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02/23/2009 - Minutes CITY OF TIGARD PLANNING COMMISSION Meeting Minutes February 23, 2009 1. CALL TO ORDER President Inman called the meeting to order at 7:00 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, Caffall, Doherty, Hasman, Muldoon, Walsh, and alternate Commissioner Gaschke Commissioners Absent: Commissioner Fishel, Commissioner Vermilyea Staff Present: Dick Bewersdorff, Planning Manager; John Floyd, Duane Roberts, Project Planner; Greg Berry, Utility Engineer; Associate Planner; Phil Nachbar, Redevelopment Project Manager; Doreen Laughlin, Planning Commission Secretary 3. COMMUNICATIONS - None. 4. APPROVE MEETING MINUTES 1-26-09 Meeting Minutes: There was a motion by Commissioner Muldoon, seconded by Commissioner Doherty to approve the 1 -26-09 Planning Commission meeting minutes as submitted: The motion CARRIED on a recorded vote; the Commission voted as follows: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Muldoon, Commissioner Inman, and Commissioner Walsh (6) NAYS: None (0) ABSTAINERS: Commissioner Hasman (1) ABSENT: Commissioner Vermilyea, Fishel (2) 2-2-09 Meeting Minutes There was a motion by Commissioner Doherty, seconded by Commissioner Walsh to approve the 02-02-09 Planning Commission meeting minutes as submitted: AYES: Commissioner Anderson, Commissioner Caffall, Commissioner Doherty, Commissioner Hasman, Commissioner Inman, and Commissioner Walsh (6) NAYS: None (0) ABSTAINERS: Commissioner Muldoon (1) ABSENT: Commissioner Vermilyea, Commissioner Fishel (2) PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 1 of 9 5. PUBLIC HEARING DEVELOPMENT CODE AMENDMENT (DCA) 2008-00005 - SENSITIVE LANDS PERMIT REQUIREMENTS - PUBLIC HEARING OPENED STAFF REPORT Phil Nachbar, Downtown Redevelopment Manager, presented the staff report on behalf of the applicant, the City of Tigard. [Staff reports are available at the City one week before each meeting.] Nachbar distributed several items; one was a portion of the Sensitive Lands code update (Exhibit AA) . He used two large boards as visuals for his presentation (Exhibits AA2 and AA3). Nachbar also distributed two emails that he'd received on February 18th (Exhibits AA4 and AA5), as well as several emails that he'd received that day (Exhibits A-F) . Nachbar made the following points: 1 . The City proposes 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;" (perhaps a berm or a boardwalk). 2. Reason for requirement: doc 1983. It is likely that the intent of the requirement was to keep "people dry" and allow year-round accessibility of trails, and to keep paths from being inundated due to maintenance concerns. 3. Reasons for removal: • Requirement poses an obstacle to constructing trails where they may be needed - By removing this requirement of Section 18.775.070.B.5., it will be less difficult to site needed trails that will assist in the City meeting its new Comprehensive Plan Goal 8 for Parks, Recreation, Trails and Open Space. Specifically, the proposed amendment will support Goal 8.2: Policy 1 "to 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 . . . " • Some of the potential benefits of the removal of Section 18.775.070.B. include 1) improved access to natural areas otherwise inaccessible by the public, 2) enhanced access and connectivity and 3) removal of the potential for the construction of elevated trails to pose a potential impact to the environment. • Although trails can be elevated by placement of a berm or boardwalk, it is costly, and the additional volume makes it difficult to meet the "no-rise" condition critical to meeting FEMA requirements within the Sensitive Lands Chapter, and the balance "cut and fill" requirements of CWS Design and Construction Standards. PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 2 of 9 Nachbar gave an example (Exhibit AA2, AA3) of how removal of the requirement will allow the City to implement the Fanno Creek Park & Plaza Master Plan adopted by Council in February 2008. He gave several examples of nearby cities which have no requirements to not build in a floodway. Nachbar finished his presentation with the following: • Staff concludes that the proposed text amendment to remove Section 18.775.070.B.5 of the Sensitive Lands Chapter is consistent with all applicable review criteria. • The removal of Section 18.775.070.B.5 does not affect FEMA Flood Insurance. • The City is in compliance with the requirements of Metro's Title 3 by adoption of the Clean Water Services' (CWS) Design and Construction Standards in the City's Sensitive Lands Chapter 18.775. • The Tualatin Basin Plan satisfies the Metro Tide 13: Nature in Neighborhoods requirements, which in turn satisfies Statewide Planning Goal 5 requirements. • The removal of this requirement would not directly impact the sensitive habitats or environments. QUESTIONS & COMMENTS BY COMMISSIONERS (Replies in italics) • One of the commissioners commented that a lot of information was distributed that night and he requested that in the future they would get this sooner. If I had gotten this information before today I would have fonvarded it to you. • Is there a possibility that trails would not be put in due to either cost or geologic reasons if they had to be raised above the flood plain? The answer to that would bees — for two reasons. The cost could be excessive if the Ciy had to build for example boardwalks instead of trails. And because its difficult to meet this "no rise " condition required under our sensitive lands code to meet our FEMA requirements. • Has there been any consideration of just modifying the language? I don't know whether it would make sense to express a preference for it being placed above the average annual flood elevation except when not practical? We have not considered that — doesn 't mean we can't consider it. You have to ask the question — what is the reason for having it? The only two reasons we could identin was to keep people's feet dry and so that the pavement doesn 't get flooded and break down over time — which is unlikely actually, when you only flood a few times a year. • You'd mentioned that there's no particular attractiveness in using boardwalks. They actually allow people to cross an area they wouldn't otherwise have access to — they also extend wheel chair access area where those people wouldn't otherwise have access. I was referring to the only two waysyou could build above the average annual flood elevation — which is a boardwalk or a berm as not being great ideas. I hope that clarifies. I think boardwalks are great in areas where they are really needed. My question was — is a boardwalk really needed in an area that floods very rarely. • So what happens to a trail when it does flood? Do you close it down to the public? Normally people just don 't use it. We don 't have flash floods here — no need to close down trails. • Is this driven by cost? No, that's not the issue. It would affect the city's ability to build a progressive trail system and to implement parks. The cost would impact our decision about where to PLANNING COMMISSION MEETING MINUTES - February 23, 2009 - Page 3 of 9 put trails if we knew we had to elevate all trails but more than likely we wouldn 't make those improvements at all. We'd probably have to leave it the way it is and not provide that additional access that is desired. • What input did you seek — any expert advice? Yes — consultants and architects — Walker May HDR Engineering that does hydrologic analysis. CWS was also a part of the conversation. PUBLIC TESTIMONY — IN FAVOR None PUBLIC TESTIMONY — IN OPPOSITION Eric Lindstrom, 6801 SW Canyon Crest Drive, Portland, OR, said he was present as a "Friend of the Fanno Creek Watershed and the City of Tigard." He gave his testimony in opposition to the amendment — he passed out his written testimony and went over it at length (see Exhibit A) . Questions from Commissioners (answers in italics): • Are you suggesting that there not be access — pedestrian or bicycle? Absolutely not. We need to find an equitable solution for the City, its citizens, and the watershed. What we have here is a move that would make the rampant usage of these pathways permissible. I'm not against access - I'd like to see more pathways — I just want to see them used with conscientiousness. I think this portion of the code actually provides you with that little bit. Tim McGilvrey, 11608 SW Spring, Tigard, OR, spoke in opposition. He said he opposes this code based on common sense. He stated that you should build on higher ground where you can look over a natural area rather than be right down on a natural area which isn't good for the riparian zone. Just common sense — build on a little bit higher ground. Questions from Commissioners: There were no questions of Mr. McGilvrey. Sue Beilke, 11755 SW 114th Place, Tigard — representing Fans of Fanno Creek gave opposition testimony. She also submitted it in written form and passed it out (see Exhibit B). Questions from Commissioners: • You're saying no new trails? No — never said that. Just this one area? No. I use trails all the time — some flood often — so I don 't use those. Some of these flooding trail areas need boardwalks. They are good. We need to do a betterjob of protecting resources and species. At this point President Inman interjected to the commissioners that there's a very fine line between when we're talking about sensitive lands - in that the "sensitive land" that we're talking about with this particular application is a flood plain. You can build a parking lot in a flood plain. This whole conversation is getting focused towards Fanno Creek but in a broader code context we're talking about something bigger than just that. When it comes to making decisions, the applicable criteria for me has to do with the sensitive land that we're PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 4 of 9 impacting. So think about that when you're structuring your comments. Secondly, if we leave this in here, then if we want to rebuild those trails we may have to build them 5 feet in the air, or put them on stilts and a boardwalk, if we want them to still be there. They can go in — they just have to go in higher. So this, by no means, precludes the development of any of those trails — it just makes them more expensive and could potentially make them more of an intrusion. So there is a balance there. We're not saying they can't be built. This doesn't say they can't be built — they just have to be high. There's balance with everything. Nachbar interjected comments about Fanno Creek Park. He said he and Sue Beilke have similar interests. He noted that there are no net new trails going into this park. There axe existing trails and they're realigning some trails but there will be no net new lineal footage of trails. He said they're not decimating this park with trails. • Sue, if we took the code off, can you think of any alternatives, — how you could structure it so that it could address issues that you're raising, short of saying no. I'm not sure. There were a few more questions and Ms. Beilke spoke more about the importance of sensitive lands and wildlife. More questions followed: • So you would rather see an asphalt trail taken up into a two or three foot high boardwalk along almost the entire extent of the trails that are there tight now — in the air? I don 't know — some of them I'd move into the uplands. You have to remember the City plans on buying all of that land. • What we're talking about is purely a floodplain — not a resource area — we're not impacting that — it's just the floodplain. Would you rather, where it's just a matter of it being too low that it's going to get inundated, you'd rather see it in the ait? But this is in a sensitive lands code. I don't see how you can ignore that. Sony. If it's sensitive lands, it's sensitive lands, and it raises a whole bunch of issues. It relates to a lot of things. I don 't see it that way. I see it as a much bigger picture. Sorry. Brian Wegener, 12360 SW Main St. #100, Tigard, OR representing Tualatin Riverkeepers, as the Watershed Watch Coordinator, went over his submitted, written, testimony (Exhibit C). Questions from Commissioners: There were no questions. John Frewing, 7110 SW Lola Lane, Tigard spoke about the knowledge of Eric Lindstrom. He said Eric had written a book about Fanno Creek. He then gave testimony (Exhibit D) He spent a large amount of his time talking about his sketch entitled "CWS/Oregon" — (page 4 of Exhibit D). Questions from Commissioners: So you're saying no trails? I think we can have and keep the situation we have now but shouldn 't be building additional access below the ordinary high water mark. PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 5 of 9 Planning Manager, Dick Bewersdorff, summed it up saying "The basic question is: `Do you want to be able to change the location of a trail within the 100 year floodplain or do you want to leave it where it is?" QUESTIONS OF STAFF Can you speak to why or why not a variance process would be appropriate? The requirement shouldn 't be there in the first place in that if it were to stay, it'd have to go through a variance process, and there's a potential we couldn 't meet that criteria. PUBLIC HEARING CLOSED DELIBERATIONS One of the commissioners noted that they'd received 40 pages of material at the last minute that night and it seems to happen a lot. He said he doesn't see how they can be expected to make good decisions when they haven't seen all the material [ahead of time] . Regarding the ODF&W [Oregon Department of Fish and Wildlife] letter dated 2-23-09 (Exhibit E) that states they do not believe fish and wildlife will be adequately protected if we make this decision. He said he doesn't have time to read the rest of it but puts a lot of strength in what ODF&W has to say. Unless I have more time I can't give a vote. Inman reminded the commission that this allows all kinds of development. She said we are singling out the trail portion but this section has to do with a lot more than that. This is in a floodplain. She asked that everyone keep it in this context. One of the commissioners said he was disappointed in the City's presentation. He thought it could have been presented in a way that provided for some alternatives. He said that still, he concurs with President Inman. He said this needs to be treated carefully — that this was not just going to affect Fanno Creek, but is citywide. He also said he couldn't support it as presented. Another commissioner said he likes the idea of connectivity of path areas. That would be a top priority. One of the commissioners asked staff if it would be of benefit to have staff rethink this and come back later. Planning Manager, Dick Bewersdorff, said that whenever possible, when writing a staff report, alternative approaches should be provided. He said this hasn't been done in this case. He said there's no problem if the commission is uncomfortable passing it, having staff go back and develop some kind of criteria under which that would happen. It would take some time. The commissioners took a straw poll and decided they'd like to push forward with it. There was much deliberation that followed regarding the average annual flood elevation and two year flood elevation. At this point President Inman said she would not be comfortable making any changes below the two year at this point without further input because then they would be significantly changing things. Muldoon — likes the idea of connectivity of path areas. That would be top priority. Inman gave options of the commission: Deny, Modify the language, or send back for development of specific criteria. PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 6 of 9 Commissioner Doherty interjected saying that looking at the time and the fact that they'd put off the tree board twice, she would like to have Bewersdorff and Nachbar come back with some other language so they could go through and maybe feel a little more comfortable with the decision. President Inman said she felt as though she'd done a 180 since now they were talking about flood elevations and she's lost her ability to see the end goal. She said if they could get some direction from an engineer as to whether it's practicable to do, what it should be if they should change it, or if it should just come out — but what does that piece of it mean? Bewersdorff said an option would be to continue this hearing to a date certain. Nachbar said it doesn't make sense to rush into anything but he said it wouldn't take a lot to come up with a better basis for some modification to this requirement. A straw poll was taken and it was decided to continue to a time certain — April 6th. The commission then took a 5 minute break. 6. WORK SESSION 9:35 p.m. TREE CODE UPDATES DCA2009-00001 STAFF PRESENTATION John Floyd, Associate Planner, stated that staff is bringing forward amendments to Section 18.790 of the Tigard Development Code, otherwise known as the Tree Removal chapter. He stated that this workshop is being held to provide the Planning Commission an opportunity to ask questions on the concepts or content of the code amendment, which will be duly considered and deliberated upon at a public hearing on March 16 of this year. The primary goal of this proposal is to clarify how an applicant may comply with the stated intent and preferences of the development code, namely the preservation of trees instead of their removal wherever possible. In 2008 the previous Planning Director issued a Director's Interpretation which attempted to provide this clarity. This interpretation was successfully appealed by the Homebuilders on the grounds that it overreached the scope of an administrative interpretation. As a result Council directed staff to bring forward code amendments, which brings us to tonight. A secondary goal of these amendments is to update content requirements to reflect current administrative practices and ISA standards. These goals would be made possible through the following changes: ➢ Definitions o The definition of a tree has been expanded to reflect ISA standards and to clarify how an applicant is to measure a split trunk specimen ➢ Stated Preference of the City o The current code states that "protection is preferred over removal wherever possible." o Staff proposes to change the phrasing from "wherever possible" to wherever practicable", with the meaning of practicable defined. This term introduces a degree of reasonableness to the code rather than an absolute, as was done in PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 7 of 9 the Comprehensive Plan, and is consistent with the purpose statement which recognizes that trees may have to be removed as a result of development. ➢ Tree Plan Requirements o Submittal requirements would be expanded, though much of this is already standard practice and the code would merely formalize these items. o Trees within 25 feet of the property line would have to be inventoried and assessed in the Tree Plan o The condition of a tree, the reason for its removal, and its diameter to a tenth of an inch would have to be recorded in the tree plan o A narrative and site plan would be required. These documents would provide the applicant, through his or her staff arborist; the ability to demonstrate how commonly accepted tree preservation strategies are being implemented to the extent practicable. This demonstration occurs through 8 questions that all plans would have to address. o A mitigation plan with would be required upfront, rather than a condition of approval. ➢ Adequacy o There's been a lot of debate and discussion as to how a tree plan would be reviewed for adequacy (i.e. approval criteria). Staff has received a lot of comment from the Tree Board, the HBA and private citizens. In addition, we are still working with the City Attorney's office on final language. As a result there may be further amendments to Section 18.790.030.D when it is presented at the public hearing on March 16. o The intent of 18.790.030.D is to provide clear and objective approval criteria for an applicant, while still allowing the flexibility necessary to address each site on an individual basis. The solution put forth tonight would require a certified arborist to prepare and sign a self-certifying plan. The City would be required to accept that plan, so long as it meant minimum content requirements or was found lacking by an independent, third-party arborist under contract to the City. Two parties submitted comments prior to tonight's workshop: John Frewing and Alan DeHarpport on behalf of the HBA. Copies have been distributed for your review. Because this is a workshop, and not a public hearing, these comments will not be entered into the official record. That said, staff has invited the commenting parties to discuss their comments and concerns prior to the public hearing on March 16. At this point, Floyd concluded his presentation, and President Inman opened the meeting up to questions and/or comments. QUESTIONS & COMMENTS BY COMMISSIONERS President Inman asked if this was in response to the loss on the appeal. Yes. She said the other "elephant in the room" is mitigation — she asked if they were doing this because they need to address those criteria and that they would be coming back. Yes, absolutely. PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 8 of 9 One of the commissioners asked Floyd 'What are you looking for us to do? What is the purpose of this workshop?" The purpose of the workshop tonight is to put this language before you to hep familiarir eyou with what we'll be talking about at the public hearing. At this time it's just to help you understand what we'll be talking about at the next meeting and whether there are any major gaps thatyou see where changes may need to be made. Why is the measuring to the nearest 10th of an inch? To be more precise - in some cases it may mean something. President Inman and some of the other commissioners noted that they were impressed with how clear and concise the draft amendment is - number 5 particularly. There were no other questions or comments. 7. OTHER BUSINESS - None 8. ADJOURNMENT President Inman adjourned the meeting at 10: 15 p.m. Doreen Laughlin, Planning Commission Secretary ATTEST: President Jodie Inman PLANNING COMMISSION MEETING MINUTES — February 23, 2009 — Page 9 of 9