the situation has instead been reduced to a simple- minded, black and white battle between good (trees) and evil (development) with no acknowledgement in the proposed text of the potential • economic impacts, financial impacts, compliance with the engineering design manual, or a level of reasonableness that anyone in the development community can support. Based on my experience at Clean Water Services Advisory and Finance Committees and the City of Beaverton Planning Commission, alienating stakeholders to the point where they no longer feel welcome to participate in the process is not the way consensus is intended to be built. I expect the end result of this lengthy exercise will be even more frustration from both sides of the issue that will result in more legal battles, more attorneys, more appeals, and more LUBA cases. The City attorney will be a busy man. If trees were simply removed at the discretion of the private property owners (or at least be removed without significant financial impacts) none of this controversy would even exist. But those days are gone. I would still like to remain on the email lists and you are always welcome to contact me if you have any questions about what actually happens in the real world. I might be able to attend a meeting or two and would like to stay apprised of the text amendment process. Good luck getting through all this to all of you. -'Alan • Original Message From: "Todd Prager" <todd @tigard - or.gov> • Sent: Thursday, April 9, 2009 10:07am To: "Ernie Platt" <Erniep @hbapdx.org> Cc: "Alan DeHarpport" <aland @roundstoneproperties.com >, "John Floyd" <Johnfl @tigard - or.gov> Subject: RE: Planning Commission Update on Urban Forestry Master Plan Hi Ernie and Alan, • I reformatted your responses in order to allow for easier comparison with the other stakeholder meeting notes. Please review the attached document and let me know if there needs to be any additions or deletions. • Thanks, • Todd Prager • , Associate Planner /Arborist City of Tigard 503.718.2700 From: Ernie Platt [n'ailto:Erniep @ hbapdx.org] • Sent: Tuesday, April 07, 2009 12:18 PM To: Todd Prager Subject: RE: Planning Commission Update on Urban Forestry Master Plan Yes. that was the intent, so please do reformat as necessary Ernie Froin: Todd Prager [mailto:todd @tigard - or.gov] Sent: Tuesday, April 07, 2009 12:04 PM To: Ernie Platt; John Floyd; Grillo, Phillip Cc: Darren Wyss; Ron Bunch; Tim Ramis; william.rasmussen @millernash.com; Dick Bewersdorff Subject: RE: Planning Commission Update on Urbar. Forestry Master Plan Thanks Ernie, Are your answers to questions 3, 4, 5, and 6 all answered in question 3? If so I could either just make a note to that effect or try and rearrange your answers to address the individual questions that were asked (and run the revisions by you for approval). Please let me know if you want the document left as is, or if you would like me to reformat it for your later approval. Thanks for your participation in this important project. Sincerely, • Todd Prager • Associate Planner /Arborist . City of Tigard 503.718.2700 From: Ernie Platt [mailto:Erniep @hbapdx.org] Sent: Tuesday, April 07, 2009 10:42 AM • To: John Floyd; Grillo, Phillip Cc: Todd Prager; Darren Wyss; Ron Bunch; Tim Ramis; william .rasmussen @millernash.com Subject: RE: Planning Commission Update on Urban Forestry Master Plan John and all, Here are the comments that Alan prepared in response to the Urban Forest questionaire. I would simply add, it seems much more expeditious and reasonable, if the objective is to enhance the urban tree canopy, that they city have a program that encourages and incentivises the planting of trees as well as other plants as part of a landscape requirement for ALL new construction, thereby assuring appropriate trees get planted in locations they can be expected to survive, and not focus the concern on 'saving' existing trees. If we are to ever acheive our urbanization goals, including density, we are going to need to recognize that existing trees, especially large trees in difficult locations, are going to have to be removed, but that over time, the planted trees will m ore than adequately replace the canopy. Ernie From: John Floyd [mailto:Johnfl @tigard- or.gov] Sent: triday, April 03, 2009 5:07 PM To: 'Grillo, Phillip' Cc: Todd Prager; Darren Wyss; Ron Bunch; Tim Ramis; Ernie Platt; 'william .rasmussen @millernash.com' Subject: FW: Planning Commission Update on Urban Forestry Master Plan Hello Phil, Thanks for meeting with us this afternoon. I'm forwarding you an email and memorandum about the Urban Forest Master Plan. This is the same memorandum being presented to the Planning Commission this Monday evening (April 6). It basically describes the UFMP and where we are in the process. • Also, I spoke to Todd and he informed me that the last we heard about the RBA's stakeholder comments was that they had been forwarded from Alan to Ernie for final review and approval. We'd real]y like to get a • copy of those if possible. Regards, John Floyd .From: Todd Prager Sent: Friday, April 03, 2009 3:38 PM To: ' janet .gillis @beechercarlson.com'; 'David.Walsh @spnewsprint.com'; Matt & Susan Clemo; 'tonytree @easystreet.net'; 'sizemore_dennis @rnsn.com'; morgan_holen @pbsenv.com; 'ph @halsteadsarbor.com'; mettel @comcast.net; Alan DeHarpport Cc: Marissa Daniels; John Floyd; Dick Bewersdorff; Ron Bunch Subject: Planning Commission Update on Urban Forestry Master Plan Dear Urban Forestry Master Plan Citizen Advisory Committee, • Attached is a copy of an update on the progress to date on the Urban Forestry Master Plan for the Tigard Planning Commission. In October, the Planning Commission will consider approving the Master Plan prior to adoption by City Council. This update is necessary to keep them informed on what have learned from the process thus far, and where it is going. If time allows, I will be giving a brief presentation to the Commissioners this Monday evening at 7:00 p.m. in Town Hall. Please do not hesitate to contact me if you have any questions. Thank you, Todd Prager Associate Planner /Arborist City of Tigard 503.718.2700 • • City ofTigard z , Memorandum To: Alan Dellarpport and Ernie Platt, Home Builder's Association of • Metropolitan Portland • From: Todd Prager, Associate Planner /Arborist • Re: Urban Forestry Coordination Meeting Notes Date: April 9, 2009 Below are my notes (in red) of your answers to the stakeholder interview questions. Please confirm their accuracy. Thank you for your participation in this important project. 1. What is your level of interaction with Tigard's urban forestry program? • The Home Builder's Association (RIBA) 1000+ members develop treed residential lands and build homes on treed lots in the City of Tigard. This process often involves clearing trees from properties. Certainly not all of the • membership are land developers and builders. For the first sentence I would say "The 1000+ members of the Home Builder's Association of Metropolitan Portland • (HBAMP) relies on the homebuilding industry for their livelihood. It is in the interest of the membership to develop land and create building sites for new homes. Land development requires tree removal on sites that have trees and are zoned for development." • ® IIBA members Applications for land development are currently required to include tree preservation /removal plans prior to development in order to meet Tigard Development Code requirements. ® I EBi ethers also Under the current code section 18.780, Applicants may pay a fee in lieu of mitigation or are required to mitigate tree removal by planting replacement trees within in the City. Some of the mitigation trees are planted on-City-property such as Cook Park. ® HBAMP members have attended Tree Board, Planning Commission, and City Council meetings to provide input on tree related matters such as the Urban Forest section of the Comprehensive Plan. • The IIBA has a representative on the Urban Forestry Master Plan Citizen Advisory Committee. 2. What features of Tigard's urban forestry program work well? • { • • "free planting when the right tree is planted in the •right place. ® The City's overall goal of preserving trees. • * Requiring developers to utilize the expertise of independent, certified arborists when - evaluating the - conditions -of- trees-- and•their- viability -of survival- with - site • development. 3. What features of Tigard's urban forestry program do not work well, and why? • m The RBA's position is that the City's mitigation requirements are unreasonable and punitive. The mitigation structure in section 18.790.030.B.2(a -d) is unreasonable • because it is not practicable to retain even 25 °,'i of the trees on sites zoned for medium to high density residential development (5 units per acre or more). '1' here has likely never been a development in Tigard with 75% , or greater retention on property zoned R4.5 or higher. Heavy equipment, grading, roads, and utilities are very disruptive to trees. Significant amounts of grading must take place outside the right of way when driveways are cut in, sidewalks are poured, and building footprints are cleared for structures. This results in tree retention being limited to the perimeter of developed sites. e The City's current program incentivizes the preservation of trees that will cause potential future hazards. For example, trees over 12" in diameter have root systems and canopies that extend at least 10' from the trunk. Larger trees have larger areas around them that need to remain undisturbed. This is not practicable is high density situations. Even if a younger but potentially large tree species such as Doug.-fir is able to be retained, it often makes sense to remove it to avoid potential hazards in the future. a The fee structure associated with fee in lieu of planting for mitigation far exceeds the actual cost to plant trees. For example, a recent mitigation project • to plant trees in Cook Park for the Fletcher Woods development cost the developer $20,000 to complete. However, the City required the developer to submit a bond for $106,000 or $110 per caliper inch as assurance and to cover the City's cost of planting should the developer fail to mitigate. o The incentives in section 18.790.040 should he updated. For example, the • density bonus incentive allows for a i% density bonus for 2% canopy cover • retained. This bonus does not yield any practical benefit unless the site is very • • large. For a site that is 10 lots, it would take 20% retention for a 10% density • • bonus to add just one unit. Moreover, by adding another unit and decreasing the amount of land available for infrastructure and buildings, the result is lots that are significantly smaller than zoning allows. This creates a direct conflict • with lot size requirements in section 18.510. o Finally, it is the consensus of the I IBA that tree regulation and tree plan requirements require additional resources adding cost and time to any development project. In addition, Tigard's current program is divisive and • • creates legal conflicts in the form of appeals to the Land Use Board of Appeals for tree related issues. • 4. What could be done in the future to improve the programs that do not work well? ® : - . '. -:, " • - The City should not regulate trees on private property. Private property owners should be allowed to cut trees as they have done since the establishment of Tigard. This "hands off" approach has successfully been done for decades with virtually no loss (and perhaps even some gain) in tree canopy. Trees are not community property and belong to the owners of the land. b Eliminate the punitive standards that cost developers large sums of money for unavoidable tree removal. There is currently over $1,000,000 in the tree mitigation fund. It is expected to grow to over $2,000,000 within the next year. This fund can only be used to plant trees. Last year's City budget for tree planting was $50,000. There is little available land within the City where future trees can be planted. m If the City does continue to regulate trees in the future, developers should only be required to mitigate only for unnecessary tree removal, The City should not incentivize the preservation of potentially hazardous trees. ® The mitigation fee in lieu should be revised to reflect the actual cost of planting trees. ® Revise incentives to create rrae e higher motivation for tree preservation so brat developers arc e to utilize the incentives. ® The re should be no City forestry program should be balanced with the right to subdivide and develop private property. beeaus-e -there is nothing that works well with the current program. The cost of an urban forestry program does not outweigh the benefits. • 5. How can we work together in the future to improve Tigard's urban forest? • IIBAMP and its members can continue to participate in the public process so that their views are understood by the City's decision makers. • It is the view of those HBAMP members who have participated in the process • that the HBA's views are dismissed while the views of the Tree Board and one extremely active Tigard citizen are taken very seriously. It is always simple to achieve "consensus" when everyone in the room shares the same view. The • key to real and balanced stakeholder participation is to find the people who have concerns about the forestry program and openly discuss the views of the stakeholders' concerns and have dialogue. The PIBA.MP has received virtually no feedback received from City staff, the Tree Board or the Citizen Advisory Committee about the information and testimony representatives • • have provided at meetings, public hearings and worksessions. This needs to be addressed. e By requiring costly tree mitigation and /or fees for tree removal, it is thc view • of the }IBA members who have _..been involved in this proces_s that. the.Tree________. • Board and City Staff are putting the interest of trees ahead of the interest of property owners. This is unacceptable. • • City staff have not made a concentrated effort to contact those property • owners who have the most potential impact under the current and future tree • code. These owners should he contacted and advised of the financial impact the current tree code could have on their property values. These are the single most impacted stakeholder group, yet they have never been invited to any meetings. This needs to be addressed. 6. What should be included /excluded from Tigard's urban forestry programs? • There should be no urban forestry program because thc benefits of such a program do not outweigh the costs. e Do not regulate trees on private property, and allows owners to manage their land as they see fit. • However, if the City does continue to regulate trees in the future the following should be included /excluded from the program: o Eliminate punitive mitigation standards and only require developers to mitigate for unnecessary tree removal. • o Revise fee in lieu of mitigation to reflect the actual cost of tree • replacement. o Do not incentivize the preservation of large and potentially hazardous trees. o Revise incentives for tree preservation so that developers are able to utilize the incentives. :&L: Draft Amendments to 18.790.030 Subject: RE: Draft Amendments to 18.790.030 • From: John Floyd <Johnfl @tigard- or.gov> Date: Fri, 5 Dec 2008 11:29:57 -0800 To: "' aland @roundstoneproperties.com"' <aland @roundstoneproperties.com> • Hi Alan, Thanks for attending last night and providing comments. My day's busy so I'll have to respond next week. I V • 0 1 \\ • John • Original Message From: aland @roundstoneproperties.com [ mailto: aland @roundstoneproperties.com] • • • Sent: Friday, December 05, 2008 7:09 AM • To: John Floyd • Subject: Draft Amendments to 18.790.030 Hi John, I wanted to follow up on last night's Tree Board meeting. As we discussed, if the proposed criteria for 18.790.03095 a through j are not intended to be approval criteria, I recommend including some clarifying language stating that the narrative shall be for informational purposes only, that a project cannot be denied based on the Tree Plan . narrative provided it meets all other criteria and requirements in the code, and 18.790.00B5 a - j are not approval criteria. Assuming a - j aren't approval criteria, is this acceptable? If a - j are intended to be approval criteria, or if staff intends to approved or deny applications based on the tree plan and narrative, then I believe a -j can only legally apply to Type 3 applications based on the clear and objective statutory requirements in ORS 197.307. Can you confirm if the City attorneys office agrees? Thanks, Alan • • Original Message From: "John Floyd" <Johnfl. @tigard - or.gov> Sent: Thursday, December 4, 2008 5 :51pm To: "Todd Prager" <todd @tigard - or.gov> • Subject: UPDATE: Tree Board Packet for December 4 UPDATE: Please note that tonight's Tree Board Meeting will be located in CITY HALL next to the permit center, NOT AT TIIE LIBRARY as is usually the case. The posted agenda • advertises the correct location, unfortunately the room change was not mentioned in the emails sent out earlier this week. A sign will also be posted in the Library informing the public of this room change. My apologies for this oversight. From: John Floyd Sent: Monday, December 01, 2008 10:59 AM To: Todd Prager Subject: Tree Board Packet for December 4 You are receiving this email because of previously expressed interest in the Tigard Tree Board. Attached is the 'free Board packet for THURSDAY, December 4th . PLEASE NOTE THE CHANGE IN MEETING DATE to accommodate the holiday schedules of Tree Board members. If you have any questions please do not hesitate to contact me at 503- 718 -2429. Regards, of 2 5/13/2009 4:02 PM June 3, 2008 • To: Tigard City Council Fr: Alan DeHarpport on behalf of Home Builders Association of Metropolitan • Portland (HBA) Re: Proposed Tigard's Urban Forest Comprehensive Plan Amendment Dear Councilors, • At the April 21 Planning Commission public hearing 10 individuals testified m opposition to the proposed Urban Forest Comprehensive Plan Amendment. After much deliberation, the Planning Commission made several key changes to the language that added more balance to the comprehensive plan amendment. I have attached pages 3, 4 and 5 of the minutes from that • hearing for your perusal prior to a vote this evening. In addition, there are still several key concerns regarding the Comprehensive Plan Amendment that have not been addressed. They have been broken down into seven items. We urge you to consider these suggestions prior to a vote. • I. Page 2 -11 - The proposed CPA, the long -range planning staff indicated "that 84% of Tigard Residents supported regulations to protect existing trees," First, this survey only asked 400 random persons not all "Tigard Residents." Secondly, "regulations protecting trees" was not • defined. A more accurate question would be "I would support regulations that devalue private • property while protecting trees." This question is not addressed at all in the study and is of paramount importance to the builder /developer community's concerns. We recommend that this question be posed to the same 400 persons who took the first survey before any decision is made about this proposed CPA. Regulation is supported, but at what cost to the underlying property owner? We feel that a comparable survey putting the financial impacts to property owners would yield significantly different responses. II. Page 2 -12 - The proposed CPA staff states that "there is general feeling among residents, developers, and other stakeholders that the existing regulatory structure is not adequate and • hinders both the strategic protection of trees and the orderly urbanization of the City," Based on internal conversations with developers, builders, arborists, planners and engineers, there is no one • who feels that that "existing regulatory structure is not adequate." In fact, every builder /developer that has raised concerns considers the current tree code onerous and more than "adequate" in every way. We recommend that a statement indicating that "a significant number of builders /developers have voiced strong opposition to the current tree code stating that it is punitive, devalues private property, and has created a mitigation fund that is disproportionate to the actual value of the loss of trees." III. Page 2 -12 and the top of 2 -13 - The proposed CPA, it states "As a result, the existing regulatory structure does not encompass a significant number of trees across the city, which may be removed by the property owner without City consultation or permit." This implies that the • upcoming code revisions should provide regulation for tree cutting on residential landscaping. • We recommend that an additional sentence be added stating "The City will continue to recognize • that individuals have the right to cut trees on their property without a permit when there is no intent on behalf of the property owner to develop their property. " • W. Page 2 -13 - The key findings do not address any of the concerns raised by the builder /developer community during the "public" process. An additional bullet should be added stating: • a The builder /developer community has expressed concern regarding the cost of — — mitigation and the de-valuation-of-properly values- due -to the high cost of • mitigation. V. Goal 2.2 - Does not acknowledge that development is affected by tree regulation. We • recommend the goal be changed to: • To enlarge, improve, and sustain a diverse urban forest to maximize the economic, ecological and social benefits of both trees and infrastructure development within the City. „ VI. Goal 2.3 - Does not acknowledge that land development is affected by tree regulation. We recommend that the Goal be changed to: "To balance the diverse and changing needs of the City through well- designed urban development that balances the loss of existing trees with infrastructure development to create a living legacy for future generations." VII. Goal 2.3,5 — the language "The City shall develop and enforce site design and landscape requirements to reduce the aesthetic and environmental impacts of impervious surfaces through the use of trees and other vegetation." One of the builder /developer community's main concerns was that City - required improvements such as street right of way and building pads are currently required to be mitigated. There is 110 way to develop a site without these required improvements, Thus, HBA recommends that this policy be changed to: "The City shall develop and enforce site design and landscape requirements to reduce the aesthetic and environmental impacts of development through the use of trees and • other vegetation. City requirements for development of right of ways and building pads shall be exempt from mitigation" We fully acknowledge and understand that consideration of these changes will require a continuance of this agenda item. It is our concern that if a continuance is not granted, the proposed CPA will result in a revised tree code that does not acknowledge development rights, that minimizes the fmancial repercussions of tree mitigation, and will increase the severity of tree regulations to Tigard property owners of development, treed land. As we discussed at the work • • session on May 5, it is unfortunate that we have come to this point in the process without having these issues resolved. It is partially the fault of the builder /developers who were recruited by Councilor Buehner who refused to participate. But there is also a certain amount of culpability on behalf of City staff and the tree board who chose not to engage the HBA or a builder /developer' living outside the City limits. We urge you to review these seven items prior to a vote. • Thank you for your time. Alan DeHarpport Email ofMarch 20 Subject: Email of March 20 From: John Floyd <Johnfl@tigard- or. gov> • Date: Wed, 26 Mar 2008 17:22:56 -0700 To: 'Alan DeHarpport' <aland @roundstoneproperties.com> CC: 'Jim McCauley' <jimmc @hbapdx.org >, Ernie Platt <Emiep @hbapdx.org >, Ron Bunch roh < -. tl and =or: ot>> Todd Prager <todd e fi and =or: ov> Doreen Laughlin hlin <doreen d : g 8 � � � g � g- @.gan=or. g oV> • Alan, Thank you for your email of March 20, my apologies for the delay but I was out of the office for a bit and have been trying to catch up. In your emails of March 20 and February 20 you state that the HBA has been "largely • ignored" as you see it. The Tree Board has met almost 2 dozen times to consider this document, including the Planning Commission hearing of March 17, and I know you haven't been able to make each meeting so there may • be some gaps in your knowledge. Hopefully my response to specific matters raised in your Feb 20 email will help clarify the history of this process (from staff's perspective) and why your comments have not appeared in the document as you hoped. I have also included suggested revisions that you may find of interest and can be discussed at the public hearing. Just let us know, preferably in writing. As an aside, my staff report to the Planning Commission did indicate that the HBA had suggestions not included in the draft language, but that such matters would be presented at the hearing. Consistent with that statement I provided an overview of the HBAs concerns and suggestions during my presentation on March 17. Attached is a PDF of my PowerPoint since you were riot able to attend the workshop. "I feel that these significant changes have the potential to create a great deal of conflict due to the high probability of varying interpretations of the following sections: 1) What are "diverse and changing needs "? 2) What is "well- designed urban development "? 3) What is a "living legacy for future generations "? 4) What does "minimizes the associated loss of existing trees" mean? I'm confident that if you asked these four questions to both a builder and an environmentalist you would get two completely different answers. I would venture to guess that City staff, planning commissioners and City councilors opinions of what these four statements mean would also vary significantly. My suggestion is to revert back to language similar to what was agreed upon at the October 17 meeting, which I attended. There was agreement by the Tree Board that something similar to the following language was acceptable: "To balance the development needs of the City and avoid a net loss of trees while accommodating growth and the achievement of other goals of the City." The language I originally proposed August 1 read: "To avoid a net loss of trees while accommodating the City's ongoing population growth and the achievement of other goals of the City." If the tree board agreed to the language "To balance the development needs of the City and avoid a net loss of trees while accommodating growth and the achievement of other goals of the City." on October 17, why wasn't it • incorporated into the final language ?" The draft language crafted at the October 17 meeting was an "on- the - spot" attempt to reach balanced language and satisfy the HBA's concern that all development would be prohibited. However, upon further consideration at later meetings the Tree Board decided that the Goal 2 language could be improved still further. A primary concern was that the verbiage regarding "net loss" did not address tree preservation, only mitigation, a concern shared by a large number of stakeholders in the community including members of the Tree Board. Moreover, measuring success by "net loss" does not address the quality or performance of the trees in question, only the number removed and planted. Beyond the "net Toss" issue the Tree Board also felt that other needs of the city 1 of 5 5/13/2009 4 :01 PN ] iiiail ofMarch 20 should also be recognized, not just growth and physical development, hence the use of broader language. All that said, the draft language presented to the Planning Commission is still built upon the RBA's request that the right to develop be recognized, and we believe it satisfies that concern. Listed below are responses to the 4 questions you posed in regards to Goal 2: • 1. Our comprehensive Plan process defines goals as "a GENERAL STATEMENT indicating a desired end or — — directCon the " - To that end, "to balance the diverse and changing needs of the City through well • designed urban development" is a broadly inclusive goal statement that will allow future decision makers to balance existing and unforeseen needs through development, not the prohibition of it. Housing is one need and goal, but so are things like air quality, stormwater management, social and psychological well- being, energy consumption, and the preservation of a sense of place and neighborhood character. If this is still not satisfactory to you, I recommend you review a possible revision discussed in point 2 below: 2. The meaning of "well- designed urban development" is defined by words that follow it: "...that minimizes the loss of existing trees and associated vegetation." A revision that staff would support could include the phrase "low- impact development practices ", a concept used elsewhere in our updated Comp Plan and generally defined as "An approach to land development that uses various land use planning and design practices and technologies to simultaneously conserve and protect natural resource systems and reduce infrastructure costs. LID still allows land to be developed, but in a cost - effective manner that helps mitigate potential environmental impacts." I say generally defined as our definitions have not been officially adopted yet. 3. The definition of legacy is something that is passed down from one generation to another, either tangible or intangible. A "living legacy for future generations" is a phrase introduced and discussed by appointed decision • makers at the October 2007 joint meeting between the Planning Commission and Tree Board. This goal statement is a recognition that the City needs to take a long term perspective in how the city protects and plants trees as it can decades for trees to mature and establish themselves, and that future generations will benefit or suffer from the decisions made today regarding how the forest is protected and managed. 4. "Minimize the associated loss of existing trees" is a consistent with my response to point 1. This is a general statement about desired ends or directions, not regulatory verbiage. "2. Policy 1. My suggestion of adding: "while recognizing private property rights of City residents who desire to remove trees on their property; as well as development rights for those treed properties with future development potential" was not added. Nor was there any addition of language to address the basic concept that Tigard's citizens and developers should have the right to remove trees. " When presented to the Tree Board, staff recommended that this language not be included as it was vague, unnecessary and potentially confusing as it does not specifically state what "private property rights" are being referenced. The Tree Board accepted this recommendation. A broader explanation is below. I am not an attorney, but it is my understanding that the city is generally obligated to respect fundamental property rights and regulations established by federal, state, and regional regulations without any explicit reference in the Comp Plan to that effect. Like many other jurisdictions concerned about tree protection and management, Tigard acknowledges and respects a property owner's constitutional right to enjoy a reasonable return on their property through physical development or some other economic activity, while simultaneously asserting the City's right and duty to enforce development and land use standards on matters such as tree removal (i.e. sensitive lands regulations, street tree standards, and conditions of approval) that limit impacts and further the goals of the broader community. Consistent with existing practices in the City of Tigard and elsewhere in the 2 of 5 5/13/2009 4:01 PD • Email of March 20 • Metro Region, the draft goals and policies under consideration do not deny a property owner to develop in a manner consistent with its land use designation, nor do they establish a blanket prohibition on the removal of trees. They do, however, require developers and property owners to minimize tree loss during the development and use of their property. "3. Policy 3. My suggestion of using 'Mowing language was not IV& was there any attempt w modify the language to reflect the fact that development should be allowed as provided for in the development code: "3. The City shall require all development to minimize impacts on tree cover, while allowing development to occur as allowed in the development code, with priority given to the preservation of existing trees and non- native varietals that are long lived and/or provide a broad canopy spread and associated native understory vegetation before, during and after construction and subsequent occupancy. Removal of trees shall be mitigated as required by the development code, with priority given to the preservation of existing trees over mitigation when possible while preserving property owner rights to cut trees on their property and development rights as allowed in the development code." Staff and the Tree Board believe that the language of Policy 3 does not prohibit development consistent with it's land use designation, it merely establishes site design regulations and land use management practices to minimize impacts to tree cover. See my response to point 2 above. "4. My suggestion that is widely supported amongst the development comnunnity was not only ignored, but Policy[7] is utterly opposite of our long standing position that you and the board have known about for months. My proposed language was as follows: "For properties that have future development potential, regulations exist in the City Development Code that require dedication of public rights -of -way for public amenities including streets, sidewalks, planter strips, and bike lanes. In addition, regulations exist within the City development code that require clearing to accommodate structures on building sites on properties zoned for future development. Therefore, the City shall not require tree mitigation for right of way dedications and for the clearing of building footprints as required by the City Development Code." Instead, the language as proposed states the complete opposite view that: "The City shall require and enforce the mitigation of the aesthetic and environmental impacts of impervious surfaces such as paved areas and rooftops through the use of trees and other vegetation." As written, Policy 6 will require the future code to enforce mitigation for trees for impervious surfaces. I can't think of any other word but "ignored" when I look at what we clearly and strongly proposed and what was approved by the board with your oversight and support." Your suggestion was received, considered, and responded to by staff, the Tree Board, and the Planning Commission on multiple occasions, but never ignored. As stated before to you and other members of the HBA, staff maintains our position that such language is overly specific for a Comprehensive Plan, as any such specificity can be detrimental to a coordinated and comprehensive application or update of Tigard's existing development and municipal. regulations. In this matter the Tree Board agreed with staffs recommendation and your desired language not included. We are aware that changes to the existing mitigation structure are a top priority for the Homebuilders, and all options are on the table for consideration in the near future. Please note that Action Measure "i" calls for an update of all codes, standards, regulations and plans. If you like, we could specificy mitigation standards to the list of things to be addressed, though I feel it Is already included under the existing langauge. Council Resolution 07 -30 also directs the Tree Board, In coorditlon others, to propose specific land use 3 of 5 5/13/2009 4:01 PD Email ()March 20 • code changes for Council's consideration, and the Tree Board and staff have begun the groundwork necessary for a comprehensive analysis and update of existing regulations. • I hope this helps you to understand our position better so that we can more productively communicate and resolve your concerns if possible. Your comments of March 21 have already been forwarded to the Planning • Commission, and I can forward any additional comments you want to add to the record after recieving this email. Regards, John Floyd From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Thursday, March 20, 2008 5:03 PM To: John Floyd Cc: Ron Bunch; Jim McCauley • Subject: RE: tree goals Thanks. John. I already received revised Policy 7 from Jim. It is truly refreshing to see some change being proposed...even if it was after the final document was approved and sent to planning commission. I would be interested in seeing your response to my attached email of Feb 20. I apologize if the end of my email is a bit ascerbic, but I am as frustrated with this situation as the email states. In fact, this is the most frustrating "public" process I have ever been through. Throughout my career as a planning commissioner in Beaverton and sitting on several public committes and boards, I've never been through a "public" process where any key stakeholder's main objectives (i.e. exempting right of ways and building pads from mitigation, reducing the mitigation fees, and counting street trees as mitigation inches) aren't even offered up as options or included in staff comments when the final document is sent to the decision making body. I feel that's the very least you could have done if your intent was truly to incorporate the builder /developer community's concerns into the final document. Despite our differences, I'm still hopeful we can find agreement relating to balancing tree protection with property rights. Tree preservation, land development and new housing stock are all in the interest of the City. As such, all of these interests should be incorprated into the approved goals, policies and action measures we have all been working on. • Alan Original Message From: John Floyd [mailto:Johnfl @tigard- or.gov] Sent: Thursday, March 20, 2008 2:04 PM To: 'Alan DeHarpport' Cc: Ron Bunch Subject: FW: tree goals • Hello Alan, • I understand you wanted the revised language for Policy 7. I've also had correspondence with Ernie and Jim about this, so I'll just forward you the emails so we're all on the same page. The language you seek is as follows: "The city shall require and enforce site design and landscape requirements to reduce the aesthetic and environmental impacts of impervious surfaces through the use of trees and other vegetation." John 4 of 5 5/13/2009 4:01 Pit • Email of March 20 • ^ From John Floyd • Sent: Thursday, March 20, 2008 9:06 AM To: 'Jim McCauley' Subject: RE: tree goals Hello Jim, • have Ron's notes front of me and the word enforce is in there, It is also in the draft minutes. Short of istening to the tapes myself, 1 can confirm the presence of the word "enforce.' Just for cIarty's sake, are we taiking about the revised Goal 7 or something else? John _' _ _ „ _ _ . ._ • From: Jim McCauley [mailto:ji org] Sent: Wednesday, March 19, 2008 3:56 PM To: John Floyd Subject: FW: tree goals John, • Ernie passed this along to me. | looked at my notes and | can't seem to find wording that included "enforce". May have been an oversight, but |'m curious if this was in Ron's notes and |jupt missed it. • Here is the draf wording: "The city shall require and enforce site design and landscape requirements to reduce the aesthetic and environmental impacts of impervious surfaces through the use of trees and other vegetation." Regards, John Floyd | --'------'— --- -- --- ' --- ----'---------'| �oo� � m0�bao�mrmmt f Content-Type: '' ' -'--- PPT.pdf Content-Encoding: bann64 . ' • ' ' ! . . 5 n[ 5 5/13/2009 4:01 }/ 5/13/2009 RE %20Tonight's %20meeting.htm From: Alan DeHarpport [aland @roundstoneproperties.com] Sent: Wednesday, February 20, 2008 6:22 PM To: John Floyd Cc: Gary Pagenstecher; Barry Sandhorst; Jim McCa.uley; Ray Myer; Ron Bunch; Tom Coffee; Craig Brown; Ke Tom Weber; Dan Wyss; Todd Prager; Jim _.- __.. l.. - - -. -- -- Kelly Ritz; g Standz'ing; Ken Gertz; Bill McMonagle; Ernie Platt; • Kurt Dalbey; 'Sue Beilke'; 'John Frewing; 'Rasmussen, William'; Walt Knapp; David DeHarpport; Jay Harris; Steve Roper; Kim McMillan; Dick Bewersdoih; Ken Gertz; Kelly Ritz; Ken Eagon; Craig Brown Subject: RE: Tonight's meeting Thanks for getting back to me so quickly, John I guess I'll need to send out a call to those who to date have been hoping that something could be accomplished by working quietly with staffand the tree board. I would expect that the Planning Commission workshop on March 17th workshop to be well attended by members of the development community who have extensive experience working with the current City tree code, who have paid hundreds of thousands of dollars in mitigation fees, who believe that a more balanced and less punitive approach should be taken, and who will want to explain why we feel we have been largely ignored. Please see attached suggested language sent to you on December 10. I am curious to know where you believe I can find "A significant amount of the language contained in the Goals, Policies, and Recommended Action Measures was generated in response to comments submitted by your membership." Please advise. • • I didn't have a lot of time to prepare this email, but here are three examples of why I feel that • the builder /developer community has been largely ignored: 1. Goal 2: I reviewed my December 10 letter to you. Relating to Goal 2 it states: • "I feel that these significant changes have the potential to create a great deal of conflict due to the high probability of varying interpretations of the following sections: 1) What are "diverse and changing needs "? 2) What is "well- designed urban development"? 3) What is a "living legacy for future generations "? 4) What does "minimizes the associated loss of existing trees" mean? I'm confident that if you asked these four questions to both a builder and an environmentalist you would • get two completely different answers. I would venture to guess that. City staff planning commissioners and City councilors opinions of what these four statements mean would also vary significantly. My suggestion is to revert back to language similar to what was agreed upon at the October 17 meeting, which I attended. There was agreement by the Tree Board that something similar to the following language was acceptable: "To balance the development needs of the City and avoid a net loss of trees while accommodating growth and the achievement of other goals of the City." The language I originally proposed August 1 read: "To avoid a net loss of trees while accommodating the City's ongoing population growth and the achievement of other goals of the City." If the tree board agreed to the language "To balance the development needs of the City and avoid a net loss of trees while accommodating growth and the achievement of other goals of the City." on October 17, why wasn't it • incorporated into the final language? • • • 5/13/2009 RE %2QTonight's %20meeting.htm 2. Policy 1. My suggestion of adding: "while recognizing private property rights of City residents who desire to remove trees on their property; as well as development rights for those treed properties with figure development potential" was not added. Nor was there any addition of language to address the basic concept that Tigard's citizens and developers should have the right to remove trees. 3-: Policy 3 My suggestion of using the following language was - included. Nor was airy attempt modify the language to reflect the fact that development should be allowed as provided for in the development • code: "3. The City shall require all development to minimize impacts on tree cover, while allowing • development to occur as allowed in the development code, with priority given to the preservation ofexisting trees and non-native varietals that are long lived and/or provide a broad canopy spread and associated native • understory vegetation before, during and after construction and subsequent occupancy. Removal of trees shall be mitigated as required by the development code, with priority given to the preservation of existing trees over mitigation when possible while preserving property owner rights to cut trees on their property and development rights as allowed in the development code." Policy 6. My suggestion that is widely supported amongst the development community was not only ignored, but Policy 6 is utterly opposite of our long standing position that you and the board have known about for months. My proposed language was as follows: "For properties that have future development potential, regulations exist in the City Development Code that require dedication ofpublie rights -of -way for public amenities including streets, sidewalks, planter strips, and • bike lanes. In addition, regulations exist within the City development code that require clearing to accommodate structures on building sites on properties zoned for future development. Therefore, the City shall not require tree mitigation for right of way dedications and for the clearing of building footprints as required by the City Development Code." Instead, the language as proposed states the complete opposite view that: "The City shall require and enforce the mitigation of the aesthetic and environmental impacts of impervious surfaces such as paved areas and • • rooftops through the use of trees and other vegetation." As written, Policy 6 will require the future code to enforce mitigation for trees for impervious surfaces. I can't think of any other word but "ignored" when I look at what we clearly and strongly proposed and what was • approved by the board with your oversight and support. • These are just three examples. Please re -read the attached December 10 letter and you will find several other suggestions where neither the proposed language nor anything close to our intent has been incorporated into the final language. Frankly, your comment that my perception is "regretful" seems rather insincere and duplicitous when confronted with the facts laid out with just these three examples alone. In fact, based on the • approved language it appears that the development community has not been sincerely brought into the process whatsoever, but has been engaged merely as a superficial effort to keep up the appearance that developers have been included in the process while tree board continues to support the current punitive standards for tree mitigation in the City of Tigard. The situation is very disturbing. Sincerely, Alan DeHarpport • • 5/13/2009 RE %20Tonight's %20meeting.htm -----Original Message From: John Floyd [mailto:Johnfl @tigard- or.gov] Sent: Wednesday, February 20, 2008 4:49 PM To: 'Alan DeHarpport' Cc: Steve Roper; Jay Harris; David DeHarpport; Walt Knapp; Kim McMillan; Dick Bewersdorff; 'Rasmussen, William'; 'John Frewing'; 'Sue Beilke'; Kurt Dalbey; Ernie Platt; Bill McMonagle; Ken Gertz; Jim Standring; Todd Prager; Darren Wyss; Tom Weber; Kelly Ritz; Craig Brown; Tom Coffee; Ron Bunch; Ray Myer; Jim McCauley; Barry Sandhorst Subject: RE: Tonight's meeting Alan, Thank you for your letter. Before I proceed, and given the subject title of your email, I must remind you and the large number of people you copied that the Tree Board finalized the Urban Forest Comp Plan Amendment at their last regular meeting on February 6. Tonight's meeting is restricted to a final approval of the "Key Findings" section, no further action is scheduled before the Board. As you know the public is always invited to attend, but I wanted to make it clear where we are in the process and what is occurring tonight. As an fyi, the Planning Commission will be taking up the matter at their March 17 workshop, followed by a public hearing in April. Both the Planning Commission and Council are eager to receive public comment, and will certainly listen to your concerns in addition to Staff's recommendations regarding such comments. It is regretful that you perceive the Tree Board and staff has having ignored your concerns. I cannot speak officially for the Tree Board, only they can do that, but can say few words as their supporting staff person. A significant amount of the language contained in the Goals, Policies, and Recommended Action Measures was generated in response to comments submitted by your membership The final language may not be recognizable word for word, as staff and the Board are obligated to consider the needs and impacts upon all stakeholders within the City, but your concerns were taken quite seriously and were the matter of much deliberation. Unfortunately attendance by the HBA has been inconsistent at Tree Board Meetings, and as a result this deliberation may not be apparent to you and the HBA members. To reiterate my position yet again, staff has not supported the central concern expressed by members of the HBA (specific exemptions from the current mitigation structure) as this matter is better addressed through a comprehensive evaluation and update of Tigard's tree codes and mitigation structures. Staff is not necessarily opposed to such exemptions, just their appropriateness to the current project under consideration. To insert specific code exemptions into • the comprehensive plan, without a full evaluation of their impact on the function and effectiveness of the development code, is inappropriate and may be counterproductive to the goals of both the homebuilders and the city at large. Staff is already planning for a Tree Code update in the coming year, as mandated by Council on May 22, 2007 via Resolution 07 -30. I can assure you that your _proposed amendments will receive full consideration at that time. At this time staff does not interpret the language in the Goals, Policies, or Recommended Action 5/13/2009 RE %20Tonight's %20meeting.htm Measures as denying you the ability to develop property into uses consistent with their zoning designation, or from realizing future amendrnents to Tigard's tree mitigation requirements. All this Comprehensive Plan Amendment does is generally require mitigation for tree removal, it does not specify the more detailed matters of thresholds, means, ratios, and exemptions. If you feel that is not the case, please inform us which sections are not acceptable to the HBA and acceptable alternatives for the Planning Commission's and Council's consideration. As a final note, I sincerely appreciate your taking the time to express the HBA's position in writing . Written correspondence enables staff such as myself to represent your position accurately to decision makers. As has been done in the past, I will deliver all correspondence to the Tree Board. Regards, John Floyd Q b From: Alan DeHarpport [mailto:aland @roundstoneproperties.com] Sent: Wednesday, February 20, 2008 2:56 PM To: John Floyd Cc: Steve Roper; Jay Harris; David DeHarpport; Walt Knapp; Kim McMillan; Dick Bewersdorff; 'Rasmussen, • William'; 'John Frewing'; 'Sue Beilke'; Kurt Dalbey; Ernie Platt; Bill McMonagle; Ken Gertz; Jim Standring; Todd Prager; Darren Wyss; Tom Weber; Kelly Ritz; Craig Brown; Tom Coffee; Ron Bunch; Ray Myer; Jim McCauley; Barry Sandhorst • Subject: Tonight's meeting John, The buiilder developer community's goal has always been to adopt language in the goals, policies and action measures that will allow for a balanced tree code to be adopted that will remove costly mitigation fees that devalue treed property zoned for future development. Based on the language in the current proposed goals, policies, and action measures there is no suggestion that our input is supported by staff or the board. If the current language is approved, it will send a message to planning commission and city council that the tree board City staff have decided that property owners with trees on property zoned for future development should be severely financially impacted if they develop their property. It will also send a message that the concems of developers and builders who work with the tree code are not important enough to even consider. Is that what has been decided? • 5/13/2009 RE %20Tonight's %20meeting.htm I realize that the changes inherent with development are unpopular. Land is permanently altrered and trees are removed. People instinctively resist change. However, I would argue that allowing development to occur without penalties for tree removal is in the best interest of everyone who lives, works, and recreates in Tigard. If the costly financial impacts of mitigation are removed, the development community will be much more willing to work with the City to save and plant trees where possible. Property with trees won't be artificially devalued. Potential litigation over property devaluation - as - a - - result - of - tree mitigation be eliminated. It goes back to Ken Gertz' comment about the "right tree in the right place at the right time." Furthermore, based on the aerial photographs that were provided by Steve Roper, it appears that the tree canopy has grown since the first photographs taken in the 1950's. There are several areas where an increase in the canopy In neighborhoods has occurred where there was once cleared farmland. Development is an integral part of the Tigard's community. There are far reaching, extensive economic and social benefits land development provides to the entire community. Engineers, a wide variety of skilled laborers and workers, financial institutions, a variety of insurance providers, and many other segments of our economy all derive their liviihood from the development and construction industry. These families matter. Controlled population growth is healthy for the local economy. I find that the irony runs deep when one notes that the very type of housing developments where the majority of 'Tigard's citzens live are exactly the type of developments that are penalized under the current ordinance and will continue to be penalized based on the language in the current goals, policies, and action measures. The current proposed language is inconistent with a fair and balanced approach to development that we in the development community have been asking staff and the board to consider for the past 18 months. I sincerely hope that there is still time to reconsider the board's recommendation and include a more balanced approach that incorporates the suggestions we in the development community have suggested. Please deliver the emails sent this week from me, Jim Standring, and Bill McMonagle to the board for their review, and let me know if there is any possibility of altering the language to include some of the recommended changes proposed in my December 10, 2007 email. We appreciate your continued dialogue. Best regards, Alan DeHarpport • Original Message • From: John Floyd [mailto:Johnfl ©tigard -or.gov] Sent: Tuesday, February 19, 2008 9:30 AM To: 'Sue Beilke'; 'John Frewing'; 'Alan DeHarpport'; 'Rasmussen, William' Cc: Darren Wyss; Todd Prager Subject: Errata One point of clarification. In my last email I included the phrase "latest definitions approved by Council ". Please note that council has NOT APPROVED any definitions at this time. While definitions are being developed and discussed at hearings, a unified glossary will be considered after all other sections of the Comp Plan have been adopted. This will ensure that the definitions apply equally and effectively throughout the document. If you have questions regarding this matter, please feel free to contact myself or Darren Wyss. • Regards, 5/13/2009 REY020Tonight's John Floyd From: John Floyd Sent: Tuesday, February 19, 2008 9:00 AM To: 'Sue Beilke'; 'Bill McMonagle'; ' Alan DeHarprt; 'John Frewing; brian @tualatinriverkeepers.org;___ walt.knapp©comcast.net; stever @srdllc.com; troym @srdllc.com; 'Jeff Caines'; 'Rasmussen, . William'; 'Ken Gertz'; 'Tom Wright' Cc: Todd Prager; Warren W. Aney; Darren Wyss Subject: RE: Tree Board Packet: Feb 20, 2008 Sue and everyone on the distribution list, I have attached a revised glossary (Attachment " E " ), It appears that the document I distributed has not been updated with the latest definitions approved by Council. To resolve this confusion, and prevent similar issues from reoccuring, I have restricted Attachment Eto terms used in the Urban Forest Comp Plan Amendment. If you have further questions, please do not hesitate to contact me. Regards, John Floyd sJ From: Sue Beilke [mailto:sbeilke @europa.com) Sent: Saturday, February 16, 2008 11:03 AM To: John Floyd; 'Bill McMonagle'; 'Alan DeHarpport'; 'John Frewing'; brian©tualatinriverkeepers.org; walt.knapp @comcast.net; stever @srdllc.com; troym @srdl►c.com; 'Jeff Caines'; 'Rasmussen, William'; 'Ken Gertz'; 'Tom Wright' • Cc: Todd Prager; Warren W. Aney • Subject: Re: Tree Board Packet: Feb 20, 2008 John, Thank you for forwarding the attached packet. I wanted to bring to your attention the section included on Definitions. As you are aware, we are also working on this in the Natural Resources Section for the Comp. Plan, as well as ha Ang spent some time addressing this in the Parks, Open Spaces and Recreation Comp. Plan committee meetings. There appear to be new definitions as well as changes to some older definitions in your packet. Some are significant, as they do not • 5/13/2009 RE %20Tonight's %20meeting.htm address some of the policies and actions plans now adopted by Council for the Parks, Open Spaces, and Recreation section of the reused Comp. Plan. I will be attending Wednesday's meeting and hope to discuss this further with the Tree Board members. I will be asking that these definitions not be adopted until the Natural Resources Committee tray gore througtrthelr rles of meatIngs and also has-a chance to detielop a Definitions section. This is important, as we are also addressing "Urban Forests ", trees, etc. in our group as it pertains to natural resources in the city of Tigard. Sue Original Message From: John Floyd To: 'Bill McMonagle' ; 'Alan DeHarpport' ; 'sbeilke c(t7,europa.com' ; 'John Frewing' ; brian (cD,,tualatinriverkeepers.orq' ; 'walt.knappacomcast.net' ; 'steverc@srdllc.com' ; 'troymCa7srdlIc.com' ; 'Jeff Gaines' ; 'Rasmussen, William' ; 'Ken Gertz' ; Tom Wright' • Cc: Todd Prager • Sent: Friday, February 15, 2008 1:41 PM Subject: FW: Tree Board Packet: Feb 20, 2008 Members of the Public, Attached is the Tree Board Packet for February 20, 2008. If you have questions or comments upon its contents, please feel free to contact Todd Prager or myself. Regards, John Floyd 503- 718 -2429 • • • From: John Floyd • Sent: Friday, February 15, 2008 1:38 PM To: Tree Board Cc: Todd Prager Subject: Tree Board Packet: Feb 20, 2008 Members of the Tree Board, Attached is the agenda packet for next Wednesday. There are two main items on the agena. First, the Board must grant approval to the "Key Findings" section of the Comprehensive Plan Amendment for the Urban Forest (Attachment "D "). Second, staff is requesting the Board's comments on a draft Director's Interpretation of the Tree Removal chapter of Tigard's Development Code (Attachment "F "). Please note that minutes will be forthcoming, the packet is being sent out so that you have ample time to review and • comment upon the two main agenda items. • I hope to see you all there. If you have questions before the meeting, please do not hesitate to contact Todd or I. 5/13/2009 RE %20Tonight's %20meeting.htm Regards, John Floyd • Alan DeHarpport 9550 SW Beaverton- Hillsdale Huy Beaverton, OR 97005 December 10, 2007 John Floyd City of Tigard Associate Planner Community Development 13125 SW Hall Tigard, OR 97223 Dear John, On behalf of the Home Builders Association of Metropolitan Portland, I offer the following recommendations to modify Concepts: Management and Preservation of Trees and Other Vegetation Background Statement and Goals, Policies, and Action Measures. The suggestions are the result of over years of work in the City of Tigard developing property and discussions with the builder /developer community who have worked in Tigard. • The basic ideas that I feel are important to include are the fact that Tigard is growing and that some trees within the City limits are located on properties zoned for development. Based on Tigard's history of strong growth over the past fifty years, I believe that adding the following language would be more consistent with the realities the City will face as the population increases and properties develop in the years to come. Proposed additions are in blue. Proposed deletions in strikethfeugh. Page 1, paragraph 2. Suggested Language addition: "Much of the native vegetation in Tigard has been displaced, first by agriculture and logging in the 19th century, and more recently by increasingly dense urban development as a result of • population growth and minimum density requirements." Page 2, paragraph 1. Question: How does the presence of trees increase the overall economic prosperity of the community? At first glance, I don't see how tree preservation economically vitalizes Tigard. Please advise. • Page 2, paragraph 2. Suggested language addition: "Tree groves within Tigard's City Limits and Urban Services Area include coniferous and mixed deciduous /coniferous stands of trees, some of which are located on private property zoned • for future development." • Page 3, paragraph 1. Question: I have had discussions about what makes up "wildlife habitat" with my biologist, Patrick Hendricks and Environmental Science and Assessment. Mr. Hendricks has indicated that street trees and ornamental landscaping do not provide significant wildlife habitat since most wildlife tends to live in the forest, not urban or suburban areas. While certainly there are "wild" animals that do coexist with human populations, they are limited in number and species. I would recommend omitting "wildlife habitat" from this paragraph. • Page 3, paragraph 2. Urban Heat Island Effect. It is my understanding that the Heat Island Effect increase in electricity demand and temperatures is limited to summer months when air conditioning is used. If this is correct, shouldn't the • language reflect that? Page 4, paragraphs 1 and 2. Socioeconomic Benefits. I agree that looking at trees is restorative and healing and that trees increase property values. Aside from the USDA Center for Urban Forest Research where did this language come from? What studies are referenced in paragraph 2? Shouldn't the source for the property value increase be cited? In my opinion, it would be more credible if the source for all of these comments and studies were cited. Page 4, paragraph 3. Importance of Proper Management. I am concerned that "appropriately sized planter strips and tree wells" is vague and has the potential to conflict with the engineering code if "appropriate" becomes greater than 5' John Floyd, City of Tigard December 10, 2007 Pn 171. 1 of • wide for a planter strip. Suggest adding the Language "consistent with the City's Engineering Design Manual." directly • after "tree wells" in the second sentence. Page 5, Canopy cover measurements section. Steve Roper of SR Design provided aerial photographs from 1953, 1968 1977 1982 1990 and 2006. These will be delivered onCD to -you today. Can the City_quantify, the.percentageof_ - - -. canopy based on these aerial photos to add to the 1996 and 2007 canopy measurement and analysis? Page 6, Existing Tree Planting and Management Programs. What is the funding mechanism for these planting and management programs? If it's the mitigation fiend, can you divulge the current balance of the and what specifically it can it be used for? Page 6, Existing Regulatory Environment. Can the City quantify the percentage of canopy based on the aerial photos provided by SR Design to add to the 1996 and 2007 canopy measurement and analysis? Page 7, paragraph 1. Are there any examples where "protected trees have been removed as a result of property owners • not being aware of or are willfully disregarding City regulations and protections ?" This is surprising to me and I am not aware that owners of private property have removed any "protected" trees since property owners currently have the right to cut trees on their property. Page 7, paragraph 2. Add to the last sentence "...and forest enhancement programs, while recognizing private property rights and allowing removal of trees as a part of the development approval process. Page 7, GOALS On August 1, 2007, Goal I read: "To enlarge and improve the urban tree canopy and other vegetative cover to obtain the economic, ecological, and social benefit of trees and other vegetation." The current goal reads: "To enlarge, improve, and sustain a diverse urban forest to maximize the economic, ecological, and social benefits of trees and other vegetation." In my August 1 letter to you 1 recommended Goal 1 be modified to state: "To balance the ongoing population growth and development of the City with the environmental community's desire to enlarge and improve the urban tree canopy and other vegetative cover to obtain a balance between economic vitality and the economic, • ecological, and social benefit of trees and other vegetation." Since staff and the Tree board did not support my August 1 suggestion, I am looking for assistance to incorporate some language that will acknowledge that growth and development will occur in the years to come and that the expected growth should be balanced with the goal to enlarge, improve, and sustain the diverse urban forest? Any suggestions you may have regarding this issue would be appreciated. On August 1, 2007, Goal 2 read: "To prevent a net loss of trees while accommodating the City's ongoing population growth and the achievement of other goals of the City." In my August 1 letter to you I recommended Goal 2 be modified to state: "To avoid a net loss of trees while accommodating the City's ongoing population growth and the achievement of other goals of the City." Goal 2 currently reads "To balance the diverse and changing needs of the City with the associated use of land through well - designed urban development that • minimizes the associated loss of existing trees and creates a living legacy for future generations." I feel that these • significant changes have the potential to create a great deal of conflict due to the high probability of varying interpretations of the following sections: 1) What are "diverse and changing needs "? 2) What is "well- designed urban development "? 3) What is a "living legacy for future generations "? 4) What does "minimizes the associated loss of existing trees" mean? I'm confident that if you asked these four questions to both a builder and an environmentalist you would get two completely different answers. I would venture to guess that City staff, planning commissioners and City councilors opinions of what these four statements mean would also vary significantly. My suggestion is to revert back to language similar to what was agreed upon at the October 17 meeting, which I attended. There was agreement by the Tree Board that something similar to the following language was acceptable: "To balance the development needs of the City and avoid a net loss of trees while accommodating growth and the achievement of other goals of the City." This may not be the exact language that was agreed upon, but I'm sure you have the minutes of that meeting with the exact language. Please let me know if and how it differs from my suggestion and whether or not staff and the Board agree with my concerns. POLICIES "1. The City shall maintain and periodically update policies, regulations, and standards to inventory, manage, preserve, and enhance the community's tree and vegetation resources to promote their environmental, aesthetic and economic John Floyd, City of Tigard December 10, 2007 Pan, 7 of • benefits, while recognizing private property rights of City residents who desire to remove trees on their property; as well • as development rights for those treed properties with future development potential." This additional language is important because the policy only allows for preservation and enhancement without any recognition that property owners • and developers will remove trees. Tree removal of any kind does not "enhance or preserve" trees. The potential for conflicting_views at the time the code is rewritten is high. By not recognizing that property and development rights exist,___ the policy could be misinterpreted and result in code amendments that do not allow development on treed properties with development potential or for an individual property owner to cut down a tree in their yard. • 2. No changes. "3. The City shall require all development to minimize impacts on tree cover, while allowing development to occur as allowed in the development code, with priority given to the preservation of existing trees and non - native varietals that are long lived and /or provide a broad canopy spread and associated native understory vegetation before, during and after construction and subsequent occupancy. Removal of trees shall be mitigated as required by the development code, with priority given to the preservation of existing trees over mitigation when possible while preserving property owner rights to cut trees on their property and development rights as allowed in the development code." As stated in my comments regarding Policy 1, the concern is that the current language has the potential for upcoming code amendments to prohibit property owners from removing trees on their property or for standard development that is currently allowed to occur on treed sites without "minimizing impacts" which could have various interpretations "4. The City shall regulate tree and vegetation removal, and related restoration activities within environmentally sensitive lands and on lands subject to natural hazards, while allowing tree removal on private property and development to occur as allowed in the development code." As stated in my comments regarding Policies I and 2, the concern is that • the current language has the potential for upcoming code amendments to prohibit property owners from removing trees on their property or for standard development that is currently allowed to occur on treed sites without "minimizing impacts" which could have various interpretations. 5. No changes. • 6. The builder /developer community has major problems with this policy. It directly conflicts with one the chief goals supported by the builder /developer community: exempting paved areas and rooftops (building pads) from tree mitigation. This is the main reason why the builder /developer community has experienced continual frustration with the current code. The impact of this policy to those property owners who have treed property zoned for future development is severe, punitive, and devalues their property. As I explained at the Planning Commission work session, the current code requires a one to one inch mitigation ratio that results in enormous financial impacts to any property owner who wants to sell their property at fair market value to a developer. I will use my recent subdivision, Fletcher Woods, as an example. Paul and Betty Fletcher are in their 80's and desired to sell their property located at 9555 SW McDonald St, 97223 consisting of approximately 1.89 acres. Mr. Fletcher told me that he planted most of the trees on his property after they bought it in the early 1970's as young trees around six to ten feet tall that are typically found as nursery stock. I believe that he obtained some of the trees from the Oregon State University Extension Service. The property is zoned R4.5 which allowed for eight 7,500sf lots using a standard Type 2 administrative approval process. No wetlands or streams exist on or near the property. At the pre - application conference with City staff, we were advised that the City would require a public street, sidewalks, and planter strips to be constructed through the middle of the site, which are standard improvements in any jurisdiction located within the Portland metropolitan area. The building pads in the R4.5 zone take up all but the rear 15' of the lot. Consequently, the only trees that could be retained based on the City's engineering, planning, and building department requirements were along the perimeter of the site. To mitigate for the trees that needed to be removed for the City - required improvements, we would need to plant 322 four -inch Douglas Fir trees. This works out to forty (40) trees per lot with 20' front yards and 15 foot back yards. It is not physically practical • or logical to plant this many trees on lots of this scale since Douglas fu trees are recommended to be spaced at least 25 foot apart. Thus, it was agreed that we could only plant three trees per lot for a total of 24 trees on site. We contacted former City arborist, Matt Stine, regarding locations where we could plant the other 298 trees. We were given the last remaining sites in the City at Cook Park and Englewood Park. The cost to plant and maintain all 322 trees for two years is estimated to be $300 each for a total $96,600 assuming all trees survive. The cost to pay the mitigation fee to the City • instead of planting the trees was $141,790 based on the mitigation fee of $110 /caliper inch. When we discovered the high cost of the mitigation, we went back to the Fl etchers and renegotiated the price for their property, which caused a significant devaluation of their property. No devaluation would have occurred had Mr. Fletcher chosen to put in a lawn • John Floyd, City of Tigard December 10, 2007 • PnnP7 ofS • • and shrubs instead of trees on his property. This is not an isolated case. Similar situations occur on every property zoned for future development where trees exist. There are other properties within the City limits that will be subject to the same punitive devaluation if the tree ordinance is not modified to a more reasonable approach. This is why the builder /developer community is so concerned about ensuring that a balance between trees and development is struck. If the impervious surfaces required for development are exempted from mitigation we feel that balance will be struck. Finally, I feel that those property owners who have treed sites zoned for future development should most definitely be notified as soon as possible regarding the City's Comp Plan amendment process and the Tree Board's recommendations since those property owners are the ones who have the most significant financial impact from the current ordinance and have the most to gain or lose from the future tree ordinance. In conclusion, we suggest that Policy 6 be amended as proposed on August 1: "For properties that have future development potential, regulations exist in the City Development Code that require dedication of public rights -of -way for public amenities including streets, sidewalks, planter strips, and bike lanes. In addition, regulations exist within the City development code that require clearing to accommodate structures on building sites on properties zoned for future development. Therefore, the City shall not require tree mitigation for right of way dedications and for the clearing of building footprints as required by the City Development Code." "7. The City shall ensure that street design and land use standards provide ample room for the planting of trees and other vegetation, including the use of flexible and incentive based development standards, while allowing development of property as allowed in the development code." As stated in my comments regarding Policies 1, 2, and 4 the concern is that the current language has the potential for upcoming code amendments to prohibit property owners from removing trees on their property or for standard development that is currently allowed to occur on treed sites without "minimizing impacts" which could have various interpretations. "8. The City shall continue to allow and encourage consideration of appropriate flexibility in site design to allow tree preservation and planting in areas where survival will more likely occur, particularly for trees that will grow large, including long -lived evergreens and broad spreading deciduous varieties, while allowing development of property as allowed in the development code." As stated in my comments regarding Policies 1, 2, 4, and 7 the concern is that the current language has the potential for upcoming code amendments to discourage property owners from removing trees on their property or for standard development that is currently allowed to occur on treed sites without "minimizing impacts" which could have various interpretations. People should be allowed to remove trees on their own land. 9. No changes. 10. Add to the end of the policy: "Street trees planted as part of any development or structure shall be allowed to count toward mitigation requirements. " Currently, street trees are not included in mitigation. Street trees increase the tree canopy of the urban forest and should therefore be allowed to count as mitigation. 11. While developers rather than the public generally invest in planting of right of ways, I will not argue this point since • it is insignificant. 12. No changes. • "13. The City shall continue to cooperate with property owners, developers, builders, businesses, other jurisdictions, agencies, utilities, and non- governmental entities to manage and preserve street trees, wetlands, stream corridors, riparian areas, tree groves, specimen, and heritage trees, and other significant vegetation with Tigard's City limits, while • recognizing private property owners' rights to cut trees on their property and for developers to develop property as allowed in the development code." As stated in my comments regarding Policies 1, 2, 4, 7, and 8 the concern is that the current language has the potential for upcoming code amendments to prohibit (based on the words "shall" and "preserve ") property owners from removing trees on their property or for standard development that is currently allowed to occur on treed sites without since "shall" and "preserve" could be interpreted as prohibiting removal of trees altogether. 14. Omitted • 15. No changes. • John Floyd, City of Tigard December 10, 2007 Pq(IP • • 16. Omitted. 17. No changes. • 18. Omitted. • 19. No changes. "20. The City shall require, as appropriate, tree preservation strategies that prioritize the retention of trees in cohesive stands and groves instead of isolated specimens, while allowing development to occur as allowed in the development code." As illustrated in the concerns raised regarding Policy 6, groves cannot be retained in conjunction with development, The "as appropriate" helps, but again, the potential for varying interpretations of "as appropriate" is of concern. By adding the proposed language, the right to develop without retaining entire groves is maintained. 21. The City shall requi -re encourage, as appropriate, the use of trees and other vegetation as buffering and screening between incompatible u3c3 differing zoning districts." RECOMMENDED ACTION MEASURES i. No changes. ii. No changes iii. "Develop and implement an inspection and enforcement program that will ensure non - development related tree management and removal complies with the City's landscape standards and tree protection ordinances such as heritage trees, street trees, and threes on sensitive lands, while recognizing private property rights to remove trees on private property." iv. Remove "and disincentives." Your staff commentary is correct. Penalties are clearly covered in action measure iii. • v. Inventory and evaluate street tree, parking lot, and landscape area plantings that have failed due to inadequately sized planter strips, and determine if other species of trees can be planted where trees have failed, or if street trees can be planted elsewhere in the right -of -way or on private property. vi. No changes. vii. No changes. viii. No changes. • ix. Omitted. x No changes. xi, "Develop fair and balanced tree mitigation regulations and standards that do not require mitigation for City- required rooftops and impervious surfaces to guide the City in assessing fees..." xii. No changes. Thank you again for considering our proposals. We certainly appreciate the opportunity since we in the builder /developer community will be dealing directly with Tigard's tree ordinance and mitigation structure on a regular basis. Should you or anyone on the tree board have any questions, feel free to call my mobile phone at 503- 709 -2277. Best regards, • • Alan DeHarpport • John Floyd, City of Tigard December 10, 2007 P�rtA ,fi _£ October 1, 2007 • To: Tigard Planning Commission • Fr: Alan DeHarpport Re: Tree Ordinance Revisions • • Along with HBA's Ernie Platt, Al Jeck from Alpha Community Development and Ken Gertz from Gertz Fine Homes, I attended a planning commission workgroup on November 6, 2006 at 7:OOpm. At that time, we addressed the Comission about our concerns with the current ordinance and looked forward to participating in the revision process to create a more fair and balanced tree code for those sites with trees and zoned for development. We also spoke with two members of the tree board about becoming more involved with the revisions to the tree code, which was welcomed. At the meeting the Commission voted to delay the vote on adopting the revisions presented by the tree board, and the task was ultimately sent to you in long range planning. I have spoken to many developers, builders, engineers, planners, arborists, real estate brokers, and landscapers who all share the same concerns about the current tree ordinance. These businesses have made significant investments in City infrastructure in the form of streets, sidewalks, utilities, and landscaping. They have also made expensive tree • mitigation payments to the City as part of their development requirements. Prior to leaving the City, Arborist Matt Stine advised that there were no public lands left within the City limits to plant trees for mitigation. Consequently, fee in lieu of mitigation payments cannot currently be used to plant trees since there are no public lands available for planting. In essence, the ordinance now imposes a de facto penalty to develop property with trees specifically zoned for development. This results in a fee that cannot currently be used, which is most impractical. It should also be noted that the underlying property owner indirectly pays for the mitigation fees since developers generally hire arborists to determine the number of caliper inches on a site with development potential prior to purchasing the property in an effort to determine the cost of tree mitigation. Once the amount is determined, the purchase price to the owner is reduced by the amount of the mitigation fees required to be paid to the City. On those properties where few trees exist the fees are nominal. However, on properties where many trees exist that must be cut in order to meet zoning requirements, the fees (and therefore the decrease in property values) can amount to hundreds of thousands of dollars. There is no question that trees are an asset to the community as a whole and should be preserved when it is feasible. However, with current City development requirements it is often difficult to save more than about 15% to 20% of trees on site at best. It is sometimes impossible to save any trees if they are all located within required right of way dedications and building pads. The current ordinance imposes mitigation requirements if more than just 25% if the • caliper inches are removed even though 80% of the property must be cleared and graded to create roads and building pads. Based on these concerns, we hope to come up with a fair and balanced revision to the current ordinance that does not result in exorbitant mitigation fees applied to property owners with land zoned for development. At the same time, we also recognize that preserving and planting as many trees as possible in locations where they can be saved and planted creates a more livable community and should be promoted. Our recommendation is simple: exempt tree mitigation from required street right of ways and building pads for new structures. We look forward to discussing these concerns in further detail and getting additional input from all of the stakeholders including, the tree board, the environmental community, Tigard's citizens, arborists, landscapers, owners of properties zoned for future development, and the City planning and engineering staff. In a coordinated effort, I am sure we can improve the current ordinance and at the same time save trees when possible. • Alan DeHarpport Roundstone Development 9550 SW Beaverton - Hillsdale Hwy Beaverton, OR 97005 • • Alan DeHarpport 9550 SW Beaverton-Hillsdale Hwy Beaverton, 01? 97005 (503) 709 -2277 August 13, 2007 John Floyd Long Range Planning City of Tigard 13125 SW Hall Blvd Tigard, OR 97223 Re: Tree Policy Interest Team Recommended Goals, Policies, and Action Measures • Dear John, • • As the nominated Home Builders Association of Metropolitan Portland liaison, I want to thank • you for keeping me posted regarding the Tree Policy Interest Team meetings of Judy 18, 27 and 30. I apologize for not being able to attend the meetings. The developer/builder community has • a great deal of interest in the proposed language for the draft goals, policies, and action measures. I have addressed each item of interest below using the same format provided (proposed changes in bold underline, proposed deletions strut i, my notes are in italics). I believe that the goals should acknowledge that Tigard's growth rate will continue to put pressure on available lands for development and as those lands develop existing trees will be removed and • new trees planted. Growth will continue to have impacts on existing trees. The population of • Tigard has almost doubled from approximately 25,000 in 1990 to about 47,000 today. That's an average annual growth rate of around 2.5 %. The draft goals seem to imply that Tigard's mission is to save every existing tree and discourage development, which is surely not the view of many interested parties both within City Hall as well as within Tigard's business community. While some environmentally driven citizens undoubtedly feel that all development is "bad ", I believe there is a larger group of citizens who feel that a balance between growth and tree preservation • should be struck. Saving every existing tree is an enviable goal for any community, but to • eliminate the word "growth" from Policy 2 seems very detached from reality. Let's face it, we live in one of the fastest growing communities in the country. I would like the tree board and the PIT to weigh in and provide feedback on the following goal and policy language, which I drafted. DRAFT GOALS 1. To balance the ongoing population growth and development of the City with the environmental community's desire Tto enlarge and improve the urban tree canopy and other vegetative cover to obtain a balance between economic vitality and the economic, ecological, and social benefit of trees and other vegetation. • 2. To avoid pfevent a net loss of trees while accommodating the City's ongoing population growth and the achievement of other goals of the City. • John Floyd August 13, 2007 PaaP 1 of • • • DRAFT POLICIES 1. No changes to the July 31 revision. I do have a question, though. Is the inventory going tobe_done..by. the.. City _arborist .or_pr_ivate_ party? _.If_ the _ latter. _ is this _lathe _budget? ._ • 2. No changes to 7/31/07 proposed changes. 3. The City shall require all development to minimize impacts on existing trees and associated vegetation to be retained as part of the City development approval process before, during and after construction. Removal of trees shall be mitigated, with priority pfeferenee given to the preservation of existing trees over mitigation. 4. No changes to 7/31/07 proposed changes. 5. The City shall address public safety concerns by ensuring ways to prevent and resolve verified tree related hazards verified by a certified arborist in a timely manner. 6. For properties that have future development potential, regulations exist in the City Development Code that require dedication of public rights -of -way for public amenities including streets, sidewalks, planter strips, and bike lanes. In addition, regulations exist within the City development code that require clearing to accommodate structures on building sites on properties zoned for future development. Therefore, Tthe City shall • requiro and onforco the not require tree mitigation of for : _ .. - . •.: -. ... - '•- .. . . _ _ . _ . .: . ... :: : ; right of way dedications and for the clearing of building footprints as required by the City Development Code. Note: Understanding this is going to be controversial, I propose to offer both options to planning commission and voice both sides of the issue at the public hearings in front of planning commission and city council. 7. No changes to 7/31/07 proposed changes. 8. No changes to 7/31/07 proposed changes. 9. No changes to 7/31/07 proposed changes. We have to do this already. 10. Note: I'm not sure you really want to say this here. Typically, the City has developers and builders install the street trees. Please clarify if the intent is to have the City require • developers and builders to plant trees, or if the intent is truly to have the City do the planting. 11. No changes to 7/31/07 proposed changes. • 12. The City shall protect and preserve trees and other vegetation when it designs and constructs public works projects. Mitigation and restoration of removed vegetation shall occur as required by the City Development Code. 13. No changes to 7/31/07 proposed. changes. 14. No changes to 7/31/07 proposed changes. 15. No changes to 7/31/07 proposed changes. 16. No changes to 7/31/07 proposed changes. 17. No changes to 7/31/07 proposed changes. 18. No changes to 7/31/07 proposed changes. 19. Note: This one confuses me. In the italic text at the bottom, it says "the City should actively promote, rather than just encourage, the use and retention of these plants." The policy suggests removal of these invasive species. Is this a typo? Also, do we have a list of • what's considered "invasive"? 20. Enhance the cohesive quality of tree groves as required by the • City Development Code. Note: I have a couple of thoughts here. Beaverton actually inventoried and assigned numbers to each Significant Grove of trees located within the City limits. Property owners where SG's were proposed were notified that their properties were being considered for SG status, and public hearings were held. Personally, 1 think this is a much better way of John Floyd August 13, 2007 PA OP. n of handling this issue since there is not definition ofa "tree grove". Is that 3 trees? 30 trees? 100 trees? 1 think this section definitely needs work. If it's linked to the Development Code and the Development Code identifies' SG's, then there is a clear and objective path to follow for anyone interested in purchasingproperties where SG's are located. 21. Note: "Require" seems a bit strong here to me. Broad spreading trees typically require larger areas of exposed soil beneath them, which is not typically conducive to parking areas. • If the goal is to buffer properties that do not share the same zoning, perhaps something like this': "Promote the use of broad spreading trees and vegetation that will create or preserve vegetative buffers between adjacent properties that do not share the same zoning." RECOMMENDED' ACTION MEASURES 1. No changes to 7/27/07 recommended changes. 2. No changes to 7/27/07 recommended changes. • 3. No changes to 7/27/07 recommended changes. • 4. The City shall dDevelop, and - implement, and reettire promote consideration of ethaneed- regulations, standards, penalties and incentives that will may te-allow developers to transfer density, seek variances or adjustments, or utilize the Type 3 Pialanned Ddevelopment procedure to allow for habitat - friendly design standards, preserve trees and/or maintain natural open space." Note: 1 believe there are potential legal issues for this one as originally drafted. The Type 3 process was always intended to be an alternative process that the applicant could choose to implement. It was never intended to be a requirement that all applicants be forced to submit a Type 3 alternative plan. My understanding is that if • an application meets the approval criteria set forth in the zoning code, state law requires that the jurisdiction approve it. Perhaps a clarification from the City attorney is needed. S. No changes to 7/27/07 recommended changes. 6. No changes to 7/27/07 recommended changes. 7. No changes to 7/27/07 recommended changes. 8. No changes to 7/27/07 recommended changes. 9. No changes to 7/27/07 recommended changes. • 10. No changes to 7/27/07 recommended changes. 11. No changes to 7/27/07 recommended changes. Again, I want to thank you for continuing to keep me posted during this process. The • developer/builder community's highest priority is to exempt mitigation from public rights of way and building pads for property zoned for future development. As I have mentioned before, requiring mitigation for improvements required by the City's own Development Code is a punitive policy that decreases property values on developable parcels with trees. I look forward to working with you and the Policy Interest Team in creating a balanced approach to tree preservation in Tigard. • Yours truly, Alan DeHarpport John Floyd August 13, 2007 PA OP Z nl 4 9 en Ct I�1 r mm >ny Cathy Wheatley Cr (\'e TI atk - 1-1 63 From: John Floyd Sent: Tuesday, July 14, 2009 2:29 PM To: Ron Bunch; Darren Wyss; 'Damien Hall'; Tim Ramis; Dick Bewersdorff; Cathy Wheatley Cc: Todd Prager Subject: Comments from HBA Attachments: PDXDOCS- #1856080 -v1- Redline.DOC FYI — Comments from HBA regarding tonight's item (DCA2009- 00001). From: Ernie Platt [mailto:Erniep @hbapdx.org] Sent: Tuesday, July 14, 2009 2:23 PM To: John Floyd Subject: tree code amendments John Attached are edits we would propose this evening. I don't think any of them change the intent or the spirit of the staff recommended text, merely trying to assure there will not be unintended consequences and be a bit more clear. Call if you wish to discuss, otherwise I'll see you this evening. Thanks, Ernie Platt Director of Local Government Affairs HBA of Metro Portland 15555 SW Bangy Rd. #301 Lake Oswego, OR 97035 503 603 -4515 FAX 503 684 -0588 erniephbapdx.orq 1 18.790.030 Tree Plan Requirement A. Tree Plan Required. A tree plan for the planting, removal, and protection of trees prepared and signed by a certified arborist and/or landscape architect shall be provided for any lot, parcel, or combination thereof for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever practicable. B. Plan Requirements. In order to determine that the City's preference for tree protection has been incorporated into the project design, the tree plan shall include the following: 1. Identification of the location, size, condition, and species of all existing trees. In addition to trunk locations, the plan shall include the approximate edge of canopy for each tree or group of trees including offsite trees which overhang the project site: 2. Identification of a program to retain existing trees or to mitigate tree removal over 12 inches in caliper as measured to the nearest tenth of an inch. Mitigation must follow the replacement guidelines of Section 18.790.060D, in accordance with the following standards and shall be exclusive of trees required by other.development code provisions for landscaping, streets and parking lots: a. Retention of less than 25% of existing trees over 12 inches in caliper requires a mitigation program in accordance with Section 18.790.060D of no net loss of trees; b. Retention of from 25% to 50% of existing trees over 12 inches in caliper requires that two - thirds of the trees to be removed be mitigated in accordance with Section 18.790.060D; c. Retention of from 50% to 75% of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated in accordance with Section 18.790.060D; d. Retention of 75% or greater of existing trees over 12 inches in caliper requires no mitigation. 3. Identification of all trees which are proposed to be removed and the reason for their removal; 4. A protection program defining standards and methods that will be used by the applicant to protect existing trees that are proposed to be preserved, during and after construction, including offsite trees whose canopies overhang the project site. 5. A narrative and site plan demonstrating how the following design and construction techniques will be utilized to protect existing trees that are proposed to be retained, to the extent practicable. The format of the narrative must address each technique with a "yes" or "no" or "not applicable" answer, followed by a written explanation as to how the plans have included said techniques, or why said techniques are not practicable. The accompanying site plan shall include the location of all existing trees in relation to PDXDOCS:1856080.1 196080 -0005 the location of proposed grading, lot lines, and improvements. For existing trees to be preserved, the applicant shall indicate whether the following protection techniques have been included, where practicable: a. Does the project protect and retain existing non - hazardous trees that are not likely to become a hazard during or soon after development, given their existing condition, ability to withstand unavoidable development related impacts, proximity to proposed land uses and structures, and susceptibility to windthrow? b. Do grading plans avoid soil compaction within the driplines of existing trees to be preserved, the removal of existing soil within driplines, or the placement of new soil within the driplines of existing trees to be preserved? c. Are infrastructure improvements such as stormwater facilities, utilities, sidewalks, and other improvements located outside of the driplines of existing trees to be preserved? d. Are lot layouts and building locations configured so that roads and driveways and building footprints are located outside of the driplines of existing trees to be preserved? e. Are parking lot improvements located outside of the driplines of existing trees to be preserved? If no, can parking spaces be reduced to a number of consistent with minimum .parking stall requirements? f. Does the site plan locate required open space and- landscaping in areas that contain existing trees? .. WN depth to preserve trees, as allowed per 18.790.040A(2) and (3); f. h-If the project cannot avoid disturbance within the driplines of existing trees to be preserved, as described in subsections a — e, above, does the protection program identify compatible construction techniques that will be used to prevent or reduce harm to existing trees to be preserved (i.e. tunneling for utilities, no -dig pavement installation, use of retaining walls to limit disturbance) to a level that the health and longevity of the trees will not be significantly impacted? g Does the site plan locate required open space and landscaping in areas that contain existing trees to be preserved? h. Does the project utilize lot size averaging and /or the reduction of lot width and depth to protect existing trees to be preserved, as allowed per 18.790.040A(2) and 6. A mitigation plan signed by the project arborist and /or landscape architect that includes the location, species, spacing, and planting specifications for the replacement trees PDXDOCS:1856080.1 196080 -0005 and /or the amount of caliper inches that will be compensated through fees in lieu of planting. C. Prior tree removal. Trees removed within the period of one year prior to a development application listed above will be inventoried as part of the tree plan above and will be replaced according to Section 18.790.060D. D. Approval Criteria. The approval authority may approve, approve with conditions, or deny a tree plan based on the following approval criteria: 1. The tree plan contains all contentof the application requirements set forth in sections 18.790.030(A) through (C), including the signature of a certified arborist on all documents, attachments, and amendments; and an answer of 2_ The applicant has answered "yes" or "not applicable" on all questions required in section 18.790.030(b)B)(5), or has explained why use of a particular technique listed in that section is not practicable. E, Modifications to approved Tree Plans. Approved tree plans may be modified in the following manner. 1. Major Modification(s) to Approved Tree Protection Plans A. Determination request. An applicant may request approval of a modification to an approved tree protection plan or existing development by: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification addressing the changes listed in subsection B below. B. Evaluation criteria. The Director shall determine that a major modification(s) will result if one of the following changes are proposed, whichever is greater: 1. The total number of trees being removed increases by 10% or more, as defined by the whole of the original project; or 2. The total number of caliper inches being removed increases by 10% or more; C. When the determination is made. Upon determining that the proposed modification to the tree protection plan is a major modification, the applicant shall submit a new development application in accordance with the original project approval. 2. Minor Modification(s) to Approved Tree Protection Plans or Existing Development PDXDOCS:1856080.1 196080 -0005 A. Minor modification denied. Any modification which is not within the description of a major modification as provided in Section 18.790.030.F.1 shall be considered a minor modification. B. Process. An applicant may request approval of a minor modification as follows: 1. Providing the Director with three copies of the proposed modified tree protection plan; and 2. A narrative which indicates the rationale for the proposed modification. C. Approval criteria. A minor modification shall be approved, approved with conditions or denied following the Community Development Director's review based on finding that: 1. The proposed development is in compliance with all applicable requirements of this title; and • 2. The modification is not a major modification. • PDXDOCS:1856080.1 196080 -0005 Document comparison by Workshare Professional on Tuesday, July 14, 2009 1:01:51 PM itwatio Document 1 ID PowerDocs://PDXDOCS/1856035/1 PDXDOCS-#1856035-v1- Description Revisionsto_recommended_amendmentsto_Tigard_De velopment_Code_18.790_(Tree_Removal) Document 2 ID PowerDocs://PDXDOCS/1856035/2 PDXDOCS-#1856035-v2- Description Revisions_to_recommended_amendments_to_Tigard_De velopment_Code_18.790_(Tree_Removal) Rendering set Standard no moves Insertion Deletion Meveel-ffehi . Moved to Style change Format change Moved deletion Inserted cell SM!! VIA:!*;:i0FIEVAA: Deleted cell Moved cell Split/Merged cell • Padding cell 8 taiit 1 4 7 CMWM: Count Insertions 21 Deletions 7 Moved from 0 Moved to 0 Style change 0 Format changed 2 Total changes 30 PDXDOCS:1856080.1 196080-0005 Proposal 18.790.030. A. 7 Why this is silly Ken (o-Q1A1 ' - .. , IV- - t . IV ,4 , i - i x s . 1 \ -- ).- • . ‘;. s . �' I 3 yie ��; / 21 .09 . ,....,4 r " ' r. `• - ' • Is this really ' . 2 X 18 trees = 36 _ ., f . &P , ,.. .• • • — mitigation = $4,500 00 4 . r"---7 e { , 9 or as proposed a ,.; 48" tree 1 'i.v. 4 ; mitigation = $6,000.00 i ,„. ...- •,. , \ i f i . 1 '- . ...r. ; I +4 a. 4 a , y ' •' a J` % x °' r -'' i ".'060 T � � "'4 Is th really ` of 2X 12" trees + 6" tree ` = mitigation $3,000.00 _ft or as proposed p„ ` F 36" tree f , ,t , = mitigation $4,500.00 ;' 1 �; ' r 1 " � _ N _ � - • Coast pine junk tree * - * : 4. ..,.. _ --,. - - - ';-- ;$; z ; would look like a 24 t .• (' tree on a tree report as �- ,,, - �' - . ' proposed i ts. r � ` mitigation = $3,000.00 / � r Why would you ever . ' include this tree? tit f i k a ��' • . _ ` . a , ` r . 54 " Cedar Tree N • :. ' t. 1 6 1 Mitigation = ' k 'yr 1 , $3,375.00 ' - 1 ' Stately tree worth �+ a saving, right? ,. ,,,, .,,. _. 1,-; ' ia,-1 " ',' * r `- r ) • — '�'- 1, 'e �- _' Edgewood - 1,w 'AN .. r, e • a* sr - . g -, � 5 � �' :, -,1 ' �d , ` , /,,' ' Lace Leaf Maple Tree err t v t h 7 f , Aii � ^ --- .. Mitigation Paid = . ‘`•-, ',:, \\'‘ '". v ,). al y $3,050.00 Q7-_ , . ` �, k q t 1 ► ►' �.!,�, $325 less that the cedar. • -�_ -.may /I T i . .i ! : ` ' How does this ' :d. `'�' overgrown bush compare to the cedar? Your mitigation program is broken. Please tell Staff to refund my money. 1,. ...0, y,. ,y-y�1 i. r Wrt ��,, • A ' %.,t + 1 4 1 . E 1 1.5 . r g w' • . 1 : ... . N• .... . :.:7 w• : 1.....' • . „... . .i... - g . tAva . • ....: x A • . •'Mfr f 4" * '. . • 4 . 1 y igt ; . ' :1 . ' ,r - '''N .... . . . . , , • c ' , . . .c ',,. ,,, . l i +ILn. mow ,r_ •.. 't.. 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" r... 1,.s ■ �" r 1 1 . , i fit• ; r• 1 , ` / a • • �� `` .' *•:t y • �+ 1........!• - 1,',;•• ,, I ' It , t i AGENDA ITEM No. 7 Date: July 14, 2009 TESTIMONY SIGN -UP SHEETS Please sign on the following page(s) if you wish to testify before City Council on: Gntnuation of May 12, 2009 Legislative Public Hearing - Proposed Development Code P p Amendment Regarding Tree Removal (DCA2009- 00001) - Council Goal # 1B - Update the Tree Code to Meet Comprehensive Plan This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly a'wilable to all members of the public. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Due to Time Constraints City Council May Impose A Time Limit on Testimony I /Adm/Cathy /CCSignup /Leg. PH Comp Plan Amendment AGENDA ITEM No. 7 July 14, 2009 PLEASE PRINT This is a City of Tigard public meeting, subject to the State of Oregon's public meeting and records laws. All written and oral testimony become part of the public record and is openly atuilable to all members of the public. The names and addresses of persons who attend or participate in City of Tigard public meetings will be included in the meeting minutes, which is a public record. Proponent - (Speaking In Favor) Opponent - (Speaking Against) Neutral Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. 6a,o5 1 /jail fr9 6# LO ` 7 "T4i 1 6 E'V/ (Oc /v Name, Address & Phone No. Name, Address & PPhone No. Name, Address & Phone No. r / S ,rJ % o7 gi 4 , T 19 2. 47vi CLJ (0o1.- Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address & Phone No. Name, Address &Phone No. Name, Address & Phone No. FI,Y6( C +y COU- 1 c S ea k Notes I I • (� 1 03-Qrf kk T;f. -ran X005- 00oor On March 16 the Planning Commission recommended changes to Chapter 18.790 of the TDC which regulates Tree Protection. These changes are included in your packet as Exhibit "A" and are marked in RED. Please note that staff has included additional suggestions in response to public comments, feedback from City Council, and advice from the City attorney. These additional suggestions are marked in GREEN on Exhibit "A" and further discussed in a memorandum included as Attachment "4 ". These changes are not insignificant, but maintain the intent and spirit of the Tree Board and Planning Commission recommendations. Attachment "4" also includes staff responses to public comments received for this item. The purpose of this amendment is to clarify an existing ambiguity in the TDC. This ambiguity is a stated preference for tree preservation over removal wherever possible, but this same chapter contains no corresponding mechanism through which an applicant may demonstrate this preference, or for the city to verify conformance. As a result, the proposed amendment modifies the requirements for information included in a site plan and for the design and construction techniques to be used to carry out a tree plan. All . . - . - - - :: .. , .._ :...:.. - - -- - •• - • _ • .. ' . . • :.. - .. No land in the buildable lands inventory will be rendered unusable as a result of this amendment. Because no impact on the supply of buildable lands is associated with the proposed amendment, the City's inventories of residential, commercial and industrial lands remain in compliance with Goals 9 and 10." Specific changes included in this amendment are: ➢ Updated definitions ➢ Softening of the design preference for "tree protection is preferred wherever possible" to "wherever practicable" to allow applicants more flexibility to deal with site conditions given the available means, resources, and project conditions ➢ Expanded informational requirements, including o submission of a narrative answering 8 questions related to the design process used, and o allowing either an arborist or landscape architect to approve these plans ➢ Creation of Approval Criteria for Tree Plans ➢ Creation of a modification procedure The practical intent of this amendment is to ensure that the arborist or landscape architect has been consulted by other members of the project design team to inform design decisions as they occur, rather than being brought in to salvage what is left after a specific site plan has been developed. Unfortunately this latter scenario is often the case, as observed by staff in project submittals and as reported to staff but professional arborists who work or consult in the region. This concludes staff's presentation, and can happily respond to any questions you may have. I should also point out that members of the HBA and general public are in the audience tonight to listen to and testify on this item. Staff recommends the Council adopt the Planning Commission's recommendation of March 16, 2009, subject to changes suggested by staff and as outlined in Exhibit "A" of the proposed resolution, as based on the findings and conclusions contained in the staff report and associated record. • Agenda Item # 2 Meeting Date July 14, 2009 COUNCIL AGENDA ITEM SUMMARY City Of Tigard, Oregon Issue /Agenda Title Authorize City Manager to sign the Purchase and Sale Agreement for the John H. Zuber property. Prepared By: Kim McMillan Dept Head Approval: City Mgr Approval: ISSUE BEFORE THE COUNCIL Shall City Council authorize the City Manager to sign the Purchase and Sale Agreement , thereby approving the acquisition expenditure? STAFF RECOMMENDATION That City Council authorize the City Manager to sign the documents for the John H. Zuber property acquisition, thereby approving the expenditure. KEY FACTS AND INFORMATION SUMMARY As part of the Burnham Street improvement project, additional right -of -way and easements are required. This property is also impacted by the Ash Avenue project. The City has pursued the purchase of the remainder of the Zuber site for redevelopment opportunities in the downtown redevelopment district. OTHER ALTERNATIVES CONSIDERED Staff considered, and presented previously to City Council, the option of purchasing the right -of -way on Burnham Street only. This alternative leaves the Burnham Street /Ash Avenue intersection unfinished. This alternative also does not provide the City with the redevelopment opportunities of owning the entire property. CITY COUNCIL GOALS Not applicable ATTACHMENT LIST • Exhibit A: Acquisition Map FISCAL NOTES This acquisition exceeds the City Manager's $75,000 authorization limit, thereby requiring the City Council approval. Prior to consideration of this item, City Council will disclose the property purchase price at the City Council meeting after it meets in an Executive Session. %' ‘,;? v qtr —:.., 2sious // / \ \ \\ / \ saoo j ! , ' '' ',.:,/ ; ..82 AC' '/ / ' s o \ \ \ \� IC I \::\ . -. , p o / ',. ,\ \ %� 1300 / a' ' \ \ � U a ro e. / °h / 9bn $ �i N �� e 9 2 0 � 1 1. ° � � '/ / 4 1400 � \ e � 3700 � F '�� ; � � � • /yv / ,92 AC \')// ,� 'lli \-' // ,e4- ti c � ry \ r\ L -r \2� _ 1601 ;\.- A. / � �qy 2 32 `rn - fi t' . , ll ii, \ . / / I!�� i� - .31 AC \� / l ) )1�; \ / ,� ° \ 7501 \ 00 \ i .38 AC \ /j/ ' •ti \. !ii! A 4 /o >� ./ . 'abdo_\ 4 II \o- /e 0 / j ,- / / ,,, 1700 .39 AC ; • 1800 '\ , \ ,c°' 1.43 AC % . j � / / 'f,/;; / i . ` / B`9 11 J\ L� ry • 4,77.AG ,'' J , / \\ II/ IJ! \�\ 17980 r ' I / r / P�� ;% / \ 1 ,1 1 \ >/ 964' .` , s .24 ACC \ ry b° 2700 / \t/ 1 1 11 1 1 ' / �. y 9 • rJ cP •;� �� o. \ 4 CPO cP � ..to: ` Ill b 4, / / / r fl� J 'I \ 1 - F. / i / 2400' . / / / 1 \` lip �1 a ',.. , / ° � / .84 AC �o / / \ \�V E S YR, H ��O V / /.�/ \\ ,/ \ EXHIBIT A PDX/1 1 8852/ 1 595 82/KSB/4848667.1