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CUP2013-00001 Decision - Dirksen Nature Park 120 DAYS: 1/15/2014 (includes 3-week extension) DATE OF FILING: 12/30/2013 III DATE MAILED: 12/31/2013 C CITY OF TIGARD TIGARD Washington County, Oregon NOTICE OF FINAL ORDER BY THE HEARINGS OFFICER Case Numbers: CONDITIONAL USE PERMIT (CUP)2013-00001 SENSITIVE LANDS REVIEW(SLR) 2013-00002 - ADTUSTMENT(VAR)2013-00010 Case Name: DIRKSEN NATURE PARK Applicant's Name/Address: Steve Martin. City of Tigard Parks Division 13125 SW Hall Blvd. Tigard, OR 97223 Owner's Name/Address: City of Tigard 13125 SW Hall Blvd.Tigard,OR 97223 Address of Property: 11000 Block of SW Tigard Street. Tigard,OR 97223 Tax Map/Lot Nos.: Washington County Tax Assessor's Map 2S103AA, Lot 200; 2S103AB, Lot 200; 1S134DC, Lots 3000,3001,3002,3100,3101,3102,3300, 3400; 1S134DD,Lots 900, 1000,2400,2500 A FINAL ORDER INCORPORATING THE FACTS, FINDINGS AND CONCLUSIONS APPROVING A REQUEST FOR A CONDITIONAL USE AND ADJUSTMENT . THE CITY OF TIGARD HEARINGS OFFICER HAS REVIEWED THE APPLICANT'S PLANS, NARRATIVE, MATERIALS, COMMENTS OF REVIEWING AGENCIES, THE PLANNING DIVISION'S STAFF REPORT AND RECOMMENDATIONS FOR THE APPLICATION DESCRIBED IN FURTHER DETAIL IN THE STAFF REPORT. THE HEARINGS OFFICER HELD A PUBLIC HEARING ON OCTOBER 28, 2013 TO RECEIVE'I STIMONY REGARDING THIS APPLICATION. THIS DECISION HAS BEEN BASED ON THE FACTS, FINDINGS AND CONCLUSIONS CONTAINED WITHIN THIS FINAL ORDER. Request: > The City requested a Type III-Hearing Officer (HO) Conditional Use and Sensitive Lands Review to approve development of a new community park. Dirksen Nature Park is located on 14 parcels consisting of 48 acres located along the 11000 block of SW Tigard Street. Bordered by Fowler Middle School to the south, Tiedeman Avenue to the east, and Tigard Street to the north, the property contains a mix of mature forests,wetlands and open space. The majority of the property will remain a natural area, and approximately 35 acres are protected under a conservation easement. The intent of the proposed project is to develop the Dirksen Nature Park as a community park and environmental education facility that is consistent with public feedback and earlier site plan concepts regarding the layout and design of the property approved by the Parks and Recreation Advisory Board (DRAB). Public recreation improvements to this property will be limited to specific areas of the site. In the center of the park, the existing ball field will be re-oriented with a soccer field overlay, an interpretive shelter with restroom will be installed and new vegetated corridor plantings will be installed. An existing environmental education building with two classrooms and parking is located in the northwest corner of the site along Tigard Street,and improvements to the building and its immediate landscaping,along with trail connections to the remainder of the property,will be made. An upland area along Tigard Street will be developed to include a parking lot for the park and the existing Fanno Creek Trail, as well as provide a natural play area for young children. The application also includes a request for a concurrent Special Adjustment for a meandering sidewalk along Tigard Street for approximately 600 linear feet to serve as both a sidewalk and a community trail. At the duly noticed public hearing on October 28, 2013 the Hearings Officer held the record open for three weeks to receive and consider additional testimony in this matter, and another 3 weeks to consider testimony on an apparent code conflict, then approved the Conditional Use and Adjustment,subject to conditions of approval. Zones: R-4.5: Low-Density Residential District. Applicable Review Criteria: Community Development Code Chapters 18.330, 18.360, 18.370, 18.390, 18.510, 18.705, 18.725, 18.745,18.755, 18.765, 18.775, 18.790, 18.795 and 18.810. Action: > ❑ Approval as Requested © Approval Subject to Conditions ❑ Denial Notice: Notice was published in the newspaper and mailed to: ® Owners of Record within the Required Distance © Affected Government Agencies © Interested Parties © The Applicants and Owners The adopted findings of fact and decision can be obtained from the Planning Division/Community Development Department at the City of Tigard Permit Center at City Hall. Final Decision: THIS DECISION IS FINAL ON DECEMBER 30,2013 AND BECOMES EFFECTIVE ON JANUARY 22,2013 UNLESS AN APPEAL IS FILED. Appeal: The decision of the Review Authority is final for purposes of appeal on the date that it is mailed. Any party with standing as provided in Section 18.390.040.G.1. may appeal this decision in accordance with Section 18.390.040.G.2. of the Tigard Community Development Code which provides that a written appeal together with the required fee shall be filed with the Director within ten (10) business days of the date the notice of the decision was mailed. The appeal fee schedule and forms are available from the Planning Division of Tigard City Hall, 13125 SW Hall Boulevard,Tigard, Oregon 97223. THE DEADLINE FOR FILING AN APPEAL IS 5:00 PM ON JANUARY 21,2013. Questions: If you have any questions,please call the City of Tigard Planning Division at 503-718-2434. BEFORE THE LAND USE HEARINGS OFFICER FOR THE CITY OF TIGARD, OREGON Regarding an application by Steve Martin on behalf of the ) F I N A L O R D E R City of Tigard Parks Division for a conditional use permit ) to develop a new community park on a 48-acre parcel at ) CUP2013-00001' 1100 Block of SW Tigard Street in the City of Tigard, Oregon ) (Dirksen Nature Park) A. SUMMARY 1. Steve Martin, City of Tigard Parks & Facilities Manager, filed the application on behalf of the City of Tigard Parks Division(the "applicant"). The applicant requests approval of a conditional use permit to develop a new community park on a 48-acre parcel located at 1100 Block of SW Tigard Street in the City of Tigard; also known as Washington County Tax Assessor's Map 2S 103AA, Lot 200; 2S 103AB, Lot 200; 1S134DC, Lots 3000, 3001, 3002, 3100, 3101, 3102, 3300, 3400; 1S134DD, Tax Lots 900, 1000, 2400, 2500 (the "site"). The applicant also requests sensitive area review for development within the 100-year floodplain, fish and wildlife habitat, wetlands, and vegetated corridor areas on the site, and a Special Adjustment to the road standards to allow a meandering sidewalk on Tigard Street. The site is bordered by Fowler Middle School to the south, Tiedeman Avenue to the east, and Tigard Street to the north. The property contains a mix of mature forests, wetlands and open space. The majority of the property will remain a natural area, and approximately 35 acres of the site are protected under a Metro conservation easement. The intent of the proposed project is to develop the Dirksen Nature Park as a community park and environmental education facility that is consistent with public feedback and earlier site plan concepts regarding the layout and design of the property approved by the Parks and Recreation Advisory Board (PRAB). 2. Public recreation improvements to this property, as proposed, will be limited to specific areas of the site. In the center of the park, one of the two existing ball fields will be eliminated; the remaining ballfield will be overlain with two soccer fields. A picnic/interpretive shelter with restrooms and new vegetated corridor plantings are also proposed in the central portion of the site. In the northwest corner of the site, improvements are proposed to the existing environmental education building and parking lot. An upland area along Tigard Street will be developed to include a parking lot for the park and the existing Fanno Creek Trail, and a natural play area for young children. Hard and soft surfaced trails are proposed throughout the site, providing connections to the developed areas within the park and to adjacent streets and uses such as the Fowler Middle School south of the site and the existing Fanno Creek Trail on the east side of the site. The applicant will plant street trees along the site's Tigard Street frontage and additional native vegetation throughout the vegetated corridors on the site. The applicant also proposed two overlooks extending over the wetlands on the site. Phasing of these improvements is planned through the summer of 2015. Additional basic facts about the 1 This Final Order also addresses SLR2013-00002 and VAR2013-00010. site and surrounding land and applicable approval standards are provided in the Staff Report to the Hearings Officer dated October 21, 2013 (the "Staff Report"), incorporated herein by reference. 3. Tigard Hearings Officer Joe Turner(the "hearings officer") conducted a duly noticed public hearing to receive testimony and evidence in this matter. At the public hearing, City staff recommended approval of the application, subject to conditions of approval in the Staff Report as amended at the hearing. Representatives of the applicant and one other person testified in support of the application. Three persons testified in opposition or with questions about the application. Disputed issues in this case include: a. Whether the applicant was required to include in the application materials public comments from prior community meetings ; b. Whether the proposed development will cause prohibited impacts to the wetlands on the site; c. Whether the proposed development will cause prohibited impacts to wildlife habitat on the site; d. Whether the proposed development will cause prohibited impacts to upland habitat areas on the site; e. Whether the proposed development conflicts with existing conservation easements affecting the site; f. Whether the proposed development will cause prohibited impacts to the camas prairie habitat on the site; g. Whether lighting on the site will have significant adverse impacts on wildlife; h. Whether the proposed tree removals are consistent with the Code; i. Whether the applicant is required to demonstrate a "need" for the proposed park improvements; j. Whether the application complies with the approval criteria for a CUP; k. Whether the application complies with the comprehensive plan; 1. Whether a traffic study is required for this development; m. Whether the applicant is required to improve the existing Tigard Street bridge over Fanno Creek; CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 2 n. Whether the proposed road widening will create a hazard for vehicles approaching the narrow bridge; o. Whether the development will create excessive demand for on-street parking; and p. Whether the development will result in a significant increase in violations of park regulations. 4. The hearings officer concludes that the applicant sustained the burden of proof that the proposed development complies with the applicable approval criteria for a conditional use permit, sensitive lands review, and adjustment, based on the findings and conclusions included and incorporated herein and subject to conditions at the end of this final order. B. HEARING AND RECORD 1. The hearings officer received testimony at the public hearing about this application on October 28, 2013. All exhibits and records of testimony are filed with the Tigard Department of Community Development. At the beginning of the hearing, the hearings officer made the declaration required by ORS 197.763. The hearings officer disclaimed any ex parte contacts, bias or conflicts of interest. The following is a summary by the hearings officer of selected testimony offered at the public hearing in this matter. 2. City planner Gary Pagenstacher summarized the Staff Report and the proposed development. a. He noted that the applicant proposes to: remodel the existing environmental education building and parking lot in the northwest corner of the site; construct half-street improvements along SW Tigard Street abutting the north boundary of the site; construct a new parking lot off of SW Tigard Street to serve the proposed park and the existing Fanno Creek trail; re-orient one of the existing ball fields near the center of the site and overlay it with two soccer fields; construct a restroom and picnic/interpretive shelter near the baseball/soccer fields; and develop hard and soft surfaced paths and park furniture throughout the upland areas of the park. The applicant will also plant additional landscaping within the vegetated corridor areas, the parking lots and street trees along the site's Tigard Street frontage. b. The applicant also requests sensitive lands review for impacts to the 100-year floodplain and wetlands, and an adjustment to the street standards to meander the sidewalk along a 600-foot section of SW Tigard Street. The applicant proposed to construct the sidewalk as a ten-foot wide trail rather than a five-foot sidewalk. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 3 c. The majority of the 48-acre site is subject to a Metro conservation easement. d. Because this is a City project that will be constructed by the City, a Public Facilities Improvement(PFI)permit is not required. He requested the hearings officer modify the conditions of approval to that effect. 3. Steve Duh and Kevin Apperson testified for the applicant. a. Mr. Duh summarized the project's history and the proposed development, and responded to public testimony. i. He noted that the City adopted a Parks Master Plan in 2009. The Master Plan was developed with substantial community involvement, including multiple public meetings to guide the design of parks development in the City. In November 2010 the City passed a bond measure to fund park improvements consistent with the Master Plan. This project will provide a community park and a nature park for environmental education. A Metro conservation easement protects 35-acres of the site. The applicant's natural resource management plan documents the habitat areas on the site and how the applicant will manage those areas. ii. There are currently two baseball fields near the center of the site. The western field is located in a wetland and will be removed. The applicant will retain the eastern baseball field and overlay it with two soccer fields. The applicant will provide a restroom and picnic/interpretive shelter near the baseball/soccer field. The applicant will provide a bus pullout at the environmental center to accommodate school field trips to the site. The applicant will construct two wetland overlooks elevated above the wetlands on the site. The applicant will construct new hard and soft surfaced trails within the site and decommission several existing, unauthorized,trails that impact wetlands and other sensitive areas on the site. 98-percent of the site will remain pervious. The applicant will enhance 50,000 square feet of vegetated corridor on the site by planting native vegetation. The applicant will grade the baseball and soccer fields to increase the floodplain capacity of the site and ensure no net-rise in the 100-year flood elevation. The applicant will develop the site in three phases. iii. He accepted the findings and conclusions in the Staff Report, as amended at the hearing, without objections. iv. The proposed development will avoid all wetland impacts,with the exception of the proposed boardwalks. The boardwalks will be elevated above the wetlands to minimize or avoid direct impacts. The proposed north-south trail (Trail A) is aligned between Wetland 1 and Wetland 2, within the vegetated corridor, as shown in Figure 4, Sheet 1.1 of the CWS Service Provider Letter section of the application. The trail will not impact the wetlands. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 4 v. Safety concerns regarding the Tigard Street bridge over Fanno Creek are an existing problem. The bridge is not part of the proposed park site. The bridge is located to the east of the site. The proposed development will generate some additional traffic that will contribute to this existing hazard. But the cost of improving the bridge is substantially greater than the impacts of the development. The applicant will mitigate the traffic impacts of the development by dedicating right of way and improving the section of Tigard Street abutting the site. The applicant will design Tigard Street to taper at a reasonable angle to provide a safe transition between the wider street section abutting the site and the narrow bridge. vi. The applicant is aware of the existence of camas lily on the site. Camas lily is a wetland plan. The applicant revised the trail alignments to avoid all wetland areas and the camas lily prairie area noted by Ms. Beilke. b. Mr. Apperson noted that the sensitive lands on the site include the 100- year floodplain, wetlands, and significant fish and wildlife habitat. The applicant designed the proposed park improvements to minimize impacts to those areas. The ballfield and a small portion of the eastern parking lot will be constructed within the floodplain. The applicant will construct two overlooks in the wetland. No other development is proposed within the wetland areas. The proposed trails will be aligned through the vegetated corridors, outside of the wetlands. The applicant will plant additional vegetation within the vegetated corridors on the site to mitigate for trail encroachments and to enhance degraded corridors. The applicant has been working with the U.S. Army Corps of Engineers on this project. No permits are required from the Corps, because no fill is proposed within any jurisdictional waterways. The Oregon Department of State Lands submitted a letter on July 11, 2013 stating that no permits are required from that agency. 4. Troy Mears, an adjacent property owner and the chair of the Tigard Parks and Recreation Advisory Board, testified in support of the project. He opined that the proposed improvements are consistent with the needs and wants of the community. The proposed meandering path on Tigard Street will bring people into the park. 5. Trish Anderson, an adjacent property owner and member of the "Friends of Summer Creek Natural Area," argued that the site should be retained in its natural state. Trails should be limited to soft surface only. Paved trails should not be constructed within wooded areas in order to protect tree roots. Trails should be designed to steer hikers away from hazard trees rather than removing the trees. Trails should also avoid habitat areas. The applicant should plant a buffer of native plants along Tigard Street. Lighting should be prohibited on Fanno Creek trail. The park is closed at dusk, so lighting is not needed. Parking at the park should be limited to encourage biking and walking. She expressed concern with enforcement of the City's leash laws. 6. Ralph Anzelloti argued that the applicant should be required to incorporate improvements to the Tigard Street bridge over Fanno Creek into this project. The bridge CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 5 is located just east of the site. The bridge, which was constructed in 1958, is only 19.5 feet wide and frequently floods in the winter. The bridge is barely wide enough to allow two cars to pass. School buses must drive down the middle of the bridge, with their lights flashing. The applicant proposed to widen the section of Tigard Street abutting the site to 35 feet, which will encourage higher traffic speeds. The sudden narrowing of the street from 35 feet to 19.5 feet will create a hazard. Fanno Creek Trail crosses Tigard Street just west of the bridge. Pedestrians and bicyclists using the trail frequently cross Tigard Street without stopping, creating a hazard. He submitted two photographs of the bridge and trail crossing, Hearing Exhibit 2. 7. Sue Beilke testified on behalf of Fans of Fanno Creek("Fans") and summarized her written testimony, Hearing Exhibit 3. She summarized her background as a professional wildlife biologist and her experience with trail design. She argued that the park is a diverse site with a mix of habitats. Fanno Creek Trail divides the creek from the upland areas of the site. She conducted formal habitat and wildlife surveys of the site in 2008 and 2009. There is a mapped camas prairie area in the north central portion of the site. a. She argued that the project does not comply with the approval criteria for a conditional use permit, TDC 18.330.030. The development will have substantial negative impacts to natural features and natural resources on the site. The applicant proposed to construct 3100 feet of soft surfaced and 900 feet of paved trails through the site. The trail near Tigard Street and trails through the vegetative buffers will have a huge impact on wildlife habitat. Trails should be prohibited within the camas prairie area in the north central portion of the site. Widening of Tigard Street and construction of the meandering sidewalk,parking area and nature play area will eliminate most of the upland habitat on the site, which is needed by a variety of wildlife, including rare, sensitive species of frogs and turtles. b. Lighting should be prohibited on trails, because lights disturb the wildlife. The park is closed at dusk. Therefore lights are not needed. Lighting is not provided on any other section of the Fanno Creek Trail. c. The requested adjustment for the sidewalk meander along Tigard Street should be denied, because the trail will divide the upland habitat area as well as reducing the width of the vegetated corridor. It will not minimize impacts to the site. d. The transportation assessment failed to address existing parking on SW Gallo Street west of the site. Dog owners frequently park in that area and allow their dogs to run off-leash on the site. The proposed park improvements will attract additional people to the site, which will generate additional parking spillover into the surrounding neighborhood. e. The proposed wetland viewing platforms should be denied to avoid wetland impacts and comply with TDC 18.775.050. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 6 f. The proposed street width for Tigard Street exceeds City standards. Construction of the street improvements will require removal of 40 trees. A narrower street would preserve more trees and have less impact on upland habitat. g. The application failed to include meeting notes from the neighborhood meeting that Fans attended on March 28, 2012. 8. City engineering manager Kim McMillan testified that the Tigard Street bridge over Fanno Creek is not located on the project site. Therefore the applicant is not required to improve the bridge as a condition of this approval. The applicant will install striping to taper the travel lanes from the wider section abutting the site to the narrower travel lanes over the bridge. 9. City parks and facilities manager Steve Martin testified that the sidewalk on Tigard Street will only meander within the upland portion of the site. The meandering sidewalk will not impact wetlands or vegetated corridor areas. The trail will abut the road in locations where the vegetated corridor is close to or abuts the road in order to minimize or avoid impacts to the vegetated corridor. No lighting is proposed on Fanno Creek trail. The applicant will install dim security lighting inside the shelter building for security purposes. Motion detectors will control the lights. The applicant will install the lights on the walls of the building, aiming downwards, to silhouette people near the buildings. Security lighting will also be provided at the environmental center . 10. At the end of the hearing, the hearings officer held the record open for one week, until 5:00 p.m. November 4, 2013, to allow the applicant an opportunity to submit additional evidence. The hearings officer held the record open for a second week, until November 12, 2013,2 for the public to respond to the new evidence submitted by the applicant. The hearings officer held the record open for a third week, until November 19, 2013, for the applicant to submit a final argument, without any new evidence. 11. On December 2, 2013 the hearings officer issued an"Order Re-Opening the Record" extending the open record period to allow the parties an opportunity to submit additional testimony and evidence regarding an apparent conflict in the language of the Sensitive Lands section of the Code. The hearings officer re-opened the record subject to the following revised schedule: a. Until 5 P.M. on December 12, 2013, for all parties to introduce new evidence and testimony. b. Until 5 P.M. on December 19, 2013 for all parties to respond in writing to the new evidence submitted during the first open record period; and 2 The hearings officer held the record open for 8 days during the second open record period,because the City offices were closed November 11,2013 for the Veterans Day holiday. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 7 c. Until 5 P.M. on December 26, 2013, for the applicant to submit a final argument, without any new evidence. 12. The following evidence was submitted during the open record period: a. The City submitted a memorandum dated December 10, 2013 and copies of Ordinance 06-20. b. Ms. Beilke submitted a letter dated December 12, 2013 on behalf of Fans. c. No new testimony or evidence was submitted during the second week of the open record period. The applicant submitted its closing argument on December 23, 2013 and requested the hearings officer close the record on that date. 13. Pursuant to the applicant's request the record in this case closed at 5:00 p.m. on December 23, 2013. C. DISCUSSION 1. City staff recommended that the hearings officer approve the application, based on the affirmative findings and subject to conditions of approval in the Staff Report, as amended at the hearing. The applicant accepted those findings and conditions, as amended, without exceptions. The hearings officer adopts the findings and conclusions in the Staff Report as his own except to the extent they are inconsistent with the findings and discussion in this final order. 2. The hearings officer finds that the applicant is not required to include Fans' comments from the March 28, 2012 meeting.Nothing in the Code or on the application form requires that the applicant conduct a neighborhood meeting. It appears that the City, as a matter of informal policy, requires a neighborhood meeting prior to the submittal of certain applications. Seep 1 of the January 29, 2013 pre-application conference notes. Appendix A of the applicant's July 17, 2013 submittal (the "application"). The applicant held a neighborhood meeting on May 14, 2013. The applicant included a summary of this meeting with the application. See Appendix B of the application. Therefore the hearings officer finds that the applicant complied with the City's policy requiring a neighborhood meeting prior submittal of a complete application. The applicant held numerous other meetings with consultants and the public as part of the design process for this park and the City's overall park master plan, including the March 28, 2012 meeting attended by Fans. Nothing in the Code or the City's policies require the applicant to include notes from those meetings in the record for this application. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 8 3. The proposed development will not impact wetlands on this site, with the exception of the wetland overlooks discussed below. The applicant designed the proposed trail alignments to avoid all of the delineated wetlands on the site. a. Fans argued that the proposed trail between the nature play area south of the parking lot and Fanno Creek trail will impact an existing wetland, based on a March 1998 wetland delineation conducted by Fishman Environmental Services for construction of the Fanno Creek Trail, (the "Fishman Report," attached to Hearing Exhibit 3). The Fishman Report identifies a wetland area near the northeast corner of the site. Maps included with the Fishman Report show a section of the wetland extending upslope, off of the map. Figure 6 of the Fishman Report. The Fishman Report does not show the area where the proposed trail connecting the nature play area south of the parking lot will connect with the Fanno Creek trail. WHPacific, Inc., the applicant's wetland consultants performed another wetland delineation on the site on January 13 and 16, 2012. See Appendix F of the application(the "WHPacific report"). The WHPacific identifies two separate wetlands in this same area, identified as "Wetland 2" and"Wetland 4" on Figure 3 (sheet 1.1) of the WHPacific report. The Fanno Creek trail crosses through this wetland, separating Wetland 2 and Wetland 4. The proposed trail connecting the nature play area south of the parking lot and Fanno Creek trail is proposed within the vegetated corridor on the northern edge of Wetland 2. See plan sheet C3.2. This trail will have no impact on the wetlands on the site. There is no substantial evidence to the contrary. 4. The hearings officer finds that the Code does not prohibit development in the mapped habitat areas on this site. a. The plain language of TDC 18.775.020.H appears to prohibit any uses or development within mapped wildlife habitat areas that are outside of floodplains, drainageways, wetlands, vegetated corridors, steep slopes, and unstable ground. i. TDC 18.775 regulates development on "sensitive lands." "Sensitive lands" as defined by TDC 18.775.010.G include significant fish and wildlife habitat areas designated on the City of Tigard "Significant Habitat Areas Map." ii. TDC 18.775.020.H provides, "Except as explicitly authorized by other provisions of this chapter, all other uses are prohibited on sensitive land areas." TDC 18.775.020.A through .G. allow certain types of development and uses within floodplains, drainageways, wetlands, steep slopes, and unstable ground. TDC 18.775.090.B(5) allows certain types of development within vegetated corridors.3 Mapped wildlife habitat areas are not listed in TDC 18.775 as areas where development or uses are permitted. Therefore the plain language of TDC 18.775.020.H appears to prohibit any 3 Vegetated corridors are not listed as"sensitive lands"in TDC 18.775.G. However certain vegetated corridors, including the vegetated corridors on this site,are identified as"significant wetlands"on the City's Wetlands and Stream Corridors Map." See the"Supplemental Figures"tab of the application. Therefore the vegetated corridors on this site are"sensitive lands"as defined by TDC 18.775.G. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 9 uses or development within mapped wildlife habitat areas that are outside of floodplains, drainageways, wetlands, vegetated corridors, steep slopes, and unstable ground. b. However TDC 18.775.100.B and 18.715.020.A(1)(e) conflict with the plain language of TDC 18.775.020.H by expressly allowing development within certain mapped wildlife habitat areas. i. TDC 18.775.100.B authorizes the director to approve adjustments to the standards in the underlying zoning district, "[w]hen development is proposed ... within or adjacent to areas designated as `strictly limit' or `moderately limit' on the City of Tigard `Significant Habitat Areas Map."'4 (Emphasis added). ii. TDC 18.715.020.A(1)(e) allows the option of deducting mapped wildlife habitat areas when determining net development area. All other sensitive lands are required to be deducted. iii. If TDC 18.775.020.H prohibits any uses or development within mapped wildlife habitat areas,then TDC 18.775.100.B and 18.715.020.A(1)(e) are redundant. There is no need to adjust development standards for development within mapped habitat areas or make the inclusion of habitat areas optional if TDC 18.775.020.H prohibits any development within such areas. c. In addition, the Significant Habitat Areas Map identifies three levels of habitat: highest value, moderate value and lowest value habitat. The Code does not include these distinctions; TDC 18.775.020.H appears to prohibit uses and development within even the lowest value habitat areas. Floodplains, drainageways, wetlands and vegetated corridors are frequently contained within areas designated highest or moderate value habitat. (Compare the"Significant Habitat Areas Map"with the "100-year Floodplain" and "Wetlands & Stream Corridors"maps, included under the "Supplemental Figures"tab of the application). However the Code expressly allows certain types of development within these sensitive land areas. It would be inconsistent to allow development within the most sensitive/highest value habitat areas (floodplains, drainageways, wetlands, and vegetated corridors), while prohibiting all uses and development within the lowest value habitat areas. d. Moreover, this interpretation of TDC 18.775.020.H would restrict or prohibit certain road and trail connections. The Code allows roads and trails within certain sensitive lands. However such roads and trails must cross areas mapped as lowest value habitat in order to access the vegetated corridors, floodplains, and other sensitive lands areas where these uses are expressly allowed. See, e.g.,the proposed Tigard Street frontage improvements, which cross through areas mapped as lowest value habitat, where TDC 18.775.020.H appears to prohibit such development, in order to connect with 4 The applicant has not, and is not,requesting an adjustment pursuant to TDC 18.775.100.B. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 10 frontage improvements within the floodplain and vegetated corridor areas to the east, where such development is allowed. See Plan Sheet 1.0. e. The hearings officer must interpret the Code to resolve these conflicts. When interpreting the City's ordinances the hearings officer is required to follow the rules of statutory construction set out in ORS 174.020 and the Oregon Supreme Court's decisions in Portland General Electric v. Bureau of Labor and Industries, 317 Or. 606, 859 P2d 1143 (1993) (PGE v. BOLL) and State v. Gaines, 346 Or 160, 171-173, 206 P3d 1042 (2009). The hearings officer must attempt to discern the intent of the City Council from the text and context of the ordinance and related ordinances. The hearings officer must construe the Code to give effect to all provisions and avoid redundancies. ORS 174.010. The hearings officer may also consider legislative history offered by a party. ORS 174.020(1)(b). The hearings officer "shall give the weight to the legislative history that the [hearings officer] considers to be appropriate." ORS 174.020(3). f. In this case, the hearings officer finds that the legislative history clearly resolves the conflict. i. TDC 18.775.020.H was adopted by Ordinance 06-20. Ordinance 06-20 included and adopted by references a Staff Report dated October 16, 2006 (the "Ordinance Staff Report"), which provides, "The proposed amendments will not result in increased development restrictions but will give property owners and developers the option to take advantage of greater regulatory flexibility in exchange for the use of habitat friendly practices."p. 3 of the Ordinance Staff Report. ii. A strict reading of TDC 18.775.020.H conflicts with this statement in the Ordinance Staff Report, by significantly increasing development restrictions. However TDC 18.775.100.B and 18.715.020.A(l)(e) are consistent with this statement in the Ordinance Staff Report, because these provisions provide incentives to reduce or avoid impacts to habitat areas. iii. The hearings officer finds that, in order to give any meaning to the Ordinance Staff Report, TDC 18.775 must be read to not impose any restrictions on development in mapped habitat areas that do not include other sensitive lands. The Code only includes incentives to encourage protection of habitat areas. This is consistent with the actual code language adopted by the City Council, which contains very few references to wildlife habitat. If the City Council had intended to prohibit all development in all levels of mapped habitat it would have said so explicitly, not by omission. This is also consistent with the remainder of the legislative history associated with Ordinance 06-20, which makes no mention of any intent to prohibit development in mapped habitat. 5 Section 3 of Ordinance 06-20 provides, in relevant part,"The findings and conclusions contained in the Staff Report dated October 16,2006...are adopted by reference..." CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 11 5. Fans argued that the proposed park improvements will impact upland habitat used by wildlife for nesting and other activities. Assuming such impacts will occur,they are irrelevant. As discussed above, portions of the site are designated significant habitat on the City's"Significant Habitat Areas Map."However the Code does not prohibit development in these areas. 6. The hearings officer finds that the Code prohibits the proposed boardwalks/viewing areas within the wetlands on the site. TDC 18.775.090.A prohibits land form alterations or developments within, "[a]11 wetlands classified as significant on the City of Tigard `Wetlands and Streams Corridors Map,"'except as allowed/approved through a quasi-judicial comprehensive plan amendment pursuant to Section 18.775.130. The wetlands where the boardwalks are proposed are designated as significant wetlands on the City's"Wetlands and Stream Corridors"map. See the"Supplemental Figures"tab of the application. Therefore development within these wetlands is prohibited by 18.775.090.A. a. The applicant argued that the boardwalks,which will be placed above the wetlands using helical piers, will cause, "negligible disturbances to the existing landforms."However the plain language of TDC 18.775.090.A prohibit any land form alteration or development within significant wetlands. TDC 18.120.030.A(102) defines, "land form alteration" as: Any man-made change to improved or unimproved real estate, including but not limited to,the addition of buildings or other structures,mining, quarrying, dredging, filling, grading, earthwork construction, stockpiling of rock, sand, dirt or gravel or other earth material,paving, excavation or drilling operations located within the area of special flood hazard. TDC 18.120.030.A(160) defines, "structure" by reference to the definition of"building."TDC 18.120.030.A(36) defines, "building"as: "That which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner." b. The hearings officer finds that the placement of the helical piers and construction of the proposed boardwalk/overlook structures is a"land form alteration"as defined by TDC 18.120.030.A(102). Placement of the piers is a, "[m]an-made change to...real estate..."The proposed boardwalk/overlook is a"structure" or"building"as defined by TDC 18.120.030.A(160) and (36). TDC 18.775.090.A prohibits any land form alteration or development within significant wetlands. Therefore the boardwalk/overlook facilities are prohibited within the significant wetlands on the site. The Code does not provide a"de minimis" exception to the development prohibitions of TDC 18.775.070.E(2) and 18.775.090.A. The applicant should be required to modify the development to eliminate the proposed boardwalk/overlook structures within the significant wetlands on the site. A condition of approval is warranted to that effect. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 12 7. The proposed trails and frontage improvements will impact vegetated corridors on the site. However such impacts are expressly allowed by the Code and CWS regulations. TDC 18.775.090.B(5)(a) allows, "Roads, pedestrian or bike paths crossing the vegetated corridor from one side to the other in order to provide access to the sensitive area or across the sensitive area..." TDC 18.775.090.B(5)(c) allows, "[p]edestrian or bike path[s], not exceeding 10 feet in width" within vegetated corridors. Construction and use of the trails will reduce the habitat value of the site to some extent by encouraging activities by humans and domestic dogs within the vegetated corridors. The applicant will mitigate those impacts consistent with CWS regulations by enhancing the remaining vegetated corridors on the site. a. Neither the Code nor CWS' regulations require an opportunity for public comment on proposed impacts to vegetated corridors. 8. A Metro conservation easement covers approximately 35 acres of the site. The applicant testified that the proposed development is consistent with the terms of the easement. There is no substantial evidence to the contrary. In any case,the hearings officer has no authority to interpret or enforce the easement. a. Fans argued that there is a second conservation easement over the site,the "Lowes easement."A copy of the easement agreement is attached to Hearing Exhibit 3. However the copy of the agreement provided by Fans does not include "Exhibit A"of the easement, which describes the location of the easement, or"Exhibit B,"which describes the mitigation provided within the easement area. The applicant testified that there is no record of this easement in the title reports for the site or other documents. Therefore it is impossible to determine whether the Lowes easement affects the development proposed on this site. b. Fans argued that the Lowes easement conflicts with the Metro conservation easement. However Fans failed to provide any evidence in support of that assertion. In any case, the hearings officer has no authority to interpret or enforce either easement. 9. The hearings officer finds that the proposed development will not have a significant impact on camas lily plants on the site. Fans argued that proposed "Trail A," a five-foot wide soft surface trail, will impact a"camas prairie" area on the site. Fans submitted an aerial photo (attached to Fans' November 11, 2013 letter) showing the GPS identified location of camas plants on the site in 2009. The applicant testified that the proposed trail alignment avoids the camas lily areas. Comparing Fans' map showing the location of camas plants and the applicant's trail map, it appears that Trail A will not impact any camas plants identified in 2009. Fans testified that the camas plants have spread out from the areas identified in 2009. However they failed to identify any existing plants within the proposed trail alignment. The applicant proposed to relocate any camas CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 13 plants that are found within the trail alignment. Nothing in the Code prohibits the applicant from relocating camas plants to accommodate the proposed trail. a. Fans' assertions that this trail will cause impacts to the camas prairie in violation of the Metro conservation easement are irrelevant. Compliance with the Metro conservation easement is not a relevant approval criterion for this application and, discussed above, the hearings officer has no authority to interpret or enforce the easement agreement. 10. The hearings officer finds that lighting on the site will not cause significant adverse impacts to wildlife. Lighting is limited to low-level security lighting around the environmental resource center and the restroom/picnic/interpretive area shelter. Security lighting is required by TDC 18.360.090.I. The applicant agreed to eliminate lights along the Fanno Creek trail. A condition of approval is warranted to that effect. 11. The applicant proposed to remove 70 trees to accommodate the proposed improvements. Construction of Tigard Street frontage improvements will require removal of 42 trees. Five trees pose a public safety risk. Nineteen trees are dead,nuisance or invasive trees. Four trees have uncorrectable structural defects. Tree removals within the sensitive lands areas are limited to English hawthorns, a listed invasive/nuisance species. Removal of invasive/nuisance trees is allowed within sensitive areas. See Section 6, part 1 of the Urban Forestry Manual. Whether the applicant could save additional trees on the site by altering the alignment of trails to avoid hazard trees or reducing the width of Tigard Street improvements is irrelevant. The applicant is not required to demonstrate that the trees must be removed to allow development of the site. The Code provides incentives to encourage the retention of trees. However nothing in the Code prohibits the removal of upland trees, provided the applicant mitigates their removal pursuant to Section 7, part 1.0 of the Urban Forestry Manual. 12. The applicant is not required to demonstrate a"need" for the proposed park improvements. The type, design and location of amenities (trails, garden plots, restrooms, environmental education, play fields,parking, etc.) provided at the park is a policy choice for the applicant, the City Parks Division,to make. The City's Parks and Recreation Advisory Board approved the park design after providing opportunities for public involvement and comment. The hearings officer must review the application as proposed. If the proposed development complies with the applicable approval criteria, or can comply subject to conditions, it must be approved subject to those conditions, regardless of whether a subjectively"better" design is feasible. In this case the applicant conducted a community outreach program through its 2009 Master Plan process, including meetings with consultants and multiple public meetings to guide the design of parks development in the City. 13. The hearings officer finds that the proposed development complies with the development review approval criteria in TDC 18.360.090,based on the affirmative findings in the Staff Report and the following supplemental findings. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 14 a. TDC 18.360.090.B(1)regulates the location and design of buildings. Buildings on the site are limited to the existing environmental learning center and the proposed restroom/picnic/interpretive shelter. i. The hearings officer finds that the environmental learning center is exempt from this approval criterion, because it is an existing building. No changes are proposed to the building's location or orientation. ii. The hearings officer further finds that the proposed restroom/picnic/interpretive shelter building complies with TDC 18.360.090.B(1). (A) The building will preserve the existing trees, topography and natural-drainage on the site. TDC 18.360.090.B(1)(a). The building is proposed in an existing cleared area on the site. Construction of the building will not require removal of any trees. The building is proposed on a generally flat area of the site. This, combined with the small size of the building, will require minimal grading and impacts to the existing topography. The building will create a small area of new impervious surface. However the surrounding pervious land will remain largely undisturbed, maintaining the existing natural drainage of the site. The fact that this building is adjacent to a forested area is irrelevant to this approval criterion. (B) The building is not proposed in an area subject to ground slumping or sliding. Therefore the building complies with TDC 18.360.090.B(1)(b). (C) The two buildings on the site are located roughly 1,000 feet apart, which will provide more than adequate separation for light, air circulation, and fire-fighting. Therefore the building complies with TDC 18.360.090.B(1)(c). (D) The building is proposed at the north end of the existing cleared area on the site, which will maximize solar exposure. The nearby forest will help buffer the building from winds. Therefore the building complies with TDC 18.360.090.B(1)(d). b. TDC 18.360.090.B(2) requires the applicant to "consider" "Innovative methods and techniques to reduce impacts to site hydrology and fish and wildlife habitat...identified per ... the City of Tigard"Significant Habitat Areas Map." i. Fans argued that the application fails to comply with this criterion, because the proposed trails will fragment existing wildlife habitat and "[i]ncrease wildlife disturbance due to human use, dogs, etc...."p. 3 of Hearing Exhibit 3. There is no dispute that the proposed development will have some impacts to wildlife and wildlife habitat. However the Code does not prohibit such impacts. TDC 18.360.090.B(2) only requires the applicant to "consider" "Innovative methods and CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 15 techniques"to reduce such impacts. The applicant located the proposed trails to avoid all impacts to the wetlands on the site and to minimize impacts to the forested areas. The majority of the trails are located in existing cleared areas of the site. Trails within forested areas are limited to narrower soft surfaced trails. See plan sheets 3.1, 3.2 and 3.3. Contrary to Fans' testimony in Exhibit 3, the trails around the ball field and wetland are soft surfaced trails. The only paved trails are located south of the ballfield, between the restroom building and the Fanno Creek trail, and the meandering sidewalk south of Tigard Street. In addition,the applicant will eliminate existing trails that impact more sensitive areas of the site, restoring these existing disturbed areas to their native state. The proposed trails will provide pedestrian between surrounding streets and the sports fields on the site. Although it is feasible to access the sports fields from the existing Fanno Creek trail, that trail does not provide a direct route between the proposed parking area on Tigard Street and the sports fields and restroom/picnic shelter. Park users are likely to take the most direct route to their destination, creating their own paths to the sports fields, which may have significant impacts on the habitat on the site. The proposed trails will guide park users to their destinations, providing a relatively direct route, while avoiding the highest value habitat areas. The site is proposed for development as a public park. The applicant must balance the publics need for active and passive recreation opportunities with the need to protect wildlife habitat. ii. Fans argued that the paved trails will affect the site hydrology by creating new impervious surface areas on the site. p. 3 of Hearing Exhibit 3. However, as the applicant noted, 72% of the total trail surface for the park will be soft-surfaced. Approximately 98% of the total site will remain pervious landscaped area. The small amount of new impervious surface area on the site will have a minimal impact on the site's hydrology. Runoff from paved paths will flow onto the adjacent vegetation where it can infiltrate into the soil or follow the existing topography and drainage. The applicant is utilizing innovative methods and techniques to reduce impacts to the site's hydrology, including the use of water quality planters along the site's Tigard Street frontage and vegetative filter strips abutting the parking lots. The applicant will grade the soccer/baseball field areas to provide additional flood storage capacity on the site while directing stormwater runoff towards Fanno Creek. See Plan Sheets 4.0, 4.2 and 4.3. c. TDC 18.360.090.I requires that the applicant select, place and and angle exterior lighting towards areas vulnerable to crime. The applicant proposed to provide low-level security lighting around the environmental resource center, the restroom/picnic/interpretive area shelter and in the parking lot. As discussed above, the applicant withdrew its proposal to provide lighting along the on-site section of the Fanno Creek trail. 14. The hearings officer finds, based on the findings in the Staff Report, that the application complies with the approval criteria for a Conditional Use Permit, TDC 18.330.030.A. The hearings officer adopts those findings as his own. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 16 a. Contrary to Fans' statements,the Code does not require that the applicant "minimize" impacts of the use. The code only requires that the applicant demonstrate that, "The impacts of the proposed use of the site can be accommodated considering size, shape, location, topography, and natural features."The hearings officer finds that it is feasible to accommodate the impacts of the park improvements proposed in this case. b. The proposed development will impact wildlife habitat on the site to some extent. Proposed road widening, trails, and other proposed facilities will consume upland areas that provide wildlife habitat. The trails will also extend into and through vegetated corridors abutting the wetlands on the site. Activities on the site will also impact wildlife due to increased noise,pedestrian and bicycle traffic, dog walking, etc. The hearings officer finds that the size, shape, location, topography, and natural features of the site can accommodate those impacts. The applicant designed the proposed improvements to avoid sensitive areas on the site to the extent feasible, while providing opportunities for active and passive recreation. The majority of the site will remain undisturbed. Existing unofficial trails will be removed. Proposed trails will guide pedestrian and bicycle traffic through the site, avoiding direct impacts to wetlands and other valuable habitat areas, while providing opportunities to view and enjoy nature as well as providing access through the site. The sports fields are proposed in areas of the site that were previously cleared and disturbed. The highest quality habitat areas on the site are protected by a Metro conservation easement. Development within the easement area is limited to trails. The development will have no impact on wetlands. Any development on this site will impact wildlife and wildlife habitat. However such impacts are not prohibited. The Code only requires that impacts be accommodated. 15. The hearings officer finds that the application complies with relevant comprehensive plan policies, based on the affirmative findings to that effect in the Staff Report and the application. The hearings officer adopts those findings as his own, except to the extent inconsistent with the following findings. a. Policy 6 of Comprehensive Plan Chapter 8.1, Parks, Recreation, Trails and Open Space, provides: "The City shall acquire and manage some open spaces to solely provide protection of natural resources and other open spaces to additionally provide nature-oriented outdoor recreation and trail-related activities." This requirement only applies to "some" open spaces. There is no evidence that this particular property was acquired or intended to be managed solely for resource protection. b. Policy 1 of Comprehensive Plan Chapter 8.1 provides: "Tigard shall acquire, develop, and maintain a diverse system of parks, trails, open space, and recreational facilities that are safe, functional, and accessible to all of its population." The applicant proposed to provide a variety of trail and recreation opportunities on this site. Paved trails and boardwalks are necessary to ensure access for persons with mobility issues. Sports fields will provide opportunities for active recreation. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 17 c. Policy 1 of Comprehensive Plan Chapter 8.2 provides: "The City shall create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods,parks, open spaces, major urban activity centers, and regional recreational opportunities utilizing both public property and easements on private property." The proposed trails fulfill this policy by providing connections between surrounding streets and neighborhoods and the existing Fanno Creek trail on the east portion of the site, Fowler Middle School to the south, as well as the sports fields and other recreation areas on the site. d. Policy 1 of Comprehensive Plan Chapter 8.2 provides: "The City shall create an interconnected regional and local system of on- and off-road trails and paths that link together neighborhoods, parks, open spaces, major urban activity centers, and regional recreational opportunities utilizing both public property and easements on private property." The proposed trails fulfill this policy by providing connections between surrounding streets and neighborhoods and the existing Fanno Creek trail on the east portion of the site and Fowler Middle School to the south as well as the sports fields and other recreation areas on the site. e. Policy 17 of Comprehensive Plan Chapter 8.1 provides: "The City shall maintain and manage its parks and open space resources in ways that preserve, protect, and restore Tigard's natural resources, including rare, or state and federally listed species, and provide "Nature in the City" opportunities."This section requires that the City preserve and protect natural resources, but it does not altogether prohibit impacts to such resources. The City designed the park improvements to minimize impacts on sensitive species while fulfilling other competing policies, such as"[d]evelop[ing], and maintain[ing] a diverse system of parks, trails, open space, and recreational facilities that are safe, functional, and accessible to all of its population," (Policy 1 of the Parks, Recreation, Trails and Open Space section of the comprehensive plan), and "[1]ocat[ing] bicycle/pedestrian corridors in a manner which provides for pedestrian and bicycle users, safe and convenient movement in all parts of the city, by developing the pathway system shown on the adopted pedestrian/bikeway plan." (Policy 1 of Section 5 of the comprehensive plan). The City cannot consider a single policy in isolation. It must give equal weight to all, striking a balance between competing goals and policies. 16. The hearings officer finds that a traffic study is not required for this project. a. TDC 18.810.030.CC(1)(a) requires a traffic study when the proposed development will generate a 10% or greater increase in existing traffic to high collision intersections identified by Washington County. No high collision intersections were identified near the site. Therefore this section does not require a traffic study in this case. b. TDC 18.810.030.CC(1)(b) requires a traffic study when a proposed development will add 2,000 or more Average Daily Trips ("ADT") on a street that currently carries between 0 and 3,000 ADT. Based on the applicant's transportation assessment(Appendix M of the application), SW Tigard Street currently carries 2,665 CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 18 weekday ADT and 1,770 Saturday ADT. The proposed park development generate 170 new weekday ADT and 300 new Saturday ADT, well below the threshold requiring a traffic study. c. TDC 18.810.030.CC(1)(c) requires a traffic study"If any of the following issues become evident to the City engineer..." The hearings officer finds that TDC 18.810.030.CC(1)(c) grants the City engineer exclusive discretion to require a traffic study in these circumstances. The City engineer did not require a traffic study. Therefore the hearings officer must conclude that the cited issues were not evident to the City engineer in this case. The hearings officer has no authority to overrule the City engineer and require that the applicant provide traffic study. d. TDC 18.810.030.CC(2)provides that a traffic study"[m]ay be required: i. When the site is within 500 feet of an ODOT facility; and/or ii. Trip generation from a development adds 300 or more vehicle trips per day to an ODOT facility; and/or iii. Trip generation from a development adds 50 or more peak hour trips to an ODOT facility. There are no ODOT facilities within 500 feet of the site and there is no substantial evidence that the proposed development will add 300 or more vehicle trips per day or 50 or more peak hour trips to any ODOT facility. Therefore this section does not require a traffic study in this case. 17. There is no dispute that existing Tigard Street bridge over Fanno Creek is not improved to current standards. The bridge is too narrow to accommodate two-way traffic when a bus or other large vehicle is on the bridge. See Hearing Exhibit 1. In addition, recent inspection reports note certain structural issues with the bridge. See the ODOT bridge inspection report attached to Hearing Exhibit 3. Neighbors also testified that the bridge is frequently flooded. However these are existing conditions. The applicant is not required remedy all perceived and existing deficiencies in the vicinity of a development. The Code only requires an applicant to mitigate impacts a development causes or to which it contributes significantly. It would be inequitable to require an applicant to bear the full burden of improvements where the proposed development is only responsible for a small portion of the problem. The need for a higher wider bridge is created by all of the existing development in the area, not just the park improvements proposed in this case. a. The proposed widening of Tigard Street abutting the site will not exacerbate the potential hazard created by this narrow bridge. The applicant will widen the paved section of SW Tigard Street abutting the site to provide a 12-foot travel lane and opportunities for on-street parking. The applicant will taper the lane striping to provide a transition from the new 12-foot travel lane to the existing 10-foot travel lane west of the bridge. The transition taper will end approximately 155 feet west of the CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 19 bridge, consistent with City design standards for lane width transitions. The final 155 feet approaching the bridge will remain in its current condition. b. The hearings officer recognizes that the existing narrow bridge is not an optimal situation, but there is no substantial evidence that it is hazardous under existing conditions or that the relatively small increase in traffic generated by the proposed development and street widening will cause or exacerbate a hazard. The reduced bridge width is obvious and reasonably prudent drivers will slow down and wait for oncoming traffic to pass through the restricted area. Unfortunately not all drivers are prudent enough to observe posted speed limits and road conditions. However there is no evidence that the development proposed in this application will contribute a disproportionate share of imprudent drivers. c. The proposed development will have no impact on existing flooding problems. The proposed development will not cause any increase in the 100-year flood elevation. The applicant will grade the interior of the site to increase the flood storage capacity and compensate for floodplain fill caused by the proposed road improvements. 18. In addition, the City cannot constitutionally require the applicant to improve the bridge. TDC 18.810.020.A provides that the cost of right of way dedication and frontage improvements must be roughly proportional to the impact of the development.' The city bears the burden of proof under this standard. The proposed park improvements will likely generate additional vehicle traffic on Tigard Street, increasing the need for a wider bridge. However there is no substantial evidence in the record that the proposed park will generate a sufficient amount of traffic to justify the cost of upgrading or replacing the bridge. The applicant will mitigate the traffic impacts of the proposed use by dedicating right of way and constructing road improvements along the site's Tigard Street frontage. As discussed at p. 30 of the Staff Report,the costs of those improvements alone far exceed the projected traffic impacts of the proposed development. Therefore the hearings officer finds that the City failed to bear its burden of proof that the cost of improving the Fanno Creek bridge, in addition to the cost of frontage improvements, would be roughly proportional to the impacts of the proposed trail. 19. The proposed 35-foot street width is consistent with Code requirements for a neighborhood street. TDC Table 18.810.1 requires between 28 and 36 feet of paved width for neighborhood streets. 20. There is no evidence that the Fanno Creek trail crossing of Tigard Street is a hazard under existing conditions. The crossing is clearly marked and obvious. See Hearing Exhibit 2. Reasonable trail users will stop at the intersection before crossing the street. The relatively small increase in traffic generated by the use will not create or exacerbate a hazard at this intersection. 6 TDC 18.810.020 reflects the holding of the US Supreme Court's opinion in Dolan v. City of Tigard, 114 S.Ct.2309, 129 L.Ed.2d 304(1994). CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 20 21. The hearings officer finds that the proposed adjustment to allow a meandering sidewalk on SW Tigard Street complies with TDC 18.370.020.C(9).7 a. As noted in the Staff Report,the meandering sidewalk is intended to serve a dual purpose, providing a pedestrian sidewalk on Tigard Street, and providing a portion of the planned Summer Creek Trail, a community recreational trail noted in the 2011 Tigard Greenways Trail System Master Plan that connects to the existing Fanno Creek Trail network. A standard width sidewalk abutting Tigard Street would not fulfill the Greenways Trail System Master Plan. Therefore another trail would be required parallel to the sidewalk. Construction of such a parallel trail would have a greater impact on wildlife habitat and vegetated corridor on the site as well as reducing the amount of landscaping on the site, resulting in an unacceptably adverse impact on the proposed development and on natural features. The hearings officer finds that the potential adverse impacts exceed the public benefits of strict application of the roadway standards for a sidewalk in this case. b. The proposed trail meander will have no impacts on the vegetated corridor or mapped habitat areas on the site. The applicant proposed to construct a standard sidewalk within the right of way where the frontage improvements pass through such areas in order to minimize habitat and vegetated corridor impacts. The applicant will only meander the sidewalk within a roughly 600-foot section of the site's frontage that is located outside of the vegetated corridor or mapped habitat areas. 22. Opponents argued that the proposed parking areas are not necessary and should be eliminated. However the park is a community park that is intended to attract people from throughout the surrounding community, not just neighborhood residents.8 The proposed parking lots are necessary to accommodate those who must drive to the park from areas beyond the immediately surrounding neighborhoods. Parking is also needed for buses and other vehicles at the environmental learning center on the site. The Code does not prohibit the proposed parking lot. 23. The park may generate additional demand for on street parking in the surrounding neighborhoods. However these streets are public streets. Parking is available to all members of the public on a first-come, first-served basis. The applicant will provide additional opportunities for on-street parking on Tigard Street abutting the site as well as in the on-site parking lots, which will mitigate the parking impacts of the use to some extent. 7 Misidentified as TDC 18.370.020.C(11)in the Staff Report. 8 The glossary section of the Tigard comprehensive plan provides: Community parks—Provide a variety of active and passive recreational opportunities for all age groups and are generally larger in size and serve a wider base of residents than neighborhood parks. Community parks often include developed facilities for organized group activity as well as facilities for individual and family activities. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 21 24. Concerns were expressed about existing problems with vandalism, illegal camping, and the alleged lack of enforcement of leash laws and other park regulations. However there is no substantial evidence that the proposed park improvements will increase the potential for such illegal activities. The proposed development will attract additional people to the immediate area. But there is no substantial evidence in the record that the future park users are any more or less likely to engage in nuisance or illegal activities than other people. The proposed park improvements will enhance the general public's access to the site, increasing the number of people using the area, which may discourage criminal activity. Area residents should contact the City Council if they feel that City staff are not undertaking adequate enforcement of leash laws and other park regulations. D. CONCLUSIONS Based on the findings and discussion provided or incorporated in this final order, the hearings officer concludes that the applicant sustained the burden of proof that the proposed conditional use permit, sensitive lands permit, and adjustment, do or will comply with the applicable criteria of the Community Development Code,provided development that occurs after this decision complies with applicable local, state, and federal laws and with conditions of approval warranted to ensure such compliance occurs in fact. E. DECISION In recognition of the findings and conclusions contained herein, and incorporating the Staff Report and public testimony and exhibits received in this matter,the hearings officer hereby approves CUP2013-00001, SLR2013-00002 and VAR2013-00010 (Dirksen Nature Park), subject to the following conditions of approval: CONDITIONS OF APPROVAL THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO ISSUANCE OF A SITE PERMIT: To be reviewed and approved by the Development Services Division, Planning Department(Gary Pagenstecher, 503-718-2434): 1. Prior to site work, the project arborist shall perform a site inspection for tree protection measures, document compliance/non-compliance with the urban forestry plan and send written verification with a signature of approval directly to the city manager or designee within one week of the site inspection. 2. Prior to site work, the applicant, if it is the City, shall show that the funds have been budgeted to plant the trees shown in the approved urban forestry plan. The applicant shall plant the trees and show that the maintenance funding is budgeted before final inspection. The budgeted funds will cover the city's average cost to plant and maintain a tree per the applicable standards in the Urban Forestry Manual for a period of two years after planting multiplied by the total number of trees to be planted and maintained. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 22 3. The applicant will enter the inventory data into the urban forestry plan or shall provide a fee to cover the city's cost of collecting and processing the inventory data for the entire urban forestry plan for the park development before final inspection. 4. The project arborist shall perform twice monthly site inspections for tree protection measures during periods of active site development and construction, document compliance/non-compliance with the urban forestry plan and send written verification with a signature of approval directly to the project planner within one week of the site inspection. 5. The applicant shall provide revised electrical plans that eliminates all lights along the Fanno Creek trail. 6. The applicant shall provide revised site plans that eliminate the proposed boardwalk/overlook structures within the significant wetlands on the site. To be reviewed and approved by the Development Services Division, Engineering Department(Mike McCarthy, 503-718-2462 or mikem @tigard-or.gov): 7. Prior to issuance of a site permit, a Public Facility Improvement(PFI)permit is required for this project to cover sidewalk improvements,utility connections, and any other work in the public right-of-way. Five (5) sets of detailed public improvement plans shall be submitted for review to the Engineering Department. NOTE: these plans are in addition to any drawings required by the Building Division and should only include sheets relevant to public improvements. PFI permit plans shall conform to City of Tigard Public Improvement Design Standards, which are available at City Hall and the City's web page(www.tigard-or.gov). If the work is performed by city crews or under contract with the city, a PFI permit is not necessary. All work shall conform with all applicable codes, standards and conditions of this case. 8. The PFI permit plan submittal shall include the exact legal name, address and telephone number of the individual or corporate entity who will be designated as the "Permittee", and who will provide the financial assurance for the public improvements. For example, specify if the entity is a corporation, limited partnership, LLC, etc. Also specify the state within which the entity is incorporated and provide the name of the corporate contact person. Failure to provide accurate information to the Engineering Department will delay processing of project documents. If the work is performed by city crews or under contract with the city,a PFI permit is not necessary. All work shall conform with all applicable codes, standards and conditions of this case. 9. The applicant shall submit construction plans to the Engineering Department which indicate that they will construct a half-street improvement along the frontage of SW Tigard Street. The improvements adjacent to this site shall include: A. City standard pavement section for a Neighborhood Route from curb to centerline of at least 16 feet B. pavement tapers to tie the new improvement back into the existing edge of pavement shall be built beyond the site frontage as necessary; C. concrete curb, or curb and gutter as needed; D. storm drainage, including any off-site storm drainage necessary to convey surface and/or subsurface runoff; E. At least a 5-foot concrete sidewalk plus at least a 5-foot planter strip with landscaping and street trees; a 10-foot separated trail is acceptable; CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 23 F. street trees in the planter strip spaced per TDC requirements; G. street striping; H. streetlight layout by applicant's engineer,to be approved by City Engineer; I. underground utilities; J. street signs (if applicable); K. driveway apron(if applicable); and L. adjustments in vertical and/or horizontal alignment if necessary to construct SW Tigard St in a safe manner,as approved by the Engineering Department. 10. The applicant shall provide a construction vehicle access and parking plan for approval by the City Engineer. The purpose of this plan is for parking and traffic control during the public improvement construction phase. 11. The applicant shall provide approval from TVF&R for access and hydrant placement. 12. Prior to issuance of permits,the applicant shall pay the addressing fee as applicable. (STAFF CONTACT: Paul Izatt, Public Works). 13. The applicant shall provide information and/or calculations as necessary to demonstrate the adequacy of the existing and proposed sanitary sewer system to serve the proposed development, including consideration of additional development within the area as projected by the Comprehensive Plan. 14. The applicant shall provide on-site water quality facilities as required by Clean Water Services Design and Construction Standards (adopted by Resolution and Order No. 00-7). The preliminary stormwater report provides preliminary information on these facilities. Final plans and calculations shall be submitted to the Engineering Department(Mike McCarthy) for review and approval prior to issuance of the site permit. In addition, a proposed maintenance plan shall be submitted along with the plans and calculations for review and approval. 15. An erosion control plan shall be provided. The plan shall conform to the "Erosion Prevention and Sediment Control Design and Planning Manual,February 2003 edition (and any subsequent versions or updates)." 16. The applicant shall obtain a 1200-C-N General Permit issued by the City of Tigard pursuant to ORS 468.740 and the Federal Clean Water Act if necessary. THE FOLLOWING CONDITIONS SHALL BE SATISFIED PRIOR TO A FINAL INSPECTION OF THE STREET OR STRUCTURES. To be reviewed and approved by the Development Services Division, Planning Department (Gary Pagenstecher, 503-718-2434): 17. Prior to a final building inspection, the applicant shall call for a final planning inspection to ensure the project was completed per the approved plan. 18. Prior to final building inspection, the project arborist shall perform a site inspection, document compliance/non-compliance with the urban forestry plan and send written verification with a signature of approval to the city manager or designee. 19. Following final building inspection the tree establishment period shall immediately begin and continue for a period of two years. CUP2013-00001, SLR2013-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 24 To be reviewed and approved by the Development Services Division, Engineering Department (Mike McCarthy, 503-718-2462 or mikem @tigard-or.gov): 20. The applicant shall confirm the existence of and/or dedicate additional ROW as necessary to provide at least 27 feet from centerline along SW Tigard St. 21. The applicant shall pay the applicable fee-in-lieu of stormwater detention prior to final building inspection. 22. All elements of the proposed infrastructure (such as transportation, sanitary sewer, storm drainage, water, etc.) systems shall be in place and operational with accepted maintenance plans and certified by an engineer with expertise in that area prior to a final inspection of the street or structures. 23. The applicant's engineer shall submit a final access report to City engineering staff which verifies design of driveways and streets are safe by meeting adequate stacking needs, sight distance, width, clear area, design, and deceleration standards as set by the City and AASHTO. The applicant shall obtain approval of this report prior to final inspection of the proposed street and structures. 24. All utilities along the frontage of Tigard St shall be relocated underground. 25. All new utilities serving the subject property shall be constructed underground. 26. There are existing sewer and other easements running across the subject property. The applicant's site plan shows access will be maintained to these easements and no structures may be placed in these easements. Prior to final inspection of the street and structures,the applicant's engineer shall certify that these requirements are met. THIS APPROVAL MUST BE IMPLEMENTED WITHIN 18 MONTHS FROM THE EFFECTIVE DATE OF THIS FINAL ORDER. DATED this_day of December 2013. Joe Turner, Esq., AICP City of Tigard Land Use Hearings Officer CUP20I3-00001, SLR20I3-00002 and VAR2013-00010 Hearings Officer Final Order (Dirksen Nature Park) Page 25 _ - 4 alitk etb* , .. 1.,. coreviroy 1 Dirksen Nature Park- as:A war* .4/ ... t. ,,... „ Vicinity Map 7.- .- -.-- , . • i -T T AA t ; • • '' =.•" r 1 0 ._ . Bus stops . - , 11. t7' ...., Bus Lines .;, 4. PI -I -- 44. 4111•110 ' 4r*e• ,.„0:.. .4 .' , , t le fs• *IF .,.% ' 1 . . , • - ■ . 44' ' li i 0111101, t, kc,.. . NH. - ,..z. Piet * ve IN. -,-,,,,,-• _ re ..., killihi4.- 410-10- 11,4 ,.. . F E...., 717).• 1 v ■ ifttilk -- . ...---, , •--._. , -,- ik 1 t _ .i . „iforporseilir ,..; , OW A."'"V1111111-14 7 , . — ,,. • ___...„.-_-_- ...._ ,,, . .4, 4 f• ..- , ^=• - ; N4* 'sl SW Kt i^04 e tot 1 ."$14 . . Tr-6 CA 97n.l.. won li i t •1 0 , 1, -A v•Vte,ttivd-Es INEMMINIMINIIIIMmiond : . - - • .4(..) C.E I.<=1,i " • gill, I =1.0 . ______,....._________ - .... / . 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" •\ 4-___- / I 1 2x,' ' 1 .--•,._._-,' i-__-' '-'10....--------- -/\ ' -----c i 1: / .,.?( , • / -. - ili t 11 1 /' 11111" i 3 ..--. 1 , ,___, lk ___--- l■ 1 - ._ / \ ,-\ _---- I. , ' ' ,..,... )...... s.„ ,„,,,..- , .., / 1' / • / . •_„--- l' „-------' II 1 V ./----- '..._ . . ),.II I ! II _.._,...---------- I / 1' , ' 0 I . id) : --,— • LI:I .---• .i.••• .-_-____.__..._ -- '. I \ 17_ --1C-): ---7 , SEE SHEETS Cl!.C3 2 ;.6 H C3.3 FOR LABELS H ;,. CITY OF TIGARD 1.5 .$ .. SITE Or.F.LOPBENT .....:- Approved 1 J --• -.7 7 - Conditionally Approve -77 ---—----4444------------- N „ .--71.0,"'' il ..• •---.:• For-oritYltre-w6ik as descriVed AI,: li .PERMIT NO. !_,_c_.•-___e:_2„p_l_3___\tgc:2L._. - :See Lettei-Pollow ) I I ,-----;. --- , \ I1 L___----* .1.. . " ,-.._ / Attach [ J II • i 3.,. Joh'Ad.c .,._:,1•:;) `\.. —1)-ete: /2--.,-.5",t? -1—f .) , .---- \--,. !I . -,____., ---., ,,..., ii--- ,--- - .. --------____ ,--- PERMIT SET-7/10/13 C3.0 .V. ...