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05/03/2004 - Packet N Completeness Review for Boards, Commissions and Committee Records CITY OF TIGARD Planned Unit Development Committee Name of Board, Commission or Committee May 3,2004 Date of Meeting To the best of my knowledge these documents are a complete copy of the official record. C.L. Wiley Print Name Signature In 2/19/20113 Date PD REVIEW COMMITTEE MEETING May 3, 2004 Tigard Town Hall 7:00-8:30 p.m. Agenda 1. Roll Call 7:00-7:05 2. Adoption of April 12, 2004 Minutes 7:05-7:20 3. Discussion: Examples of Other Development 7:20-7:45 4. Discussion: Development Issues 7:45-8:15 5. Additional Agenda Items 8:15-8:30 Planiwd L7evelopnwnt.Review Cominitlee 4112144 PLANNED DEVELOPMENT REVIEW COMM TTEE MEETING MAY 31 2004 DRAFT MEETING MINUTES 1. Roll Call Staff Liaison, Morgan Tracy welcomed the group and opened the meeting at 7:05 p.m. Mr. Tracy noted that David Walsh had a family matter and would not be in attendance. Gretchen Buehner was also absent. 2. Adoption of April 12 Minutes The committee reviewed the draft minutes and approved them. Staff noted that the minutes should be changed to reflect Ms. Buehner was excused from the last meeting. The amendment was accepted and approved. 3. Discussion: Examples of Other Development Staff presented a powerpoint slide show summarizing issues and challenges in changing the PD ordinance. These included balancing conservation and housing needs, procedural matters, and constitutional constraints. Staff outlined the path to achieving change; from developing goals and objectives to defining the strategies. Following the slide show introduction, several existing Tigard area PD developments were reviewed in terms of their density and open space provisions. 4. Discussion: Development Issues Following staff's slide show, the Committee spent a considerable amount of time identifying concerns with the current PD process and limitations. Among these concerns were: Increasing land costs Affordable housing stock Lack of a unique identity for PD's Minimum density tends to drive the subdivision design There is no mechanism in the current code to force a positive result or product Fear of takings without compensation claims Funding for open space and park acquisition Parks SDC's, and how they are allocated Density burden being forced onto the few remaining parcels (usually constrained) Housing Type and Lot Size compatibility Neighbor opposition (with both PD's and Subdivisions) Property rights/preservation of value (owner and neighbors) Tree removal/preservation Preservation of useable open space/wildlife corridors Ensure flexibility in PD requirements 1 a I'Cam2ed 17e ve loptz.ent li'eviviv Co mmillee 41121( Ensure that flexibility comes with a countervailing gain for the community PD's permit efficient use of the land Necessity of PD's at all Staff and others on the Committee noted that clearly defining key terms is of primary importance. Terms like "character", "conservation', and "compatibility" mean different things to different people. These terms will need to be more objectively defined in order to be used as review criteria. Another prevailing question was how does staff, Planning Commission, or City Council get the flexibility or authority to alter or deny projects that don't meet the intent or purpose statement. 4.What's Next. Staff advised the committee to examine other development in and around Tigard and take pictures, if possible, of images of both good and bad elements of these subdivisions to share with the group. We will continue to discuss issues at our next meeting, and start trying to develop goals for future code revisions. 5. Next meeting is To Be Scheduled. Staff adjourned the meeting at 9:40 p.m. Meeting Attendees: Committee Members: Ron Gaut,John Frewing, Charles Schwartz, Scott Sutton, Alice Ellis Gaut, Sue Beilke, Bill McMonagle Excused: David Walsh Absent: Gretchen Buehner Staff: Morgan Tracy, Dick Bewersdorff Distributed 5/10/04 2 Planned Development Review Committee Issues and Challenges May 3 , 2004 Achieving Density ■ Statewide Planning Goal # 10 — Housing ■ Metro Housing Goal "O""w""mr � ■ City Comprehensive Plan Housing Goal ■ Development Code - Minimum Density Standards Balancing Conservation ■ Statewide Planning Goals ■ Goal 5-Open Spaces, Scenic and Historic Areas, and Natural Resources ■ Goal 6-Air, Water and Land Resources Quality ■ Metro Title 3 ■ City Comprehensive Plan Goals ■ Development Code — Sensitive Lands Rules . Constitutional Issues ■ Due Process — Procedural Takings ■ Inverse Condemnation Procedural Constraints ■ Clear and Objective Standards ■ Discretionary vs. Nondiscretionary Standards ■ Ballot Measure 56 Notification . Development Code must implement the Comprehensive Plan Defining the Path ■ Develop the Goals ■ What are you trying to accomplish? ■ What do you want the product to look like? ■ How do you balance competing interests? ■ Refine with Objectives ■ Create Strategies ■ Evaluate what changes are needed in the Comp Plan ■ Develop the implementing language for the Development Code. A Starting Point . The Planned Development Ordinance was created to provide an alternative process to standard subdivisions to achieve certain desired objectives. . Revisions to the PD Ordinance should acknowledge that applicants may continue to use the standard subdivision process. Why PD1. ■ PD ' s are most often utilized when: ■ There are site constraints ■ Parcel configuration ■ Sensitive lands . Limited access (i.e. frontage width) ■ Density transfer is utilized ■ Private streets serve more than 6 units ■ Proposing attached units (R- 1 through R-7) Development Examples Hillshire-M ■ Approved in 1993 ■ R-7: 5,000 s.f. min ■ Site size: 1,315,119 s.f. ■ 120 lots (7,140 to 13,868 s.f.) ■ Open Space: 403,674 (30%) ■ Gross Density: 4 units per acre (done prior to minimum density requirements) Hillshire-M k• Olt, 1 _ y _ 1 Hillshire Hollow-M ■ Approved in 1998 ■ R-7: 5,000 s.f. min ■ Site size: 264,252 s.f. • 24 lots (1,983 to 5,999 s.f.) • Open Space: 148,767 (56%) ■ Gross Density: 4 units per acre Hillshire Hollow-M o03 rp 2 Autumn Hill-PD ■ Washington County Approval in 1999 ■ County zone R-6: 4,500 s.f. min (now R-7) ■ Site Size: 936,618 ■ 122 lots (2,261 to 5,976 s.f.) ■ Open Space: 251,341 (27%) ■ Gross Density: 5.7 units per acre "t-c- Autumn Hill-PD 3 Mapleridge Estates-M ■ Approved in 1999 ■ R-12, 3,050 s.f. min. (now MUR-1), ■ Site size: 95,158 s.f. • 24 lots (1,800 to 3,525 s.f.) • Open Space: 29,305 (31%) ■ Gross Density: 11 units per acre Mapleridge Estates-M 4 Hillshire Creek #4-PD ■ Approved in 2000 ■ R-7: 5,000 s.f. min ■ Site Size: 541,859 ■ 61 lots (1,724 to 6,021 s.f.) ■ Open Space: 287,247 (53%) ■ Gross Density: 5 units per acre Hillshire Creek #4-PD x � i 3 1P Kt I 5 Blue Heron Park-PD ■ Approved in 2000 ■ R-4.5: 7,500 s.f. min. ■ Site size: 178,175 s.f. • 18 lots (2,880 to 5,884 s.f.) ■ Open space: 90,582 (51%) ■ Gross Density: 4.5 units per acre Blue Heron Park-PD ivag R Kraft Place-PD ■ Approved in 2000 ■ R-25: 1,480 s.f. min. ■ Site Size: 50,513 s.f. • 20 lots (1,296 to 2,397 s.f.) ■ Open Space: 8,422 (17%) ■ Gross Density: 17 units per acre Kraft Place-PD Daffodil Hill-Sub ■ Approved in 2002 ■ R-7: 5,000 s.f. min. • Site size: 132,842 s.f. • 18 lots (5,462 to 9,392 s.f.) • Open Space: 0 s.f. (0%) ■ Gross Density: 6 units per acre Daffodil Hill-Sub a -J- 3 �v ¢ L 1 , 8 Tuscany-Sub ■ Approved in 2002 ■ R-7, 5,000 s.f. min. ■ Site Size: 687,082 s.f. ■ 89 lots (5,000 to 20,000 s.f.) ■ Open Space: 6,615 s.f. (1%) ■ Gross Density: 5 units per acre Tuscany-Sub rr I� t 9 Durham Oaks-Sub ■ Approved in 2003 • R-12, 3,050 s.f. min. ■ Site Size: 127,905 s.f. • 27 lots (2,520 to 4,696 s.f.) ■ Open Space: 0 s.f. (0%) ■ Gross Density: 9 units per acre Durham Oaks-Sub 1 —, 1- 11111111 1 R� Cr a9. �4 .v0. 9t DtiRMIM Rp •• -^+�g�� 5 yRD 10 FEB 26 '99 1-2:0--PM O'DONNELL, RAMIS P.2 Agenda Item No. -ses�-icj) l MIS CREW Meeting of a lay CORRIGAN & BACHRACH LLP ATTORNEYS AT LAW 1727 N.V.HeStreet po r MEMORANDUM (5W)222-4402 Fax: (5"2A3-29" TO: Tigard City Council FROM: Timothy V.Ramis,James M. Coleman, Gary Firestone of City Attorney's Office DATE: February 26, 1999 RE: Approvals, Denials, and Conditions of Approval I. INTRODUCTION Since Dolan v. City of YYgard, 512 US 374 (1994)was decided,planning staff and the City Attorney's Office have been working together dealing with the issues raised by Dolan and applying Dolan to land use applications. The City has developed appropriate responses to various Dolan challenges brought by developers. Although the U.S. Supreme Court has not expanded on Dolan, lower court and state court decisions have resulted in substantial clarification of the Dolan decision. The knowledge gained through the evaluation of the post Dolan court cases and the practical experience gained through the processing of applications in which Dolan issues are present allows us to reassess Dolan at this time. The reassessment is intended to provide guidance so that the City continues to respond to development applications in a manner that ensures compliance with Dolan while preserving the City's right to impose development standards and to exact appropriate dedications and public improvements. Dolan requires that every exaction imposed as a condition of a land approval be"related to and roughly proportional to the impact of the development.' The government must demonstrate rough proportionality based on an individual assessment in each case. All provisions of the Community Development Code must be interpreted in light of the Dolan standard. The City may, however, deny applications based on a failure to meet established criteria, as long as the criteria do not require an exaction. The City can deny an application if required public 'The most common exactions are requirements to dedicate land for rights-of-way and requirements to provide on-site or off-site public improvements. i FEB 26 '99 12:03PM O'DONNELL, RAMIS P.3 Memorandum re: Approvals,Denials, and Conditions of Approval February 26, 1999 Page 2 services or improvements are not available but cannot deny an application because the applicant failed to provide the required public improvements when the burden of the exaction would significantly exceed the impact of the development. II. ANALYSIS A. Every Exar,,fiQn Must Be Justified by a_Rnugh propaxlioaftAn" A requirement to dedicate right-of-way or to construct public improvements is an exaction_ There must be an"essential nexus"between any exaction imposed as a condition of development and the impact of the development,Nollan v California Coastal Comm n, 483 US 825 (1987)? The exaction must be"roughly proportional"to the impact of the development. Dolan v. City of Tigard, 512 US 374 (1994). Dolan requires"some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." Under Dolan, every exaction must be justified under the rough proportionality test,with the burden of proof being on the City. LUBA has taken the position that requiring additional right-of. way on a street bordering a development cannot be justified as a matter of course, but must meet the rough proportionality standard. Gensman v City of Dgard, 29 Or LUBA 505 (1995). Therefore, even a condition that an applicant dedicate right-of-way for an adjoining street must meet the rough proportionality standard and be based on an individualized evaluation of the traffic impact created by the development. B. Local Governm=ts MU.y Denv an App]i •,�o B _ on ifouzz S an�ard� and Criteria thAt Do Not Require an Exaction As recognized by the U.S. Supreme Court inNollan v California Coastal Commission,483 US 825 (1987), a local government may deny a request for a land use approval if objective standards regarding the property or the level of services available justify a denial. However, the holding in Dolan precludes a denial based on the failure to meet a code requirement if the code requirement requires an exaction and the exaction is disproportionate to the impact of the development. In other words, if the City could not require an exaction as a condition of approval under Dolan , it cannot deny the application on the basis that the exaction was not provided. However, if the code requires 'The"essential nexus"requires a relationship between the type of impact and the type of exaction. This test is met if the impact is on the road transportation system and the exaction is a street dedication or improvement. The test is not met if the impact is on the sewer system but the_ exaction is a street dedication or improvement unrelated to any sewer line. FEB 26 '99 12:04PM O'DONNELE, RAMIS P_4 Memorandum re: Approvals, Denials, and Conditions of Approval February 26, 1999 Page 3 that certain public improvements or services be in place and meet certain standards,Dolan does not prevent a denial based on the lack of existing public improvements. In the case of rights-of-way and street improvements, a requirement that all developments must have direct access to a street that meets city standards would survive a Dolan challenge, a requirement that the applicant;dedicate right-of-way and improve all adjacent streets so that they meet City standards would not satisfy Dolan unless the City could demonstrate that the dedication and improvement are roughly proportional to the traffic impact of the development. The Dolan standard applies in all situations involving exactions. It applies to local streets, to developments with more than one street frontage, to single family residences, and to redevelopment. In the case of redevelopment, the impacts that can be compensated for by an exaction are limited to the increase resulting from the redevelopment. In our presentation to Council,we will identify some of the specific factual situations where these issues arise. You will be able to see the kinds of judgments that the staff, and ultimately the Planning Commission and Council,will be called upon to make. M. SUMMARY In deciding land use applications in which dedications or improvements may be an issue, the City should apply the CDC in light of the Dolcm requirements that all exactions must be related to and roughly proportional to the impact of the development and that the rough proportionality evaluation must be based on an individualized assessment. Failure to apply existing code provisions in light of Dolan could result in takings claims. 0-.VVO\igco=-i=299.%Td MEMORANDUM CITY OF TIGARD, OREGON TO: Planning,Engineering and DST's FROM: Dick Bewersdorff DATE: June 12, 1996 SUBJECT: Impact Study Requirements On June 11, 1996,the City Council approved the attached ordinance. It establishes the requirement of an impact study for development applications to quantify the effect of development on public facilities. The ordinance will go into effect on July 11, 1996. The study must propose improvements necessary to meet City standards and to minimize the impact on the public, public facility systems and affected private property owners. Where dedication of real property is required, applicants are to concur with the requirements or provide evidence which shows that dedication is not roughly proportional. Findings must be made in the final order of a project to support the conclusion that transfer of real property is roughly proportional to the impact. The requirements for the impact study should be given out in preapplication conferences immediately. You will undoubtedly be asked how to show proportionality or the lack thereof. Documentation we have used includes assigning a dollar value to the dedication and comparing that with a dollar value impact on public facilities. The Dolan final order contains an example for streets subject to the TIF and for storm drainage. The Randall property file calculates the impact for a trail dedication. Also attached is a agreement to development conditions involving transfer of real property interests. It was drafted by the City Attorney's office. Applicants would have to sign this type of agreement as a condition of approval. Depending on the application, a developer or property owner may agree that the pre-app conclusions for dedication are appropriate. According to 18.32.080, the Director can waive certain submittal requirements if certain steps are taken. I have attached a second agreement that could be executed inlieu of doing an impact study. This would have to be submitted at the time of application. There would be no waiver of submittal if the agreement was not executed. If, after a final order or staff report is completed, an applicant suddenly changes his or her mind about the dedication, we would have to ensure that approval could not go into affect until an impact study was completed. We undoubtedly will develop many questions as we begin to implement the new ordinance. We will have to be flexible in our approach to unanticipated conflicts through conditions of approval, timing of requirements,etc. A meeting to discuss the new provisions would probably be a good idea to feret out questions. Please let me know your comments. Thanks. CITY OF TIGARD,OREGON ORDINANCE NO.96-- AN ORDINANCE TO AMEND PROVISIONS OF THE COMMUNITY DEVELOPMENT CODE BY ADOPTING REVISED SECTIONS 1832.050 B.5, 18.32.250 E.2, TO ADD DEDICATION, AND IMPACT STUDY REQUIREMENTS FOR PUBLIC FACILITIES AND SERVICES. WHEREAS, the City of Tigard finds it necessary to revise the Community Development Code periodically to improve the operation and implementation of the Code; and WHEREAS, the U.S. Supreme Court rendered a June 24, 1994 decision concerning uncompensated takings and the need to justify dedication conditions by showing a"rough proportionality" to the impact of development; and WHEREAS, the City of Tigard Planning Commission reviewed proposals for revising the above Code Sections at a public hearing on April 8, 1996; and WHEREAS, the City of Tigard Planning Commission voted to recommend the revised Code Sections as shown in Exhibit"A"; and WHEREAS,the City Council held a public hearings on May 14, 1996 and June 11, 1996 as well as a work session on May 21, 1996 to consider the proposed amendments. NOW,THEREFORE; THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The proposal is consistent with all relevant criteria as noted below: The relevant criteria in this case are Statewide Planning Goals 1, 2, 11 and 12; City of Tigard Comprehensive Plan Policies l.i.l.a. and c., 2.1.1, 2.1.3, 3, 7 and 8; and Community Development Code Chapter 18.30. The proposal is consistent with the applicable Statewide Planning Goals based on the following findings: 1. Goal 1, Citizen Involvement, is met because the City has followed its adopted citizen involvement program which involved review by its Citizen Involvement Team structure, and public hearings as listed above. The City's Citizen Involvement Policies in the Comprehensive Plan have been acknowledged to be in compliance with Goal 1. Notice for all hearings was provided in the Tigard Times which summarized and outlined the amendments being made to existing code provisions and was done so for each public hearing. Copies of the ordinance drafts have been available at least seven days prior to the hearings which follows Community Development Code Procedure. ORDINANCE No. 96- Page I 2. Goal 2, Land Use Planning, is met because the City applied all relevant Statewide Planning Goals, City Comprehensive Plan Policies and Community Development Code requirements in review of this proposal. 3. Goal 11,Public Facilities and Services and Goal 12 Transportation,are met because the proposed measures assist in implementing the provision of public facilities and services, and transportation facilities in a more timely, orderly and efficient manner to provide defined levels of service improvements determined to be necessary by studies showing specific facts and findings for each development to be consistent and"roughly proportional" to the impacts of those developments. The proposal is consistent with the City's acknowledged Comprehensive Plan based on the following findings: 1. Policies 1.1.1.a. and c. are satisfied because the proposed code changes are consistent with Statewide Planning Goals as indicated above and the changes help to keep the development code current with local needs and recent case law. 2. Policies 2.1.1 and 2.1.3 are satisfied because the proposal has been reviewed at public hearings and through the City's Public Involvement process. 3. The Council finds that the proposed changes are consistent with the provisions of Comprehensive Plan Policies 3, Natural Features and Open Space, because these policies call for development control of floodplain and greenway areas and these provision provide a tool consistent with recent case law to assess the impact and- need ndneed for improvements, reservations and dedication that is roughly proportional to the impact of the development. 4. The Council finds that the proposed changes are consistent with the provisions of Comprehensive Plan Policies 7, Public Facilities and Services and 8,Transportation which call for ensuring that as a precondition to development, developments coincide with the availability of adequate services and that development is to provide streets and right-of-way consistent with City standards. The proposed changes provide an implementation tool that specifically measures impacts to determine whether development requirements are "roughly proportional" to the impacts of those developments. 5. Community Development Code Section 18.30 which establishes procedures for legislative code changes is satisfied according to the above findings. SECTION 2: Community Development Code Chapter 18.32 shall be revised as shown in Exhibit"A". SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, signature by the Mayor,and posting by the City Recorder. PASSED: By vote of all Council members present after being read by number and title only,this day of .1996. ORDINANCE-No. 96- Page 2 Catherine Wheatley,City Recorder APPROVED: By Tigard City Council this day of 1996. James Nicoli,Mayor Approved as to form: City Attorney Date i:lcitywidebrdVoa96-03.ord Dk BOS27/96 8:41 AM ORDINANCE No. 96- Page 3 EXHIBIT A DEDICATION, AND IMPACT STUDY AMENDMENTS TO CHAPTER 18 OF THE COMMUNITY DEVELOPMENT CODE 05 Language proposed to be added is underlined. 18.32.050 Application Submittal Requirements: Refusal of an Application 13.5. Include an impact study. The impact study shall quantify the effect of the development on public facilities and services. The study shall address, at a minimum, the transportation system. including bikeways. the drainage system, the parks system, the water system. the sewer system and the noise impacts of the development. For each public facilites system and baK of impact, the study shall propose improvements necessary to meet City standards, and to minimize the impact of the development on the public at large. public facilities systems, and affected private property users. In situations where the Community Development Code requires the dedication of real property interests. the applicant shall either specifically concur with the dedication requirement, or provide evidence which supports the conclusion that the real property dedication requirement is not roughly proportional to the projected impacts of the development. 18 32.250 E.2 Conditions may include, but are not limited to; a. Minimum lot sizes; b. Larger setbacks; C. Preservation of significant natural features; and d. Dedication of easements When a condition of approval requires the transfer to the public of an interest in real property, the approval authority shall adopt findings which support the conclusion that the interest in real property to be transferred is roughly proportional to the impact the prop9sed development will have on the public. EXHIBIT A-PAGE I DEDICATION AND IMPACT STUDY AMENDMENTS TO THE DEVELOPMENT CODE(ZOA 96-0003) AGREEMENT TO DEVELOPMENT APPROVAL CONDITIONS WHEREAS, the undersigned warrant(s) that (1/we/they) are owner(s) of real property in the City of Tigard, Washington County, Oregon as is described: In EXHIBIT "A", attached hereto, and incorporated by reference herein. WHEREAS, the undersigned have received a development approval from the City of Tigard, (insert development approval number) which will allow for the (provide brief description of development allowed by approval). Certain conditions of the approval require the developer to transfer an interest in real property. The undersigned wish to develop the above referenced property in accordance with the development approval. NOW, THEREFORE, the undersigned agree(s) to the following: 1. That the value of the real property interests required to be transferred by the conditions roughly proportional to the impacts of the proposed development upon public facilities and systems. As such, the undersigned hereby agrees to comply fully with those conditions and waives the right to pursue any legal challenge to those conditions_ 2. This agreement is a binding contract between the City of Tigard and all persons who presently have an interest in the property or who acquire any interest in the property in the future. 3. This covenant shall run with the land, shall be recorded in the Washington County deed records and shall be binding on the undersigned and all successors in interest or any property affected by this development. 4. Should any portion of this agreement be declared void by a court of law, the remaining portions of this agreement shall remain in full force and effect. 5. The development approval and the conditions thereto may be modified or deleted only with the approval of the City of Tigard after compliance with the procedures and standards established by law. Dated . 19_ Dated 19 Signature of owner(s) City of Tigard STATE OF OREGON ) )ss. COUNTY OF WASHINGTON ) Personally appeared before me on the day of who acknowledged that the foregoing was his voluntary act and deed. Notary Public for Oregon My Commission Expires: i_lcurpWpattyWevelapp.ag AGREEMENT TO DEVELOPMENT IMPROVEMENTS AND CONDITIONS IN LIEU OF PROVIDING IMPACT STUDY WHEREAS, the undersigned warrant(s) that (1/we/they) are owner(s)of real property in the City of Tigard, Washington County, Oregon as described: In EXHIBIT"A', attached hereto, and incorporated by reference herein. WHEREAS, the undersigned wishes to develop the above described property for without preparing an impact study to quantify the effect of the development on public facilities and services. The preapplication conference established that the developer will transfer an interest in real property. The undersigned wish to develop the above referenced property in accordance with the preapplication conference. NOW, THEREFORE, the undersigned agree(s) to the following- 1. That the value of the real property interests required to be transferred for the above referenced development are roughly proportional to the impacts of the proposed development upon public facilities and systems. As such, the undersigned hereby agrees to comply fully with real property requirements and public improvements and waives the right to pursue any legal challenge to those conditions. 2. This agreement is a binding contract between the City of Tigard and all persons who presently have an interest in the property or who acquire any interest in the property in the future. 3. This covenant shall run with the land, shall be recorded in the Washington County deed records and shall be binding on the undersigned and all successors in interest of any property affected by this development. 4. Should any portion of this agreement be declared void by a court of law, the remaining portions of this agreement shall remain in full force and effect. Dated 19 Dated 19 Signature of owner(s) City of Tigard STATE OF OREGON ) ) ss. COUNTY OF WASHINGTON ) Personally appeared before me on the day of 19 who acknowledged that the foregoing was his voluntary act and deed. Notary Public for Oregon My Commission Expires: rbblimpway.agr FINDINGS - ROUGH PROPORTIONALITY The following provides findings for the determination of the rough proportionality of a pedestrian easement on floodplain land adjacent to the development of a 36 unit multi-family apartment complex on Bonita Road (SDR 95-0017/SLR 95-0011 Rayber/Randall Realty) . A pedestrian way is shown on the City Comprehensive Plan Park Plan to follow Fanno Creek. Fanno Creek flows through the property to be developed under the above Site Development Review. Providing a pedestrian way will provide the potential linkage of this and adjacent properties to the partially constructed existing pedestrian system along Fanno Creek. The proposed 36 unit apartment complex will generate additional vehicle trips on the City's street system. The added trips will take up capacity on the City street system which must be accomodated by infrastructure improvements. Unmitigated Impact According to the Washington County TIF ordinance, 32 percent of a project's impacts are met by its TIF assessment in Tigard. This leaves 68 percent unmitigated. The actual cost of system improvements per trip generated by new development on the Tigard street system can be determined by the following equation (Larson, Mackenzie Engineering, Dolan Findings, June, 1995) : $159.00 divided by .32 equals $496.88 (Where $159.00 is the residential per trip TIF assessement according to the Washington County TIF ordinance. ) According to ITE manual figures and the TIF ordinance apartment dwellings generate 6.1 trips per day per unit. Therefore the Rayber/Randall complex would be expected to generate 219.6 vehicle trips per day. Using the above, the unmitigated impact of the Rayber/Randall complex is as follows: Full Impact _ 219. 6 x $496.88 = $109, 113.75 Less TIF Assessment 219.6 x $159.00 = $ 34 ,916.40 Unmitigated Impact $ 74 , 197.35 Value of pedestrian mitigation The value of the mitigation of a pedestrian path can also be determined. In this case, it should be noted that only an easement is being required with the City having to construct the pathway at a later time. According to the LUTRAQ study (The Pedestrian Environment December, 1993) , increasing pedestrian trips reduces auto trips. LUTRAQ shows a PEF (Pedestrian Ennvironmental Factor) for the Bonita area of 4 to 6. According to LUTRAQ, 94 percent of all trips are by auto in such an area. Increasing pedestrian trips by a pathway would increase the PEF. LUTRAQ also indicates that construction of a pedestrian friendly environment will result in system wide improvements of 10 percent. Conservatively, the reduction of reliance on the auto in the area of this development could range from 6 percent (100-94) to 8 percent. This yields a mitigation value as follows: 219. 6 trips x .06 x $496.88 = $6, 546.89 to 219.6 trips x .08 x $496.88 = $8,729.18 These figures would reduce the unmitigated impact to $67, 650.46 or $65,468. 17 depending on the use of 6 or 8 percent. Estimated property value The value of the land needed for a 15 foot wide easement for a pedestrian path potentially located on both sides of Fanno Creek is approximately $6, 600. This is determined by a maximum need of 8,250 square feet south of the creek and a maximum of 3,000 square feet north of the creek based on the length of a pathway through the property. According to the City of Tigard Park and Recreation Facilities System Development Charge Study (Draggo, Nov. , 1994) , the value of an acre of Sensitive Land is $20, 000 per acre. The square footage of the easement needed for a pathway is just less than one-third acre. The value of the one-third acre is7therefore, $6,600. Conclusion The unmitigated impact of the 36 unit apartment complex at roughly $65,000 to $68,000 compared to an estimated value of the easement of $6, 600 indicates that the unmitigated impact is much greater than the value of the easement. Therefore, the requirement of an easement for a pathway more than meets the rough proportionality test. O'DONNELL RAMIS CREW CORRIGAN & BACHRACH ATTORNEYS AT LAW 1727 N-W.Hoyt Street Portland,Oregon 97209 TELFTHONE (S03)222,4402 FAX:- (503)243-2944 DATE: January 11, 1996 TO: Jim Hendryx, Community Development Director Dick Bewersdorff, Senior Planner FROM: James M. Coleman, City Attorney's Office RE: Dolan Implementation Guidance The purpose of this memorandum is to provide guidance in the practical application of the requirements of the Dolan decision. I previously provided to you a first draft of code provisions which are designed to provide a basic framework for implementation of the decision. I will refer to those code amendments, a copy of which are attached. The Dolan rehearing process provided a good example of the application of the requirements placed upon local government by the Dolan decision. If questions arise in the future in how to technically apply these Dolan requirements, a review of that process, and the final order will provide a detailed example of the analysis and documentation which we believe is required by the decision. ��- •. (P2ctwd�on When the City seeks to uire a real pm,_perty interest through the development approval process it must insure that a extent of the requirement is roughly proportional to the impact caused by that development. The burden of proving this rough proportionality has been placed upon the City. We suggest that the most practical way of implementing this requirement is to reduce the development's impact to a dollar value and then compare that dollar value with the value of the real property interest being taken. The impact of the development on each public facility system should be evaluated separately and then compared to the real property interest which is being required with regard to improvement of that public facility system. In the Dolan rehearing process the cost to the public of the impact on the stormwater management system was calculated by reducing the necessary system improvement cost to a dollar value per USA Equivalent Service Unit of stormwater run off. That dollar value was then compared to the value of the real property interest required by the condition. A conclusion in that process was that the condition was justified because the dollar value impact on the developer of the transfer of real property was roughly proportional (in that case less than) the cost to the public of a portion of the system improvements necessary to accommodate the developers proportional impact on the stormwater system. (See Dolan findings, pp. 31-47). O'DONNELL RAMIS CREW CORRIGAN & BACHRACH Memo re: Dolan Implementation Guidance January 10, 1996 Page 2 A similar analysis was done on the transportation system. Transportation system costs were calculated and reduced to a cost per trip. The estimated number of trips generated by the proposed use was then calculated. A comparison was then made between the dollar value of the real property interest to be taken and the cost to the public transportation system of the impact of the proposed uses. This same process, the calculation of development impact (reduced to a cost per unit of impact) with the cost to the developer of the real property interest taken must be undertaken with regard to each public facility system for which a real property interest is sought. While the overall statement of the requirement is fairly simple, application of this requirement will be time consuming and require a comprehensive look at the cost of improvements which will be necessary to all City public facility systems in order to accommodate future growth. Consistency in application will also be necessary. The first of the proposed code amendments to CDC §18.32.050.B, requires that an impact study be provided the developer in the pre-application process. While the burden is on the City to prove rough proportionality, there is nothing wrong with having developers provide basic information regarding their view of the impact of the development. You will want the developer to quantify impacts based upon the same unit which the City is using to calculate cost of impact, i.e., trips generated by the development for transportation system costs, equivalent service units for stormwater runoff for stormwater management system costs, etc. The pre-application, and application process is the time to work the Dolan issues. The draft code amendment requires developers to object up front if they believe proposed City real property dedication requirements are not roughly proportional to the projected impacts of the development. This requirement should alert the City staff to Dolan type problems which will be presented through the application and hearing process. In every case justification needs to be provided in the staff report and final order to support the City's conclusion that a real property acquisition is roughly proportional to the cost of the impacts. When it appears that the property dedication requirement will be controversial, a more in depth analysis and justification can be provided, as was done in the Dolan rehearing process. O'DONNELL RAMIS CREW CORRIGAN & BACHRACH Memo re: Dolan Implementation Guidance January 10, 1996 Page 3 The Dolan order summarizes the position taken by the Council concerning the new obligations placed upon the City in analyzing a "Dolan" type exaction question. The Council concluded that the following obligations are placed upon the City: 1. City is required to make an individualized evaluation of the impacts of the applicant's development. 2. City is required to establish a reasonable correspondence between the impacts of the development and the purposes offered by the City in support of the condition requiring a real property interest. 3. City is required to make some showing that the proposed real property interest would or would be likely to mitigate for the impacts offered in the justification for the condition. 4. City is required to show that the extent of the real property interest taken is roughly proportional to the expected impacts of the project. In order to provide consistency from application to application a standard set of improvements 1 costs, impact units, and cost per impact unit should be used from application to application. The � �f Dolan process again provides a good example of how to deal with those issues in the transportation and stormwater management system, but for each other system such as sanitary sewer, water and parks, a similar overall system framework of cost and impact unit must be w �� developed. C4 While the Dolan case on its facts deals only with real property dedication requirements, as a practical matter it is difficult to separate out the cost of required public improvements imposed as conditions of developments. The Oregon Court of Appeals recently recognized this problem. In the case Clark v. Cid of Albany, 137 OrApp 293 (1995) the Court makes challenges to a series of conditions imposed upon a site plan approval for a fast food drive-in restaurant. Conditions 4 and 5 of the City's approval required the developer to design and either construct or provide financial assurance of construction of a street and sidewalk improvement adjacent to the property. The City argued that the conditions did not amount to "exaction" because they merely required the developer to improve his own primary access frontage in accordance with City standards. Implicitly the City had argued that the Dolan requirements apply only to conditions requiring transfer of a real property interest. The Court of Appeals rejected that argument and stated that conditions such as 4 and 5 which require a developer as a prerequisite O'DONNELL RAMIS CREW CORRIGAN & BACHRACH Memo re: Dolan Implementation Guidance January 10, 1996 Page 4 to developing property to make road improvements on or extending beyond the effected property are "exactions" to which the Dolan analysis apply. The Court stated, "For purposes of takings analysis, we see little difference between a requirement that a developer convey title to the part of the real property that is to serve a public purpose, and a requirement that the developer himself make improvements on the effected and nearby property and make it available for the same purpose." (Clark at 300). The Court applied a similar analysis to condition 26 which required the construction of a sidewalk adjacent to a public right of way. The Court concluded that condition 10, however, was not an "exaction". Condition 10 required that a portion of the adjacent right of way be made a "non-driving area". The Court found that this type of condition is not an exaction, but is rather a traffic regulation. Regulations such as that are not exactions and are not subject to the Dolan test. What the Court has done in this case is begin the expansion of requiring a Dolan analysis from strictly a real property context to situations in which conditions require construction of public improvements. j With this expansion of Dolan in mind, in looking at the contributions made by the developer to mitigate the impacts of the development, at a minimum the SDC contribution which is dedicated to system improvements should be considered, as should the cost of off-site system improvements. The dollar value balance between cost of impact and cost to the developer of mitigating the impact through public improvements and real property dedications does not have to be exact, but only "roughly proportional." The second and third proposed amendments add language which will permit the City to reserve land through the creation of what amount to special setback areas. So long as these special setback areas do not result in the denial of an economically viable use for the property the City can require the reservation of land to be free from structures and uses for future acquisition. The Dolan decision specifically reaffirms the right of local governments to use setback requirements to implement public policy objectives. Any area which is reserved for future purchase should be identified in some public facilities plan_asa part of a public facility \ system, with some projection of the timing of the future acquisition. The Court's recognition 4 in Clark v. City of Albany that a traffic regulation is not subject to a Dolan analysis is a fairly ar f) LA clear statement that the distinction between exaction cases and use restriction cases will be followed by the Oregon courts. v O'DONNELL RAMIS CREW CORRIGAN & BACHRACH Memo re: Dolan Implementation Guidance January 10, 1996 Page 5 The last proposed amendment articulates the requirement that the City explain in its findings its conclusion that an interest in real property to be transferred is roughly proportional to the impact that the proposed development will have on the public. I suggest that the staff reports contain a section which specifically deals with this issue. That section should include an explanation of how the cost of the impact to the public was calculated and how the value of the real property was calculated with an explanation of the conclusion that the cost outweighs the value of the real property. For the purpose of consistency in application of these requirements, a standard document for each facility system could be developed which explains how the cost per unit of development on each system is calculated. These documents could be referred to in the findings and included in the record in each development application. The findings would then include the analysis as applied to the facts of the particular application by using the information in these system studies. The Dolan court created the legal standard of rough proportionality in evaluating this issue. The court went on to specifically state that mathematical precision in the application of this test was not required. Obviously this is not a precise legal standard. Each application will have to be evaluated on a case by case basis. The development of a uniform set of public improvement cost figures, and the consistent application of these figures from development to development should provide the basis for a successful implementation of the requirements developed by the U.S. Supreme Court in the Dolan case. The City has invested a tremendous amount of resources in its rehearing of the Dolan application. The findings document that was generated as a result of that process should provide to your staff an invaluable tool in dealing with Dolan type issues as they arise. The format and analytical process used in that Dolan order should be used by your staff as a model in dealing with Dolan issues in the future. pnc\cm\ OW4\bmdryz_meI CITY OF TIGARD PROPOSED CODE AMENDMENTS PROPOSED AMENDMENT TO CDC §18.32.050.B. "B.S. Include an impact study. The impact study shall quantify the effect of the development on public facilities and services. The study shall address, at a minimum, the transportation system, including bikeways, the drainage system, the parks system, the water system, the sewer system, the City's greenway system, and the noise impacts of the development. For each public facility system and type of impact, the study shall propose improvements necessary to meet City standards, and to minimize the impact of the development on the public at large, public facilities systems, and affected private property users. In situations where the CDC requires the dedication of real property interests, the applicant shall either specifically concur with the dedication requirement, or provide evidence which supports the conclusion that the real property dedication requirement is not roughly proportional to the projected impacts of the development. " PROPOSED AMENDMENT TO CDC _q18 .96.010. This section will remain as written with the following addition as a last clause to the long purpose paragraph. " . . . and to permit the reservation of land planned for acquisition for park, utility, greenway, and/or storm drainage management purposes. " PROPOSED ADDITION TO CDC - NEW SECTION 618 96 100. "100.A. Zoning district setback areas shall be measured from the boundary of the 100 year floodplain/ greenway area rather than from the property line. The land within the 100 year floodplain/greenway area shall be reserved and may be used only as allowed by CDC 918.84, Sensitive Lands. 100.B. Land projected for future acquisition by the City for addition to the City parks system, or utility system, shall be reserved free of structures for future acquisition by the City. The zoning district setback area shall be measured from the edge of the reservation area. PROPOSED AMENDMENT TO CDC 918.32.250.E.2. This section will now read: 250.E.2. Conditions may included, but are not limited to: a. Minimum lot sizes; b. Larger setbacks and reservation areas; C. Preservation of significant natural features; and d. Dedication of easements. When a condition of approval requires the transfer to the public of an interest in real property, the approval authority shall adopt findings which support the conclusion that the interest in real property to be transferred is roughly proportional to the impact the proposed development will have on the public. " Vicinity Information: The project site is located southwest of the intersection of SW 72nd Avenue and SW Beveland Street. The site contains 14.23 acres. The area on the north side of SW Beveland Street is developed w-••" single-family residences. The parcel at the west end of SW Beveland Street has recently recti approval for an extended-stay hotel. At the northeast comer of the intersection of SW Beveland Str'__, and SW 72nd Avenue is an office building. The property on the east side of SW 72nd Avenue is developed with commercial and residential uses. The southern and western side of this site is bordered by State Highway 217. The lots along both sides of SW Beveland Street and the property to the east of the site across SW 72nd Avenue are designated "Commercial" on the Tigard Comprehensive Plan ("Plan") map and are zoned Mixed Use Employment("MUE"). Site Information and Proposal Description: The site is presently developed with the Phil Lewis Elementary-School owned by the Tigard-Tualatin School District. The Phil Lewis Elementary School is currently not used for school purposes. The site also. contains six (6) platted lots on the south side of SW Beveland Street in the Hermosa Park subdivision. Each of the six (6) lots along SW Beveland Street contains a single-family dwelling. The single-family dwellings and the elementary school building are proposed to be removed. j - The highest elevation of the site is on the north, adjacent to the lots along SW Beveland Street and on the east, adjacent to SW 72nd Avenue. The site slopes down in a .southeasterly:direction to State Highway 217. The applicant proposes to construct an Eagle Hardware&Garden ("Eagle") store on this site. This store will contain 147,812 square feet of which 119,810 square feet will be retail area, 18,892 square feet will be garden area and 9,110 square feet will be office/light storage area. The applicant also proposes an additional retail building ("Future Building A") on lots 24 and 25 along.SW Beveland Street. Fu+ Building "A" will contain 10,890 square feet. The adjustment application applies only to the Eagle sit,site. Moreover, because the existing intersection of SW Beveland Street and SW 72nd Avenue is offset, the applicant is proposing to realign the intersection. While the proposal includes the Future Building "A" this may not be able to be constructed due to traffic concems raised by the traffic study and/or mitigation requirements for the filling of wetlands and drainageway on the site. If proposed future Building A" is constructed in the future, a detailed Plan review will be necessary to insure compliance with the standards. SECTION IV. APPLICABLE REVIEW CRITERIA AND FINDINGS Impact Study: Section 18.32.050 states that the applicant shall provide an impact study to quantify the effect of development on public facilities and services. For each public facility system and type of impact, the study shall propose improvements necessary to meet City standard, and to minimize the impact of the development on the public at large, public facilities systems, and affected private property users. In situations where the Community Development Code requires the dedication of real property interests, the applicant shall either specifically concur with a requirement for public right-of-way dedication, or provide evidence that supports that the real property dedication is not roughly proportional to the projected impacts of the development. Section 18.32.250 states that when a condition of approval requires the transfer to the public of an interest in real property,.the approval authority shall adopt findings which support the conclusion that the interest in r property to be transferred is roughly proportional to the impact the proposed development have on the public. STAFF REPORT TO THE PLANNING COMMISSION FOR 1112/98 PUBLIC NEARING PAGE 6 OF 32 SDR 98000891DR 98-0007rL R 98-0012 EAGLE W\RMARE&GARDEN CENTER STORE ' r /Any required street-improvements to certain collector or higher volume streets and the Washington County Traffic impact Fee (TIF) are mitigation measures that are required at the f me of development. Based on a transportation impact study prepared by Mr. David Larson for the A-Boy Expansion/Dolan 11/Resolution 95-61,TIF's are expected to recapture 32% of the traffic impact of new development on the Collector and Arterial Street system. Based on the size and proposed use of the structure, and taking / into account credits for the existing school, it is estimated that the TIF paid for the construction of the hardware store will be $192,512. The site has frontage on SW 72nd, SW Beveland and Highway 217. Sw 72nd is a major.collector. The applicant is being required to dedicate Sw 72nd to provide 46 feet from centerline and construct half street improvements. The applicant will also be re-aligning Beveland street so that it lines up with the existing street to the east_ In addition to.the re-alignment, the applicant wilt be installing a traffic light at the intersection of Sw Beveland and SW 72nd. The approximate linear footage for the half street improvements along SW 72nd is 880 feet. The Engineering Staff has estimated the costs of constructing half street improvements is approximately $200 per linear foot. Based on this estimate,the cost of constructing half street improvements along SW 72nd is $176,000 (The applicant's estimate is approximately $127,930). The estimated cost of constructing additional improvements (Traffic signal, re-striping Highway 217 overpass and re-aligning Beveland) is $278,201. Upon completion of this development, the future developer will be required to pay TIF's of approximately $192,672 (for hardware store only, future building pad is not included in TIF analysis). Based on the estimate that total TIF fees cover 32% of the impact on major street improvements citywide, a fee that would cover 100% of this projects traffic impact is $602,100 ($192,672 divided by .32). The difference between the TIF paid and the full impact, is considered an unmitigated impact. Since the TIF paid is $192,672, the unmitigated impact can be valued at $409,428. The rough proportionality test means that the conditions imposed must be "roughly proportional" to the impacts associated with a development. The test does-not require a precise mathematical calculation. The test does not require a "dollar for dollar" exchange of conditions for impacts, nor does it require that the impacts outweigh or have a higher estimated value than the conditions imposed. The estimated costs required of the applicant may be greater in estimated value than the value of the unmitigated impact. Furthermore, Section 18.164.030.A.1 states that no development shall occur unless the development has frontage or approved access to a public street and that streets within and adjacent shall-be improved in accordance with ordinance standards. In order for the street system to function to serve all properties at buildout, streets meeting minimum standards must be provided. With the improvements,-the applicant will be providing services that will be adequate to serve the needs of the proposed use. Although the requirements imposed may have a slightly higher estimated value (depending on whether using applicants estimate or Engineering Departments estimate) than the unmitigated impact, the City finds that the conditions meet the rough proportionality test. In addition, the applicant has concurred with the construction street improvements as the streets intended to serve the development. COMPLIANCE WITH COMMUNITY DEVELOPMENT CODE SECTIONS: Use Classification:. The applicant is proposing to build an Eagle Hardware & Garden ("Eagle") store. This use is classified in Code Section 18.42 (Use Classifications) as General Retail Sales. Most of the site is located within the.General Commercial ("C-G")Zoning District; the lots adjacent to SW Beveland Street are within the Mixed Use Employment ("MUE") Zoning District. Section 18.62.030 lists General Retail Sales as a permitted use in the C-G zone. Section 18.67.030 lists General Retail Sales, as a permitted restricted use in the MUE zone. The proposed use is a permitted use in the C-G district pursuant to Section 18.62.030(A)(2)(1), "General Retail Sales", and the MUE district pursuant to Section 18.67.030(A). STAFF REPORT TO THE PLANNING COMMISSION FOR 11098 PUBLIC HEARING PAGE 7 OF 32 SDR98 pppglppR g8 0007/SlR 980012 EAGLE HARDWARE&GARDEN CENTER STORE r L r t yr�f .rJ� r J J r rfa t � L-3 qv- d --t4ti-v�,/ Yihh 35©,tea � �t�Sltr Z ` • llb 5sb 350.0 O sw. oleo cp • tag 6-�r�,9���� ,S��r I��•wJ� .,� L-j _ Ts �� Y digTj 'h s�J1 RST �Y✓�j hft��.c ( ��► ,-Ai-Df A 'ff�.�' 4>1T ICP—,TY?F 1 T�Rh t -- c. `u✓ ,b l �� i Cl� t 1,31���G� , - -.._ i`:��a`�•ar� ,,� .�C�$��6�'t+ '�sev: *`s,G��* 'a`��s;r r + t � , r : ` M -:y �'.,v,4•p 7 ry vr.�t114YJ.rn r, r .; �4z•`+'itl f . 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