Loading...
City Council Minutes - 08/12/2014 N City o Tigard Tigard City Council Meeting Minutes August 12, 2014 1. STUDY SESSION -August 12,2014 6:30 p.m. EXECUTIVE SESSION: Mayor Cook announced that the Tigard City Council would enter into an Executive Session to consider information or records that are exempt by law from public inspection,under ORS 192.660(2)(fl. Beery Elsner attorneys Pam Beery and Shane Abma were present. Mr.Abma left the meeting at 7:00 p.m. The Executive Session ended at 7: 15 p.m. Administrative Items: o Response to citizen communication on Summerfield stop sign—City Manager Wine said that Summerfield community representative Mr.Van Vlack requested an LED stop sign at the intersection at Summerfield Drive and 98h Avenue. Community Development, Public Works and Police Department staff are involved in a solution. Public Works staff are attempting to keep the stop sign visible.Police officer experience is that the problem is drivers ignoring the sign. An interim solution is to have the district car patrolling more in that area and if this does not work,the city will consider the LED sign. Police request that neighbors call and report violations at that intersection. o Town Hall or alternatives on October 7 -Mayor Cook said October 7 has been on the council calendar as a potential Town Hall meeting but one topic is no longer relevant because there is no city measure on the November ballot. He has heard from some council that they prefer the individual meetings with citizens in the 3 x 5 x 10 format rather than a town hall venue. He suggested the topic of legislation related to marijuana, both dispensaries and potential retail outlets. He asked that council let Executive Assistant Bengtson know their preferences and she will schedule the meetings and locations. Staff will be made available to take notes at the meetings. Council President Henderson asked about getting the information out to the public. City Manager Wine said council members may wish to make their own contacts use staff assistance. o Clackamas River Float—respond to Executive Assistant Bengtson if interested. o Council Groundrules Discussion Date Selection: Mayor Cook suggested scheduling these meetings after the election but before the beginning of the year so newly elected council can participate. Council gave input that their preference is to separate the sessions and hold them on different days. Councilor Snider suggested a late afternoon time. Mayor Cook asked council to check their calendars and confirm available dates with staff. o City Manager Wine suggested that executive staff attend the goal setting session,at least to observe the goal development. Councilor Snider recommended that the executive staff TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 972231503-639-41711 www.tigard-or.gov 1 Page 1 of 19 be in the role of observers only,unless council had questions for them, due to the size of the group this would be and limits on time. o Council Calendar: The August 26 council meeting is cancelled. Next meeting is the September 2 City Center Development Agency meeting. The Study Session ended at 7:30 p.m. BUSINESS MEETING— A. At 7:35 p.m. Mayor Cook called to order the City Council,Local Contract Review Board and City Center Development Agency meeting. B. City Recorder Krager called the roll. Present Absent Mayor Cook ✓ Councilor Buehner ✓ Council President Henderson ✓ Councilor Snider ✓ Councilor Woodard ✓ C. Mayor Cook asked everyone to stand and join him in the Pledge of Allegiance. D. Council Communications &Liaison Reports—Councilor Woodard said he attended National Night Out at East Butte Park. He mentioned volunteers are needed to help at the John Tigard House. He said information about the Fallen Police Foundation is available at fallenbadge.com Councilor Buehner said she will give two liaison reports at the next council meeting. E. Call to Council and Staff for Non-Agenda Items—None. 2. CITIZEN COMMUNICATION A. Follow-up to Previous Citizen Communication—City Manager Wine said council heard from a Summerfield representative with concerns about drivers running a stop sign at a neighborhood intersection. She said Community Development,Public Works and Police staff are looking at alternatives for additional enforcement at the stop sign and then may consider the alternative suggested by the residents. B. Tigard Area Chamber of Commerce: Chamber CEO Debi Mollihan said the grand opening and ribbon cutting for Walmart in Tigard is at 7:30 a.m. tomorrow,August 13. The Farmers Market is doing well and includes a tamale vendor this year. She reminded the public that the market accepts EBT cards and many farms take WIC cards. She said the Third Annual Downtown Street Fair is on Saturday,August 16s'and will include 54 booths, specialty cars,House of Reptiles,music and many activities for children,including pony rides. Max's Fanno Creek Brew Pub is hosting a Nano Brew Fest and everything will kick TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 2 of 19 off with a Third Friday event the night before. She distributed a copy of her report and a map highlighting Street Fair activities and parking. C. Citizen Communication—Mayor Cook noted that people who signed up on the citizen communication form to speak regarding the Costco gas station will be called later during the public hearing for that topic. Ron McGee,9420 SW Lakeside,said he is new to the area and is one of the liaisons from the Summerfield neighborhood. Council welcomed him to Tigard. HGary Romans, 13166 SW Broadmoor,and Sandy Libonati, 12121 SW Lansdowne Lane in Tigard represented the Mask and Mirror Community Theater and thanked the city council for awarding their grant. Mr. Romans said Ms.Libonati is the new president of Mask and Mirror. He distributed cookies to council. Ms.Libonati said the community theater is starting its fourth year and shows have been very successful. She said the city's grant helps them to rent space at Calvin Presbyterian Church. The theater is growing and needs to find its own space and she requested council and staff keep this in mind if they become aware of available space. She noted that some Mask and Mirror singers will be performing at the Downtown Street Fair. She said they sponsor monthly play readings alternating between the Tigard and Tualatin libraries. Councilor Buehner commented that she plans to participate in the readings. Tim Esau, 12247 SW 114 'Terrace,Tigard, spoke regarding the Local Contract Review Board (LCRB) agenda item. He said he is a member of the Budget Committee and opposes the expenditure for an outside agency's project funding expertise. He said the work should be done in house. He commented that he did not understand why the city was pursuing the (River Terrace) development if it does not have sufficient resources to cover the planning and fundraising. He said he would rather see the money spent on something that benefits Tigard and not developers,who should be passing the cost along to property purchasers as the area is developed. Steve Bintliff, 13520 SW 122nd Avenue,Tigard, spoke on behalf of Tigard First. He said tomorrow is an important day,with a ribbon cutting at Walmart and talk of more jobs, saving money and living better. He commented that living better does not mean being stuck in traffic for 7,000 additional cars coming to Tigard daily for one business which has completely altered the character of the Tigard Triangle. IRMr. Bintliff said this one business caused medians to be installed on Highway 99W, freeway off ramps to be lengthened and the installation of new traffic lights. He said the city helped this one business by diverting city gas tax money away from neighborhoods and used it to construct in part,a stop light on Dartmouth Street. He said one business completely altered the Tigard Triangle's character and its future.The traffic impact caused by one business has already made Tigard less livable. He said they asked council to pass some common-sense regulations and ordinances to make sure that Walmart is a good neighbor and the city attorney said council had the authority but they failed to act on them. He said citizens should have strong leadership and responsible leaders but they got neither. Mr. Bindiff said on Saturday the Tigard First group will be in the Tigard Triangle,in the traffic and in the downtown to show people that we can stop this race to the bottom and TIGARD CITY COUNCIL MEETING MINUTES-AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 3 of 19 make choices that strengthen our community. Anyone interested can read details at Tigardfirst.org 3. CONSENT AGENDA: Mayor Cook read the items on the consent agenda and asked if anyone wanted to remove an item for separate consideration. A RECEIVE AND FILE: 1. Council Calendar 2. Council Tentative Agenda for Future Meeting Topics B. APPROVE CITY COUNCIL MINUTES • June 10,2014 • June 24,2014 C. Adopt a Resolution the City Manager to Execute an Agreement with PGE for a Back-up Power Source for a Water Partnership Facility RESOLUTION NO. 14-39—A RESOLUTION OF THE TIGARD CITY COUNCIL, APPROVING AN AGREEMENT FOR ALTERNATE SERVICE BETWEEN PORTLAND GENERAL ELECTRIC COMPANY,THE CITY OF LAKE OSWEGO AND THE CITY OF TIGARD RELATING TO CONSTRUCTION OF THE NEW RIVER INTAKE PUMP STATION,AND AUTHORIZING THE CITY MANAGER TO SIGN THE AGREEMENT Councilor Buehner motioned to approve the Consent Agenda and the motion was seconded by Councilor Snider. The motion passed unanimously. Yes No Mayor Cook ✓ Councilor Buehner ✓ Council President Henderson ✓ Councilor Snider ✓ Councilor Woodard ✓ 4. RECEIVE UPDATE ON THE TIGARD TRIANGLE STRATEGIC PLAN Associate Planner Caines gave an update on the Strategic Plan for the Tigard Triangle and said the team is nearing the end of the planning process. She gave a slide presentation which is in the packet for this meeting. She said each of the two options previously discussed with council are being examined so a preferred plan can be developed. The next step is a final recommended plan and preparing implementation measures,including code updates and policies. Ms. Caines said Option 1 is similar to existing Triangle uses,but with slightly higher density. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-639-4171 1 www.tigard-or.gov I Page 4 of 19 Option 2 has higher densities and more changes west of 72nd Avenue. Both options were compared with project goals: movement,both getting to and getting around inside the Triangle area;land use and activity centers;community character,including parks and open spaces;and marketing and implementation. Input gathered from citizen and technical advisory groups was considered. There were not many changes to the street plan presented at prior Tigard Triangle updates. The team is finalizing which streets should be pedestrian-oriented and which are for moving cars through the area. They are taking out mid-block crossings and putting them in intersections for pedestrian safety. Option 2 has more changes west of 72"d Avenue that will require zoning changes from CG to mixed-use. Retail would still be allowed but it would be capped at 30,000 square feet;there is currently no cap. Another change is the addition of an area of lower density where early development could be town homes or three-story (or smaller) types of development. Open space and natural areas include the addition of potential neighborhood and active parks requested by the citizen advisory group. Plazas were added between 6861 and 696'where people could gather for lunch or relaxation while on a break from work. When evaluating development feasibility, the consultants considered the current real estate market, impacts of the city's code,and potential tools that may be employed to incentivize development. Key findings indicate land costs are critical and the city cannot control this factor. Multi-family construction is the most viable under current conditions,specifically lower density townhomes. These types of development are feasible on their own even without incentives or other assistance. Building offices is not feasible due in current market conditions.The office vacancy rate is high. Ground floor retail is currently having a negative impact on feasibility due to the high rents required to make it worthwhile for developers. There are not enough amenities in the Triangle to attract the types of tenants needed for those spaces. Ms. Caines discussed what consultants said could be used to increase development feasibility. Studies show that increasing rents has the greatest impact but is controlled by the market. The vertical housing zone program has a slight impact on smaller scale,multi-use developments. Cash equivalent subsidies are used by cities to increase feasibility. These include giving credit for system development charges (SDCs), short term grants,waiving SDCs,and reduced parking ratios. She said while the vision for the Triangle has increased multi-modal transportation, the reality is that many people are still driving their cars into the area. A parking ratio is yet to be developed for the Triangle. Ms. Caines showed a slide of Portland's Pearl District and discussed how it developed in small steps over a 15-year period. It didn't happen quickly. Over time,developers and the real estate market became educated about how to build in the Pearl and moved onto bigger projects there. Opportunities for amenities such as parks and trails opened up. A place is created over time.This provides perspective because the Triangle plan is a 20-year plan. Ms. Caines said the next steps are to finalize the preferred plan,hold public and citizen advisory meetings. The code and implementation measures will be studied. Public investment and funding strategies will be considered.This will be covered in the next update to council. Councilor Buehner suggested the group look at the potential for six-or eight-story,moderate income housing buildings. Lower to moderate income housing will be destroyed in the area as development occurs and displaced residents will need new places to live. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 5 of 19 5. QUASI JUDICIAL PUBLIC HEARING—COSTCO APPEAL: CUP2013-00002 a. Open Public Hearing -Mayor Cook opened the public hearing at 8:10 p.m. b. Hearing Procedures—City Attorney Rihala read the rules of procedure for a quasi-judicial public hearing.A copy of these rules of procedure has been added to the packet for this meeting. Declaration of conflicts of interest or ex parte contact—Councilor Buehner said she is very familiar with the site. Council Snider said he has visited the site weekly for years. Councilor Woodard said he has walked through the area. Mayor Cook asked if there were any public challenges to the participation of any councilor's participation in the hearing.There were no challenges. Mayor Cook described the quasi-judicial hearing process and how it differs from the legislative hearing process. C. 10 Staff Report: Associate Planner Kowacz summarized the written staff report. In council's packet were several materials including a staff report that had the project summary and key points, response to the appeal issues that were raised by Mr. Connors,who represents Cain Petroleum,and the staff recommendation. She provided background on the project. The Conditional use permit and the DET (Tigard Triangle Design Evaluation Team) approval are for a members-only fuel station. The site is located on the west side of Dartmouth Street and is bound by Pacific Highway and Highway 217. The station is proposed to be located in the northeast corner of the Costco warehouse property within an existing parking lot. The project consists of building a 72 x 102 foot canopy with three fueling stations,nine fuel dispensers and five underground storage tanks.The proposal includes reconfiguration of the existing parking lot and installation of landscaping. The applicant elected to go through the DET process to seek adjustment to the Tigard Triangle Design Standards, specifically building placement and front-yard set-back. On October 21,2013, the DET met with the applicant and recommended approval of the adjustments subject to certain conditions. These conditions are moving the canopy forward to the front property line and providing a denser buffer on Dartmouth Street. The applicant submitted a revised site plan demonstrating compliance with these conditions. A review of the Conditional Use Permit followed with a public hearing on February 10, 2014. The hearing was continued to March 17 in order to work through some of the conditions relating to the intersection improvements at Dartmouth and 99W.The applicant requested another continuance to April 7,2014. On April 7,the planning commission received testimony from Mr. Connors,representing Cain Petroleum,who is in opposition to the project. The planning commission approved the DET recommendations and continued the decision for the Conditional Use to May 5,2014,in order to allow time to review the materials submitted by Mr. Connors. On May 5,the planning commission approved the Conditional Use Permit with proposed changes from the April 7 hearing. On June 5 the city received an appeal of the final order from Cain Petroleum. In the appeal there were six key TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 6 of 19 issues and these are listed in the memo council received in their packet for this public hearing. Ms. Kowacz listed the issues and staff response. Ms.Kowacz said an email was received from Karen Crichton and asked that it be part of the record. Mayor Cook said it had already been added to the record. d. Public Testimony-Appellant I1 Cain Petroleum was represented by Michael Connors,of Hathaway Kobach Conors, LLP, 520 SW Yamhill Street,Portland,OR 97204.Mr. Connors said Cain Petroleum owns and operates the Chevron gas station on Highway 99W,in very close proximity to the Dartmouth intersection. He asked for confirmation that the entire record presented before the planning commission,in particular letters from April 7 and 28,ad May 5,2014,and traffic engineer attachments,was incorporated into the record.Mayor Cook confirmed it was. Mr. Connors highlighted key issues: • The most important issue is traffic, especially the Highway 99W and Dartmouth Street intersection. He said there is a lot of congestion there and there is no dispute that this intersection does not meet the city's operational standards. The turning movements fail. There is also no dispute that the proposed gas station will contribute and further degrade it, so under the city's standards, Costco is required to mitigate. The mitigation proposed is to add some right-turn lanes at that intersection. But as staff indicated, there is a big issue. This issue is that they do not have sufficient right of way on the northwest corner. Under Oregon law a land use approval can be conditioned upon mitigation that will occur in the future. The law requires that an applicant demonstrate that the mitigation is feasible. The Land Use Board of Appeals has defined feasible as "likely or reasonably certain to occur." There is only one piece of evidence showing feasibility and we say it is deficient. It is an email from the property manager of the property they need to offer these turn lanes. Mr. Connors said the email shows that this is not feasible. He read a portion of the email from the property manager. "We believe the project has some merit and further believe that if our engineer review, which we will need to do in order to verify parking and landscaping requirements and the review of the Arby's lease suggest feasibility, then we would recommend dedication of the subject strip of land accordingly." Mr. Connors said this says that they do not have enough information to determine whether from an engineering standpoint they can make it work and they have not reviewed the lease with Arby's to determine whether they even have the authority to grant it. This is just the property manager saying if you satisfy, they will recommend to the actual property owner that they consider this. This email is dated April 23,and as far as I know there have been no further updates. There is also in this email a statement,"Please continue to forward any additional documentation as well as notices for any upcoming meetings." Mr. Connors said he was unaware if the property manager was present at the hearing tonight. He said when looking at the sole evidence from Costco,they cannot demonstrate feasibility, based on Oregon law. If the city council affirms the planning commission decision it is legally defective. If it was appealed to LUBA,they would say this does not TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12, 2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-639-41711 www.tigard-or.gov I Page 7 of 19 demonstrate feasibility, therefore this condition is defective.We believe they haven't met their mark. The city should require them to obtain the right of way and then come forward with a specific mitigation proposal. Another issue with this condition that should be of concern to the council is that what the condition requires is that Costco provide these right turn improvements prior to final building inspection.This means that under the current planning commission approval,Costco can get site plan approval,building permit approval, build the gas station,and up until they get to the final building sign-off are not required to demonstrate that they have sufficient right of way or can and have constructed required transportation improvements.At a minimum,the city should require the applicant to obtain the right of way prior to site plan approval.The right turn improvements should be completed prior to final building inspection. Mr. Connors said it is his experience with developers that if these conditions are not required they will start to build and then they come back and ask for condition modifications. Costco tried to have an alternative concept where they would pay money for not having to meet conditions. Mr. Connors said it was at that time that he got involved and said that was not legally permissible under Tigard's code. He said the city should not put itself in a position where Costco can come back in the middle of construction and say the city has to do something to allow them to move forward. • The next issue is the proportionate share. He said Tigard's code requires that developers in the Tigard Triangle area pay a proportionate share contribution towards funding future transportation projects. This was adopted because of traffic congestion problems in this area. At the beginning of this project city staff, looked at additional traffic and determined that the proportionate share was $525,000. This was in the initial staff report. Costco kept arguing that this was too high and applied pressure to lower that amount. In April it was lowered to $192,000. He said he was not sure how anyone arrived at that figure. The city should make sure, even if this project is approved, that Costco is actually paying their fair proportionate share and money is not left on the table. He said he believed Costco is not being required to pay their fair share. • Highway 99W is an ODOT facility and they have a vested interest but some of ODOT's conditions did not make it into the planning commission. A May 2 email from Mara Danielsen at ODOT specifically asked for a condition requiring an intergovernmental agreement and a cooperative improvement agreement. This is not in the planning commission's decision. ODOT also submitted some responses on January 10 and 21,2014. Some of that was prior to Costco proposing these right turn lanes but some was not and that did not make it into the planning commission decision. He read from an ODOT email, "...Costco be required to pay proportionate share towards the lengthening of the queuing storage at Highway 217 and Highway 99W on the southbound off ramp." A specific figure was mentioned but this was not in the planning commission decision so again,money was left on the table. TIGARD CITY COUNCIL MEETING MINUTES-AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 8 of 19 • Offsite shared parking.The issue is confusing. Staff determined it was not required because Costco met the parking standards but this is not the issue. Costco's own traffic analysis showed that during peak hours,parking was at capacity and was causing spillback onto the adjacent street. On top of that,they will remove 84 parking spaces. There was a requirement for offsite parking for employees. We asked questions and started pressing and it was apparent Costco did not have this. And when Costco couldn't provide evidence of this all of the sudden it was not a requirement.They decided that this was a mistake. They based this on a single-day observation.We think it is still a problem and should not wipe out earlier observations of congestion. • We provided extensive testimony from Green Line Engineering and there is some argument on which traffic engineer the city agrees with,but there is one thing that is not in dispute. Tigard's code requires bike lanes. A result of their mitigation is to take out bike lanes on Dartmouth.They will have shared right-turn bike lanes which are the equivalent of taking them out. • Regarding the design adjustments made by Costco,the city code requires that all adjustments demonstrate that the adjustment is the minimum necessary to allow the proposed use of this site. There is nothing in the record to demonstrate that. There is no evidence that they cannot possibly use their site without these adjustments. For this reason there is a deficiency. Public Testimony-Applicant 10 Applicant David Peterson,of Tonkon Torp LLP, 888 SW Fifth Avenue,Portland, OR represented Costco. He introduced traffic engineer Sonia Hennon Daleiden of Kittelson and Associates and said she would help address traffic issues presented by Mr. Connors. He said one of the first things Mr. Connors said is that it is not in dispute that city operational standards are not met at this intersection.This is not true. There are no city operational standards that apply to this intersection. They cannot be in dispute because they don't exist. The applicable ODOT operational standards apply to the intersection as a whole. He asked Ms. Daleiden to respond to traffic concerns. • Ms. Hennon Daleiden with Kittelson and Associates,610 SW Alder Street,Portland, said she is a registered professional engineer as well as a registered professional traffic engineer and has close to 15 years of experience working with Costco on transportation issues in the United States and Canada. She said she has been involved with Costco's gas station program for almost the same amount of time, during which there was a huge amount of growth for Costco gas stations. One of the initial points made by Mr. Connors is related to the 99W and Dartmouth intersection. She said they have been working with this site for over two years, studying the transportation in detail and working with city and ODOT staff. The applicant,city and ODOT have come to a mutual agreement about what is necessary and appropriate for this project. • Highway 99W is an ODOT facility so their operational standard is the governing standard. That is what we analyzed but we also analyzed for city considerations. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 9 of 19 While the City of Tigard does not have a formally adopted numerical standard for traffic operations at intersections there is some discussion in the code related to congestion and wanting traffic to operate smoothly.We worked with ODOT and Tigard staff to meet those conditions and develop a mitigation that not only meets ODOT standards but also the intent of Tigard's code. Even without any mitigation at the 99W and Dartmouth intersection,with the proposed Costco traffic in place,it will be meeting the governing ODOT numerical standard. The recent improvements that have been made are providing sufficient capacity to meet that standard today and in the future. Even though that is the case,we wanted to be very collaborative with city staff and work to better the situation so we came up with adding these right turn lanes. The proposed project and mitigations have not only met the code,but exceeded what the code requires. • Mr. Peterson responded to the question of feasibility. The law in Oregon is that the conditions need to be feasible and there needs to be substantial evidence in the record to support a finding that a condition is feasible. Feasibility is not the same thing as absolute certainty. In fact,a quote from the Oregon Supreme Court is that feasibility means possible,likely,and reasonably certain to proceed. The evidence in the record is the April 23 correspondence with the property manager of the northwest corner. The record in this matter closed on May 5,twelve days later,so to dispute the lack of follow up is disingenuous. Councilor Snider asked if there is additional information to put in the record. Mr. Peterson said he did not think the record was open. City Attorney Rihala said if he has evidence speaking to that item,it is a public hearing. Mr.Peterson said he may have someone speak to that later. Mr. Peterson said the point of a feasibility determination on a condition is that you shouldn't approve projects with a condition that cannot be satisfied,but there is always the possibility that a feasible condition cannot be satisfied,with the ultimate outcome that the applicant would return to the city and say they cannot meet the condition. An alternative proposal would need to be identified to address the impact that the condition was meant to address.The condition does not go away. Ms. Hennon Daleiden added that it is incorrect to say that the sole piece of evidence regarding feasibility of this project is one email with the property owner. Since February there have been collaborative,ongoing discussions and concept design work to flesh out this alternative with the applicant traffic consultants, ODOT staff and city staff. There was six months of work and there are many memos in the record that talk about this ongoing development. Costco is well aware that additional right of way is required and has made significant efforts, that are documented in the record,to reach out to the property owners. Costco is not going to purchase right of way until they know they can move forward with an approved project. They have demonstrated good faith efforts in terms of moving forward to make this mitigation a reality. fwd Councilor Buehner said it is her experience as a real estate attorney and hearings officer,that when a developer comes in with a project such as this,they will come in with an option to purchase this property. She asked Mr.Peterson,"Do you,at this point,have an option to purchase that property?" Mr. Peterson replied that they did TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 121,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 10 of 19 not. Councilor Buehner said she was recommending to council that it should be a requirement to obtain an option to buy the property.There would be no obligation to buy it,but the option should be in the record. 10 Ms. Hermon Daleiden clarified that the property owner has expressed interest in being willing to dedicate the property because they see this project as in their best interests. Councilor Buehner said Costco should provide a written agreement or some documented evidence that there will be a purchase or a dedication before starting to build. 10 David Rogers,of Costco Wholesale,999 Lake Drive, Issaquah WA 98027 addressed Councilor Buehner's concerns. He said Costco is a very cautious company that is trying to get through the appeal process before doing anything towards developing the site with a fueling center. He said he would not spend any money developing construction drawings,nor make application until there is evidence that Costco would have option or dedicated right of way. He said Costco is not going to build a project without knowing whether or not it can open. Councilor Snider asked Mr. Rogers if he was comfortable with that requirement moving up in the process as far as when it should be provided. Mr. Rogers replied that he would be,because he did not believe his superiors would allow any money spent without having this key item checked off the list. • Mr. Peterson continued addressing concerns raised by Mr. Connors. He said much of the remainder of his argument focused on the iterative process between the applicant and city staff in ultimately coming up with a final recommendation. He said any conditions that Mr. Connors is arguing for must be tied back to applicable approval criteria. He has not mentioned any of those in his presentation.The project is obligated to pay the TDT (Transportation Development Tax)in Washington County to mitigate for its transportation impacts. There is a well- established methodology for calculating the TDT. I believe the staff report in the planning commission order explained how this number was calculated. It's not in dispute that these right turn lanes are fully TDT creditable. There is evidence in the record of the cost,which is in the range of$237,000 which is in excess of$192,000. The only logical conclusion is that the TDT obligation will be fully met by the building of these creditable improvements. • There are no applicable approval criteria that can be used to justify a mandatory offsite parking agreement. The project provides,even after 82 or so spaces are removed,at least 300 spaces over the city's minimum. It is not up to Cain Petroleum to say,notwithstanding what the city's code says the minimum parking is, that it is not an adequate amount of parking. The fact is that the minimum parking requirement is being met and there is no basis in the code for imposing the condition of approval that was discussed but ultimately dropped, from the planning commission's decision. Ms. Hermon Daleiden added that the initial traffic study for the project did document site parking conditions and peak period parking but it is incorrect to say TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12, 2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 972231503-63941711 www.tigard-or.gov I Page 11 of 19 that the study concluded that parking conditions caused queue spillback or issues back onto Dartmouth. We have been studying this site for two years and have not identified this on any site visits.This issue continued to be raised by the appellant so we took video footage. Yes, this footage is of only day,but it provided documentation of what study results had been for the past two years. Mr. Peterson added that there is absolutely no evidence in the record of spillback. • It was mentioned that there were several letters submitted by ODOT requiring various conditions of approval between January and February. This is correct. They were submitted prior to city staff and ODOT actually discussing the project. Once they did that, ODOT submitted follow-up letters that negated or withdrew what was requested previously in the letters to which Mr. Connors references. She agreed that there was an iterative process. We can accurately state that today the applicant, the City and ODOT are in agreement with what the proposed conditions of approval are and what this specific development should do to mitigate its impact. • Ms. Hennon Daleiden addressed comments about bike lanes. Dartmouth Street has recently been improved. There are bike lanes on the east side of Dartmouth but no existing bike lanes on the west side of the street. This project is not planning to remove or change any bike lanes along the frontage because they don't exist. In the short distance where the right turn lane is proposed from Dartmouth to 99W, there would be a shared space with bikes. This is a common treatment at intersections. Councilor Snider asked about the linear footage. She replied that it is 175 feet in the right turn storage lane. Ms. Hennon Daleiden said mixing zones are recommended for urban intersections so bikes are not out of the way where cars cannot see them. Mayor Cook referred to Portland's practice of marking bike spaces with green paint and asked if this would be helpful in a mixing zone. Ms. Hennon Daleiden said green paint is used commonly in mixing zone areas where bikes and cars may experience conflicts, such as near busy driveways or entrances to parking garages. It is a treatment that could be incorporated to highlight the presence of bikes. Councilor Buehner asked about the possibility of getting offsite parking for Costco employees during the busy holiday shopping season. Mr.Rogers said during the holidays members are Costco's most valuable asse so they frequently enter into agreements for two- or three-month employee parking lease periods. These are arranged on a local basis with store managers working out arrangements with owners of adjacent sites. 10 Council President Henderson asked if the fuel stations are owned by Costco. Mr. Rogers said they were and should be considered as just another department at Costco. He said they don't own refineries and just have fueling stations with no adjunct services such as oil changes. Councilor Snider said most Portland area Costco sites have gas stations. Ms. Hermon Daleiden followed up by saying this is not like adding a Chevron or Shell station. It is for members only. Kittelson and Associates did a study over the past year and found that 35 percent of trips are made by people who are already coming to shop. The actual amount of new trips is relatively small. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12, 2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 12 of 19 Public Testimony- Charles Blacketer, 14366 SW Woodhue Street,Tigard, OR 97224,said he is a retiree on a limited income. He shops around for the best gas prices and generally purchases from the Wilsonville Costco fuel station. He said this would be more convenient. He doesn't need to know the "nuts and bolts"of how it gets here;his concern is being able to buy gasoline at a reasonable price. 0 Appellant rebuttal— Mr. Connors,representing Cain Petroleum,addressed some issues and said he wanted to correct or clarify the record. • He read from the planning commission decision, "The applicant has submitted a traffic study prepared by Kittelson and Associates. According to the traffic study,under 2014 traffic conditions scenario,the intersection of Oregon 99W and Dartmouth Street/781' Avenue does not meet the City of Tigard standards. Several movements on the northbound and southbound approaches to the intersection are projected to operate at a Level of Service F,which is failing,or volume to capacity over a ratio of one,which is also failing." The planning commission is quoting from their traffic study saying it doesn't meet the city's operational standards. He said this is not in dispute and Costco has tried to wiggle out of that position. He said there is another instance where they acknowledge something in their traffic study,realize that there is a potential problem mitigating this concern,and so they say it does not apply. At a bare minimum staff disagrees with that because they imposed this condition. The planning commission disagrees with that because they adopted a decision that specifically incorporates that finding,and the applicant did not appeal that decision. He said this is our appeal and it is limited to the scope of the issues we raised and Costco cannot come before council and say they now want to challenge the planning commission's conclusion. Councilor Snider asked Mr. Connors if his perspective is that the 99W intersection is an ODOT regulated facility or a city regulated facility. Mr. Connors replied that it is both. He said ODOT will make sure that their standards are satisfied,but the city has its own code and standards and if city standards are not satisfied,an applicant is required to mitigate them. The right turn lanes are mitigation. It is clear that there is a city operational standard and they don't meet it. • Regarding the mitigation proposal feasibility Mr. Connors said there is no dispute and Costco has acknowledged that feasibility is the legal standard. He said Councilor Buehner made an excellent point. He said if you are a developer who is proposing mitigation and you determine that property you need is owned by another property owner you will provide some evidence to show that you've got an owner willing to sell or dedicate it.The most typical scenario is that you would have an option. He said he did not think that Costco can rely on the excuse that they did not know that this was an open record proceeding.The city code is clear and this appeal is not limited to the record and they should have known they could have introduced new evidence. If they understood that this is a major issue that was raised in front of the planning commission and raised in the appeal, they should have been prepared to provide TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 13 of 19 answers to these questions. The project can be engineered but if that property owner is unwilling to sell or dedicate the property for the right turn lane,the project is not going to happen. It is incumbent on Costco to have spent more time and money up front making their case. An email from a property manager saying,"After we do the engineering and after we review our lease,if we determine that it suggests feasibility then we will recommend it to the property owner," does not meet the legal standard.The standard is not in dispute. The city should make them do what they should have done in the beginning— require them to take that extra step and provide the evidence. • Regarding the parking issue,it was characterized in Costco's statements that somehow the appellants were the ones pushing this. This was a condition and issue raised before we got involved. We simply said if they have to provide it they should provide the specific location to show that they actually have an offsite parking facility. It was based on their own traffic study and city staff observations. Looking at those and then comparing them against one day of observation is insufficient to overcome that initial determination. • In terms of the ODOT letters,one document is a May 2 email,sent well after going through iterations and only three days before the public hearing. They asked for specific conditions and these were not in the mitigation proposal. There is nothing in this email that withdraws the condition about the southbound turn lane on 217 and 99W. It only refers to changing their recommendation related to Dartmouth/99W. Mr. Connors said this concluded his comments. Applicant Surrebuttal • Ms. Hennon Daleiden responded to Mr. Connor's last statement that ODOT has not retracted the condition related to the Highway 217/99W ramp. She referred to a January 21,2014,letter from Mara Danielson of ODOT. She quoted,"In comments submitted by ODOT on January 10 we had recommended that a proportional share from this development be made towards lengthening queue storage on 217/99W. The 99W/Dartmouth intersection in particular,serves a substantial volume of traffic and this development will be adding to the demand for turning movements. Since the traffic generated by the proposed development will contribute more traffic to the ODOT intersection at 99W/Dartmouth,ODOT supports the city requirement for contributions based on impact to these intersections." That is where it specifically outlines that they are taking back the requirement for Hwy 217 and agreeing with improvements for 99W/Dartmouth. • Mr. Peterson said a large number of the points Mr. Connors raised are not so much for him to respond to as much for staff. Mr. Connors has raised a procedural question that somehow we are now appealing the decision.What Mr. Connors' appeal says,in short,is that this project was wrongly approved by the planning TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1 503-639-4171 I www.tigard-or.gov I Page 14 of 19 commission because these particular city traffic standards,that he says apply,were not met. Our response is no;that is not true,because these standards don't apply. It doesn't require an independent appeal from us to dispute his argument. • With respect to the feasibility issue,the evidence is what it is,and the record is what it is. It is up to council to decide if the feasibility test has been met. He pointed out that there is no evidence in the record that the property owner is unwilling to consider a dedication or sale of right of way. There is more to feasibility as Ms. Daleiden explained, such as can the engineering and design be done in a way that adequately mitigates the impact. • The offsite and inadequate parking issue was raised by staff and was dropped by staff. Staff did not find any approval criteria that would justify imposition of the condition or an impact that required mitigation. Accordingly,they recommended and the planning commission agreed, no condition of approval was necessary or even proper. • Mr. Peterson said Ms. Hennon Daleiden explained the back and forth communication with ODOT and council should probably discuss this with staff. • Mr. Peterson said except for the very first point about the city traffic standards that may or may not apply and may or may not have even been met,most of the appellant's arguments seem to be for modifications of the approval as opposed to denial, and he has yet to hear a reference to a specific approval criteria that justifies the modifications he identified,or evidence suggesting that the criteria are not met. If the criteria are met the project must be approved and other criteria don't enter into it unless they are stated by the code and applicable to the project. • Ms. Hennon Daleiden said from a technical perspective,with the mitigation in place that Costco must provide in order for the gas station to open,the operations at 99W and Dartmouth will be better than they would be without the project in place e. Staff Recommendation -Mayor Cook checked with council on the time as it was 9:30 p.m. f. Mayor Cook said there were two options for council. He said council can continue the hearing until September 9 and get answers to their questions,or keep going with the hearing tonight,however there are still two time-sensitive items after this on the agenda. City Manager Wine said council can close the record or leave the public hearing open to allow for additional oral and written testimony to be submitted. Councilor Buehner said staff may need time to respond to council questions. Mayor Cook suggested that council ask their questions of staff tonight and said the hearing will be continued,giving staff an opportunity to prepare responses. Mayor Cook continued the hearing until Tuesday, September 9,2014 at 7:30 p.m. g. Council Discussion and Consideration of CUP 2013-00002 TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 15 of 19 Councilor Woodard said not having an agreement now and getting it done later is problematic. He said it will probably work but asked what the option would be to build out to additional capacity if the right of way cannot be secured. His stated he did not like removal of bike lanes or sidewalks,but thought making connections with shared lanes will work. He said in everything else he has heard tonight,the standards and criteria are met. Transportation Project Engineer McCarthy said council has the option of adding a condition that prior to obtaining permits for the construction of the fueling facility,the applicant provides written demonstration of ability to acquire the right of way. Councilor Woodard said that would be satisfactory. Councilor Snider commented that the applicant said it would be acceptable. Engineer McCarthy suggested leaving in the condition that the mitigation construction includes pavement markings to denote the presence of cyclists in the shared right turn lanes and this must be complete prior to final building inspection. He clarified for Councilor Woodard that no one was considering removing sidewalks. Engineer McCarthy said, "Our code applies, and in intersections with state highways the state code applies too." He said the codes require the applicant to demonstrate that the transportation (and in some cases other facilities) has adequate capacity to accommodate the proposed development. Adequate capacity means there is enough capacity to accommodate the drivers wanting to use that capacity. In cases where the intersection is already over capacity for certain movements, the requirement is to mitigate back to the pre-development level. He said based on our understanding of the traffic study, the city believes that the proposed mitigation would do that. He said staff believes the traffic study was scoped and done in accordance with industry standard practices and agrees with its overall conclusions. In response to a question from Councilor Snider about which traffic study he is referring to, Engineer McCarthy said it was the applicant's traffic impact analysis. Councilor Buehner said sometimes written demonstration of acquiring right of way is required before final engineering is approved, or sometimes at the time of the issuance of building permit, and asked what staff recommends. Engineer McCarthy suggested it be prior to issuance of the permit for construction. Councilor Snider said some of his questions had been answered, including one on which criteria apply and staff is saying both, which is different from what he heard from the applicant. He asked for clarification that both ODOT and the city are satisfied that the application meets all current approval criteria for the intersection. Mr. McCarthy said that is correct as some of the previous ODOT requirements have been withdrawn. Councilor Snider asked for an explanation on the fair proportionate share figure and why it changed so much during the process. Mr. McCarthy said the calculated TDT stayed the same throughout the hearing process. There is another number that the city uses as a guideline to see if the required mitigation is proportionate to the impact of the development. Councilor Snider asked if this is a separate test or analysis and Mr. McCarthy said it was. He said it stayed the same and there may be confusion about the two figures. The county TDT allows credits to be given for mitigation constructed by a developer and in this case, the cost to construct the two right turn lanes exceeds the amount of the TDT so in this case they would not be charged. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12, 2014 City of Tigard 113125 SW Hall Blvd., Tigard,OR 97223 1503-6394171 1 www.tigard-or.gov I Page 16 of 19 I Mayor Cook said he understood that point,but there was another criterion of$500,000. He asked when the city would use that instead of the other number. Mr. McCarthy said the proportion share of$535,000 is used when the mitigation measure is beyond the scope of what is reasonable for the developer to construct. If there is a measure identified that can be constructed by the developer to mitigate traffic then that could be constructed. But if one is not identified and the solution is a multi-million dollar project that would not be proportionate to the project the city looks at the proportional share. Because the mitigation required obtaining right of way from a private property owner the city was hesitant to make that a hard requirement. But discussions have been held and it does appear to be feasible. The mitigation measure can be constructed and the proportionate share is not used. Councilor Snider asked staff if anything raised by the appellant causes them concern or thoughts that council needs to evaluate applicable criteria and staff review. Engineer McCarthy and Associate Planner Kowacz said there was not. Council President Henderson asked about the parking and the number of trips. He said there might be rules and regulations particular to gas stations. Ms. Kowacz said the city looks at the existing use which is a retail location with the addition of a gas station. For this project the entire site is required to have 441 spaces and with the reduction of 84,the site still has 730 spaces. There is no other applicable criterion that requires additional spaces. The requirement is three spaces for 1,000 square feet for retail area and three per gas station for employees. Council President Henderson said his concern is the trips and Mr.McCarthy said trips come into play for the traffic calculations. Council President Henderson asked if staff is satisfied that this meets all the criteria. Mr. McCarthy said he is satisfied that the proposal adequately mitigates its impact with the mitigation measures. h. Council Vote on Tentative Decision,Subject to Staff's Completion of Final Findings Councilor Woodard moved to deny the appeal of CUP2013-00002, subject to the addition of a new condition that was not included in the planning commission report that requires Costco to provide written evidence that they have obtained right of way before a building permit is issued. That transaction must be closed before the building permit is issued. Councilor Buehner amended the motion to add a requirement for pavement markings denoting the potential presence of cyclists in that shared lane. Councilor Snider seconded the motion. The motion passed unanimously. Yes No Mayor Cook ✓ Councilor Buehner ✓ Council President Henderson ✓ Councilor Snider ✓ Councilor Woodard ✓ City Attorney Rihala said this is a tentative denial,not a final decision,and is subject to staff findings. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 17 of 19 6. LOCAL CONTRACT REVIEW BOARD(LCRB)—CONSIDERATION OF CONTRACT AWARD FOR INFRASTRUCTURE FINANCING Contracts Manager Barrett said this contract with FCS Group in the amount of$179,510 is for services related to infrastructure financing projects for transportation,parks, sanitary sewer and storm water. Water was issued under a separate contract that did not reach the LCRB threshold. This contract was discussed by council at the July 8 meeting. LCRB Director Snider said the city has an obligation to plan for a new area of Tigard and we do not have in-house expertise to do some of this. Finance and Information Services Director LaFrance said he conferred with Tim Esau who spoke about this contract earlier in the citizen communication portion of the meeting,and was able to respond to some of his questions and concerns. Councilor Buehner moved for approval of the contract award to FCS Group. Councilor Woodard seconded the motion. The motion passed unanimously. Yes No Mayor Cook ✓ Councilor Buehner ✓ Council President Henderson ✓ Councilor Snider ✓ Councilor Woodard ✓ 7. CITY CENTER DEVELOPMENT AGENCY: FY 2015 FIRST QUARTER SUPPLEMENTAL BUDGET AMENDMENT Finance and Information Services Director LaFrance said this is a step towards making a purchase of property on Burnham Street as part of the urban renewal agency plan. On May 6,the City Center Development Agency Board approved the purchase and authorized staff to seek debt and financing to make the purchase. This step appropriates the bond proceeds to allow the property purchase. CCDA Director Snider moved for approval of Resolution No. 14-40* CCDA Director Buehner seconded the motion. City Recorder Krager read the number and title of the Resolution: CCDA RESOLUTION NO. 14-07—A RESOLUTION TO ADOPT A SUPPLEMENTAL BUDGET AMENDMENT TO FY 2015 CITY CENTER DEVELOPMENT AGENCY Yes No Chair Cook ✓ Director Buehner ✓ Director Henderson Abstained due to potential conflict of interest Director Snider ✓ Director Woodard ✓ Chair Cook announced that the motion passed with four yes votes and one abstention. *City Recorder Krager corrected the number of the resolution to the next sequential CCDA resolution number of 14-07. TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 113125 SW Hall Blvd.,Tigard,OR 97223 1503-639-4171 1 www.tigard-or.gov I Page 18 of 19 8. COUNCIL LIAISON REPORTS None 9. NON AGENDA ITEMS None 10. EXECUTIVE SESSION: Held earlier. 11.ADJOURNMENT At 9:59 p.m. Director Snider moved for adjournment. The motion was seconded by Director Buehner. All voted in favor. Yes No Chair Cook ✓ Director Buehner ✓ Director Henderson ✓ Director Snider ✓ Director Woodard ✓ Carol A. Krager, Deputy City Re rder Attest John L. ok,Mayor Date TIGARD CITY COUNCIL MEETING MINUTES—AUGUST 12,2014 City of Tigard 1 13125 SW Hall Blvd.,Tigard,OR 97223 1503-63941711 www.tigard-or.gov I Page 19 of 19