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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