Resolution No. 20-26 CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 20-a
A RESOLU'T'ION AND FINAL ORDER APPROVING THE ART RUTKIN ELEMENTARY SCHOOL,
ADOPTING FINDINGS IN SUPPORT OF COUNCIL'S DETEPAIINA'ITON, AND DENYING THE
APPEAL OF THE HEARINGS OFFICER'S FINAL ORDER NO. CUP2019-00001/SLR2019-
00003/ADJ2019-00008-00009.
WHEREAS, the Hearings Officer initially reviewed this case at a public hearing January 6, 2020 and kept the
record open for additional testimony by all parties;and
WHEREAS, the Hearings Officer issued a Final Order No. CUP2019-00001/ SLR2019-00003/ADJ2019-
00008-00009 approving the application; and
WHEREAS, staff mailed notice of Final Order CUP2019-00001/ SLR2019-00003/ADJ2019-00008-00009 to
interested parties on February 6,2020;and
WHEREAS, the Appellants, Kevin and Gillian Dressel, having standing to appeal and timely filed a Notice of
Appeal on February 20, 2020; and
WHEREAS, City Council held a public hearing on the appeal on March 24, 2020 by written comments only;
took additional written testimony until April 28, 2020; allowed until May 5,2020 for rebuttal; and received final
written argument from the applicant, due I\fay 12, 2020;and
WHEREAS, after deliberations,City Council reached a tentative decision denying the appeal on May 12, 2020
and directed staff to prepare findings.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The Tigard City Council denies the appeal by Kevin and Gillian Dressel of CUP2019-00001/
SLR2019-00003/ADJ2019-00008-00009.
SECTION 2: The City Council adopts the Hearings Officer's Final Order, including all interpretations,
findings, and conditions contained therein, attached as Exhibit A. The City Council also
adopts the Supplemental Findings to address issues raised on appeal,attached as Exhibit B.
SECTION 3: This resolution is effective immediately upon passage.
PASSED: This day of
Mayor-City of Tigard
ATTEST:
ZL I
City Recorder-City of Tigard
RESOLUTION NO. 20- cam( G
Page 1
BEFORE THE LAND USE HEARINGS OFFICER
FOR THE CITY OF TIGARD,OREGON
Regarding an application by DOWL for a conditional ) F I N A L O R D E R
use permit, sensitive lands review, and adjustment ) CUP2019-01, SLR2019-03,
to construct a 51,330 sf elementary school east of ) and ADJ2019-08-09
SW Roy Rogers Road in the City of Tigard, Oregon )(Art Rutkin Elementary School)
A. SUMMARY
1.DOWL(the"applicant")requests approval of a conditional use permit to
construct a 51,330 square foot elementary school on a 10.5-acre parcel located east of SW
Roy Rogers Road and north of SW Beef Bend Road,lonown as Parcel 1 of Minor Land
Partition (MLP2018-00004); also known as the western half of WCTM 2S108CC00, Tax
Lot 100 (the "site").' The site is zoned R-7 (Medium Density Residential).
2. The applicant also requests sensitive lands review for impacts to the vegetated
corridor and wetlands along the southern border of the site and two adjustments to reduce
the number of required bicycle parking spaces and to locate some bicycle parking spaces
further from the building entry.
3. Additional basic facts about the site and surrounding land and applicable
approval standards are provided in the Staff Report to the Hearings Officer dated
December 30, 2019 (the"Staff Report"), incorporated herein by reference.
4. 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. Representatives of the applicant testified in support of the
application. A representative of the owner of the abutting property north of the site
testified in opposition to the application. Disputed issues in this case include:
a. Whether the CUP application is premature, because the final partition
plat has not been recorded;
b. Whether the proposed development is consistent with definitions of the
"site"and"development site";
I The City approved Minor Land Partition(MLP2018-00004)dividing the 20-acre parcel(WCTM
2S I08CC00,Tax Lot 100)into two parcels on August 19,2019.The school is proposed on Parcel 1 of the
partition plat.That partition approval was appealed to the Land Use Board of Appeals(LUBA).As a
condition of the CUP the partition is required to be platted prior to construction of the school.
c. Whether the development complies with the public facility and access
requirements of TDC 18.740.050.F;2
d. Whether conflicts between the findings for this application and the
findings for the prior partition decision are relevant to this application;
e. Whether the proposed development can comply with TDC
18.640.030.B;
f. Whether the hearings officer has the authority to review and the interpret
the Equitable Servitude entered into between the applicant and the City;
g. Whether construction of a stormwater facility on Parcel l requires the
installation and extension of sewer, water, and transportation infrastructure improvements
on Parcel 2;
h. Whether the application complies with TDC 18.740.050.E;
i. Whether approval of this application impermissibly defers multiple
requirements to later stages of development;
j. Whether approval of this CUP application will impede the future use or
development of adjacent parcels;
k.Whether the application complies with the approval criteria for an
adjustment to the required number of bicycle parking spaces; and
1. Whether the applicant is required to provide easements, rights-of-way, or
other rights to allow future developments to expand and utilize the regional stormwater
facility on Parcel 2.
5. 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 development does 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. Therefore the application should be
approved subject to such conditions.
B. HEARING AND RECORD
2 The City adopted certain code updates on August 8,2019,which renumbered and modified the text of
some of the applicable criteria.The hearings officer cites to and quotes the Code in effect when the
application was filed.
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 2
1. The hearings officer received testimony at the public hearing about this
application on January 6,2020.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 pane 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 Monica Bilodeau summarized the Staff Report and the proposed
development.
a. She noted that the site consists of the west 10.5-acres of a larger 20-acre
parcel. The City approved a two-parcel partition of the larger parcel,MLP2018-00004.
This development is proposed on Parcel 1 of that partition. However,the partition
decision is currently under appeal to LUBA and the applicant has not filed a final
partition plat.
b. The applicant proposed to construct a 51,300 square foot elementary
school on the site. The applicant also requested two adjustments: to reduce the number of
bicycle parking spaces and to located some of the bicycle parking spaces more than 50
feet from a building entrance.
c. She provided the following responses to Mr.Hall's Memorandum dated
January 6,2020:
i. Mr. Hall argued that this application is premature,because the
partition application is under appeal. However,the Code does not preclude the applicant
from submitting or the City from reviewing this application while the appeal is pending.
The applicant assumes the risk that the partition approval will be reversed on appeal. The
applicant cannot begin construction of the school until a final partition plat has been
recorded.
ii. The school is proposed Parcel 1 ofMLP2018-00004.That
partition decision was appealed to LUBA and the applicant has not recorded the final
partition plat. Proposed condition of approval 29 provides that the applicant cannot begin
construction of the school until a final partition plat has been recorded. The applicant is
taking the risk that the partition decision may be reversed on appeal. If the partition
decision is reversed on appeal the applicant will need to submit a new CUP application
for development on the entire 20-acre parcel.
(A)The applicant is only proposing"development"on
Parcel 1. The stormwater facility on Parcel 2 is a portion of a planned regional stormwater
facility. TDC 18.640.030.E(5) allows off-site stormwater facilities.The trail on Parcel l
is part of the stormwater facility,serving as the maintenance access road.
CUP2019-00001, SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 3
iii. The applicant will be required to demonstrate that all public
facilities are available to the site prior to occupancy approval of the school building.
iv. The findings in the City's partition decision regarding
compliance with IDC 18.640.030.B are consistent with the findings in the current Staff
Report for the conditional use permit application.
3. Planner Read Stapleton,planner Matt Hughart, and attorney Kelly Hossaini,
testified for the applicant.
a. Mr. Stapleton noted that site is identified as "institutional"in the River
Terrace Community Plan, and planned as the location for a school. He summarized the
design of the proposed school, noting that the applicant preserved trees on the north
portion of the site to screen the school from surrounding properties. The site plan also
provides separate areas for school bus and parent drop-off traffic.
b. Mr. Hughart objected to proposed conditions of approval 40 and 41,
requiring the applicant to pay a proportionate share of the cost of a traffic at the
intersection of SW Potomac(Perth)Road and Roy Rogers Road. Condition 40 is vague
regarding the methodology for determining the proportionate shares. He questioned
whether other developments in the area were also required to pay proportionate shares
towards this traffic signal.
c. Ms. Hossaini agreed with Ms. Bilodeau's response to Mr. Hall's
memorandum.The partition decision is final and effective. Therefore,the City can
approve a CUP for development of Parcel 1.
4.Attorney Damien Hall appeared on behalf of Kevin and Gillian Dressel,the
owners of the property immediately north of the site, and summarized his Memorandum
dated January 6,2020. The Dressels support the proposed school. But they believe that
the applicant is avoiding its duty to extend roads and utilities through the entire site,
specifically through the eastern portion of Tax Lot 100, Parcel 2 of MLP2018-00004.
a.The Staff Report incorrectly describes the"site"and the"development
site"as the 10.5 acre west portion of Tax Lot 100. These terms, as defined in the Code,
include the entire 20-acre Tax Lot 100. TDC 18.640.030.
L TDC 18.30.O20.C(d)(9) defines development site"as"a lot or
combination of lots upon which one or more buildings or other improvements are
constructed,"Parcel l of MLP2018-00004 is a contiguous lot upon which improvements
are proposed;the applicant proposed extensive development(stonnwater facilities and a
pedestrian trail) on that property. Therefore,this area is part of the"development site"
and TDC 18.640.030.E requires that the applicant provide street and infrastructure
improvements on this portion of the site.
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 4
b. The Staff Report findings for the proposed CUP are inconsistent with
the findings for the prior partition approval. In the partition decision, the City found that
"The requirements of[TDC 18.64.0301 have been adopted and are in effect."However,
the CUP Staff Report states that utility fees for transportation, sewer,and stormwater
have not been adopted.
c. The proposed CUP is inconsistent with sections 3,4, and 5 of the
equitable servitude entered into between the applicant and the City as a condition of the
partition approval. These sections require the extension of streets and utilities to the
boundaries of the parcels created by the partition when development occurs on the
parcels. The CUP proposes development(stormwater facilities and a pedestrian trail)on
Parcel 2,but the applicant did not propose to extend streets and utilities to the boundaries
of this parcel.
d. He requested the hearings officer hold the record open to allow the
submittal of additional argument and evidence.
5. City engineer Nicole George testified that the City is working with Washington
County regarding improvements to the intersection of SW Potomac(Perth)Road and Roy
Rogers Road. Other developers in the area were also required to contribute proportionate
shares towards improvements to this intersection.
6. Pursuant to Mr. Hall's request,the hearings officer held the record open for one
week,until 5:00 p.m.January 13,2020,to allow all parties an opportunity to submit
additional testimony and evidence regarding the application. The hearings officer held the
record open for an additional eight(8)days,until January 21, 2020,for all parties to
submit additional testimony and evidence responding to whatever was submitted during
the first open record period? The hearings officer held the record open for a final week,
until 5:00 p.m. January 27,2020,to allow the applicant an opportunity to submit a final
argument,without any new evidence. The record in this case closed at 5:00 p.m. January
27,2020.
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. The
applicant accepted those findings and conditions 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.
3 The hearings officer held the record open for an additional day because January 20,2020 was a holiday
and City offices were closed.
CUP2019-00001, SLR2019-00003,and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 5
2. The hearings officer finds that submittal and review of the CUP application is
not premature. The partition decision was"[f]inal and effective on the date the decision
[was] mailed."TDC 18.710.090.B(4). The fact that the decision was appealed to LUBA
does not change that fact, unless and until LUBA issues an order reversing or remanding
the decision. The Code does not require recording of the partition plat prior to submittal
of the CUP application. The applicant may proceed with the CUP review process,
accepting the risk that the partition approval will be reversed on appeal. Condition of
approval 29 prohibits the applicant from starting construction of the school until a final
partition plat has been recorded.
3. There is a dispute about what constitutes the"site"or"development site."The
applicant and staff argue that the "site"is the 10.5-acre Parcel 1, created by the prior
partition approval. The Dressels argue that the"site"constitutes the entire 20-acre parcel,
because the final partition plat has not been recorded.
a.TDC 18.30.020 provides the following relevant definitions:
"`Development site' -A lot or combination of lots upon which one
or more buildings or other improvements are constructed."TDC
18.30.020.1)(9).
"`Lot' -A legally defined unit of land other than a tract that is the
result of a land division.This definition is inclusive of the
definitions of both lot(the result of subdividing)and parcel (the
result of partitioning)provided by ORS 92."TDC
18.30.020.L(7)(b).
,"Site' -Any unit of land or combination of contiguous units of
land."TDC 18.30.020.S(2).
"`Unit of land' -An area of land that is described by a survey or
other legal description, and that is lawfully established as discrete
and transferable. A unit of land created solely to establish a
separate tax account is not considered lawfully established."TDC
18.30.020.L(7)(a).
"`Use' -The purpose for which land or a structure is designed,
arranged,or intended,or for which it is occupied or maintained."
TDC 18.30.020.U(1).
b.The hearings officer finds that the "site"in this case is the 10.5-acre
Parcel 1, created by the prior partition approval. Although the final partition plat has not
been recorded,the partition approval is final and effective. Therefore,that approval can
CUP2019-00001, SLR2019-00003, andADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 6
be relied upon for purposes of this CUP application. The conditions of approval require
that the applicant record the final partition plat prior to beginning construction on the site.
c. The hearings officer further finds that even if the "site"is defined as the
entire 20-acre parcel,the application complies with all applicable approval criteria that
refer to the"site"or"development site."
i. TDC 18.740.050.A requires a finding that, "The characteristics
of the site are suitable for the proposed use considering size, shape, location, topography,
and natural features."This criterion is met whether the site is the 10.5-acre Parcel 1
created by the approved partition or the entire 20-acre pre-partition parcel. Either"site"is
large enough to accommodate the school building and associated improvements such as
parking areas,drive aisles and outdoor play areas. The project has been designed to
preserve the large stand of mature trees at the north end of the site. There is also adequate
space on the site and the adjacent Parcel 2, for the regional stormwater facility and
regional trail extension located at the south end of the site and the adjacent Parcel 2. The
vegetated corridor and small wetland in the south part of the site, or the adjacent Parcel 2
will be impacted by the storm facility and trail corridor;however, those impacts will be
minimized and mitigated as required by Clean Water Services and any other applicable
jurisdictional requirements. The site is located in an urbanizing area of the city;lands to
the north and east of the site are recently developed or planned for development. The
entire 20-acre pre-partition parcel site has been planned for a new school since concept
planning for the River Terrace community began.
ii. TDC 18.740.050.1)requires a finding that,"The proposed use is
located and designed to support pedestrian access, safety, and comfort on and adjacent to
the site where practicable." This criteria relates to the location and design of the proposed
use,which is a school and associated uses and activities. This criterion is met based on
the findings in the Staff Report,which are incorporated herein.The school provides safe
and comfortable pedestrian access throughout the site with three separate pedestrian
connections between the sidewalk on River Terrace Boulevard and the school, as well as
providing pedestrian access between the parking areas and the school.The applicant will
also construct a portion of the planned regional trail along the west and south boundaries
of the site and extending onto Parcel 2. The proposed use is located and designed to
support pedestrian access, safety,and comfort on and adjacent to the site.
iii. TDC 18.410.040.H(3)requires a finding that, "Parking area
lighting may not cause a light trespass of more than 0.5 footcandles measured vertically at
the boundaries of the site."As shown on the Photometric Site Plan Sheet EL701,no
outdoor lighting on the site, including parking area lighting,will cause a light trespass of
more than 0.5 footcandles,measured vertically at the boundaries of the site,whether
"site"is defined as the 10.5-acre Parcel 1 created by the approved partition or the entire
20-acre pre-partition parcel. This criterion is met.
CUP2019-00001.SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 7
iv. TDC 18.410.050.A(2)regulates the location of bicycle parking
in relation to primary buildings"on the site."No buildings are proposed on Parcel 2. All
buildings are proposed on Parcel 1 or the western half of the 20-acre pre-partition parcel.
This criterion is met pursuant to the requested adjustment,based on the findings in Staff
Report,which are incorporated herein.
v. TDC 18.420.040.13 provides, "Landscaping or other areas used
to meet the minimum landscape area standard must be provided on site..."
(A) As noted in the Staff Report,there is no minimum
landscape area standard for a school use in chapters 18.200 and 18.300; site landscaping
is proposed and reviewed through the Conditional Use process. As demonstrated on the
landscape and planting plans(Sheets L100—L201) all areas of the site,whether defined
as Parcel 1 or the 20-acre pre-partition parcel,not occupied by buildings,parking lots and
drive aisles will be landscaped with a combination of hardscape plazas, landscape areas.
This standard is met.
(B) Section 10,Part 3 Subpart N.3 of the city's Urban
Forestry Manual (UFM)requires 25-percent tree canopy coverage"(flor the overall
development site."The hearings officer finds that the"Development site"is limited to
Parcel 1.As noted above,TDC 18.30.020.1)(9)defines"Development site"as"A lot or
combination of lots upon which one or more buildings or other improvements are
constructed."At this time there are no buildings on the entire the 20-acre pre-partition
parcel. All buildings are proposed on Parcel 1. Pursuant to Condition 29,no buildings can
be constructed until the final partition plat has been recorded. Therefore,the
"Development site"will not exist until after the final partition plat has been recorded and
the tree canopy coverage requirement only applies to the"development site"on Parcel 1,
where buildings are proposed. The proposed development will exceed the 25-percent tree
canopy coverage requirement for Parcel 1,based on the findings in the Staff Report. All
of the required trees will be located on the site,whether defined as Parcel 1 or the entire
20-acre pre-partition parcel.
vi. TDC 18.420.060.A provides,"Site tree canopy standards,which
are stated as a percentage of effective tree canopy cover for an entire site, are provided in
UFM Section 10,Part 3, Subparts N and 0."Although this section refers to"[tlree
canopy cover for an entire site..."UFM Section 10,Part 3, Subparts N and O actually
require tree canopy coverage"[flor the overall development site."As discussed above,
the"development site"is limited to Parcel 1 and the proposed development will meet the
25-percent tree canopy coverage for Parcel 1. This criterion is met.
vii. TDC 18.420.060.13 provides, in relevant part, "An urban
forestry plan is required to demonstrate compliance with site ... tree canopy standards
and must meet the requirements of UFM Sections 10 through 13. As discussed above,the
tree canopy standards of the UFM only apply to the"development site,"which is Parcel
CUP2019-00001, SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 8
1. This standard is met for Parcel 1.based on the findings in the Staff Report, which are
incorporated herein.
viii. 18.420.060.B(5)(a)requires a minimum number of street trees
determined by dividing the length in feet of the site's street frontage by 40 feet. In this
case,the site's street frontage is limited to 658 feet along River Terrace Boulevard,
located on the west boundary of Parcel 1 and the 20-acre pre-partition parcel. Although
additional street frontage will be constructed on the eastern boundary of Parcel 2 and the
20-acre pre-partition parcel, construction of that street frontage is not required for the
development proposed in this application; the applicable approval criteria for this
application do not require construction of a street on the east boundary at this time. As
discussed in the Staff Report, this criterion can be met with a condition of approval
requiring additional street trees along the River Terrace Boulevard frontage.
ix. TDC18.640.030.E(1)requires that:
Infrastructure improvements for water, sewer, stormwater,
and transportation systems...must be located and designed
to serve the proposed development and not unduly or
unnecessarily restrict the ability of any other property to
develop in accordance with the applicable River Terrace
Infrastructure Master Plan...[taking] into account the
topography, size,and shape of the development site;the
impact of the improvement on the development site; and,
the reasonableness of available options during its review.
(A)The hearings officer fords that this criterion requires the
City to consider the topography, size, and shape of impacts on the"development site."As
discussed above, "the development site"in this case is limited to Parcel 1. This criterion
is met; the proposed development will not unduly or unnecessarily restrict the ability of
other properties to develop in accordance with the applicable River Terrace Infrastructure
Master Plan,based on the following findings.
(1)As discussed in the January 15, 2020
Memorandum from KPFF (attachment 1 of the applicant's January 21, 2020 submittal),
the sewer lines proposed on Parcel 1 will be located at sufficient depth to serve Parcel 2.
Sewer and water can be extended to the Dressel property from the sewer and water lines
in River Terrace Boulevard. Sewer and water service can also be extended from Parcel 2,
when that property is developed in the future. There is no substantial evidence to the
contrary.
(2)The location of the regional stormwater facility
on Parcel 2 will not preclude development on that parcel. Contrary to the Dressel's
assertion,the stormwater facility is not located"in the center"of Parcel 2. (p. of Mr.
CUP2019-00001,SLR2019-00003, and AD72019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 9
Hall's January 12, 2020 letter). The stormwater facility is proposed in the southwest
comer of Parcel 2, leaving the remainder of the parcel available for future development.
This is consistent with the adopted River Terrace Master Plan,which shows a regional
stormwater facility in roughly this location.
x. TDC 18.640.030.E(2)requires that water, sewer, and stormwater
must be placed in easements that extend through and to the edge of the development site.
As discussed above,the"development site"in this case is limited to Parcel 1. As shown
in the applicant's utility plans, all required utilities will be located in easements and
extended to the edge of the development site, Parcel 1. This criterion is met.
xi. TDC 18.640.090.A refers to the"development site"and the
"school site,"both of which are limited to Parcel 1. This criterion is met based on the
findings in the Staff Report,which are incorporated herein.
xii. TDC 18.910.030.F(1)(b)requires that a future street plan
identify certain facilities "[w]ithin 530 feet of the site."However, as noted in the Staff
Report, a future street plan is not required for this application because it does not include
a subdivision or partition. This criterion is inapplicable.
xiii. TDC 18.910.030.H(2)requires that streets which abut a
development site must be extended within the site. As discussed above,the "development
site"in this case is limited to Parcel 1. River Terrace Boulevard is the only street abutting
the"development site,"Parcel 1. The applicant proposed to extend River Terrace
Boulevard along the west boundary of the site, consistent with the River Terrace Master
Plan. As discussed in the Staff Report,the applicant is not required to provide east-west
cross-circulation through the school site pursuant to the exceptions allowed in TDC
18.640.090.A.2. This criterion is met based on the findings in the Staff Report,which are
incorporated herein.
xiv. TDC 18.910.030.CC(2)(a) authorizes the City to require a
traffic study when"the site is within 500 feet of an ODOT facility."A traffic study was
provided in this case. Therefore,whether the site is defined as Parcel 1 or the 20-acre pre-
partition parcel is irrelevant for purposes of this criterion.
xv. TDC 18.910.070.B(2)requires connections to existing
sidewalks within 300 feet of a development site. There are no existing sidewalks within
300 feet of Parcel 1 or the 20-acre pre-partition parcel, with the possible exception of
sidewalks on River Terrace Drive,which is currently under construction north of the site.
The applicant will connect sidewalks on the site to offsite sidewalks on the east side of
River Terrace Drive as part of this development.Therefore,this criterion is either met or
it is inapplicable.
CUP2019-00001, SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 10
4.The Dressels argue that this application does not comply with TDC
18.740.050.F,because public facilities, vehicular access,water and sewer, are not
currently extended to the site. However,the plain language of this section requires that
the applicant to show that, "Adequate public facilities are available to serve the proposed
use at the time of occupancy."(Emphasis added). The hearings officer finds that it is
feasible to comply with this criterion at the time of occupancy of the proposed school.
a. The City approved the Polygon owned"River Terrace South"
development north of the site in August 2018. That development is currently under
construction. As part of that development Polygon will extend public street improvements
for River Terrace Boulevard to the north boundary of the site. The development will also
extend sanitary sewer and water mains within the River Terrace Boulevard right-of-way.
According to the applicant,Polygon plans to begin construction of those improvements in
May 2020. The improvements are expected to be completed prior to occupancy of the
proposed school in September 2021. (See p. 1 of Ms. Hossaini's January 13,2020 letter
and p. 2 of her January 27, 2020 letter).Therefore, adequate public facilities will be
available to serve the proposed use at the time of occupancy of the proposed school. If
necessary,the applicant could work with Polygon to construct the required improvements
itself in order to ensure they are available to the site in a timely manner,prior to
occupancy of the proposed school. The examiner finds it is feasible to comply with this
requirement.The conditions of approval provide adequate assurance this requirement will
be met prior to occupancy approval.
5. The Dressels note that the findings in the Staff Report regarding TDC
18.640.030.B conflict with the findings in the prior partition decision,MLP2018-00004
(Art Rutkin Partition)
a. In the partition decision the director stated, "The requirements of
18.660.030.13 have been adopted and are in effect."(p. 2 of Exhibit C of Mr. Hall's
January 6,2020 letter and p. 1 of Attachment 1 of Ms. Hossaini's January 13, 2020
letter). The hearings officer stated,"The City has adopted the funding components of the
River Terrace Funding Strategy as required by TDC 18.640.030.13(1)(-(3)."(Exhibit D of
Mr. Hall's January 6,2020 letter).In the Staff Report for the current CUP application the
City stated, "The City adopted the SDC funding components listed above on April 2015
but has yet to adopt the utility fees for transportation, sewer,and stormwater."(p. 21 of
the Staff Report).
b. It appears that the Dressels are correct;the findings in the prior
decisions regarding MLP2018-00004 were incorrect. The City has yet to adopt the utility
fees. However, these errors are irrelevant. As discussed in the director's decision for
MLP2018-00004, no development rights vested under the partition application and no
4 The director's decision for MLP2018-00004(Art Rutkin Partition)cites to TDC 18.660.030.The quoted
text is in current 18.640.030.Whether this is due to either a typographical error or a change in the Code is
irrelevant.The Code language is the same.
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 11
development is possible on the partition parcels without a future land use application. (p.
3 of Attachment 1 of Ms. Hossaini's January 13,2020 letter).
6. The Dressels further argue that the applicant cannot satisfy TDC 18.640.030.B,
because the City has not adopted the required utility fee surcharges. However,TDC
18.640.030.D authorizes an exception to the requirements of TDC 18.640.030.B.
Condition of approval 7 in the Staff Report requires the applicant submit and receive
approval of an Adequate Public Facilities Exception application prior to any site work.
The hearings officer finds that it is feasible to apply for exception, which will be subject
to additional Type II review. Therefore,the hearings officer finds that, as conditioned, the
application can comply with TDC 18.640.030.B. It is unnecessary for the hearings officer
to find that approval of an exception is feasible,because the exception will be subject to
additional City review with additional public notice and opportunity to comment. Wal-
Mart Stores, Inc. v. City of Bend, LUBA No. 2006-040, 52 Or LUBA 261,285-287
(2006).
7. The Dressels argue that this CUP application is inconsistent with the terms of
the Equitable Servitude,because the applicant is proposing substantial development on
Lot 2 without constructing required road improvements or extending public facilities. The
Equitable Servitude is an agreement between the applicant and the City,which the
hearings officer has no jurisdiction to review or interpret. Compliance with the Equitable
Servitude is not relevant to the applicable approval criteria for this CLT application.
8. The Dressels argue that,because the applicant is constructing a stormwater
facility on Parcel 2, the applicant is required to construct sewer, water, and transportation
infrastructure improvements on Parcel 2 and extend those improvements to the
boundaries of the site. However,the stormwater facility on Parcel 2 is part of a planned
regional facility. It is public infrastructure that supports the development proposed on
Parcel 1. Sewer,water,and transportation improvements are not needed to serve this
facility.
9. The Dressels argue that,"the proposed use does not comply with TDC
18.740.050.E,"because the application does not comply with the approval criteria cited in
the remainder of Mr. Hall's letter. (p. 1 of Mr. Hall's January 13, 2020 letter).The
hearings officer finds that this criterion is met as, "The proposed use complies with all
applicable development standards and requirements of this title, except where an
adjustment has been approved"based on the affirmative findings provided or
incorporated in this Final Order.
10. The Dressels argue that, "The Staff Report impermissibly defers multiple
requirements to later stages of development without adequately identifying the standards
deferred or adequately demonstrating that the standards can be property deferred."(p. 1 of
Mr. Hall's January 12,2020 letter). However,with the exception of the issue regarding
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 12
the definition of the"site"discussed above,they failed to identify any specific standards
that are not met or were improperly deferred.
11.The Dressels argue that approval of this CUP application will restrict
development of adjacent parcels due to alleged failure to extend sewer and other
infrastructure and placement of a"[h]olding pond in the center..." of Parcel 2. (p. 1 of
Mr. Hall's January 12,2020 letter). The Dressels cite'IDC 18.640.030.A, 18.640.030.E.
and 18.640.040.B in support of this argument.
a. As discussed above,the hearings officer finds that it is feasible to
extend water and sewer to the Dressels' property as discussed in the KPFF memo. Sewer
and water can be extended from the sewer and water lines in River Terrace Boulevard.
Sewer and water service can also be extended from Parcel 2,when that property is
developed in the future. There is no substantial evidence to the contrary. Although it may
be cheaper and easier to connect to utilities in Parcel 2,the applicant is not required to
develop that Parcel merely to facilitate development on adjacent parcels. Any future
development on this site will be required to install all required public infrastructure and
extend that infrastructure to the boundaries of the development site.
b. TDC 18.640.030.A is a purpose statement,not an approval criterion.
The goals set out in purpose statements are achieved through compliance with the
implementing regulations and approval criteria. The purpose statements themselves are
not relevant unless they include specific approval criteria or the implementing regulations
that follow are ambiguous,and resort to the purpose statements is necessary to determine
the context and meaning of ambiguous terms.See, e.g.,Beck v. City of Tillamook, 18 Or
LUBA 587(1990) (Purpose statement stating general objectives only is not an approval
criterion).
c. TDC 18.640.030.E(1)is addressed above.
d. The hearings officer finds that the proposed CUP will not impede the
future use or development of adjacent properties that are not under the applicant's
control. TDC 18.640.040.B(2). As discussed above,the applicant will extend utilities to
the boundaries of Parcel 1,allowing for future extension when abutting properties
redevelop.In addition,it is feasible to extend water and sewer to the Dressels' property as
discussed in the KPFF memo.
12. The applicant requested an adjustment to reduce the number of required
bicycle parking spaces from 156 to 665 bicycle parking spaces. The hearings officer finds
that the proposed adjustment is consistent with the approval criteria in TDC
18.715.050.A.
5 The applicant proposes to immediately provide 52 bike parking spaces on the site and provide space for
an additional 14 future bike parking spaces,which will be provided in the future if and when warranted by
increased bicycle parking demand at the site.
CUP2019-00001,SLR2019-00003,andADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 13
a. The proposed adjustment will result in development that is generally
consistent with the purpose of the off-street parking and loading standards. TDC
18.715.050.A(1). The Code does not provide a separate purpose statement for bicycle
parking. TDC 18.410.010 provides that the purpose of the parking and loading standards
is to: A.provide adequate capacity, B. locate parking in close proximity to uses, and C.
maintain the capacity of area streets and minimize hazards.
L The proposed adjustment will provide adequate bicycle parking
capacity to accommodate projected demand. TDC 18.410.010.A. The 66 bicycle parking
spaces on the site will accommodate a ten-percent bicycling mode split,which exceeds
the six-to nine-percent mode split observed at other existing elementary schools in the
City of Tigard. (See p. 22 of the applicant's Traffic Impact Study). As noted in the Staff
Report,the River Terrace area emphasizes alternative means of transportation,with
sidewalks and trails throughout the area that will facilitate bicycling and walking to a
much greater degree than is currently possible at the other schools cited in the traffic
study. However,the proposed school is located at the edge of the UGB—land to the south
and west of the site is currently zoned for rural uses. Only the lands to the north and east
of the site will generate the higher bicycling traffic noted by Staff,thereby reducing the
number of students living within bicycling distance of the school. TDC 18.410.010. B
and C are not relevant to this adjustment.
b. The proposed adjustment is generally consistent with the existing
development pattern of the surrounding area and the overall purpose of the Residential
base zone. TDC 18.715.050.A(2). Although this area is planned for higher density urban
development,the existing development pattern consists of large acreage lots that are
unlikely to generate a significant amount of bicycle traffic. The proposed adjustment will
promote opportunities for walkability(bicycling)by providing sufficient bicycle parking
spaces to accommodate expected demand,consistent with the purpose of the purpose of
the Residential zone,TDC 18.110.010.13.6
c. The proposed adjustment addresses an unusual situation. TDC
18.715.050.A(3). As noted above,the school site is located at the edge of the UGB.
Therefore,this school is likely to attract fewer bicycle trips than other schools that are
surrounded by urban development on all sides.
d. The proposed adjustment will have no impact on city-designated
sensitive lands. TDC 18.715.050.A(4).
e. The proposed adjustment will not create impacts requiring mitigation.
TDC 18.715.050.A(5). The adjustment is intended to provide enough bicycle parking to
accommodate expected demand without providing excess, unused and un-needed bicycle
parking spaces.
6 TDC 18.110.010 provides additional purposes,but none of them relate to bicycle parking.
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 14
13. The hearings officer finds that it is feasible to provide additional bicycle
parking on the site if needed to accommodate actual demand that may arise in the future
as additional development occurs in the area.
a. The applicant proposed to provide 52 bicycle parking spaces when the
school opens: 24 spaces (12 covered) at the northwest comer of the building and an
additional 28 covered spaces near the southeast corner of the building.(See Plan Sheet
A051). The hearings officer finds the proposed 52 spaces is sufficient to accommodate
expected initial demand for bicycle parking.As discussed in the Staff Report, lands near
the school that are within the UGB are not yet fully developed. Therefore,bicycle trips to
the school are likely to be less than what would be experienced at a school in a more
urban location until additional higher density development occurs in this area.
b. The applicant can provide additional bicycle parking on the site in the
future if required to meet increased demand as the surrounding area develops. Plan Sheet
A051 also shows 14 additional future bicycle parking spaces in front of the western
courtyard/plaza that will be provided in the future when additional development in the
surrounding areas increases demand for bicycle parking.During the open record period
the applicant submitted a site plan illustrating the opportunity for eight additional covered
bicycle parking spaces at the southeast corner of the building and an additional 82 bicycle
parking spaces at the northwest corner of the building, for a total of 156 bicycle parking
spaces, consistent with the un-adjusted requirement of TDC Table 18.410.3. (See
Attachment 2 of Ms. Hossaini's January 21,2020 letter). The applicant should be
required to monitor bicycle parking demand on the site and provide additional bicycle
parking racks as necessary to accommodate increased demand.A condition of approval is
warranted to that effect.
14. The Dressels argue that the applicant should be required to provide easements,
rights-of-way, or other rights to allow future developments to expand and utilize the
regional stormwater facility on Parcel 2. However,they failed to point to any applicable
approval criteria requiring such easements at this time. With this development the
applicant is only required to construct stormwater facilities necessary to serve the
proposed development.In the future the City can negotiate with the applicant to acquire
easements or other rights necessary to expand the planned regional facility.
15. The hearings officer modified proposed condition of approval 40 as requested
by staff and the applicant to clarify the process for determining the need for and
proportionate share costs of a traffic signals at the intersection of Potomac and Roy
Rogers Roads.
D. CONCLUSIONS
CUP2019-00001,SLR2019-00003, andAD12019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 15
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 review, and adjustments 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 CUP2019-00001, SLR2019-00003, and ADJ2019-00008-00009
(Art Rutkin Elementary School) subject to the following conditions of approval:
CONDITIONS OF APPROVAL
THE FOLLOWING CONDITIONS MUST BE SATISFIED
PRIOR TO PERMIT SUBMISSION:
1. The City of Tigard is responsible for the approval of new street names and assigning
addresses for parcels within the City of Tigard. Submit an Autocad file of the
preliminary plat for the review of street name and assigning addresses. Contact
Oscar Contreras with Engineering Division at 503-718-2678 for the submission of
the Autocad file and ensuring that new street names are approved and addresses are
assigned. Prior to permit submission pay the addressing fee. The address fee must be
assessed in accordance with the current Master Fee Schedule.
THE FOLLOWING CONDITIONS MUST BE SATISFIED PRIOR TO
COMMENCING ANY ONSITE IMPROVEMENTS INCLUDING GRADING,
EXCAVATION AND/OR FILL ACTIVITIES:
The applicant must prepare a cover letter and submit it, along with any supporting
documents and/or plans that address the following requirements to the
Community Development Department Attn: Monica Bilodeau, 503-718-2427.The
cover letter must clearly identify where in the submittal the required information
is found:
2. Prior to any site work, the project arborist must 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.
3. The project arborist must perform semimonthly(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.
4. Prior to any site work,the applicant must provide a fee for the city's cost of
collecting and processing the inventory data for the entire urban forestry plan. The
CUP2019-00001, SLR2019-00003,and ADJ2019-00008-00009 Hearings Offleer Final Order
(Art Rutkin Elementary School) Page 16
number to be verified by staff and the project Arborist.
5. Prior to site work,the applicant must provide a tree establishment bond for all trees
to be planted in accordance with the approved urban forestry plan. The total bond
amount must be equivalent to the city's average cost to plant and maintain a tree
according to the applicable standards in the Urban Forestry Manual for a period of
one years after planting multiplied by the total number of trees to be planted and
maintained. The number to be verified by staff and the project Arborist.
6. Please submit a revised urban forestry plan showing a minimum of 16 street trees
along River Terrace Boulevard.
7. Prior to any site work,the applicant must submit and receive approval for an
Adequate Public Facilities Exception application.
The applicant must prepare a cover letter and submit it,along with any supporting
documents and/or plans that address the following requirements,to the
ENGINEERING DEPARTMENT,ATTN: ROB MURCHISON at(503)718-2699.
The cover letter must clearly identify where in the submittal the required
information is found:
8. Improvements associated with public infrastructures including street and right of way
dedication, utilities, grading,water quality and quantity facility, streetlights,
easements, easement locations, and utility connection for future utility extensions
must be designed in accordance with the following codes and standards:
• City of Tigard Public Improvement Design Standards including Public
Improvement Design Standards for River Ten-ace Stormwater Management
and Clean Water Services(CWS)Design and Construction Standards
• Tigard Community Development Codes, Municipal Codes
• Tualatin Valley Fire and Rescue Fire Codes
• Other applicable City,County, State, and Federal Codes and Standard
Guidelines
9. Improvements associated with public infrastructures including street and right of
way dedication, utilities, grading,water quality and quantity facility, streetlights,
easements, easement locations, and utility connection for future utility extensions
are subject to the City Engineer's review,modification, and approval.
10. Prior to commencing site improvements, the Applicant must obtain permits from
Washington County, State, Federal, and other agencies as needed.
11. Prior to commencing site improvements, a Public Facility Improvement(PFI)
Permit is required for this project to cover all infrastructure work including
stormwater Water Quality and Quantity Facilities and any other work in the public
right-of-way. Four(4) sets of detailed public improvement plans must be submitted
for review to the Engineering Department.An Engineering cost estimate of
improvements associated with public infrastructures including but not limited to
street street grading,utilities,stormwater cuality and water quantity facilities
sanitary sewer, streetlights,and franchise utilities must be provided at the time of
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 17
PFI Permit submittal. When the water system is under the City of Tigard
jurisdiction, an Engineering cost estimate of water improvement must be listed as a
separate line item from the total cost estimate.NOTE: these plans are in addition to
any drawings required by the Building Division and should only include sheets
relevant to public improvements. Public Facility Improvement permit plans must
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).
12. Prior to commencing site improvements, submittal of 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.
13. Prior to commencing site improvements,the Applicant must 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. All construction vehicle parking must be provided onsite.No
construction vehicles or equipment will be permitted to park on the adjoining
residential public streets. Construction vehicles include the vehicles of any
contractor or subcontractor involved in the construction of site improvements or
buildings proposed by this application, and must include the vehicles of all suppliers
and employees associated with the project.
14. Prior to commencing site improvements,the Applicant must provide the
Engineering Division a photometric analysis of street lighting within the public right
of way for review and approval.Decorative LED street lights matching the lights
used on River Terrace Boulevard in existing developments north of the school site
are required on River Terrace Boulevard. The Applicant must submit plans showing
the location of streetlights to the Engineering Division for review and approval.
Type and color of pole and light fixture must also be included on the plan for review
and approval.
15. Prior to commencing site improvements,the Applicant must submit plans showing
the following items to Engineering for review and approval:
SW River Terrace Blvd must include and must be shown to have:
• 70-foot right of way dedication measured from the future centerline alignment
• 24-foot half street:
o Two 12-foot travel lanes
o Asphalt Pavement structural section meeting City of Tigard—
Collector Street cross section same as River Terrace Blvd to the North.
• Curb and gutter or curb only median
• East side of the street:
0 6-foot curb tight concrete sidewalk
0 3 to 23-foot planter/swale
0 12-foot meandering multi-use path
0 3 to 23-foot planter
• Streetlights as recommended from the approved photometric analysis
CUP2019-00001, SLR2019-00003,andADJ2019-00008-00009 Hearings Officer Final Order
/Art Ruskin Elementary School) Page 18
• Curb radii meeting City of Tigard Standards
• Intersection ADA ramps meeting the requirements of PROWAG
• Storm drainage improvement meeting River Terrace Stormwater Management
Standards, and CWS Design and Construction Standards
• Underground utilities
• Street signs,names and traffic control devices, striping meeting the MUTCD,
and City of Tigard Standards
• Street profile and center line radius meeting City of Tigard Standards.
• A standard crown section that will allow for the crest to be located on the
future centerline. This requirement will allow for future median design and
construction while minimizing modification of the existing storm drain
system.
16. Prior to commencing site improvements, submit a final storm drainage report and site
plans as part of the PFI Permit indicating how run-off generated by the development
will be collected, conveyed, treated and detained to Engineering Division for review
and approval. Water quantity design and calculations must be prepared in accordance
with TRUST hydraulic model. The storm drainage report must be prepared and
include a maintenance plan in accordance with City of Tigard Standards and CWS
Design and Construction Standards
17. Prior to commencing of site improvements, submit site plans as part of the PFI Permit
showing the proposed sanitary sewer system and associated facilities to be designed
and constructed in accordance with the City of Tigard and CWS Design and
Construction Standards. Plans must include the construction of a 12"diameter sewer
line from the northwest corner of the site to the east side of the site in a manner that
keeps the uphill terminus of the sewer at the lowest elevation possible to maximize
the amount of development that can be served to the east of the site.
18. Prior to commencing site improvements,the Applicant must submit evidence from
CWS indicating that there is sufficient pump station capacity and associated force
main and gravity main capacity to serve the proposed development
19. Prior to commencing site improvements,the Applicant must demonstrate through
calculations,plans, exhibits and any other necessary documents or agreements that
sufficient water capacity is available to serve the site.Applicant must coordinate with
the developer of South River Terrace for the provision of a larger 550-zone waterline
to the school site if it is determined that an eight-inch diameter water line does not
have adequate capacity.
20. Prior to commencing site improvements,the Applicant must submit site plans as part
of the PFI Permit showing all proposed and/or extensions of public water lines,
hydrants and water services to be designed in accordance with the City of Tigard
Standards to Engineering for review and approval. Looped systems will be required
where possible. Dead end mains must be approved by the City Engineer. Plans must
CUP2019-00001.SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 19
include extension of the 550 zone public waterline, sized to match the 550 zone
waterline serving the site, to the eastern limits of the project site.
21.Prior to commencing site improvements, submit plans as part of the PFI Permit
showing the construction of an 18-inch diameter, 410 zone waterline in River Terrace
Blvd, along the entire project frontage. Coordinate the point of connection at the
northwest comer of the site with the improvements being done as part of the South
River Terrace development.
22. Prior to commencing site improvements,the Applicant will be required to provide
written approval from Tualatin Valley Fire and Rescue(TVF&R)for fire flow,
hydrant placement, emergency vehicular access,tum around, and private drive widths
with and without parking.
23. Prior to commencing site improvements, an erosion control plan must be provided as
part of the PFI Permit drawings.The plan must conform to the "CWS Erosion
Prevention and Sediment Control Design and Planning Manual'(current edition) and
submitted to City of Tigard with the PFI plans.
24. Prior to commencing site improvements,the Applicant must obtain a 1200-C General
Permit issued through CWS pursuant to ORS 468.740 and the Federal Clean Water
Act.
25. Prior to commencing site improvements, the Applicant must obtain any applicable
U.S.Army Corps of Engineers/Department of State Lands(DSL)permits and submit
to the city the applicable DSL and U.S.Army Corps permits.
26. Prior to commencing site improvements, a final grading plan must be submitted
showing the existing and proposed contours. The plan must detail the provisions for
surface drainage of the site, and show that it will be graded to ensure that surface
drainage is directed to the street or a public storm drainage system approved by the
Engineering Division. The design engineer must indicate, on the grading plan,which
portions of the site have natural slopes between 10 percent and 20 percent, as well as
any areas that have natural slopes in excess of 20 percent. This information will be
necessary in determining if special grading inspections and/or permits will be
necessary when the site is developed.
27. Prior to commencing site improvements, the Applicant must submit a comprehensive
geotechnical report that evaluates existing conditions and provides recommendations
for the proposed development to Engineering for review and approval. The
recommendations in the report must be incorporated into the final grading plan.
28. Prior to commencing site improvements,the Applicant must submit site plans
showing location of the street monuments to Engineering for review and approval.
Monument boxes conforming to City standards will be required around all centerline
intersection points,cul-de-sac center points, and points of curvature,with the tops of all
monument boxes set to finished pavement grade.
29. Prior to issuance of any development permit the applicant must have recorded the
CUP2019-00001,MR2019-00003, and ADJ2019-00008-00009 Hearings O{Jicer Final Order
(Art Rutkin Elementary School) Page 20
partition plat, case number MLP2018-00004.
30. Prior to issuance of the PFI Permit, submit an Autocad file of the construction plan to
the City for GIS purposes.
31. Prior to issuance of the PFI Permit, the applicant must pay the City a fee in lieu of
providing community amenities as required by the Public Improvement Design
Standards for River Terrace Stormwater Management, should the Applicant decide to
not provide the amenities. The fee in lieu must be in an amount as determined by the
City Engineer.
32. Prior to issuance of the PFI Permit, the Applicant must obtain a CWS Stonnwater
Connection Authorization. Plans must be submitted to the City of Tigard for review.
The city will forward plans to CWS after preliminary review.
33. Prior to issuance of the PFI Permit,the applicant must include improvement details
for the River Terrace Community Trail along the entire River Terrace Boulevard right
of way, and along the southern border of the school site and regional stormwater
facility on the final plans. The trail outside of the right of way must include a 12 foot
wide paved width within a 14 foot wide easement,and must be constructed to meet
Trail ADA guidelines as defined by the United States Access Board.
34. Applicant must show proof of possession prior to issuance of the PFI Permit,the
portion of right of way needed for the construction of River Terrace Boulevard that is
on the property commonly known as Tax Lot 2S 1 OSCB00300 must be dedicated to
the City.
THE FOLLOWING CONDITIONS MUST BE SATISFIED PRIOR TO
RELEASE OF THE PERFORMANCE BOND AND START OF THE
MAINTENACE PERIOD:
35. All improvements associated with public infrastructures including but not limited to
street improvement under the City of Tigard jurisdiction must be completed.The
Applicant must obtain conditional acceptance from the City, and provide a one-year
maintenance assurance for said improvements.
36. All public utility facilities including,but not limited to storm drainage,water quality
and quantity, sanitary sewer,water, street lighting, gas,electrical,communication, and
wireless must be completed. Public storm water quality and quantity facilities must be
provided with three years of maintenance.
37. Provide Autocad files of the as-built drawings to the City for GIS purposes.
THE FOLLOWING CONDPHIONS MUST
BE SATISFIED PRIOR TO ISSUANCE
OFBUILDINGPERMITS.
38. Prior to issuance of building permit the details of bicycle parking racks are to be
submitted and approved by Planning.
CUP2019-00001,SLR2019-00003,andADJ2019-00008-00009 Hearings Ojficer Final Order
(Art Rutkin Elementary School) page 21
39. Prior to issuance of building permits a service provider letter from Pride is required to
meet the Franchise hauler requirements.
40. The applicant's traffic engineer must submit an addendum to its traffic memo dated,
April 11,2019. The addendum shall provide a signal warrant analysis to determine
whether thresholds are met for the installation of a traffic signal at SW Potomac
Road. and Roy Rogers Road. If warrants are not met,the applicant shall provide an
analysis to determine at what point warrants are met.The addendum shall outline the
applicant!s proportional share cost for the traffic signal via a mutually agreed upon
methodology. The addendum shall include a construction cost estimate for the traffic
signal that can be used to base proportional estimates.
41. Submit a check to Washington County for approved proportionate share of signal
construction.
42. The City must have issued a PFI Permit that will construct River Terrace Boulevard
and SW Potomac(Perth)Road, and the sanitary sewer and water services to serve the
school site, all of which are associated with the Phase 2 South River Terrace
development.
43. Have provided a source of water for fire suppression to the satisfaction of TVF&R.
44. Have provided 20-foot wide,all weather access road and turnaround to the Site to the
satisfaction of TVF&R.
45. Have filed a final construction supervision report with the Engineering Department to
the satisfaction of the City Engineer.
THE FOLLOWING CONDITIONS MUST
BE SATISFIED PRIOR TO ISSUANCE
OF BUILDING OCCUPANCY.•
46. Prior to final occupancy the portion of River Terrace Boulevard that is on the property
commonly known as Tax Lot 2S 108CB00300 must be dedicated to the City.
47. Prior to a final occupancy the applicant must call for a final planning inspection to
ensure the project was completed according to the approved plan.
48. Prior to final occupancy, the project arborist must perform a final site inspection to
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. The report will be used to mark the beginning of the tree
establishment bond period.
CUP2019-00001,SLR2019-00003, and AD72019-00008-00009 Hearings Officer Final Order
(Art Rutkin Elementary School) Page 22
49. The Applicant must substantially complete all work included in the PFI for the project
as determined by the City Engineer.
50. Construction of road improvements from the Site to either Roy Rogers Boulevard or
Bull Mountain Road to include roundabout, approved and permitted structures, curb
and gutter, sidewalk, street lighting, and a minimum of one lift of pavement must be
substantially complete as determined by the City Engineer. This condition may be
satisfied by a third party.
51. Construction of the water line and sanitary sewer line from the Site to their respective
points of connection must be substantially complete as determined by the City
Engineer. This condition may be satisfied by a third party.
52. Dedication of public right of way from the Site to either Roy Rogers Boulevard or
Bull Mountain Road This condition may be satisfied by a third party.
53. Completion of street intersection improvements at the intersection of Perth Rd and
Roy Rogers Road to the satisfaction of Washington County, if Roy Rogers is going to
be the access point for the school. This condition may be satisfied by a third party.
54. The Applicant must submit to the Engineering Division the Final Intersection Sight
Distance Certifications for all the intersections and driveways internal to and adjacent
to the development for review and approval.
55. Public right of way for River Terrace Boulevard(70 foot wide)must be dedicated to
the city.
56.Utility easements for all public storm drain, sanitary sewer, and water that are not in
the public right of way must be dedicated to the city to the satisfaction of the City
Engineer,
57. A storm drain and surface water drainage easement over the regional stormwater
facility must be dedicated to the city to the satisfaction of the City Engineer. This
includes an easement over the maintenance access road and turnaround if required.
58. A 12-foot-wide pedestrian and bicycle access easement over the portion of the
community trail that is not within the River Terrace Boulevard right of way must be
dedicated to the city.
THE FOLLOWING CONDITION SHALL
APPLY TO FUTURE OPERATION OF
THE SCHOOL:
CUP2019-00001, SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Rutkfn Elementary School) Page 23
59. The district shall regularly monitor the availability of bike parking at the school and,
in the event that bike parking demand approaches capacity for the 52 bike parking
spaces initially proposed for the site the applicant shall provide additional bike
parking spaces as indicated on Attachment 2 of Ms. Hossaini's January 21,2020
letter, up to the maximum 156 bicycle parking spaces required by TDC Table
18.410.3.
DATED this�-day of February 2020.
Joe Turner, Esq.,AICP
City of Tigard Land Use Hearings Officer
CUP2019-00001,SLR2019-00003, and ADJ2019-00008-00009 Hearings Officer Final Order
(Art Ruskin Elementary School) Page 24
Exhibit B
Supplemental Findings
Record Issues
In the May 5, 2020,Ball Janik memorandum,the Dressels request that the City:
"[r]equire that all utility facilities be designed consistent with the adopted River
Terrace Public Facilities Master Plans, including the Sanitary Sewer Master Plan.
No plans inconsistent with such plans should be permitted by the City Engineer."
The request as it pertains to River Terrace Public Facilities Master Plans generally is a
new issue that is not appropriate for rebuttal. The District's submittal during the first open
record period, i.e.,the April 24, 2020, KPFF memorandum, did not address any public
infrastructure other than sanitary sewer. Therefore, Council construes the issue raised in the May
5, 2020, Ball Janik memorandum to be solely about the proposed sanitary sewer and its
consistency with the Sanitary Sewer Master Plan.
Dressel Appeal Issue 1—Application's Compliance with TDC 18.640.030.E.1 and TDC
18.640.040.B.2.
The Dressels state that the proposed elementary school development is inconsistent with
TDC 18.640.030.E.I and TDC 18.640.040.B.2. Council disagrees that the District's proposed
development is inconsistent with those two Code provisions for the reasons stated in the
Hearings Officer's Final Order and for the reasons below.
Council finds that the Code requires the public infrastructure and easements for the
elementary school that City staff and the hearings officer approved. TDC 18.640.030.E.2
requires the District to extend infrastructure to the edges of Lot 1, as follows:
"Infrastructure improvements for water, sewer,and stormwater must be placed in
easements that are located,wherever possible, within existing or future rights-of-
way.Easements and rights-of way must extend through and to the edge of the
development site at such locations that would maximize the function and
availability of the easement and right-of-way to serve adjacent and surrounding
properties. Easements and rights-of-way are evaluated for conformance with this
standard during the land use review process. Dedications of easements and rights-
of-way will be required as a condition of land use approval." (Emphasis added.)
This extension of infrastructure is what the District has proposed, and what has been
approved. The Dressels argue that the proposed extension does not go far enough, thereby
violating TDC 18.640.030.E.I and TDC 18.640.040.B.2. Council finds that the extent of the
District's utility extension does not violate either provision. In pertinent part, TDC
18.640.030.E.1 states:
"Infrastructure improvements for water, sewer, stormwater, and transportation
systems, including but not limited to pump stations and trunk lines,must be
located and designed to serve the proposed development and not unduly or
unnecessarily restrict the ability of any other property to develop in compliance
with the applicable River Terrace infrastructure master plan."
As the hearings officer held, the proposed infrastructure improvements will not unduly or
unnecessarily restrict the ability of any other properties, including the Dressels, from developing
in accordance with the applicable infrastructure master plan. (Hearings Officer's Decision at
pages 9-10.) The hearings officer pointed to KPFF's January 15, 2020, memorandum and noted
that the east portion of the Dressel property can be served by extending a sanitary sewer line
across its own property, from east to west, and can also be served by the extension of sanitary
sewer across the District's Lot 2 when that lot develops. Council agrees, and finds that these
findings are further supported by KPFF's April 28, 2020, and May 1, 2020, memorandums. The
fact that the east portion of the Dressel property can be served by the future extension of the
proposed sanitary line across Lot 2, is also supported by the May 5, 2020, memorandum from
Joe Wisniewski, Assistant City Engineer.
TDC 18.640.040.13.2 provides in pertinent part:
"The development may not impede the future use or development of adjacent
property in River Terrace not under the control or ownership of the applicant
proposing the conditional use,planned development, residential, or commercial
development."
The hearings officer disagreed with the Dressels that the District's proposed provision of
public infrastructure violates this approval criterion, because it is feasible to extend sewer to the
Dressels'property, as set forth in the January 15, 2020, KPFF memorandum, and there is no
substantial evidence to the contrary. Hearings Officer's Decision,page 13. While the hearings
officer acknowledged that it would be cheaper and easier for the Dressels if they could connect
to sanitary sewer in Lot 2 sooner rather than later,the hearings officer also acknowledged that
the District is not required to develop Lot 2 just to accommodate the Dressels. Id. Council
agrees with these findings. Council further finds that there is substantial evidence in the record
that the east half of the Dressel property can be served by the future extension of sanitary sewer
across the District's Lot 2 when that lot develops. Therefore,the development of the elementary
school, as proposed, does not violate TDC 18.640.040.B.2. The April and May 2020,KPFF
memorandums, as well as the May 5, 2020, Assistant City Engineer memorandum,provide
additional evidentiary support for these findings.
Council also finds that the City may not require the District to build additional
infrastructure that is not needed to support the elementary school in order to accommodate the
Dressels'property because it would be unconstitutional to do so. The City cannot require an
applicant to build infrastructure that is not related nor roughly proportional to its development.
Nollan v. California Coastal Commission, 483 US 825, 107 S Ct 3141, 97 L Ed 2d 677 (1987);
Dolan v. City of Tigard, 512 US 374, 114 S Ct 2309, 129 L Ed 2d 304(1994).
4814-3210-8987.1
Dressel Appeal Issue 2—Dressel Property's Options for Sanitary Sewer.
Council finds that the record demonstrates that the Dressels have at least two options for
sanitary sewer to serve the east portion of their property. The first is to construct a sewer line
from the southeast corner of their property to the southwest corner of their property. This option
does not rely on the District to provide additional casements or infrastructure. The Dressels
contend that the line is not feasible, but Council finds the District's engineer's January 15, 2020,
April 24, 2020, and May 1, 2020, memorandums to be persuasive evidence that it is feasible.
The Dressels did not submit expert testimony from an engineer to rebut the District's engineer,
and, even if they had, Council finds the District's engineer's testimony persuasive.
Council finds that a second option the Dressels have for sanitary sewer is to wait until the
District develops Lot 2,which will extend the sanitary sewer line across Lot 2 and then up to the
Dressels'property through the extension of S.W. 16152 Avenue. There is expert testimony in the
record from the District's engineer and the Assistant City Engineer that this option is feasible and
will serve the Dressels' property in the future. Council relies on that expert testimony. Even the
Dressels'planner does not dispute that this second option is feasible. The issue is timing, not
feasibility, and Council finds that nothing in the Code requires a property owner to develop its
property within a certain time period to satisfy the development desires of neighboring property
owners.
Dressel Appeal Issue 3—Feasibility of Dressel Preferred Option for Sanitary Sewer Provision.
Council finds that the Dressels' preferred sanitary sewer option, i.e.,requiring a sanitary
line that runs along the southern boundary of the District's Lots 1 and 2, is not feasible, as set
forth in the April 24, 2020 and May 1, 2020, KPFF memorandums, as well as the May 5, 2020,
memorandum from the Assistant City Engineer.
Dressel Appeal Issue 4—Requested Additional Conditions of Approval.
Council declines to add any of the proposed conditions of approval the Dressels propose
in the Ball Janik April 21, 2020, April 28, 2020, or May 5, 2020, memorandums. The sanitary
sewer proposed by the District meets all applicable approval criteria and there is no reason to
require anything different.
Council also finds that, as stated by the Assistant City Engineer in his May 5, 2020,
memorandum, that the River Terrace Boulevard Sanitary Sewer Master Plan provides a
conceptual design for sanitary sewer in River Terrace, and show the intent for serving the region
with sanitary sewer. Council also agrees the Assistant City Engineer that the master plan does
not dictate the exact means, methods or details of sanitary sewer design. Council also agrees
with the Assistant City Engineer that there have been changes that have occurred since the
adoption of that master plan that make adjustments to sanitary sewer provision necessary.
Therefore, the City is not required to force the District to construct its sanitary sewer line along
the south edge of its property.
4814-3210-8987.1
Dressel Appeal Issue 5— Whether Sanitary Sewer Proposed by the District Stubs at the East
Property Line of Lot 1.
Council finds that, as set forth in the District's May 7, 2020, final argument, the sanitary
sewer line and corresponding public utility easement proposed by the District stubs at the cast
property line of Lot 1, as required by the Code.
4814-3210-8987.1