DIR2013-00004 V
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DIRECTOR'S INTERPRETATION
T I G A R D D 1 82013 -00004
DATE: May 28, 2013
CODE CHAPTER: 18.775 Sensitive Lands
TOPIC: Sensitive Lands Exemption — Meaning of "Replacement"
LOCATION: 92 " Avenue between Cook Park & Waverly Drive
It is anticipated that some terms or phrases within the Code may be ambiguous and therefore subject to two
or more reasonable meanings. Because it is not possible to identify or remove all ambiguities in the Code,
Director's Interpretations provide a process for resolving ambiguities prior to or concurrent with a
development application.
Project Background
The City of Tigard Public Works Department has requested a determination on the necessary land use
reviews associated with planning improvements along 92nd Avenue, between Waverly Drive and Cook Park.
The scope of the project includes the addition of three inches of new asphalt on top of an existing roadway,
construction of a curb -tight sidewalk along the eastern side of the existing roadway, and associated
stormwater drainage improvements.
The affected road segment is located on a causeway that provides access across wetlands deemed significant
on the City of Tigard 'Wetlands and Streams Corridors Map ". The causeway is approximately the same
width as the existing roadway, and as such, any work or associated improvements will occur within the
boundaries of a delineated wetland (and associated Clean Water Services vegetated corridor that surrounds
the wetland). As a result of these proximities, the provisions of Chapter 18.775 (Sensitive Lands) apply to the
project.
Code Ambiguity
The Sensitive Lands Chapter of the Tigard Development Code applies to projects located within or adjacent
to significant wetlands, unless the work falls within one of five exempted activities (1'DC17.775.020) . A
question has arisen as to the reasonable meaning of the term "replacement" as used in the sensitive lands
exemption listed below:
18.775.020 Applicability of Uses: Permitted, Prohibited, and Nonconforming
C. Exemptions. When performed under the direction of the City, and in compliance with the provisions of the City of
Tigard Standards and Specfications for Rtparian Area Management, on file in the Engineering Division, the
following shall be exempt from the provisions of this section:
5. Routine maintenance or replacement of existing public facilities projects.
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Ambiguity exists as the term replacement is not defined in the Tigard Development Code or Comprehensive
Plan. Nor is the term "replacement" found within OAR 660 -23 -0010 (Procedures and Requirements for
Complying with Goal 5: Definitions) which the chapter implements. This ambiguity is exacerbated when
current development codes prevent the replacement of a public facility in a like- for -like manner.
Common Usage
In the absence of a clear definition, the Director may turn to the common usage of the term for guidance.
The Merriam Webster Collegiate Dictionary, Tenth Edition defines the terms replace and replacement as
follows, with the most relevant portions underlined for emphasis:
Replace: (1) to restore to a former place or position; (2) to take the place of esp. as a substitute or successor; (3) to put
Replacement: (1) the action or process of replacing; (2) one that replaces another esp. in a job or function.
Using these common definitions, a reasonable application of the term would be to examine the degree to
which a new project adheres to the existing position and function of that which it takes the place of. A
project that adheres to the original function and alignments by minimizing changes to place and function, but
makes adjustments for current technologies and code requirements could be construed as a replacement
rather than an expansion or change.
Project Analysis
The 92 Avenue sidewalk installation project would replace an existing road segment with a new roadway
that complies with existing development code standards, Tigard Transportation System Plan, and Clean
Water Act requirements. The goal of the project is not to increase auto capacity or otherwise change the road
classification, but to reduce auto - pedestrian conflicts and minimize stormwater runoff impacts in compliance
with current minimum standards for this road classification that were not in place at the time of the original
road construction. The new road will use the existing road alignment to the maximum degree possible, with
the minimum intrusion necessary into adjacent wetlands and wetland buffers.
The affected segment of 92nd Avenue was originally constructed as a paved vehicular access road sometime
between 1968 and 1977. As a result of its construction date and original function, it does not meet current
standards related to pedestrian facilities or stormwater treatment. The exact date is not clear, but city records
suggest a construction date of the late 1960s or early 1970s, with no substantial improvements except the
addition of shoulders on top of the existing roadway in 1991. This construction date is based upon the
following evidence.
• 1950 aerial photographs show a primitive access road along the 92 ^d avenue alignment.
• 1960 aerial photos are not available for this area of the city.
• 1968 Council Minutes reference the construction of a "Cook Park Access Road" at multiple
meetings.
• 1974 -1983 photogrammetry displays 92nd Avenue as an existing roadway
• 1977 as -built plans for Cook Park Phase II display 92nd Avenue as an existing asphalt access road, but
not a part Phase II improvements.
• 1986 aerial photos show an existing asphalt roadway in this segment.
• 1991 as -built plans for the Cook Park Access Road included the addition of shoulders to the existing
asphalt roadway.
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The proposed project will construct an entirely new road and associated pedestrian and stormwater treatment
facilities. Major project components include the following:
• The application of three inches of new asphalt on top of the existing roadway, presently constructed
with two inches of asphalt on top of a gravel sub -base. The proposed design would use the existing
road as an enhanced base for the new roadway, and would not expand the asphalt roadway beyond
existing boundaries. The existing asphalt is not being removed in order to minimize disturbances to
park users, the adjacent wetlands and wetland buffer area, and the underlying gravel base which could
result in settling of the new roadway.
• An eight foot wide sidewalk in compliance with the requirements of Tigard Development Code
Chapter 18.810 and the Tigard Transportation System Plan. As proposed, the sidewalk minimizes
the amount of new impervious surface and wetland encroachment by restricting the sidewalk to one
side, using a curb -tight configuration, and supporting the new sidewalk with a retaining wall in lieu of
an engineered slope.
• New stormwater drainage improvements will convey at least 50% of the runoff from the roadway
and sidewalk into stormwater treatment facilities, in compliance with the Clean Water Act and Clean
Water Services regulations that were not in place at the time the existing road was constructed.
Directors Decision
The proposed 92 Avenue project may be exempted from the sensitive lands chapter under 18.775.020.C.5
because the project qualifies as a road replacement. The pavement will be replaced in the same location with
additional layers of asphalt and a sidewalk and stormwater improvements will be added in order to meet
current public improvement standards.
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Kenny Asher, Community Development Director I)arc
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